Waters v. Commissioner of Social Security

Opinion

ANTHONY M. W.,1 Case No. 21-cv-08018-RMI

Plaintiff, ORDER RE: CROSS-MOTIONS FOR v. SUMMARY JUDGMENT

COMMISSIONER OF SOCIAL Re: Dkt. Nos. 15, 19 SECURITY, Defendant. Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying his application for disability benefits under Title II of the Social Security Act. See Admin. Rec. at 12- 24.2 In June of 2019, Plaintiff filed an application for Title II benefits alleging an onset date of May 19, 2017—later amended to June 30, 2019. Id. at 35, 172-73. On February 9, 2021, an ALJ entered an unfavorable decision, finding Plaintiff not disabled. Id. at 12-24. In August of 2021, the Appeals Council denied Plaintiff’s request for review. Id. at 1-3.3 A few months later, in October of 2021, Plaintiff sought review in this court (see Compl. (dkt. 3) at 1-4) and the instant case was initiated. Both parties have consented to the jurisdiction of a magistrate judge (dkts. 8 & 9), and both parties have moved for summary judgment (dkts. 15 & 19). For the reasons stated below,

1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Plaintiff’s name is partially redacted. 2 The Administrative Record (“AR”), which is independently paginated, has been filed in twenty-four attachments to Docket Entry #12. See (dkts. 12-1 through 12-24). Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set aside a denial of benefits if it is based on legal error. Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase “substantial evidence” appears throughout administrative law and directs courts in their review of factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NRLB, 305 U.S. 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner’s findings are supported by substantial evidence,” a district court must review the administrative record as a whole, considering “both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where evidence is susceptible to more than one rational interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Plaintiff raises a single claim assigning error to the ALJ’s evaluation of the medical opinion of Gerald F. Jackson, D.C. See Pl.’s Mot. (dkt. 15) at 11-15. As such, the following is a recitation of the evidence that is relevant to that claim. Plaintiff received chiropractic care from Dr. Jackson from January 2005 until December 2020, when his insurance coverage expired. See AR at 422-805, 1675-78. Throughout this period, Dr. Jackson’s reports contain detailed observations of—and treatment for—several medical conditions, including those that the ALJ purported to assess in the present case. See id. (discussing spinal, elbow, and shoulder conditions, as well as treatment thereof). On April 1, 2020, Dr. Jackson completed a physical assessment of Plaintiff, detailing his opinion as to how Plaintiff’s impairments affect his functional capacity. Id. at 977-78. Dr. Jackson found that Plaintiff’s to perform simple work-related tasks and that Plaintiff would need to recline or lie down in excess of the typical breaks during an eight-hour workday. Id. at 977. Dr. Jackson further found that Plaintiff would require unscheduled breaks of roughly fifteen to thirty minutes every one to two hours, could walk only ten blocks before being in significant pain or requiring rest, could sit for one hour and stand for one hour in a typical workday, and could occasionally lift ten pounds, but never greater than twenty pounds. Id. As a result of these findings, Dr. Jackson concluded that Plaintiff’s impairments would cause him to be absent from work more than four times a month. Id. at 978. Following this opinion, Plaintiff continued to receive treatment from Dr. Jackson, reiterating his complaints of shoulder and elbow pain. See, e.g., id. at 1678 (“[H]e continues to have bilateral shoulder, dislocating left bicipital tendon . . . pain . . . My palpation of the left bicipital tendon with the patient internally and externally rotating his left upper extremity reveals the tendon . . . of the bicep dislocating in and out of its bicipital groove.”). THE FIVE-STEP SEQUENTIAL ANALYSIS FOR DETERMING DISABILITY A person filing a claim for social security disability benefits (“the claimant”) must show that he has the “inability to do any substantial gainful activity by reason of any medically determinable impairment” which has lasted or is expected to last for twelve or more months. See 20 C.F.R §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the claimant’s case record to determine disability (see id. at § 416.920(a)(3)) and must use a five-step sequential evaluation process to determine whether the claimant is disabled. Id. at § 416.920; see also id. at § 404.1520. While the claimant bears the burden of proof at steps one through four (see Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)), “the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Here, the ALJ appropriately set forth the applicable law regarding the required five-step sequential evaluation process. AR at 16-17. At step one, the ALJ must determine if the claimant is presently engaged in “substantial gainful activity” (20 C.F.R § 404.1520(a)(4)(i)), which is defined as work done for pay or profit and involving significant mental or physical activities. See Ford, 950 F.3d at 1148. Here, the ALJ AR at 17. At step two, the ALJ decides whether the claimant’s impairment or combination of impairments is “severe” (see 20 C.F.R. § 404.1520(a)(4)(ii)), “meaning that it significantly limits the claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant will not be found disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: