Garcia v. Kijakazi, No. 1:2021cv03131 - Document 13 (E.D. Wash. 2023)

Court Description: ORDER GRANTING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 11 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File is closed. Signed by Senior Judge Lonny R. Suko. (REM, Case Administrator)

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Garcia v. Kijakazi Doc. 13 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Dec 15, 2023 SEAN F. MCAVOY, CLERK 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 JEFFREY G., 1 10 NO: 1:21-CV-03131-LRS Plaintiff, 11 12 v. 13 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, 14 15 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 16 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 17 ECF Nos. 10, 11. This matter was submitted for consideration without oral 18 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 19 20 1 21 last initial in order to protect privacy. See Local Civil Rule 5.2(c). The court identifies a plaintiff in a social security case only by the first name and ORDER - 1 Dockets.Justia.com 1 represented by Special Assistant United States Attorney Jeffrey E. Staples. The 2 Court, having reviewed the administrative record and the parties’ briefing, is fully 3 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 10, is 4 granted and Defendant’s Motion, ECF No. 11, is denied. 5 JURISDICTION 6 Plaintiff Jeffrey G. (Plaintiff), filed for supplemental security income (SSI) on 7 August 14, 2015, and alleged an onset date of August 1, 2015. Tr. 223-28. Benefits 8 were denied initially, Tr. 151-54, and upon reconsideration, Tr. 158-64. Plaintiff 9 appeared at a hearing before an administrative law judge (ALJ) on August 8, 2017. 10 Tr. 52-91. On March 15, 2018, the ALJ issued an unfavorable decision, Tr. 12-45, 11 and on January 30, 2019, the Appeals Council denied review. Tr. 1-6. Plaintiff 12 appealed to the United States District Court for the Eastern District of Washington, 13 and on March 27, 2020, United States Magistrate Judge John T. Rodgers issued an 14 order remanding the matter for further proceedings. Tr. 774-98. 15 On May 25, 2021, Plaintiff appeared at a second hearing, Tr. 666-718, and on 16 July 23, 2021, the ALJ issued another unfavorable decision. Tr. 634-65. The matter 17 is now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 18 19 BACKGROUND The facts of the case are set forth in the administrative hearing and transcripts, 20 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 21 therefore only summarized here. ORDER - 2 1 Plaintiff was 30 years old at the time the application was filed. Tr. 39. He 2 was in special education classes in school but graduated from high school with a 3 regular diploma. Tr. 350, 500, 609, 693. He was born with his umbilical cord 4 around his neck, leading to central nervous system abnormalities causing left side 5 weakness and developmental impairments. Tr. 350, 500, 609. He has work 6 experience in jobs of short duration sorting fruit, unloading boxes and stocking 7 shelves. Tr. 63-65, 85-86, 695. 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 12 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 13 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 14 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 15 citation omitted). Stated differently, substantial evidence equates to “more than a 16 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 17 In determining whether the standard has been satisfied, a reviewing court must 18 consider the entire record as a whole rather than searching for supporting evidence in 19 isolation. Id. 20 In reviewing a denial of benefits, a district court may not substitute its 21 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 ORDER - 3 1 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 5 decision on account of an error that is harmless.” Id. An error is harmless “where it 6 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 7 (quotation and citation omitted). The party appealing the ALJ’s decision generally 8 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 9 396, 409-10 (2009). 