1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL DONALD THOMPSON, No. 2:20-CV-0003 KJN 12 Plaintiff, ORDER ON PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 13 v. (ECF Nos. 12, 24) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 18 denying his application for Disability Insurance Benefits under Title II of the Social Security 19 Act.1 In his summary judgment motion, plaintiff contends the Administrative Law Judge (“ALJ”) 20 erred by failing to find the opinion of a physician persuasive, and by improperly rejecting 21 plaintiff’s subjective-symptom testimony. The Commissioner filed a cross-motion for summary 22 judgment, contending the decision is supported by substantial evidence and free from legal error. 23 The court DENIES the Commissioner’s cross-motion for summary judgment, GRANTS 24 plaintiff’s motion, and REMANDS for further consideration of the issues. 25 /// 26 27 1 This action was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 302(c)(15). Both parties consented to proceed before a United States Magistrate Judge, and the 28 case was reassigned to the undersigned for all purposes. (ECF Nos. 7, 8, 23.) 1 I. RELEVANT LAW
2 The Social Security Act provides benefits for qualifying individuals with disabilities.
3 Disability is defined, in p a rt, as an inability to “engage in any substantial gainful activity” due to
4 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) (Title II);
5 1382c(a)(3) (Title XVI). An ALJ is to follow a five-step sequence when evaluating an
6 applicant’s eligibility for benefits.2 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
7 A district court may reverse the agency’s decision only if the ALJ’s decision “contains 8 legal error or is not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 9 Cir. 2020). Substantial evidence is more than a mere scintilla, but less than a preponderance, i.e., 10 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 11 Id. The court reviews the record as a whole, including evidence that both supports and detracts 12 from the ALJ’s conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the 13 court may only review the reasons provided by the ALJ in the decision, and may not affirm on a 14 ground upon which the ALJ did not rely. Id. “[T]he ALJ must provide sufficient reasoning that 15 allows [the court] to perform [a] review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 16 The ALJ “is responsible for determining credibility, resolving conflicts in medical 17 testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to 18 more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the 19 court may not reverse the ALJ’s decision on account of harmless error. Id. 20 2 The sequential evaluation is summarized as follows: 21 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 22 Step two: Does the claimant have a “severe” impairment? If so, proceed to step 23 three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet 24 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 25 Step four: Is the claimant capable of performing past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 26 Step five: Does the claimant have the residual functional capacity to perform any 27 other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The burden of proof rests with the 28 claimant through step four, and with the Commissioner at step five. Ford, 950 F.3d at 1148. 1 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS
2 On July 14, 2017, plaintiff applied for Disability Insurance Benefits, alleging an onset
3 date of October 2, 2016. ( Administrative Transcript (“AT”) 175, electronically filed at ECF
4 No. 11.) Plaintiff alleged disability due to his diabetes, back pain/damaged discs, high blood
5 pressure, high cholesterol, and a heart condition. (See AT 86.) Plaintiff’s application was twice
6 denied, and he sought review with an ALJ. (AT 98, 116, 128.) The ALJ held a hearing on
7 October 10, 2018, at which plaintif f testified about his conditions, and a Vocational Expert 8 (“VE”) testified regarding available jobs for someone with plaintiff’s limitations. (AT 31-84.) 9 On April 23, 2019, the ALJ issued a decision determining plaintiff was not disabled from 10 his onset date forward. (AT 12-25.) At step one, the ALJ found plaintiff had not engaged in 11 substantial gainful activity since his alleged onset date of October 2, 2016. (Id.) At step two, the 12 ALJ noted plaintiff had the following severe impairments: diabetes mellitus with neuropathy; 13 degenerative disc disease and stenosis of the lumbar spine; and obesity status post bariatric 14 surgery in August 2018. (AT 15.) At step three, the ALJ determined plaintiff was not disabled 15 under the listings. (AT 18, citing 20 C.F.R. Part 404, Subpart P, Appendix 1). 16 The ALJ then determined plaintiff had the Residual Functional Capacity (“RFC”) to 17 perform light work as defined in 20 C.F.R. § 404.1567(b), with the following exceptions: 18 [He] is limited to occasional climbing of ramps and stairs; he cannot climb ropes, ladders, or scaffolds. He requires a cane for ambulation. 19 [He] is limited to frequent balancing and to occasional stooping, kneeling, crouching, and crawling. He must be protected from 20 workplace hazards, such as unprotected heights and dangerous moving mechanical parts. His field of vision is limited and has limited ability to 21 do written work, which he cannot perform for more than 1/3 of the day. 22 (Id.) In fashioning this RFC, the ALJ stated she considered plaintiff’s symptoms, the medical 23 evidence, and professional medical opinions. (Id.) Relevant here, the ALJ found the opinion of 24 neurosurgeon Dr. Senegor “not persuasive” because it was unsupported and inconsistent with the 25 medical record. (AT 23.) The ALJ also rejected the more limiting aspects of plaintiff’s 26 subjective symptom testimony as unsupported by the medical evidence, inconsistent with his 27 prior reports to various physicians, manageable with medication (when plaintiff complied with his 28 treatment regimen), and not supported by the conservative treatment prescribed. (AT 20-23.) 1 Based on this RFC and the VE’s testimony, the ALJ concluded plaintiff was capable of
2 performing past relevant “light” work as either an administrative clerk or management trainee, as
3 generally performed in th e national economy. (AT 24.) Thus, the ALJ determined plaintiff was
4 not disabled for the relevant period. (AT 25.)