bilateral epicondylitis and lumbar disc protrusion. AR at 18. The ALJ found the following conditions to be non-severe: hypertension, prediabetes, and hyperlipidemia. Id. At step three, the ALJ is tasked with evaluating whether the claimant has an impairment or combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings describe impairments that are considered sufficiently severe so as to prevent any individual so afflicted from performing any gainful activity. Id. at § 404.1525(a). Each impairment is described in terms of “the objective medical and other findings needed to satisfy the criteria in that listing.” Id. at § 404.1525(c)(3). In order for a claimant to show that his or her impairment matches a listing, it must meet all of the specified medical criteria—an impairment that manifests only some of those criteria, no matter how severely, does not “meet” that listing. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). If an impairment either meets the listed criteria, or if one or more impairments are determined to be medically equivalent to the severity of that set of criteria, that person is conclusively presumed to be disabled without a consideration of age, education, or work experience. See 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or equals the criteria or the severity of any of the listings. AR at 18-19. If a claimant does not meet or equal a listing, the ALJ must formulate the claimant’s residual functional capacity (“RFC”), which is defined as the most that a person can still do despite the limitations associated with their impairment. See 20 C.F.R. § 404.1545(a)(1). Here, the subject to certain exertional and postural exceptions. AR at 19. Following the formulation of the RFC, the ALJ must determine—at step four—whether the claimant is able to perform her past relevant work, which is defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” See 20 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can perform her past relevant work, the claimant will not be found disabled. Id. at § 404.1520(f). Otherwise, at step five, the burden shifts to the agency to prove that the claimant can perform a significant number of jobs that are available in the national economy. See Ford, 950 F.3d at 1149. To meet this burden, the ALJ may rely on the Medical-Vocational Guidelines (commonly referred to as “the grids”) (see 20 C.F.R Pt. 404 Subpt. P, App. 2); or, alternatively, the ALJ may rely on the testimony of a vocational expert (“VE”). Ford, 950 F.3d at 1149 (citation omitted). A VE may offer expert opinion testimony in response to hypothetical questions about whether a person with the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy, or the demands of other jobs that may be available in the national economy. See 20 C.F.R. § 404.1560(b)(1). An ALJ may also use other resources for this purpose, such as the Dictionary of Occupational Titles (“DOT”). Id. At step four, the ALJ determined—based on the VE’s testimony—that Plaintiff could not perform his past relevant work as a stock clerk and heavy truck driver. AR at 22. At step five, again based on VE testimony, the ALJ determined that Plaintiff would have been able to perform the requirements of an office helper, cashier, or inspector. Id. at 23-24. Accordingly, the ALJ determined that Plaintiff had not been disabled at any time during the relevant period. Id. at 24. The ALJ in this case erred by failing to comply with the requirements of 20 C.F.R. § 404.1520c in evaluating the medical opinion of Dr. Jackson. The ALJ’s finding that Dr. Jackson’s opinion was “not persuasive” is, therefore, unsupported by substantial evidence. Under recently promulgated regulations that apply to Plaintiff’s application,4 ALJs are required to evaluate the “persuasiveness” of all medical opinions according to several factors. See 20 C.F.R. § 404.1520c(a). The first two factors—supportability and consistency—are considered the most important, and the ALJ is required to explicitly address them in his or her decision. See id. at § 404.1520c(b)(2); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The agency must . . . explain how [it] considered the supportability and consistency factors in reaching these findings.”). The ALJ “may, but [is] not required to,” explain how he or she considered the remaining factors listed in the regulations. 20 C.F.R. § 404.1520c(b)(2).5 These new regulations have supplanted the evaluation scheme that existed under 20 C.F.R. § 404.1527, which included a hierarchy among medical sources, deference to certain medical opinions, and the assignment of weight to all medical opinions. Ninth Circuit caselaw, since overturned, interpreted these former regulations to require “that ALJs provide ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s opinion . . . .” Woods, 32 F.4th at 792. Even under the new regulations, however, an ALJ still “cannot reject an . . . opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Id. (emphasis added); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). The ALJ in the present case found Dr. Jackson’s opinion “not persuasive” for three principal reasons. AR at 22. First, the ALJ found that although “Dr. Jackson has a treating relationship with the claimant, he is not an acceptable medical source.” Id. Next, the ALJ relied on the fact that Dr. Jackson “indicated that the claimant was recovering from a recent surgery at the time of his opinion.” Id. Finally, the ALJ referenced her findings with respect to the opinions of Dr. Amon and Dr. Williams, which she found persuasive, as supporting her unpersuasive finding