10 FIVE-STEP EVALUATION PROCESS 11 A claimant must satisfy two conditions to be considered “disabled” within the 12 meaning of the Social Security Act. First, the claimant must be “unable to engage in 13 any substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or 15 can be expected to last for a continuous period of not less than twelve months.” 42 16 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such 17 severity that he is not only unable to do his previous work[,] but cannot, considering 18 his age, education, and work experience, engage in any other kind of substantial 19 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 20 The Commissioner has established a five-step sequential analysis to determine 21 whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). ORDER - 4 1 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is not 11 disabled. 20 C.F.R. § 416.920(c). 12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude a 14 person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). 15 If the impairment is as severe or more severe than one of the enumerated 16 impairments, the Commissioner must find the claimant disabled and award benefits. 17 20 C.F.R. § 416.920(d). 18 If the severity of the claimant’s impairment does not meet or exceed the 19 severity of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 21 defined generally as the claimant’s ability to perform physical and mental work ORDER - 5 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in the 5 past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable 6 of performing past relevant work, the Commissioner must find that the claimant is 7 not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing 8 such work, the analysis proceeds to step five. 9 At step five, the Commissioner should conclude whether, in view of the 10 claimant’s RFC, the claimant is capable of performing other work in the national 11 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the 12 Commissioner must also consider vocational factors such as the claimant’s age, 13 education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant 14 is capable of adjusting to other work, the Commissioner must find that the claimant 15 is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 16 adjusting to other work, analysis concludes with a finding that the claimant is 17 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 capable of performing other work; and (2) such work “exists in significant numbers ORDER - 6 1 in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 2 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 5 activity since August 14, 2015, the application date. Tr. 640. At step two, the ALJ 6 found that Plaintiff has the following severe impairments: seizure disorder; sleep 7 apnea; obesity; low average cognitive ability/learning disorder/unspecified 8 neurocognitive disorder; depression; anxiety; personality disorder. Tr. 640. At step 9 three, the ALJ found that Plaintiff does not have an impairment or combination of 10 impairments that meets or medically equals the severity of a listed impairment. Tr. 11 641. 12 13 14 15 16 17 18 19 20 The ALJ then found that Plaintiff has the residual functional capacity to perform medium work with the following additional limitations: [He can] frequently climb ramps or stairs; should not climb ladders, ropes, or scaffolds; must avoid concentrated exposure to workplace hazards such as working with dangerous machinery and working at unprotected heights; can understand, remember, and persist at simple routine tasks in a routine work environment with simple work related decisions; superficial work-related interaction with coworkers and supervisors (for example, no supervising other employees, no team problem-solving, but can accept directions and feedback from supervisors and respond appropriately); only incidental interaction with the public (that is, interaction with the public is not essential part of job duties). Tr. 643. 21 ORDER - 7 1 At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 654. 2 At step five, after considering the testimony of a vocational expert and Plaintiff’s 3 age, education, work experience, and residual functional capacity, the ALJ found 4 that there are jobs that exist in significant numbers in the national economy that the 5 claimant can perform such as hand packager, machine packager, or hospital cleaner. 6 Tr. 654. 