Zepeda v. Social Security

• Court: District Court, D. Nevada
• Decided: May 19, 2022
• Docket: 2:21-cv-01303
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 MARIA ELISA ZEPEDA, Case No. 2:21-cv-01303-EJY

5 Plaintiff,

6 v. ORDER

7 COMMISSIONER OF SOCIAL SECURITY,

8 Defendant.

9 10 Pending before the Court is Plaintiff’s Motion for Reversal (ECF No. 20), which the Court 11 has considered, Defendant’s Cross-Motion to Affirm (ECF Nos. 21), Defendant’s Response to 12 Plaintiff’s Motion (ECF No. 22), and Plaintiff’s Reply (ECF No. 23). 13 I. Procedural Background 14 Plaintiff filed her application for disability insurance benefits (“DIB”) under Title II of the 15 Social Security Act (the “SSA” or “Act”) in March 2019. Administrative Record (“AR”) 216-219. 16 The Social Security Commissioner initially denied Plaintiff’s application on July 31, 2019 (AR 124), 17 and again after reconsideration on January 15, 2020. AR 135. A hearing in front of the 18 Administrative Law Judge (“ALJ”) was held on November 25, 2020, after which the ALJ found 19 Plaintiff was not disabled. AR 22-37. This decision became final and appealable after the Social 20 Security Administration (the “Administration”) Appeals Council denied Plaintiff’s request for 21 review. AR 1-3; 42 U.S.C. § 405(g). 22 II. The Standard of Review 23 A court reviewing a decision of the Commissioner of Social Security must be affirmed if the 24 decision is based on correct legal standards and the findings are supported by substantial evidence in 25 the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 26 2004). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 27 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 1 Court must weigh “both the evidence that supports and detracts from the conclusion.” Martinez v. 2 Heckler, 807 F.2d 771, 772 (9th Cir. 1986) (internal citations omitted). 3 “When the evidence before the ALJ is subject to more than one rational interpretation, we 4 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 5 1035, 1041 (9th Cir. 1995). However, a reviewing court “cannot affirm the decision of an agency on 6 a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 7 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the Court may not reverse 8 an ALJ’s decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th 9 Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful normally 10 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 11 (2009). 12 III. Establishing Disability Under the Act 13 To establish disability under the SSA, there must be substantial evidence that:

14 (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be 15 expected to last for a continuous period of not less than twelve months; and

16 (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial 17 gainful employment that exists in the national economy. 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 19 meets both requirements,” the claimant is disabled. Id. The ALJ employs a five-step sequential 20 evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen 21 v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially dispositive 22 and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step in the sequence, there is no 23 need to consider subsequent steps.” Tackett, 180 F.3d at 1098 (internal citation omitted); 20 C.F.R. 24 § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner 25 carries the burden of proof at step five. Tackett, 180 F.3d at 1098.

26 27 1 The five steps are:

2 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the SSA and is not entitled 3 to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one and the 4 evaluation proceeds to step two. 20 C.F.R. § 404.1520(b).

5 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to DIB. If the claimant’s impairment is severe, then 6 the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. 20 C.F.R. § 404.1520(c). 7 Step 3. Does the impairment “meet or equal” one of a list of specific impairments 8 described in the regulations? If so, the claimant is “disabled” and therefore entitled to DIB. If the claimant’s impairment neither meets nor equals one of the 9 impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. 20 C.F.R. § 404.1520(d). 10 Step 4. Is the claimant able to do any work that he or she has done in the past? If 11 so, then the claimant is “not disabled” and is not entitled to DIB. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be 12 resolved at step four and the evaluation proceeds to the fifth and final step. 20 C.F.R. § 404.1520(e). 13 Step 5. Is the claimant able to do any other work? If not, then the claimant is 14 “disabled” and therefore entitled to DIB. 20 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there 15 are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there 16 is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the 17 Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not 18 entitled to DIB. 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability 19 benefits. Id.