5 Plaintiff appealed and was appointed counsel; thereafter the Appeals Council affirmed the
6 ALJ’s decision. (AT 168, 1-7.) Plaintiff filed this action requesting review of the
7 Commissioner’s final decision, and the parties filed cross-motions for summary judgment. (ECF 8 Nos. 1, 12, 24, 25.) 9 III. DISCUSSION 10 Plaintiff requests remand for additional proceedings, arguing the ALJ failed to 11 (A) properly consider the medical opinion of Dr. Senegor in light of the medical evidence; and 12 (B) acknowledge plaintiff’s strong work history when considering his symptom testimony. 13 The Commissioner requests affirmance, arguing the ALJ (A) properly weighed the 14 medical evidence and opinions under new regulations; and (B) need not have considered 15 plaintiff’s work history when resolving his symptom testimony.
16 A. The ALJ failed to complete her analysis of the medical and opinion evidence. 17 Legal Standard 18 On January 18, 2017, the Social Security Administration published comprehensive 19 revisions to its regulations regarding the evaluation of medical evidence. See 82 Fed. Reg. 5844. 20 For applications filed on or after March 27, 2017, an ALJ need “not defer or give any specific 21 evidentiary weight, including controlling weight, to any medical opinion(s) or prior 22 administrative medical finding(s) [i.e., the state-agency medical consultants], including those 23 from your medical sources.” See 20 C.F.R. §§ 404.1520c(a); 416.920c(a). Instead, an ALJ is to 24 evaluate medical opinions and prior administrative medical findings by considering their 25 “persuasiveness.” §§ 404.1520c(a); 416.920c(a). In determining how “persuasive” a medical 26 source’s opinions and findings are, an ALJ must consider the following factors: supportability, 27 consistency, treatment relationship, specialization, and “other factors.” §§ 404.1520c(b), (c)(1)- 28 (5); 416.920c(b), (c)(1)-(5). Despite a requirement to “consider” all factors, the ALJ’s duty to 1 articulate a rationale for each factor varies. §§ 404.1520c(a)-(b); 416.920c(a)-(b).
2 In all cases, the ALJ must at least “explain how [she] considered” the supportability and
3 consistency factors, as th e y are “the most important factors.” §§ 404.1520c(b)(2); 416.920c(b)(2).
4 For supportability, the regulations state: “[t]he more relevant the objective medical evidence and
5 supporting explanations presented by a medical source are to support his or her medical
6 opinion(s) or prior administrative medical finding(s), the more persuasive [the opinion] will be.”