7 Thus, the ALJ found that Plaintiff has not been under a disability within the 8 meaning of the Social Security Act at any time since August 14, 2015, the date the 9 application was filed. Tr. 656. 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 supplemental security income under Title XVI of the Social Security Act. ECF No. 13 10. Plaintiff raises the following issues for review: 14 1. Whether the ALJ properly considered the medical opinions; 15 2. Whether the ALJ properly evaluated Plaintiff’s symptom testimony; 16 and 17 3. 18 Whether the ALJ properly considered Plaintiff’s left arm impairment; ECF No. 10 at 2. 19 20 21 ORDER - 8 1 2 DISCUSSION A. Medical Opinions Plaintiff contends the ALJ improperly discounted the medical opinions of 3 4 examining provider Thomas Genthe, Ph.D.; R.A. Cline, Psy.D.; N.K. Marks, 5 Ph.D.; Faulder Colby; Ph.D., Renee Eisenhauer, Ph.D.; Jenifer Schulz, Ph.D.; Kyle 6 Heisey, M.D; Greg Saue, M.D., and Debra Baylor, M.D. ECF No. 10 at 7-10. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 but who review the claimant’s file (nonexamining or reviewing physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 12 “Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s.” Id. “In addition, the regulations give more weight to 15 opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 2 18 19 20 21 2 For claims filed on or after March 27, 2017, the regulations changed the framework for evaluation of medical opinion evidence. Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, ORDER - 9 1 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 2 reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported by 6 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s 8 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 9 providing specific and legitimate reasons that are supported by substantial 10 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 11 (9th Cir. 1995)). 12 1. Thomas Genthe, Ph.D. 13 In September 2015, Dr. Genthe completed a DSHS Psychological/Psychiatric 14 Evaluation form. Tr. 511-20. He diagnosed mild depressive disorder and mild 15 intellectual disability. Tr. 513. Dr. Genthe assessed a severe limitation in the ability 16 to adapt to changes in a routine work setting and marked limitations in six other 17 functional areas. Tr. 513-514. Dr. Genthe assessed an overall severity rating of 18 marked and opined that Plaintiff’s cognitive limitations “will likely hinder his 19 20 2017); 20 C.F.R. § 416.920c. Plaintiff’s claim was filed in August 2015, so the 21 previous method of evaluating medical opinions applies. ORDER - 10 1 acquisition of many important skills in a reasonable amount of time.” Tr. 514. Dr. 2 Genthe indicated that Plaintiff would likely perform best on tasks that are relatively 3 simple, repetitive, and do not demand cognitive flexibility. Tr. 514. He also 4 indicated that Plaintiff's ability to function will likely be best in environments that do 5 not offer significant distractions, and that Plaintiff may find it difficult to work 6 independently without a fair amount of supervision. Tr. 514. 7 The ALJ gave little to no weight to Dr. Genthe’s opinion for the following 8 reasons: (1) the opinion is a DSHS evaluation completed to qualify for state medical 9 benefits; (2) the opinion is inconsistent with the longitudinal record; (3) the opinion 10 is inconsistent with treatment notes indicating stable mental health; (4) Dr. Genthe 11 reviewed no outside records; (5) the assessment is based on Plaintiff’s unreliable 12 subjective reports; (6) the results of the PAI test undermine the assessment; (7) the 13 limitations assessed are unsupported by exam findings and inconsistent with test 14 results; (8) Plaintiff’s depression was mild and controlled with medication; and (9) 15 the opinion is non-specific and lacks finite limitations. Tr. 652-53. 16 First, the ALJ found that DSHS evaluations are completed for the purpose of 17 qualifying the individual for state medical benefits and not for the assessment of 18 functional limitations. Tr. 652. The purpose for which the report was obtained is 19 not alone “a legitimate basis for rejecting it.” Reddick v. Chater, 157 F.3d 715, 726 20 (9th Cir. 1998). This is not a legally sufficient reason for rejecting Dr. Genthe’s 21 opinion. ORDER - 11 1 Second, the ALJ found that Dr. Genthe’s opinion is inconsistent with the 2 mental status exams in the longitudinal record. Tr. 652. An ALJ may discredit 3 treating physicians’ opinions that are unsupported by the record as a whole or by 4 objective medical findings. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 5 1195 (9th Cir. 2004). In support, the ALJ cited mental status exam findings 6 indicating that Plaintiff appeared well-groomed, alert, fully oriented, and cooperative 7 with good eye contact; he had normal psychomotor activity, clear and coherent 8 speech, intact memory; and he had fair judgment, abstractive ability, attention and 9 concentration, and impulse control. Tr. 652 (numerous citations). However, Dr. 10 Genthe’s mental exam status findings similarly indicate that Plaintiff appeared well- 11 groomed with normal speech; he presented as generally open, friendly, and 12 cooperative; his thought process and content, orientation, and perception were 13 normal; memory was mostly intact; and concentration was normal. Tr. 516. There 14 is no inconsistency. 15 Furthermore, the ALJ’s summary minimizes abnormal mental status exam 16 findings, which was previously found to be improper by this Court. Tr. 794. 3 In 17 18 19 20 21 3 Plaintiff argues the ALJ violated the law of the case by revisiting issues previously decided by this Court. ECF No. 10 at 10. The law of the case doctrine generally prohibits a court from considering an issue that has already been decided by that same court or a higher court in the same case. Stacy v. Colvin, 825 F.3d ORDER - 12 1 addition to the positive findings noted above, Dr. Genthe also found Plaintiff’s mood 2 was “a little tired” with broad affect; fund of knowledge was insufficient; he was 3 unable to answer the abstract thought question; his insight about his clinical issues 4 was “fair to poor;” and his judgment to make “sound, reasonable and responsible 5 decisions about this treatment is poor.” Tr. 516. Similarly, the ALJ cited the mental 6 status exam results of Dr. Cline, Tr. 652 (citing Exhibit C1F/4-5, Tr. 342-43), which 7 8 563, 567 (9th Cir. 2016) (citing Hall v. City of Los Angeles, 697 F.3d 1059, 1067 9 (9th Cir. 2012)). The rule of mandate is similar but provides that a district court 10 which has received a mandate from an appellate court cannot vary or examine the 11 mandate except to execute it. Stacy, 825 F.3d at 567 (citing Hall, 697 F.3d at 12 1067). The district court may, however, “decide anything not foreclosed by the 13 mandate.” Stacy, 825 F.3d at 567 (quoting Hall, 697 F.3d at 1067). A district 14 court may reexamine any issue on remand that is not inconsistent with a mandate. 15 Stacy, 825 F.3d at 568. The law of the case doctrine and the rule of mandate both 16 apply in the social security context. Id. at 567. Defendant argues the law of the 17 case does not apply because the evidence on remand was substantially different. 18 ECF No. 11 at 2. Regardless, the Court reviewed the ALJ’s current reasons for 19 legal sufficiency and whether they are supported by substantial evidence based on 20 the current record. In several instances noted throughout this decision, the Court 21 rejects the ALJ’s reasoning on the same basis it was previously rejected. ORDER - 13 1 included some normal mental status exam findings, but also noted that Plaintiff’s 2 mood and affect were tired, a possible problem with working memory or attention, 3 inability to complete serial subtractions without errors, and limited ability to think 4 abstractly. Tr. 342-43. The ALJ also cited the mental status exam results from Dr. 5 Marks, Tr. 652 (citing Exhibit C17/5-6, Tr. 1128-29), who found that Plaintiff’s 6 speech was organized and progressive, attitude was cooperative and open with good 7 eye contact, but his mood was depressed with a lethargic affect. Tr. 1128. Dr. 8 Marks noted confused thinking, memory deficits including poor working memory, 9 fair long-term memory, poor memory for complex directives, and deficits in fund of 10 knowledge. Tr. 1129. Other mental status exam findings over the longitudinal 11 record also contain abnormal findings such as tired mood and affect, fair abstractive 12 ability, fair attention, fair concentration, fair impulse control, and fair insight and 13 judgment. See e.g., Tr. 348, 358, 402, 434-35, 461-62, 481, 487-88. The ALJ 14 dismissed these negative findings as not supportive of the limitations assessed 15 without any basis in the record or any analysis. 