20 Id. at 1098-99 (internal alterations omitted). 21 IV. Summary of the ALJ’s Decision 22 At step one of the five step sequential process, the ALJ found Plaintiff “meets the insured 23 status requirement of the … Act through December 31, 2021.” AR 24. At step two, the ALJ found 24 that Plaintiff suffers from severe impairments including “left shoulder supraspinatus calcific 25 tendinitis; right shoulder bursal sided tearing; degenerative disc disease of the cervical spine 26 w/spondylosis and radiculopathy; migraine; degenerative disc disease of the lumbar spine with 27 spondylosis and radiculopathy; fibromyalgia; right shoulder calcific tendinitis; left shoulder 1 generalized anxiety disorder; bipolar II disorder; and PTSD (20 CFR 404.1520(c)).” AR 25. The 2 ALJ further found Plaintiff suffers from several non-severe ailments including “insomnia (3F/2); 3 obstructive sleep apnea (8F/11); anemia (3F/4); hypersomnia (3F/11); GERD (3F/22); fatigue 4 (8F/24); vitamin D deficiency (28F/5) and hiatal hernia (30F/37).” Id. The ALJ found “these 5 impairments … non-severe because the medical evidence establishes that … [Plaintiff] has only a 6 slight abnormality that has no more than a minimal effect on her ability to perform basic work 7 activities. In other words, the record does not show that these conditions more than minimally limited 8 the claimant’s ability to engage in basic work activity for at least twelve months.” Id. 9 At step three, the ALJ found that Plaintiff’s impairment or combination of impairments did 10 not meet or medically equal the severity of any “listed” impairment in 20 C.F.R. 404.1520 (d), 20 11 C.F.R. 404.1525, and 20 C.F.R. 1526. AR 26. In preparation for step four, the ALJ found that 12 Plaintiff “has the residual functional capacity (“RFC”)[1] to perform:

13 light work, as defined in 20 CFR 404.1567(b), except she must be allowed to stand up to 5 minutes after every 30 minutes of sitting, and to sit down up to 5 minutes 14 after every 30 minutes of standing, while remaining on task. She can occasionally reach overhead with both upper extremities. She can frequently operate hand 15 controls, reach in all other directions, push, pull, handle, finger, and feel with both upper extremities. She can occasionally push, or pull or operate foot controls with 16 both lower extremities. She can occasionally kneel, crouch, stoop, balance, and crawl, and can occasionally climb stairs and ramps. She can never climb ladders, 17 ropes and scaffolds, and can never be exposed to unprotected heights and moving mechanical parts. She can tolerate occasional exposure to vibration. In addition, 18 she is able to understand, carry-out, and remember simple instructions, and make simple work related decisions. She will be off task 10% of the workday. 19 20 AR 27. At step four, the ALJ determined that Plaintiff “is unable to perform any part of past relevant 21 work.” AR 35. The ALJ found Plaintiff is a younger individual (41), has at least a high school 22 diploma and, because Plaintiff was ultimately found not disabled, the transferability of skills was not 23 material to the ALJ’s determination. Id. At step five, the ALJ found that, considering Plaintiff’s age, 24 education, work experience, and RFC, there are jobs in significant numbers in the national economy 25 that Plaintiff is able to perform, and she is not disabled. AR 35-37. Therefore, the ALJ denied 26 Plaintiff’s applications for DIB. Id. at 37. 27 1 V. Summary of the Vocational Expert’s Testimony 2 The Vocational Expert (“VE”) responded to a series of hypotheticals asked by the ALJ. The 3 first hypothetical asked the VE to:

4 assume an individual of the claimant’s age, education and work experience. Can perform work at the light exertional level as defined by the regulations. The 5 individual can occasionally reach overhead with both upper extremities. The individual can frequently operate hand controls, reach in all other directions, push, 6 pull, handle, finger and feel with both upper extremities. The individual can occasionally push or pull or operate foot controls with both lower extremities. 7 The individual can occasionally kneel, crouch, stoop, balance and crawl and can 8 occasionally climb stairs and ramps. The individual can never climb ladders, ropes or scaffolds and can never be exposed to unprotected heights and moving 9 mechanical parts. The individual can tolerate occasional exposure to vibration. In addition, assume that the individual is able to understand, carry out and remember 10 simple instructions and make simple work-related decisions. Would the individual be able to perform the claimant’s past relevant work either as performed or as 11 performed in the national economy? 12 AR 64-65. The VE explained the hypothetical individual would not be able to perform Plaintiff’s 13 past relevant work because “the last part about simple instruction[s]” would prevent her from doing 14 so. AR 65. However, when asked if there were jobs in the national or regional economy the 15 hypothetical person could perform, the VE testified there are and that these include “price marker, … 16 [r]outing clerk, … [a]nd … assembler” jobs. Id.2 17 The VE was next asked to consider a second hypothetical person who is the Plaintiff’s age, 18 has the same education and work experience as Plaintiff, the same RFC as Plaintiff, “but … must be 19 allowed to stand up to five minutes after every 30 minutes of sitting, will have to sit down after five 20 minutes after every 30 minutes of standing while remaining on task. The individual will be off task 21 ten percent of the workday.” AR 65-66. The VE confirmed that the same jobs identified after 22 considering the first hypothetical would be available to such an individual. AR 66. In the third 23 hypothetical, the VE was asked to make the same assumptions made in the first two hypotheticals, 24