7 §§ 404.1520c(c)(1); 416.920c(c)(1) . For consistency, the regulations state: “[t]he more consistent 8 a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 9 medical sources and nonmedical sources in the claim, the more persuasive [the opinion] will be.” 10 §§ 404.1520c(c)(2); 416.920c(c)(2). The ALJ is required to articulate findings on the remaining 11 factors (relationship with claimant, specialization, and “other”) only where “two or more medical 12 opinions or prior administrative medical findings about the same issue” are dissimilar, and both 13 are “equally well-supported [and] consistent with the record.” §§ 404.1520c(b)(2)&(3); 14 416.920c(b)(2)&(3). An ALJ may address multiple opinions from a single medical source in one 15 analysis.3 §§ 416.920c(b)(1); 416.920c(b)(1) (“source-level articulation”). 16 3 For applications filed prior to March 27, 2017, an ALJ was to give more weight to “those 17 physicians with the most significant clinical relationship with the plaintiff . . . .” Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). This “treating physician rule” allowed an ALJ to 18 reject a treating or examining physician’s uncontradicted medical opinion only for “clear and 19 convincing reasons,” and allowed a contradicted opinion to be rejected for “specific and legitimate reasons that are supported by substantial evidence in the record.” Id. However, this 20 hierarchy is no longer applicable under the new regulations. See 82 Fed. Reg. 5844. Beyond abrogating the treating physician rule, it is not yet clear how much the new regulations 21 affect other Ninth Circuit principles governing Social Security review, as appeals of decisions governed by the new regulations are only just beginning to reach the district courts. In the 22 absence of binding interpretation by the Ninth Circuit, the court joins other district courts in 23 concluding that longstanding general principles of judicial review—especially those rooted in the text of the Social Security Act—still apply to cases filed on or after March 27, 2017. Cf, e.g., 24 Jones v. Saul, 2021 WL 620475, *10 (E.D. Cal. Feb. 17, 2021) (finding the ALJ accurately noted the inconsistency between a physician’s opinion and the treatment notes, and legitimately found 25 this opinion unpersuasive, relying in part on Valentine v. Comm’r, 574 F.3d 685 (9th Cir. 2009) (holding that a contradiction between an opinion and treatment notes constitutes a “specific and 26 legitimate” reason for rejecting the physician’s opinion)); with Mark M. M. v. Saul, 2020 WL 27 2079288, (D. Mont. Apr. 29, 2020) (finding the ALJ failed to “link purportedly inconsistent evidence with the discounted medical opinion,” relying on Magallanes v. Bowen, 881 F.2d 747 28 (9th Cir. 1989) (requiring the ALJ to provide a detailed and thorough summary of conflicting 1 Analysis
2 Plaintiff primarily alleges error in the ALJ’s analysis of neurosurgeon Dr. Senegor’s
3 opinion, arguing the ALJ selectively cited to the record and ignored corroborating medical
4 evidence. The court, despite substantial agreement with the Commissioner on numerous
5 individual issues (discussed below), concurs with plaintiff, and finds the ALJ impermissibly
6 cherry-picked the record when analyzing the consistency and supportability of Dr. Senegor’s
7 opinion. 8 To review, the ALJ found the prior administrative medical findings of Drs. Hyunh and 9 Douglas “persuasive” as to plaintiff’s physical limitations, adopting them into the RFC almost 10 verbatim. (AT 23; see also AT 18 (RFC allowing for light-work and noting plaintiff’s ability to 11 lift and carry 20 lbs. occasionally/10 lbs. frequently; sitting, standing, and walking for 6 hours; 12 frequently balancing; and occasionally postulating).) The ALJ supported her analysis by citing to 13 certain medical records existing across the longitudinal record concerning plaintiff’s strength, 14 sensation in his lower extremities, lumbar and hip range of motion, gait, and levels of pain. (See 15 AT 20-21, 23.) Thus, the opinions of Drs. Hyunh and Douglas appear supported and consistent 16 with the record. 20 C.F.R. § 404.1520c(b)-(c). 17 Conversely, in October 2018, Dr. Senegor assessed plaintiff’s work-related limitations of 18 “[n]o lifting over 10 pounds, no excessive sitting or standing over 30 minutes at a time, [and] no 19 excessive bending, stooping or twisting.” (AT 1241; see also AT 692 (June 2017 entry from Dr. 20 Senegor with similar findings).) Dr. Senegor believed these limitations necessary based on his 21 knowledge of plaintiff’s medical history, his year-and-a-half long treatment of plaintiff, and his 22 opinion that plaintiff’s “lumbar scoliosis and stenosis at the L3-4 L4-5 levels” would require 23 lumbar fusion surgery sometime in early 2019 (around when the ALJ issued her decision). (AT 24 1241.) Dr. Senegor noted his belief that an April 2017 CT scan “showed a scoliotic orientation of 25 the L3-4 disc space with a collapsed [sic] on the right side and traction spurs on the right,” as well 26 as “stenosis at L3-4 and L4-5.” (Id., citing AT 300.) Dr. Senegor also opined that physical 27
28 evidence, and an interpretation and findings thereon)). 1 therapy had proven ineffective, and that epidural injections had not fully resolved plaintiff’s
2 lower back and right hip pain. (Id.) Dr. Senegor concluded by opining that plaintiff was
3 “permanently disabled fr o m engaging in gainful employment.” (Id.)