16 Additionally, Dr. Genthe’s assessment of limitations involved evaluation of 17 more than just a mental status exam: he conducted a clinical interview and extensive 18 objective testing. While the mental status exam findings informed his opinion, it is 19 not the only basis for the limitations assessed. A psychological opinion involves 20 significantly more than a straightforward application of mental status exam findings 21 to arrive at a functional assessment. Even if the ALJ’s determination that Dr. ORDER - 14 1 Genthe’s mental status exam findings do not support his conclusions is supported by 2 substantial evidence, and the Court does not so find, this is not a basis to reject the 3 entire opinion in light of Dr. Genthe’s other findings. This is not a specific, 4 legitimate reason for rejecting Dr. Genthe’s opinion. 5 Third, the ALJ found that Dr. Genthe’s opinion is inconsistent with treatment 6 notes that “regularly indicate stable mental health conditions with medications.” Tr. 7 652. However, as this Court previously found, “the Summary and Conclusions 8 portion of Dr. Genthe’s report makes clear that he felt Plaintiff’s cognitive 9 functioning posed the primary barrier to work and would ‘likely hinder his 10 acquisition of many important skills in a reasonable amount of time.’” Tr. 794 11 (quoting Tr. 419). In other words, Dr. Genthe did not opine that Plaintiff’s biggest 12 barrier to work is unstable mental health; rather, he opined that Plaintiff’s cognitive 13 functioning is the primary limiting factor. This is not a specific, legitimate reason 14 supported by substantial evidence to reject Dr. Genthe’s opinion. 15 Fourth, the ALJ found that the fact that Dr. Genthe did not review outside 16 treatment records means he was “unaware of the longitudinal picture of the 17 claimant’s psychological impairments.” Tr. 652. As this Court previously found, 18 the fact that Dr. Genthe did not review any records does not detract from his 19 conclusions, particularly in light of the extensive objective testing performed. Tr. 20 793. The ALJ failed to identify any specific treatment records inconsistent with Dr. 21 ORDER - 15 1 Genthe’s conclusions that, had they been reviewed, may have changed the results. 2 This is not a specific and legitimate reason to reject the opinion. 3 Fifth, the ALJ found that Dr. Genthe’s observations and findings were based 4 on Plaintiff’s “subjective reports and presentation” which the ALJ found to be not 5 entirely reliable. Tr. 652. A medical opinion may be rejected if it is based on a 6 claimant’s subjective complaints which were properly discounted. Tonapetyan v. 7 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. 8 Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair v. Bowen, 885 F.2d 597, 604 (9th 9 Cir. 1989). However, the ALJ must provide the basis for the conclusion that an 10 opinion was more heavily based on a claimant’s self-reports than the medical 11 evidence. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the only 12 basis given by the ALJ was that Dr. Genthe did not review other medical evidence. 13 As noted above, this is an insufficient basis to reject the opinion. 14 Sixth, the ALJ found that the results of the PAI undermined the overall 15 persuasiveness of the evaluation results. Tr. 653. However, as this Court previously 16 found, Dr. Genthe stated the testing provided a valid assessment of Plaintiff’s 17 current mental status. Tr. 420. Veracity issues were limited to Plaintiff’s self- 18 reporting of problems on the Personality Assessment Inventory (PAI). Tr. 423-25. 19 Dr. Genthe explained in detail that validity indices can be influenced by a number of 20 factors other than an effort to deceive. Tr. 425. The PAI was one assessment among 21 ORDER - 16 1 numerous other objective tests and does not represent an overall lack of credibility. 2 This is not a specific, legitimate basis for rejecting Dr. Genthe’s opinion. 3 Seventh, the ALJ found Dr. Genthe’s opinion is unsupported by the 4 examination and inconsistent with the findings of the tests he administered. Tr. 653. 