2 All of these jobs were classified by the VE as SVP 2, light. AR 65. This means that these positions fall in the 25 unskilled category of occupations. Light work is defined as involving “no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this 26 category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, 27 you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he 1 “but the individual must lie down 20 minutes every hour, the individual must sit or stand at-will, the 2 individual will be off task 20 percent of the workday and absent from work two or more days per 3 month. Id. The VE testified that “[t]hese factors in combination and individually are work preclusive 4 ….” AR 67. 5 When cross examined by Plaintiff’s counsel, the VE was asked what the impact would be if 6 all the same assumptions were made as stated in hypothetical one, except that reaching in all 7 directions was modified to limit reaching in all directions to “occasional.” Id. The VE responded 8 this change would eliminate all jobs he identified. AR 68. The same result would follow if handling, 9 fingering and feeling bilaterally was limited to “occasional”; that is, it would eliminate all the 10 positions the VE stated Plaintiff could perform. Id. 11 VI. The Issue Presented 12 Plaintiff presents a narrow issue on appeal. Plaintiff contends that the RFC determination 13 “was the result of the ALJ’s failure to properly evaluate the opinion of Dr. Prabhu.” ECF No. 20 at 14 9. Plaintiff argues the case should be remanded because when the ALJ determined Dr. Prabhu’s 15 opinions regarding Plaintiff were of “limited persuasiveness,” the finding was “illegitimate and not 16 supported by substantial evidence.” Id. at 10.3 17 VII. The ALJ’s findings regarding Dr. Prabhu’s opinions 18 In coming to his conclusion regarding Plaintiff’s RFC, the ALJ summarized the medical 19 evidence pertaining to Plaintiff’s mental health issues in 2018, 2019, and 2020. The ALJ found that 20 “objective medical evidence establishes that the claimant was diagnosed with major depressive 21 disorder; panic disorder; adjustment disorder; generalized anxiety disorder; bipolar disorder and 22 PTSD.” AR 31. However, as stated, the ALJ found Dr. Prabhu’s opinions to be of “limited 23 persuasiveness.” AR 34. The ALJ cited to Dr. Prabhu’s: (1) August 27, 2019 letter stating that 24 Plaintiff is “chronically and severely ill” suffering from mental health issues of bipolar disorder, and 25 generalized anxiety disorder (AR 629); (2) Mental Health Provider Report, dated October 2, 2020, 26

3 Dr. Prabhu’s findings state: “due to her multiple medical conditions, … [Plaintiff] is unable to perform her job 27 duties. She can not [sic] follow simple instructions or concentrate. She keeps on dropping things on the floor due to her 1 stating Plaintiff suffers from “severe anxiety” and has “difficulties focusing/concentrating” (AR 774); 2 and (3) October 2, 2020 letter stating Plaintiff suffers from “Bipolar Disorder,” “Generalized Anxiety 3 disorder,” and “Major Depression.” AR 779. The ALJ contrasted these findings to: (1) an Adult 4 Uniform Mental Health Assessment, completed by Jonathan Murray, a CSW intern, on January 28, 5 2020, in which boxes were checked indicating Plaintiff had no impairment in perception, intelligence 6 functioning, orientation, insight, judgment, memory or thinking (AR 639-40); (2) Dr. Prabhu’s 7 February 21, 2020 medical note, which the ALJ identifies as showing Plaintiff “was doing okay while 8 medically compliant” (AR 34); and (3) a May 12, 2020 medical note signed by physician assistant 9 Nicole Hartman (“PA Hartman”) stating Plaintiff reported she was doing “okay but … still dealt with 10 some ups and downs, [and] … the increased dose of the Wellbutrin has helped her a bit but she notes 11 the situational factors are the biggest … factor.” AR 702. This May 2020 note by PA Hartman 12 further states Plaintiff had not suffered a severe depression episode, but has extremely elevated 13 anxiety due to her son’s drug problems, has not had alprazolam filled in a long time, and has been 14 suffering more panic attacks lately. Id.

15 VIII. The New Regulatory Scheme for Evaluating Medical Opinions 16 There is no disagreement between the parties that because Plaintiff filed her application for 17 DIB after March 27, 2017, the ALJ properly applied new regulations regarding the evaluation of 18 medical evidence. These new regulations establish there is no longer a hierarchy of medical opinions 19 an ALJ applies. 20 C.F.R. 404.1520c(a). The regulations governing claims filed on or after March 20 27, 2017 no longer mandate particularized procedures the ALJ must follow in considering opinions 21 from treating sources. See 20 C.F.R. § 404.1520c(b) (the ALJ “is not required to articulate how [he] 22 considered each medical opinion or prior administrative medical finding from one medical source 23 individually.”). The new regulations require the ALJ to explain how he/she considered factors 24 including supportability and consistency—the two most important factors in determining the 25 persuasiveness of a medical opinion or finding. 20 C.F.R. 404.1520c(c)(1) and (2).4 26