4 The ALJ found Dr. Senegor’s opinion “not persuasive,” articulating as follows:
5 The opinion of Dr. Senegor is not persuasive as it is inconsistent with the record as a discussed under the relevant factors of SSR 16- 6 3p. For example, he mentioned that a CT scan from April 2017 allegedly showed L3-4 disc space with collapse on the right side, 7 but the CT scan did not show the alleged condition. An MRI scan did not show it either. Moreover, notes from August 2018 report 8 claimant's pain level is 3/10 with medications and 8/10 without. There were no side effects from medication and a medial branch 9 block provided 3 weeks of relief. The claimant reported temporary decrease in overall symptoms with medications and was taking only 10 about 3 tablets of Tramadol a day on average. In addition, the opinion is inconsistent with the state agency medical opinions. 11 (Exs. 2F at 6, 5F at 13, 26F at 84, 3lF). 12 His opinion is also inconsistent with the medical evidence of record as previously discussed, e.g., examination of the claimant in March 13 2017 noted his muscle strength in the upper lower extremities was 5/5. Muscle tone in the upper and lower extremities was normal. 14 There was no cogwheel, spasticity, atrophy, abnormal movements, fasciculation, or dyskinesias. Cranial Nerves showed: fair visual 15 acuity, visual fields were full to confrontation; pupils were equal reactive to light and accommodation, normal eye movement; 16 normal facial sensation, corneal reflexes present; face symmetric; normal and symmetric strength hearing fair; tuning fork symmetric 17 hearing; able to listen whispered voice and/or finger rob gag reflex and palate movements normal. Shoulders shrug strength was 18 normal and symmetric. The tongue was central with normal protrusion. Deep tendon reflexes were 1 + in the upper and lower 19 extremities. The coordination of the finger/nose and heel/knee/shin was normal. There was normal rapid alternating movements in the 20 upper and lower extremities. The claimant was diagnosed with peripheral neuropathy and intermittent low back pain. (Ex. 3F at 21 309-310). 22 (AT 23-24.) Some of this rationale suffices, while other portions do not.4 23 4 In the briefing, the Commissioner offers additional arguments as to why the ALJ did not 24 err when resolving Dr. Senegor’s opinion. However, the ALJ did not explicitly reference these additional reasons, and the court can only affirm on the reasons stated in the decision. Luther, 25 891 F.3d at 875 (stating that the court may only review the reasons provided by the ALJ in the decision, and may not affirm on a ground upon which the ALJ did not rely). However, since the 26 court is remanding for further proceedings, and wishes to provide further guidance on its 27 interpretation of the new regulations, these arguments are addressed in dicta as follows. First, the Commissioner is correct that the ALJ was not required to give deference to Dr. 28 Senegor under the “treating physician rule,” as it has been replaced by a paradigm that places all 1 First, as to Dr. Senegor’s diagnosis of collapsed disc space on the right side at L3-4, the
2 ALJ stated that neither the CT scan the doctor cited nor the April 2017 MRI “show[ed] the
3 alleged condition.” (AT 2 3, citing AT 300 (CT) and 1159 (MRI).) Plaintiff contends the ALJ
4 was impermissibly “playing doctor” when examining these records because she made
5 independent findings about what the CT and MRI scans showed. See, e.g., Neydavoud v. Astrue,
6 830 F. Supp. 2d 907, 913 (C.D. Cal. 2011) (holding that an ALJ “is not allowed to use [her] own
7 medical judgment in lieu of that of a medical expert”). However, it appears the ALJ was simply 8 relying on the impressions made by the technician who completed those procedures. This 9 reliance was not in error. See Morgan v. Comm’r, 169 F.3d 595, 603 (9th Cir. 1999) (holding 10 that ALJ was “responsible for resolving conflicts” and “internal inconsistencies” within doctor’s 11 reports). 12 Second, as to the portion of Dr. Senegor’s opinion that relied on records of pain, the ALJ 13 accurately noted plaintiff’s pain was abating in late 2018 due to the success of his medication 14 regimen and a “medial branch block” treatment. (AT 23, citing AT 1179, 1243-50, Ex. 27F.) 15 This finding, and reliance on the records cited, was not error. See, e.g., Warre v. Comm’r, 439 16 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication 17 are not disabling[.]”). 18 Third, the ALJ accurately noted how Dr. Senegor’s opinion was inconsistent with the 19
20 medical opinions “on equal footing.” (ECF No. 24 at 21.) To his credit, plaintiff does not disagree, and notes in his reply that any references to Dr. Senegor being a “treating physician” is 21 not meant to revive this old hierarchy. (ECF No. 25.) Instead, plaintiff argues Dr. Senegor’s relationship is relevant under Section 404.1520c(c)(3), which would be discussed had the ALJ 22 found Drs. Senegor, Hyunh, and Douglas “equally persuasive.” (See below.) 23 Second, as to Dr. Senegor’s statement that plaintiff is “permanently disabled” (AT 1241), the regulations make clear that conclusions regarding disability are explicitly “reserved to the 24 Commissioner,” and a physician’s conclusion on this subject need not be considered. See 20 C.F.R. § 404.1520b(c)(3)(i) (finding “[s]tatements that you are or are not disabled” to be 25 “[e]vidence that is inherently neither valuable nor persuasive”). Third, though the ALJ noted plaintiff’s “primary care physician had released [plaintiff] to 26 go back to work,” (AT 23), the ALJ did not cite to this opinion when resolving Dr. Senegor’s 27 expressed limitations. (See AT 23-24.) This makes sense, because this “release” was included in a progress note from plaintiff’s psychologist, and only concerned plaintiff’s mental state. (See 28 AT 321.) Thus, it appears inapposite to Dr. Senegor’s opinions on plaintiff’s physical limitations. 1 prior administrative findings of Drs. Hyunh and Douglas. (AT 23-24.) This is not only accurate,
2 but self-evident from the text of the doctors’ opinions.