5 An ALJ may discount a medical source’s opinion that is inconsistent with the 6 source's other findings. Bayliss, 427 F.3d at 1216. However, this Court previously 7 found Dr. Genthe’s objective findings provide an evidentiary basis for the opinion. 8 Tr. 794. Furthermore, the ALJ did not explain the perceived inconsistency. This is 9 not a specific, legitimate reason supported by substantial evidence for rejecting the 10 opinion. 11 Eighth, the ALJ noted that Dr. Genthe found Plaintiff’s depression was only 12 mild and well-managed with medication. Tr. 653. This is essentially a restatement 13 of prior reasoning that Plaintiff’s mental health symptoms are not sufficiently severe 14 to justify the limitations assessed by Dr. Genthe. Dr. Genthe stated that Plaintiff’s 15 cognitive functioning posed the primary barrier to work, not his depression. Tr. 514. 16 This is not a specific, legitimate reason for rejecting the opinion. 17 Lastly, the ALJ found that Dr. Genthe’s statement that Plaintiff’s cognitive 18 functioning posed the primary barrier to work and would “likely hinder his 19 acquisition of many important skills in a reasonable amount of time” is non-specific, 20 non-functional, and do not define frequency. Tr. 653. However, Dr. Genthe’s 21 opinion contains an assessment of specific, defined functional limitations, including ORDER - 17 1 severe and marked limitations in seven functional areas. Tr. 513-14. Dr. Genthe’s 2 explanation that his assessment is based on cognitive issues, as opposed to mental 3 health issues, is not a functional assessment but explains the basis for the limitations 4 assessed. This is not a specific, legitimate reason for rejecting the limitations 5 assessed by Dr. Genthe. 6 The ALJ repeated multiple reasons previously found by this Court to be an 7 insufficient basis for rejecting Dr. Genthe’s opinion. The ALJ’s new reasons are 8 also insufficiently supported or improperly applied to Dr. Genthe’s opinion. The 9 ALJ failed to provide specific and legitimate reasons to reject the opinion. The 10 matter must be remanded for reconsideration of Dr. Genthe’s opinion. 11 2. N.K. Marks, Ph.D. 12 In March 2019, Dr. Marks completed a DSHS Psychological/Psychiatric 13 Evaluation form. Tr. 1124-29. Dr. Marks diagnosed major depressive disorder, 14 anxiety disorder, bipolar disorder by history, and unspecified neurocognitive 15 disorder with probable learning disabilities. Tr. 1126. Dr. Marks assessed a severe 16 limitation in the ability to set realistic goals and plan independently and marked 17 limitations in six functional areas. Tr. 1126-27. Dr. Marks assessed an overall 18 severity rating of marked. Tr. 1127. 19 The ALJ gave little to no weight to Dr. Marks’ assessment. Tr. 652. The ALJ 20 gave the following reasons for rejecting Dr. Marks’ opinion: (1) the opinion is a 21 DSHS evaluation completed to qualify for state medical benefits; (2) the opinion is ORDER - 18 1 inconsistent with the longitudinal record of mental status exams; (3) the opinion is 2 inconsistent with records showing stable mental health; (4) Dr. Marks reviewed no 3 outside records; and (5) the limitations supported by the MSE are accounted for in 4 the RFC. Tr. 652-53. 5 The first four reasons are the same reasons provided for rejecting Dr. Genthe’s 6 opinion and, for the same reasons discussed above, they are not specific, legitimate 7 reasons supported by substantial evidence for rejecting Dr. Marks’ opinion. 8 Consistent with Dr. Genthe’s opinion that cognitive functioning rather than mental 9 health issues posed the primary barrier to work, Dr. Marks diagnosed an unspecified 10 neurocognitive disorder with probable learning disabilities and noted Plaintiff 11 “needs help with ADL’s [activities of daily living], further assessment is 12 recommended for learning disabilities.” Tr. 1127. The ALJ’s fifth reason for 13 rejecting Dr. Marks’ opinion is that the limitations supported by his mental status 14 exam results are accounted for in the RFC. Tr. 653. This is essentially a restatement 15 of the ALJ’s other improper reasons for rejecting the opinion. As a result, Dr. 16 Marks’ opinion must be reconsidered on remand. 