4 Supportability is defined as “The more relevant the objective medical evidence and supporting explanations 27 presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the 1 Moreover, courts historically looked disfavorably on ALJ decisions that appeared not to 2 consider all evidence in the record, but instead cherry-picked evidence that seemingly supported a 3 decision already made. 42 U.S.C. § 423(d)(5)(B) (requiring an ALJ base the decision on “all the 4 evidence available in the [record].”); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (the 5 court may not affirm where the ALJ “picked out a few isolated instances of improvement” to support 6 the denial of benefits). As of the date of this Order, the Ninth Circuit has not articulated how this 7 historic law may apply to supportability or consistency findings under the new regulations. 8 Nonetheless, numerous district courts around the country have remanded where evidence supporting 9 or consistent with a rejected medical opinion was ignored. See, e.g., White v Comm’r, Case No. 1:20- 10 CV-00588-JDG, 2021 WL 858662, **20-21 (N.D. Ohio Mar. 8, 2021) (finding the ALJ failed to 11 explain why a physician’s limiting opinion was not persuasive in the face of evidence that supported 12 and was consistent with the opinion; relying on prior circuit precedent that “[i]f relevant evidence is 13 not mentioned, the court cannot determine if it was discounted or merely overlooked”); Kaehr v. Saul, 14 Case No. 3:19-CV-1171-PPS, 2021 WL 321450, **2-4 (N.D. Ind. Feb. 1, 2021) (finding the ALJ 15 “cherry-picked evidence, and thus didn’t provide substantial evidence to support his conclusion,” 16 where the decision did not discuss the supportability of a physician’s limiting opinion and did not 17 consider the totality of the record in evaluating the opinion’s consistency; citing prior circuit 18 precedent applicable to the new regulations); Vellone v Saul, Case No. 1:20-cv-00261-RA-KHP, 2021 19 WL 319354, **9-10 (S.D.N.Y. Jan. 29, 2021) (finding the ALJ’s RFC determination “not supported 20 by substantial evidence” where the ALJ “cherry-picked treatment notes that supported his RFC 21 determination [at times indicating normal gait and spine] while ignoring equally, if not more 22 significant evidence [indicated abnormal gait and worsening lower back pain] in those same records”; 23 relying on cases prohibiting cherry-picking); Etherington v. Saul, Case No. 1:19-cv-475-JVB-JPK, 24 2021 WL 414556, **4-5 (N.D. Ind. Jan. 21, 2021) (finding “a good deal in the record that cuts against 25 [the ALJ’s supportability and consistency] determination,” and noting “this evidence received no 26 such attention”; relying on prior circuit precedent prohibiting cherry-picking); Audrey P. v. Saul, Case 27 1 No. 20-92-MSM 2021 WL 76751, **9-10 (D.R.I. Jan. 8, 2021) (remanding for further consideration 2 where “dramatic example[s]” of cherry-picking led the ALJ to ignore a source’s “overarching 3 conclusion that Plaintiff suffered from significant and unresolved ‘[f]unctional difficulty includ[ing] 4 standing, sitting, bending over and walking all 2/2 pain’”); Pearce v. Saul, Case No. 0:20-1623-PJG, 5 2020 WL 7585915, **4-6 (D.S.C. Dec. 22, 2020) (noting the plethora of medical records supporting 6 and consistent with a physician’s limiting opinion when determining the ALJ cherry-picked the 7 evidence to discount this opinion, and holding that “[a]lthough the ALJ appears to have considered 8 the appropriate factors, [she] failed to explain how the evidence supports her conclusion and 9 meaningful review is frustrated”; relying on recent circuit precedent under the old regulations stating 10 that “specious inconsistencies cannot reasonably support a rejection of medical opinions or other 11 evidence”); see also, e.g., Branham v. Comm’r, Case No. 1:20-cv-00164-SLC, 2021 WL 1589378, at 12 *6 (N.D. Ind. Apr. 23, 2021); Tumlin v. Comm’r, Case No. 2:19-cv-00457-JLB-NPM, 2021 WL 13 1214880, at *10 (M.D. Fla. Mar. 31, 2021); Drake v. Comm’r, Case No. 1:19-CV-02419, 2021 WL 14 1214689, at *4 (N.D. Ohio Mar. 31, 2021). 15 IX. Discussion