4 The new regulations apply to “claims filed on or after March 27, 2017.” 20 C.F.R. § 404.1520c. Because Plaintiff’s application was filed in 2019, the new regulations are controlling. AR at 172-73.

5 The remaining, typically discretionary factors include the medical source’s relationship with the claimant (comprised of the length, frequency, purpose, and extent of the relationship), relevant specialization(s) of the medical as to the opinion of Dr. Jackson. Id. As to the first of these justifications, the Commissioner concedes that “[t]o the extent that the ALJ found that one of the reasons Dr. Jackson’s opinion was not persuasive was that he was not an acceptable medical source, this was an improper basis.” Def.’s Mot. (dkt. 19) at 10. The Commissioner is correct, as the new regulations apply to “all . . . medical opinions”6—not just those offered by an acceptable medical source (“AMS”). See 20 C.F.R. § 404.1520c; see also Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (January 18, 2017) (“[W]e will consider and articulate our consideration of all medical opinions, regardless of AMS status, consistent with the standard . . . in . . . 404.1520c.”). As such, Dr. Jackson’s opinion was entitled to assessment under the framework set forth in 20 C.F.R. § 404.1520c, irrespective of the fact that he does not qualify as an AMS. See 20 C.F.R § 404.1502(a) (listing the sources that qualify as an AMS, which does not include chiropractors). It was error for the ALJ to rely on the fact that Dr. Jackson was not an AMS as a basis for finding his opinion unpersuasive.7 The Commissioner contends, however, that “the error by the ALJ was harmless because the ALJ also gave other good reasons consistent with the new regulations for finding Dr. Jackson’s opinion not persuasive . . . .” Def.’s Mot. (dkt. 19) at 10. An error is harmless only “where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Ford, 950 F.3d at 1154 (“We may affirm the ALJ’s decision even if the ALJ made an error, so long as the error was harmless, meaning it was ‘inconsequential to the ultimate nondisability determination.’”) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). In effect, the Commissioner argues that the other two reasons provided by the ALJ—the timing of Dr. Jackson’s opinion and the reasons given with respect to Dr. Amon and Dr. Williams’ opinions—