3 If the record were as the ALJ described, her articulated rationale would support a finding
4 that Dr. Senegor’s opinion was unsupported and inconsistent with the medical evidence of record.
5 The ALJ’s first paragraph accurately details unsupported portions of Dr. Senegor’s opinion, and
6 appropriately resolves the inconsistencies between the doctor’s statements and the record and
7 other opinions. Further, the second paragraph notes mostly normal findings regarding plaintiff’s 8 physical conditions in the record, citing by way of example a March 2017 record demonstrated 9 normal findings in strength, sensation in the extremities, range of motion in the ankles and feet, 10 and gait. (AT 24, citing AT 612-13.) This statement in and of itself is not inaccurate, nor are the 11 ALJ’s prior synopses about certain medical records in plaintiff’s case file. (See AT 20-22.) 12 Simply, under this hypothetical record, the undersigned would have no issues affirming the ALJ’s 13 decision under the new regulations. See, e.g., Jones v. Berryhill, 392 F. Supp. 3d 831, 339 (M.D. 14 Tenn. 2019) (affirming ALJ’s finding that physician’s opinion was unpersuasive because it was 15 “not supportable or consistent with the record,” where there was no evidence in the entire case 16 record supporting the physician’s opinion). 17 However, the ALJ’s second paragraph attempting to resolve Dr. Senegor’s opinion is a 18 classic case of cherry-picking. As plaintiff notes, there is ample “objective medical evidence” (20 19 C.F.R. 404.1502(f)) in the record from multiple of plaintiff’s “medical sources” (20 C.F.R. 20 404.1502(d)) that supports Dr. Senegor’s more limiting opinion, conflicts with the state-agency 21 findings, and stretches across a lengthy treatment period. (See, e.g., AT 607, 734, 772, 1116, 22 1123-24, 1126, 1190, 1246 (notes in the record concerning “reduced strength” and “decreased or 23 absent sensation” in plaintiff’s lower extremities”); AT 310, 608-09, 772, 1190, 1246 (records 24 concerning “reduced lumbar and hip range of motion”); AT 606, 612, 772, 1190, 1246 (records 25 demonstrating “abnormal” gait); AT 309, 520, 608, 611, 728, 754, 771, 774, 1111-13, 1124, 26 1160, 1188, 1245, 1247, 1249 (records demonstrating complaints of severe pain); (AT 1241) 27 (record demonstrating Dr. Senegor’s intent to perform lumbar fusion surgery, despite the 28 “temporary relief in plaintiff’s pain level from medications and injections.”).) Critically, the 1 majority of the medical records cited by the ALJ were generated between September of 2016 and
2 June of 2017—prior to Dr. Senegor’s treatment of plaintiff. (See AT 20-22, often citing to AT
3 304-657 (Ex. 3F); see als o AT 1241 (noting Dr. Senegor’s treatment began in June of 2017).)