16 A. Plaintiff’s Arguments in Support of Remand Based on the ALJ’s Treatment of Dr. Prabhu’s Opinions. 17 18 Plaintiff contends that by only relying on “four pages” of the record, the ALJ cherry-picked 19 evidence to suit his narrative that Plaintiff is not disabled. ECF No. 20 at 11. Plaintiff cites to 20 numerous pages in the Administrative Record she contends support Dr. Prabhu’s opinions including 21 pages from Dr. Prabhu’s records (AR 385, 389, 557, 647, 650) as well as pages from other providers 22 including PA Hartman, Cienna Nielsen, Jonathan Murray, and Dr. Alok Saxena. ECF No. 20 at 12- 23 13 citing AR 350, 353, 357, 423, 486, 488, 491, 633-34, 639, 640, 888, 889-90. Plaintiff takes issue 24 with the ALJ’s determination that Dr. Prabhu’s opinions, “by their terms, appear intended to be a 25 temporary assessment, rather than a permanent assessment of the claimant’s functioning on an 26 ongoing and longitudinal basis.” Id. (referring to AR 34). Plaintiff argues this is a 27 mischaracterization of Dr. Prabhu’s opinion warranting remand. Id. at 14. Plaintiff admits that “Dr. 1 and Plaintiff states that this opinion is the only one issued by the doctor that could be considered 2 temporary. Id. But, Plaintiff contends the ALJ should have ignored these opinions and focused on 3 Dr. Prabhu’s opinions regarding Plaintiff’s functional limitations, which is an issue not reserved for 4 the ALJ. Id. Plaintiff argues Dr. Prabhu’s opinions regarding Plaintiff’s ability to follow instructions 5 and concentrate are ones he rightfully issued, and that these opinions are supported by the doctor’s 6 treatment notes and other evidence in the record. Id. Finally, Plaintiff takes issue with the ALJ’s 7 statement that Dr. Prabhu’s opinions are “unsupported by a specific function-by-function assessment 8 of the claimant’s limitations ….” Id. at 15 referencing AR 34. According to Plaintiff, the ALJ’s 9 failure to provide an explanation for this statement was also reversible error. Id. The above errors, 10 Plaintiff argues, were not harmless because had Dr. Prabhu’s opinions been properly evaluated, 11 Plaintiff would have been found disabled. Id.