6 A “medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in various work-related abilities. 20 U.S.C. § 404.1513(a)(2). A “medical source means an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law . . . .” Id. at § 404.1502. As a licensed chiropractor, Dr. Jackson was clearly a medical source and thus his opinion qualifies as a medical opinion. were themselves sufficient to support a finding that Dr. Jackson’s opinion was unpersuasive, thereby rendering the aforementioned error inconsequential to that determination. Because neither of these reasons comply with the requirements of 20 C.F.R. § 404.1520c, nor do they appear to be supported by substantial evidence, the court disagrees. As stated supra, the ALJ’s second justification for finding Dr. Jackson’s opinion unpersuasive was the fact that Plaintiff was recovering from surgery at the time of the opinion. AR at 22; see also Def.’s Mot. (dkt. 19) at 11 (“The ALJ properly considered the timing of Dr. Jackson’s medical opinion dated April 1, 2020 as possibly impacting the persuasiveness findings since Plaintiff had just undergone on March 12, 2020 a second surgery in his left shoulder . . . .”). The ALJ, however, is required to explicitly address the factors of supportability and consistency in their decision. See 20 C.F.R. § 404.1520c(b)(2). Simply taking note of the timing of Dr. Jackson’s opinion, without further explanation, is insufficient to discharge this duty. See Woods, 32 F.4th at 792 (“The agency must . . . explain how [it] considered the supportability and consistency factors in reaching these findings.”) (emphasis added); see also Labryssa v. Kijakazi, No. 21-CV-04233- BLF, 2022 2L 2833981, at *6-7 (N.D. Cal. July 20, 2022) (concluding that an ALJ must engage with a medical opinion in a “meaningful sense” in evaluating the consistency and supportability factors, and that a “passing assessment” which fails to “substantively engage” with the opinion is not supported by substantial evidence). At the very least, the ALJ should have delineated which (if any) of the required two factors she was attempting to address. See 20 C.F.R. § 404.1520c(b)(2); see also Woods, 32 F.4th at 794 n.4 (“ALJs should endeavor to use these two terms of art— 'consistent’ and ‘support’—with precision.”). On remand, the ALJ must address—explicitly—the factors of supportability and consistency. Even if the ALJ had specified whether she was addressing supportability or consistency, however, there is also some uncertainty as to whether this reasoning is supported by substantial evidence. See Woods, 32 F.4th at 792 (“[A]n ALJ cannot reject an . . . opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.”). While Dr. Jackson’s opinion indicated that Plaintiff was “[r]ecovering from [a] recent surgery,” it is unclear Id. at 977. In other words, it is not altogether clear what Dr. Jackson’s notation of Plaintiff’s post- surgery status was intended to signify. In accordance with the instructions set forth infra, the ALJ should reconsider this rationale and, if she determines that it is still viable, explain her reasoning and the basis for it in greater detail.8 Finally, the ALJ concluded her evaluation of Dr. Jackson’s opinion as follows: “For these reasons, as well as those given to Dr. Amon and Dr. Williams’ opinion, the undersigned finds Dr. Jackson’s opinion not persuasive.” AR at 22. Though not entirely clear, this could be construed as an attempt to address the consistency of Dr. Jackson’s opinion. See 20 C.F.R. § 404.1520c(b)(2). As discussed, however, the regulations require that the factors of supportability and consistency be addressed explicitly. See id.; see also Woods, 32 F.4th at 792. The lack of clarity in the ALJ’s statement exemplifies the very rationale behind the regulations. Put simply, the court does not understand what the ALJ intended by this statement and is left guessing at its meaning. Not only did the ALJ fail to specify whether she was indeed addressing the consistency factor, she also made no attempt to articulate how Dr. Jackson’s opinion might be inconsistent with those of Dr. Amon and Dr. Williams. As such, the ALJ’s reasoning failed to comply with the well-delineated requirements of 20 C.F.R. § 404.1520c(b)(2). The court again stresses the need for the ALJ to explicitly address (and explain) the two required factors on remand. In the event that the ALJ was simply attempting to find that Dr. Jackson’s opinion was inconsistent with those of Dr. Williams and Dr. Amon, this too would be problematic. In assessing Dr. Williams’ and Dr. Amon’s opinions, the ALJ relied on Plaintiff’s reporting that, “with treatment, his elbow pain improved eighty percent and ‘his shoulder is functional and comfortable with him’ with ‘no major complaints.’” See AR at 21-22, 1240, 1557. The ALJ also noted Plaintiff’s ability to “maintain his personal care, drive, vacuum[,] sweep, mop, and do laundry.” Id. at 21. ALJs are not permitted to “cherry-pick” from the record in support of a denial of benefits. See Garrison v. Colvin, 278 F.3d 995, 1023 n.23 (9th Cir. 2014) (quoting Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011)). The ALJ in the present case appears to have relied on isolated snippets from the record to support her persuasiveness findings as to Dr. Williams and Dr. Amon. See Garrison, 278 F.3d at 1017 (“[I]t is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years . . . .”). The ALJ’s reliance on a single report by the Plaintiff that his “shoulder is functional and comfortable” ignores over a decade of prior complaints of shoulder pain and associated limitations. AR at 21-22. Even more significantly, the ALJ ignored evidence of both pain and limitations that followed Plaintiff’s statement. See id. at 1653 (notation by Andrew K. Burt, M.D. that “[t]here was little to no relief from . . . surgery and post-operative physical therapy”); 1678 (observation by Dr. Jackson that Plaintiff “continues to have bilateral shoulder, dislocating left bicipital tendon . . . pain . . . My palpation of the left bicipital tendon with the patient internally and externally . . . reveals the tendon . . . of the bicep dislocating in and out of its bicipital groove”); 40-41 (hearing testimony of the Plaintiff that “they did surgery on my left shoulder twice, which it’s now worse than it was before”).9 The same is true of the ALJ’s reliance on the notation by Skye Heston, M.D. that Plaintiff had “no major complaints.” Id. at 22, 1557. Not only would it be error for the ALJ to rely on such an isolated instance of improved symptoms (see Garrison, 278 F.3d at 1017), but it also appears that the ALJ may have misconstrued this observation. The statement at issue appears in the report from Dr. Heston’s annual checkup of Plaintiff, under the section entitled “Chief Complaint.” Id. at 1557. A chief complaint “is a concise statement . . . of the symptoms that caused a patient to seek medical care.” Wagner, Michael, et al., Chief Complaints and ICD Codes, Handbook of Biosurveillance, https://www.ncbi.nlm.nih.gov./pmc/articles/PMC7161385/ (Sep. 2, 2007). Considering that this was an annual checkup, however, Plaintiff was not (on this occasion) seeking medical care specifically in response to any of his conditions. As such, it seems unremarkable that the “Chief Complaint” section of the annual checkup report includes a