4 However, a substantial portion of the medical evidence supporting Dr. Senegor’s opinion of
5 worsening conditions was generated in the year leading up to the ALJ’s decision. (See, e.g., AT
6 1191 (June 2018 record from plaintiff’s P.A. noting plaintiff “has already been treated
7 conservatively without lasting resul ts”).) Further, the state-agency physicians who reviewed the 8 record did not have the benefit of the latter evidence, as they conducted their reviews in 2017 and 9 January 2018. Thus, the record is not wholly as the ALJ describes in her second paragraph. 10 Taking this evidence into account, the question becomes: how do these new regulations 11 square with prior precedent prohibiting cherry-picking? See Ghanim v. Colvin, 763 F.3d 1154, 12 1164 (9th Cir. 2014) (finding a lack of substantial evidence where the ALJ’s decision did not 13 account for record “as a whole,” but rather relied on “cherry-picked” evidence). Does the 14 existence of this evidence indicate Dr. Senegor’s opinion was “equally well-supported . . . and 15 consistent with the record,” so as to as to be “equally persuasive”? If so, the ALJ would be 16 required to expound on the remaining factors. See 20 C.F.R. § 404.1520c(b)(3) (requiring 17 articulation on the remaining factors of Section 404.1520c(c) where two or more medical 18 opinions/findings are “both equally well-supported” and “consistent with the record”). 19 The term “equally” is not defined in the regulations, but the terms “supportability” and 20 “consistency” are defined—in relative terms. See § 404.1520c(c)(1) (“Supportability. The more 21 relevant . . . .”); § 404.1520c(c)(2) (“Consistency. The more consistent . . . .”) (emphasis added). 22 Thankfully, though the courts do have a well-defined understanding of a similarly-relative term: 23 “substantial evidence.” Ford, 950 F.3d at 1154 (defining substantial evidence as more than a 24 scintilla but less than a preponderance, i.e. “such relevant evidence as a reasonable mind might 25 accept as adequate to support a conclusion”). Further, cases expressing a prohibition against 26 cherry-picking not only have relied on this “substantial evidence” standard, but also have rooted 27 the rationale in the Social Security Act’s requirement that the agency consider “all evidence 28 available [in the] record.” See Ghanim, 763 F.3d at 1164 (citing to cases that ultimately rely on 1 42 U.S.C. Section 423(d)(5)(B) in reasoning that “cherry-picked” evidence is not substantial
2 evidence). The undersigned finds this precept aligns well with the relative nature of these new
3 regulations. Thus, where there is “more than a mere scintilla” of objective medical evidence to
4 indicate a medical opinion is well-supported, and there is consistency between the medical
5 opinion and this longitudinal evidence, the medical opinion should be deemed “equally
6 persuasive” so as to trigger the ALJ’s duty to expound on the remaining factors. Id.; 20 C.F.R.
7 § 404.1520c(b)(3). 8 As of this order, no circuit court has weighed in on this issue. However, numerous district 9 courts across the country similarly rejected the ALJ’s decision where substantial evidence was 10 ignored. The undersigned finds the reasoning therein highly persuasive. See, e.g., White v 11 Comm’r, 2021 WL 858662, *20-21 (N.D. Ohio Mar. 8, 2021) (finding the ALJ failed to explain 12 why a physician’s limiting opinion was not persuasive in the face of evidence that supported and 13 was consistent with the opinion; relying on prior circuit precedent that “[i]f relevant evidence is 14 not mentioned, the court cannot determine if it was discounted or merely overlooked”); Kaehr v. 15 Saul, 2021 WL 321450, *2-4 (N.D. Ind. Feb. 1, 2021) (finding the ALJ “cherry-picked evidence, 16 and thus didn’t provide substantial evidence to support his conclusion,” where the decision did 17 not discuss the supportability of a physician’s limiting opinion and did not consider the totality of 18 the record in evaluating the opinion’s consistency; citing prior circuit precedent applicable to the 19 new regulations); Vellone v Saul, 2021 WL 319354, *9-10 (S.D.N.Y. Jan. 29, 2021) (finding the 20 ALJ’s RFC determination “not supported by substantial evidence” where the medical records at 21 times indicated normal gait and spine, but other times indicated abnormal gait and worsening 22 lower back pain, but where the ALJ “cherry-picked treatment notes that supported his RFC 23 determination while ignoring equally, if not more significant evidence in those same records”; 24 relying on cases prohibiting cherry-picking); Etherington v. Saul, 2021 WL 414556, *4-5 (N.D. 25 Ind. Jan. 21, 2021) (finding “a good deal in the record that cuts against [the ALJ’s supportability 26 and consistency] determination,” and noting “this evidence received no such attention”; relying 27 on prior circuit precedent prohibiting cherry-picking); Audrey P. v. Saul, 2021 WL 76751, *9-10 28 (D.R.I. Jan. 8, 2021) (remanding for further consideration where “dramatic example[s]” of 1 cherry-picking led the ALJ to ignore a source’s “overarching conclusion that Plaintiff suffered
2 from significant and unresolved ‘[f]unctional difficulty includ[ing] standing, sitting, bending over
3 and walking all 2/2 pain’ ” ); Pearce v. Saul, 2020 WL 7585915, *4-6 (D.S.C. Dec. 22, 2020)
4 (noting the plethora of medical records supporting and consistent with a physician’s limiting