12 B. Defendant’s Argument Supporting the ALJ’s Evaluation of Dr. Prabhu’s Medical Opinions. 13 14 Defendant argues Dr. Prabhu offered two medical opinions that were memorialized in 15 February and October 2020. ECF No. 21 at 7 citing AR 627, and, collectively, AR 774 and 779. 16 Defendant summarizes the ALJ’s findings, thereafter points to Plaintiff’s failure to argue the 17 supportability and consistency factors that apply under the new regulations, and contends that despite 18 Plaintiff’s argument regarding substantial evidence and alleged cherry-picking by the ALJ, “where 19 the evidence is susceptible to more than more rational interpretation, it is the ALJ’s conclusion that 20 must be upheld.” Id. at 8-9 quoting Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2018) (internal 21 brackets and additional citations omitted). Defendant further argues that Plaintiff’s contention that 22 “the ALJ’s decision was against substantial evidence in the record” miss-frames the issue before the 23 Court because the question is “not whether substantial evidence exists against the decision, but, rather, 24 whether substantial evidence supports the decision.” Id. at 9 quoting West v. Berryhill, Case No. 18- 25 cv-00092-DKW-RT, 2019 362259, at *3 n.1 (D. Haw. January 29, 2019). 26 Defendant further argues that the cites on which Plaintiff depends to demonstrate a lack of 27 substantial evidence are to her subjective complaints and that a diagnosis of impairment does not 1 do not contain “mental status findings.” Id. at 10. Defendant points to what constitute “objective 2 medical evidence” under the applicable regulations and notes there is none in the record. Id. at 11 3 citing id. at 10 n.8 (referencing 20 C.F.R. 404.1513(a)(1), 404.1502(c), and 404.1502(g)). Defendant 4 says the ALJ acknowledged certain records support mental status findings relevant to her claims (id. 5 citing AR 488, 353, 423), but that Plaintiff ignores records demonstrating her mental status was good, 6 Plaintiff had no functional limitations, and that she had, inter alia, “no perceptual abnormalities, 7 among other things.” Id. at 11-12 citing AR 423, 426, 437, 440. Defendant argues the Adult Uniform 8 Mental Health Assessment, at AR 639-40, directly contradicts Dr. Prabhu’s opinions, and that the 9 ALJ was free to rely on the Assessment (and other evidence) rather than on Dr. Prabhu. ECF No. 21 10 at 13. 11 Arguing with Plaintiff’s contention that the ALJ erred when he characterized Dr. Prabhu’s 12 opinions as reflecting “a temporary assessment,” Defendant points to Dr. Prabhu’s February 2020 13 letter stating Plaintiff is “on temporary leave and still can’t go back to work,” as well as the October 14 2020 Benefits Assessment Form that includes the pre-printed question: “Is a return to work part of 15 the treatment plan?” AR 774 (emphasis added). In response, Dr. Prabhu checked the “No” box, but 16 also wrote “currently unable to work.” Id. (emphasis added). Based on these arguments, Defendant 17 states that “the ALJ’s interpretation of the rest of the opinion was entirely reasonable” and that 18 Plaintiff offers nothing more than an alternative interpretation of Dr. Prabhu’s opinion letters. ECF 19 No. 21 at 13-14. 20 With respect to the ALJ’s finding (at AR 34) that Dr. Prabhu’s opinion could be ascribed 21 “limited persuasiveness” because he fails to support his opinions with a “specific function-by- 22 function assessment of claimant’s limitations,” Defendant argues that Ninth Circuit precedent holds 23 “[a]n ALJ does not err by not incorporating a physician’s opinion when the physician had not assigned 24 any specific limitations on the claimant.” ECF No. 21 at 14 citing Youngblood v. Berryhhill, 734 25 Fed.Appx. 496, 498 (9th Cir. 2018) (unpublished) (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 26 1217, 1223 (9th Cir. 2010) (additional citations omitted); Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 27 2020); Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 1 C. The Court’s Analysis. 2 As a general rule, “[w]here the evidence is susceptible to more than one rational 3 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 4 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). This Court may “not 5 substitute its judgment for that of the [ALJ].” Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 6 Here, Plaintiff appeals the denial of DIB based on the ALJ’s finding that Dr. Prabhu’s 7 opinions regarding Plaintiff’s mental health was of limited persuasiveness. ECF No. 20 at 10. 8 Importantly, however, the ALJ did not conclude Plaintiff suffers from no physical or mental health 9 impairments (see AR 29-31), but instead found that these impairments, together with Plaintiff’s pain 10 and side effects of medication, do not prevent Plaintiff from “making a successful adjustment to other 11 work that exists in significant numbers in the national economy” as testified to by the VE. AR 35- 12 37. 13 In coming to his conclusion regarding Plaintiff’s mental health, the ALJ did not limit his 14 review of Plaintiff’s mental health to four pages as Plaintiff contends (albeit he did cite to only four 15 pages of records from Dr. Prabhu). Rather, the ALJ cited to numerous pages of records, including 16 from Drs. Ana Olivares and J. Collado. Compare ECF No. 20 at 11 and AR 33-35 (and citations 17 therein). Drs. Olivares and Collado opined that Plaintiff had no or mild limitations to her ability to 18 understand, remember, and apply information, no limitation in her ability to interact with others or 19 adapt and manage herself, moderate limitation in her ability to concentrate, persist or maintain pace, 20 and is able to sustain adequate attention and concentration to complete simple tasks. AR 33-34. 21 Plaintiff does not address these findings at all. In fact, Plaintiff does not argue the conclusions by 22 Drs. Olivares and Collado are unsupported by the record or otherwise erroneous. 23 Nonetheless, in her Motion, Plaintiff cites numerous records in support of her claim that 24 substantial evidence supports Dr. Prabhu’s opinions erroneously ascribed limited persuasiveness. 25 These include:

26 • AR 439. March 20, 2018: PA Hartman’s medical notes: Plaintiff reports panic attacks and “[s]he is concerned” about anxiety symptoms that she reports as “very 27 high.” However, PA Hartman reports Plaintiff’s mood as “good,” affect “[c]alm, 1 • AR 436. August 2, 2018, PA Hartman’s medical notes: Plaintiff self reported she ran out of all her medications and was not doing well. She was given a new 2 medication she never tried. Plaintiff reported panic attacks and high anxiety, getting “irate very easily,” “blowing up at people,” mood swings and that her therapist says 3 “she likely has PTSD.” The mental status exam conducted by PA Hartman showed Plaintiff’s speech at a “regular rate and rhythm, normal volume, no difficulties with 4 articulations”; her thought process and content were “concrete, logical, goal directed,” not delusional, and not obsessive. PA Hartman noted Plaintiff’s mood was 5 “good,” her affect “[c]alm” and stable at the time of the appointment. Plaintiff’s GAF was stated as good. AR 437. 6 • AR 485. September 5, 2018, Report from Sunrise Hospital Emergency: Plaintiff 7 reported to the emergency room complaining of “increasing anxiety and depression due to increased stress, especially at work. … [and that] the stress … [was] so bad 8 she could not take it anymore and wants help.” In the assessment, the notes reflect Plaintiff appeared anxious and tearful, and reported Ativan was “not helping.” AR 9 490. The Hospital notes include that Plaintiff appears to suffer from anxiety and depression. AR 492. 10 • AR 350-375. September 6, 2018, Seven Hills Hospital Admission Date: The intake 11 notes indicate Plaintiff’s son called 911 because she was experiencing numerous physical symptoms and, when in the ambulance, she told the attendant that “she could 12 not carry on like this in pain and anxiety.” The intake notes states Plaintiff is suffering from physical pain made worse by anxiety, but that she did not provide any history 13 regarding mania or functional psychosis. Plaintiff mentioned increasing irritability, poor frustration tolerance, and anger management issues all of which she attributed 14 to severe pain. The mental status exam reported normal speech patterns, thoughts were goal directed, no overt delusions, no perceptual abnormalities, no suicidal 15 ideations, and Plaintiff’s mood was anxious and dysphoric. Plaintiff was found to have fair attention and concentrations, and limited insight, judgment, and impulse 16 control. AR 353. Plaintiff’s discharge summary indicated her mood had improved and was now euthymic, she had good eye contact and rapport with the provider; she 17 was negative for acute anxiety, paranoia, and hallucinations; Plaintiff was cognitively alert, her memory was intact, and insight, judgment, and impulse control improved. 18 AR 357. Plaintiff’s attention and concentration were stated as fair. Id.