9 Regarding the continuing limitations associated with Plaintiff’s shoulder condition, Plaintiff testified at the hearing that “to roll over on my left side in bed, I have to grab it with my other arm and pop it out so it will lay that way. To reach up out of the cover to grab, you know, something with my left hand, I have to . . . pop it out so it will reach that generalized statement such as “no major complaints.” AR at 22, 1557; see Chief Complaint, Santa Ana Unified School District, https://www.sausd.us/cms/lib/CA01000471/Centricity/Domain/4950/ 2.11%20Chief%20C omplaint%20Read.pdf (last visited, Oct. 24, 2022) (“Not all patients have a chief complaint; a patient may come to you to have a routine physical exam to assess their current health status.”). Most significantly to the present case, Dr. Heston did in fact take note of Plaintiff’s current health conditions—including “[a]dhesive capsulitis of [the] left shoulder”— under a section entitled “Active Problems.” See AR at 1557. Finally, with regard to Plaintiff’s ability to “maintain his personal care, drive, vacuum[,] sweep, mop, and do laundry” (id. at 21), the court stresses that many routine daily activities that a claimant may engage in “are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ, therefore, is required to explain in greater detail how Plaintiff’s ability to engage in these activities is consistent with his ability to work. As such, the court finds that the mere reference to the opinions of Dr. Williams and Dr. Amon as grounds for finding Dr. Jackson’s opinion unpersuasive is not supported by substantial evidence. See Woods, 32 F.4th at 792; see also 42 U.S.C. § 405(g). If, on remand, the ALJ still seeks to find Dr. Jackson’s opinion unpersuasive, she must provide greater support for such a conclusion. On remand, the ALJ is ORDERED to consider the issues raised in the Plaintiff’s briefing and this Order and to modify any ensuing ALJ opinion such as to clearly reflect the fact that these issues have been considered and addressed under the regulations and pursuant to the case authorities set forth herein. Specifically, the ALJ is required to modify her opinion so as to properly evaluate the opinion of Dr. Jackson under the requirements of 20 C.F.R. § 404.1520c(b)(2)—including specific references to the factors of supportability and consistency, as well as explanation(s) that are supported by substantial evidence. The ALJ is further ORDERED to send questionnaire(s) to Dr. Jackson, such as to clarify how Plaintiff’s post-surgery status factored into his medical opinion—if at all. Put differently, the 1 Jackson’s opinion were attributable to the Plaintiff's recent surgery, as opposed to being 2 limitations which were present before—and continued after—his opinion. Because further 3 development of the record in this regard would be useful, the court declines to credit Dr. Jackson’s 4 opinion as true. See, e.g., Garrison, 278 F.3d at 1020 (describing the required standard under the 5 credit-as-true doctrine, one element of which is that the record be fully developed). 7 Accordingly, for the reasons stated herein, Plaintiff's Motion for Summary Judgment (dkt. 8 15) is GRANTED, and Defendant’s Cross-Motion (dkt. 19) is DENIED, and the case is 9 remanded for further evaluation consistent with the findings and conclusions set forth herein. 11 Dated: March 3, 2023 a 12

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