5 opinion when determining the ALJ cherry-picked the evidence to discount this opinion, and
6 holding that “[a]lthough the ALJ appears to have considered the appropriate factors, [she] has
7 failed to explain how the evidence s upports her conclusion and meaningful review is frustrated”; 8 relying on recent circuit precedent under the old regulations stating that “specious inconsistencies 9 cannot reasonably support a rejection of medical opinions or other evidence”). In comparison to 10 these cases, other district courts have found it entirely appropriate for an ALJ to articulate a 11 rationale only for the supportability and consistency factors where there is less than a scintilla in 12 the record to support a medical opinion. See, e.g., Paula J.S., v. Comm’r, 2021 WL 1019939, at 13 *4 (W.D. Wash. Mar. 17, 2021) (“Plaintiff claims the ALJ cherry-picked the record[, but] does 14 not point the Court to any examples of alleged omissions.”); Jones, 392 F. Supp. 3d at 339. 15 Here, it is clear the ALJ found Dr. Senegor’s opinion not equally as persuasive as the 16 state-agency physicians’ opinions, as the decision does not expound on the remaining (c)(3)-(5) 17 factors. However, as indicated above, the ALJ erred in so finding without addressing the 18 substantial evidence that supports and is consistent with Dr. Senegor’s opinion (and detracts from 19 the persuasiveness of the state-agency opinions). Because the ALJ cherry-picked facts here, she 20 impermissibly avoided expounding on the remaining factors of Section 404.1520c(c). 42 U.S.C. 21 § 423(d)(5)(B); Ghanim, 763 F.3d at 1164. The proper remedy for this error is remand, where the 22 ALJ may either reaffirm her decision after a more thorough explanation or award benefits. Ford, 23 950 F.3d at 1154 (the ALJ is responsible for resolving conflicts and ambiguities in the record). 24 Because there is currently a dearth of case law on this issue, the undersigned takes a 25 moment to respond in detail to the Commissioner’s argument regarding the interplay between the 26 new regulations and existing Circuit precedent. The Commissioner contends that an ALJ is no 27 longer required to explain any “rejection” of a medical opinion, as these standards have now been 28 abrogated alongside the treating physician rule. See, e.g., Trevizo v. Berryhill, 871 F.3d 664, 675 1 (9th Cir. 2017) (“To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ
2 must state clear and convincing reasons that are supported by substantial evidence.”). The
3 Commissioner argues the new regulations now require an ALJ only to explain why a doctor’s
4 opinion was unsupported and inconsistent with the record. See § 404.1520c(b)-(c). The
5 Commissioner argues the ALJ met her burden here by (i) identifying Dr. Senegor’s opinion as
6 “not persuasive” and citing to records supporting this conclusion, and (ii) relying on the prior
7 administrative medical findings of Drs. Hyunh and Douglas, whose opinions formed the basis for 8 the majority of the limitations expressed in the RFC. Thus, the Commissioner contends Dr. 9 Senegor’s opinion was not equally persuasive, so there was no need to expound on the remaining 10 factors of Section 404.1520c(c). 11 As the court understands the Commissioner’s argument, when an ALJ wishes to label a 12 medical opinion unpersuasive, all she need do is cite to a few pieces of evidence that contradict 13 the opinion in order to fulfill her duty under the new regulations—despite the fact that this 14 “unpersuasive” opinion may be supported by other relevant medical evidence and consistent with 15 the longitudinal record. The Commissioner’s framework presents two obvious problems. First, it 16 would allow ALJs to avoid ever having to address the remaining factors, as an ALJ could simply 17 ignore substantial evidence in the record by picking around it. Though the regulations have 18 changed, the governing statute still requires an ALJ to base the decision on “all the evidence 19 available in the [record].” See 42 U.S.C. § 423(d)(5)(B); Ghanim, 763 F.3d at 1164. Second, if 20 an ALJ were allowed to cherry-pick the record for facts that align with an “unpersuasive” finding 21 and ignore facts that might otherwise call that finding into question, a reviewing court would be 22 required to ignore large portions of the record simply because the ALJ decided to avoid 23 discussing evidence favorable to a claimant. However, the Ninth Circuit has long held that a 24 court may not affirm by isolating a “specific quantum of supporting evidence.” Hammock v. 25 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). As a court in this district recently noted, the ALJ is 26 still required to fully articulate the rationale relied upon. See Jones v. Saul, 2021 WL 620475 *8 27 (the ALJ cannot “forego articulation of their reason or reasons altogether”); see also Lambert, 980 28 F.3d at 1277 (“[T]he ALJ must provide sufficient reasoning that allows [for] review.”) 1 The undersigned is aware of the considerable deference courts are to afford an ALJ
2 concerning the evaluation of medical evidence. See Ford, 950 F.3d at 1154; Thomas v. Barnhart,
3 278 F.3d 947, 956-57 (9t h Cir. 2002) (it is “solely the province of the ALJ to resolve” conflicts in
4 medical opinion evidence). The court is also aware of the agency’s expectation of deference to
5 the regulations. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.