19 • AR 426, 430. November 30, 2018 and October 11, 2018, PA Hartman’s notes: The reports were identical to the above, with the exception of Plaintiff’s affect being 20 “tearful” on November 30, 2018.

21 • AR 423. PA Hartman’s medical notes: The mental status exam states Plaintiff’s speech is normal; her thought process is concrete, logical, and goal directed; her 22 thought content is without delusions and not obsessive; but her mood was poor, her affect was tearful, and her judgment/insight was fair. 23 • AR 385. March 11, 2019, Dr. Prabhu’s medical notes: After Plaintiff’s self-report 24 of her illnesses, and noting Plaintiff cried during their conversation, the review of symptoms states: “Psychological: No anxiety, no depression, and no sleep 25 disturbance.” Dr. Prabhu’s assessment includes Bipolar Disorder, Depression, and Anxiety Disorder. The Plan includes having Plaintiff follow up with her psychiatrist. 26 There is no mention of impairment or an inability to work. AR 387, 389-91.

27 • AR 392, 396. May 10, 2019, Dr. Prabhu’s medical notes: After making the same 1 unable to perform her job functions due to “multiple medical condition.” However, there is no note by Dr. Prabhu indicating this is or is not his finding as well. AR 394- 2 397.

3 • AR 597. September 17, 2019, Dr. Prabhu’s medical notes: After Plaintiff’s self- report of anxiety attacks, the notes include the same psychological and diagnostic 4 assessment, with a plan to review and renew Plaintiff’s medications at her next visit. AR 560-562. There is no mention or discussion by Dr. Prabhu regarding whether 5 Plaintiff is back to work or able to work at the time of this note. AR 557-562.

6 • AR 633-34. January 28, 2020, Adult Uniform Mental Health Assessment: These pages are Plaintiff’s self-assessment and report suicidal ideations, with no plan, due 7 to conflict with Plaintiff’s 15 and 16 year old. The following Mental Status Assessment by the CSW reflects Plaintiff’s appearance was appropriated, her mood 8 was depressed, but no impairment of perceptions, intelligence functioning, orientation, insight, judgment, memory or thinking. AR 638-40. 9 • AR 647. February 21, 2020, Dr. Prabhu’s medical notes: Plaintiff reports she is 10 “going through some anxiety attacks.” Dr. Prabhu lists her active problems as including the same psychological issues identified in his March 11, 2019 notes, but 11 adds Panic Disorder, and states in the review of symptoms that Plaintiff has “[a]nxiety with persistent worry about insomnia, relieved by medication, and depression.” 12 There is no discussion by Dr. Prabhu regarding whether Plaintiff is able to work at the time of the report or in the future. There is no mention of any functional 13 limitations. AR 648-653.

14 • AR 888. October 29, 2020, PA Hartman’s medical notes: Plaintiff states she has been “going through a phase” of spending money, reports recent episodes of 15 agitation, reports worse depression, crying, not leaving her room, frequent anxiety, panic attacks, and hearing a child calling mommy 2-3 times per month. The next 16 page of this report is the PA’s Mental Status Exam showing Plaintiff has normal speech, concrete, logical, and goal directed speech, a slightly anxious affect, fair 17 insight and judgment, and a fair mood. Plaintiff’s GAF was fair. There is no mention of any functional limitation or whether Plaintiff is able to work. AR 889. 18 19 What is remarkable about all of the above is that while they support and are consistent with Dr. 20 Prabhu’s list of Plaintiff’s chronic and severe illnesses as stated in his August 2019, February 2020, 21 and October 2020 letters (AR 627, 629, 779), nowhere in any of these carefully reviewed reports cited 22 by Plaintiff does anyone opine that Plaintiff is disabled and incapable of working. In fact, this 23 statement is made only in one letter authored by Dr. Prabhu. AR 779. The other two letters authored 24 by Dr. Prahbu reflect Plaintiff’s then-current status of not working with reevaluation (AR 627) and 25 an inability to perform her job functions. AR 627, 629. 26 Specifically, Dr. Prabhu’s August 19, 2019 opinion that Plaintiff “is completely disabled” 27 (AR 629) is, as the parties agree, a determination reserved for the ALJ. Tonapetyan v Halter, 242 1 737950, at *15 (M.D. Pa. Feb. 8, 2022) (internal citations omitted). “The ALJ need not accept the 2 opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and 3 inadequately supported by clinical findings.” Ford, 950 F.2d at 1155 (internal citation omitted). The 4 August 19, 2019 finding is definitely brief, but also not supported by the clinical findings cited by 5 Plaintiff summarized above. 6 The February 21, 2020 opinion offered by Dr. Prabhu refers to Plaintiff’s psychiatrist, whose 7 opinion is not offered anywhere in the record and not referenced by Plaintiff in her argument. AR 8 627. Further, in this opinion letter, Dr. Prabhu states that Plaintiff “is on temporary leave and still 9 can’t go back to work. Reevaluation schedule on July 2020.” Id. This opinion, therefore, can be 10 reasonably read to reflect a condition that is not permanent, but one worthy of reevaluation several 11 months later. 12 Finally, the October 2020 opinion, while stating Plaintiff is disabled (again something the 13 parties agree is a determination to be made by the ALJ) and “unable to be gainfully employed,” does 14 not articulate a set of limitations supported by the record to which Plaintiff points the Court. Nowhere 15 in any medical record offered does anyone, other than Dr. Prabhu, indicate Plaintiff is completely 16 incapable of working, under any conditions in any position. Thus, the ALJ’s decision to find this 17 opinion of limited persuasiveness is a rational interpretation of the record that must be upheld. West, 18 2019 362259, at *3 n.1. 19 Moreover, the Court finds that while it is possible to read Dr. Prabhu’s statement as indicating 20 Plaintiff was incapable of ever working as of October 2, 2020, it is equally reasonable to read the 21 statement as something other than a permanent condition especially given that nineteen days later, on 22 October 21, 2020, Dr. Prabhu stated Plaintiff was “currently unable to work.” AR 34 citing AR 774 23 (Exhibit 22F at 4 of the record before the ALJ) (emphasis added). Because the information offered 24 by Dr. Prabhu is “susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 25 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The Court cannot substitute 26 its judgment for that of the ALJ. Fair, 885 F.2d at 604. 27 Finally, Plaintiff’s argument that the ALJ’s failure to do a function-by-function analysis fails. 1 Fed.Appx. 814, 817 (9th Cir. 2010) (“The ALJ is not required to repeat the function-by-function 2 analysis [provided in the record].”). SSR 96-8p states that “the RFC assessment is a function-by- 3 function assessment based upon all of the relevant evidence of an individual’s ability to do work- 4 related activities.” SSR 96–8p, 1996 WL 374184, at *3 (July 2, 1996). An ALJ performs a function- 5 by-function analysis to avoid overlooking any of the individual’s limitations or restrictions. Id. at *4. 6 An ALJ does this by first identifying a claimant’s “functional limitations or restrictions and assess[es] 7 his or her work-related abilities on a function by function basis ….” Id. at * 1. The ALJ then considers 8 each function separately, even if the final RFC assessment will combine activities. Id. In this case, 9 the ALJ took all of these steps as evidence in the Findings of Facts and Conclusions of Law at AR 10 24-34. The ALJ analyzed Plaintiff’s functional capacity in detail and thereafter reached a residual 11 functional capacity conclusion as stated on the bottom of AR 34 through the top of AR 35. The Court 12 finds the ALJ did what the law requires and made no harmful error in the evaluation of Dr. Prabhu’s 13 opinions. Owen v. Saul, 808 Fed.Appx. 421, 423 (9th Cir. 2020) (unpublished) (Plaintiff “argues that 14 the ALJ erred, because Dr. Bowes described clinical findings that supported her opinion. [Claimant] 15 then summarizes other findings that support Dr. Bowes[’] opinion. However, this simply highlights 16 a conflict in the evidence. Resolving conflicts is the ALJ’s responsibility and prerogative, and, 17 because the ALJ’s interpretation of the evidence is ‘rational,’ it must be upheld.”) (internal citations 18 omitted). There is nothing that supports the conclusion that the ALJ’s decisions requires remand. 19 X. Order 20 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal (ECF No. 20) 21 is DENIED. 22 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm (ECF No. 21) is 23 GRANTED. 24 IT IS FURTHER ORDERED that the Clerk of Court shall close this case and enter judgment 25 accordingly. 26 DATED THIS 19th day of May, 2022.