6 Reg. 5844-01, *5860 (January 18, 2017) (available at 2017 WL 168819) (“[The new regulations
7 are] essential for [the agency’s] adm inistration of a massive and complex nationwide disability 8 program where the need for efficiency is self-evident.”). However, the agency appears to be 9 aware that the new regulations do not “set out a detailed rule” for when medical opinions are both 10 equally well-supported and consistent with the record, as “the content of evidence . . . varies with 11 each unique claim.” Id. at *5858. Thus, in lieu of a detailed rule, the agency relied on the fact 12 that subsection 404.1520c(b) sets a “minimum level of articulation . . . to provide sufficient 13 rationale for a reviewing adjudicator or court,” and that “[i]n light of the level of articulation we 14 expect from our adjudicators, we do not believe that these final rules will result in an increase in 15 appeals or remands from the courts.” The court concurs, so long as the substantial evidence 16 standard is met.5
17 5 In the Commissioner’s ten-page summary of the medical evidence, there are multiple descriptions of portions of the record that the ALJ did not discuss. (See ECF No. 24 at 2-11.) 18 The overall character of these citations concern various facts that an ALJ might consider when 19 entering a finding of malingering. (See, e.g., id. at 2 (“Plaintiff said he had been taking his mother’s Norco (an opioid medication) for pain (AR 520).”); id. at 3 (“adding that he had been 20 eating more brownies with THC, purportedly to help his mood (AR 361).”); id. at 4 (“Between April 28 and June 12, 2017, Plaintiff approached at least five different clinicians requesting 21 assistance with his efforts to obtain disability benefits, offering varied explanations for why he should be found disabled. All declined.”); id. at 5 (“The clinician noted Plaintiff’s frustration 22 over her refusal to complete the disability forms (AR 328).”); id. (“[O]n May 17, 2017, Plaintiff 23 expressed similar frustrations to Ms. Coble, stating that he was stressed by his lack of income and frustrated because his primary care practitioner released him to return to work, contrary to his 24 wishes (AR 321).”); id. at 6 (“On June 14, 2017, just two days after Dr. Wang refused to complete disability paperwork, Plaintiff met with a primary care physician . . . at Lodi Health, . . . 25 expressing dissatisfaction with his prior physician, purportedly because she accused him of drug- seeking behavior and did not help him (AR 754).”); id. at 9 (“Rather than return to Dr. Aquino 26 [after she recommended conservative treatment], Plaintiff opted to find a new provider.”).) 27 However, as the ALJ made no finding of malingering, the undersigned can only conclude the Commissioner referred to these portions of the record in order to call into question plaintiff’s 28 character. In the absence of a malingering finding for this court to review, these background 1 B. The ALJ’s analysis of plaintiff's subjective-symptom testimony appears sufficient. 2 Because further proceedings are required, the court does not explicitly rule on □□□□□□□□□□□ 3 | other contention (regarding the ALJ’s treatment of plaintiff's subjective-symptom testimony). 4 | However, the court would be remiss if it failed to mention that the ALJ’s analysis appears well- 5 | reasoned. See, e.g., Smith v. Colvin, 2013 WL 1156497, at *7 (E.D. Cal. Mar. 19, 2013) 6 | (rejecting claimant’s argument that ALJ was required to consider good work history and noting 7 | lack of authority “suggesting an ALJ is bound to make a certain credibility determination based 8 | ona lengthy or ‘good’ work history”). On remand, it is (of course) within the ALJ discretion as 9 | to how much additional analysis should be performed on this issue. 10 | IV. CONCLUSION 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The Commissioner’s motion for summary judgment (ECF No. 24) is DENIED; 13 2. Plaintiff's motion for summary judgment (ECF No. 12) is GRANTED; 14 3, The final decision of the Commissioner is REVERSED, and this case is 15 REMANDED for further proceedings; and 16 4. The Clerk of Court shall issue judgment in plaintiffs favor and CLOSE this case. 17 | Dated: March 24, 2021 i Aectl Aharon 19 KENDALL J. NE thom3 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 || events are quite irrelevant. The court finds the Commissioner’s extreme emphasis on these details an inappropriate and unhelpful distraction from the court’s ultimate duty simply to review 28 | the findings stated by the ALJ for legal error and substantial evidence. 15