17 3. R.A. Cline, Psy.D. 18 In September 2014, Dr. Cline completed a DSHS Psychological/Psychiatric 19 Evaluation form. Tr. 494-96. Dr. Cline diagnosed depressive disorder, personality 20 disorder NOS with traits of antisocial personality disorder, and “rule out” borderline 21 intellectual functioning. Tr. 496. Dr. Cline assessed marked limitations in the ORDER - 19 1 ability to understand, remember, and persist in tasks with detailed instructions; to 2 communicate and perform effectively in a work setting; and to maintain appropriate 3 behavior in a work setting. Tr. 496-97. Dr. Cline also stated that Plaintiff “appears 4 to have some intellectual deficits,” and recommended that an IQ test be performed 5 along with a Wechsler Memory Scale (WMS) test or a Wide Range Achievement 6 Test (WRAT). Tr. 497. 7 Dr. Cline completed a second DSHS Psychological/Psychiatric evaluation 8 form in July 2017 and diagnosed unspecified mood disorder and unspecified 9 personality disorder, noting a “rule out” diagnosis of unspecified intellectual 10 disability. Tr. 524-28. Dr. Cline assessed moderate limitations in eight functional 11 areas and assessed an overall severity rating of “moderate.” Tr. 526-27. 12 The ALJ gave little to no weight to both of Dr. Cline’s opinions. Tr. 652. 13 The first four reasons given for rejecting the opinions are the same reasons provided 14 for rejecting Dr. Genthe’s and Dr. Marks’ opinions and, for the reasons discussed 15 above, they are not specific, legitimate reasons supported by substantial evidence for 16 rejecting Dr. Cline’s opinions. 17 With respect to the September 2014 opinion, the ALJ found it does not meet 18 the durational requirement because Dr. Cline opined Plaintiff’s limitations were 19 expected to last three to nine months. Tr. 527, 652. The duration requirement 20 provides that to be considered disabling, an impairment “must have lasted or must be 21 expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 416.909. ORDER - 20 1 While this may be a sufficient reason for rejecting the limitations assessed by Dr. 2 Cline, it does not apply to his recommendation that IQ and other cognitive testing be 3 obtained. 4 The ALJ also found regarding both opinions that the limitations contained in 5 the RFC account for the limitations supported by the results of the mental status 6 exams conducted by Dr. Cline. Tr. 652. As with the ALJ’s analysis of the mental 7 status exam findings of Dr. Genthe and Dr. Marks, this is essentially a restatement of 8 reasons previously found to be legally insufficient. Thus, Dr. Cline’s opinion must 9 be reconsidered. 10 4. Faulder Colby, Ph.D. and R. Renee Eiesnhauer, Ph.D. 11 Dr. Colby completed a DSHS Review of Medical Evidence form in October 12 2015. Tr. 521-22. He reviewed the opinions of Dr. Heisey, Dr. Genthe, and Dr. 13 Cline and found that the September 2014 diagnoses of Dr. Cline and the September 14 2015 diagnoses by Dr. Genthe were supported by the medical evidence. Tr. 521. 15 Dr. Colby indicated that while Dr. Cline’s diagnoses of depression and personality 16 disorder are supported by the evaluation and report, he opined that “it is unlikely that 17 SSA would consider either of them the diagnosis of a serious mental illness under 18 SSA rules.” Tr. 521. He opined that the severity and functional limitations assessed 19 are supported by the medical evidence and that onset of disability was the date of Dr. 20 Genthe’s evaluation. Tr. 521-22. 21 ORDER - 21 1 Dr. Eisenhauer completed DSHS Review of Medical Evidence forms in 2 March 2019. Tr. 1131-34. Dr. Eisenhauer reviewed the opinion of Dr. Marks and 3 found that the diagnoses and functional limitations assessed were supported by the 4 objective medical evidence, specifically noting that “[t]he ratings are consistent with 5 the severity noted in the evidence.” Tr. 1133. Dr. Eisenhauer assessed a severe 6 limitation in the ability to set realistic goals and plan independently and six marked 7 limitations. Tr. 1131. 8 9 The ALJ gave no weight to the findings in the DSHS forms completed by Drs. Colby and Eisenhauer. Tr. 653. The ALJ found (1) the forms are not opinions, but 10 DSHS review regarding eligibility for state benefits, and are not assessments of 11 functional limitations; and (2) Dr. Colby only reviewed the opinions of Drs. Cline, 12 Genthe, and Heisey, and Dr. Eisenhauer only reviewed Dr. Marks’ March 2019 13 opinion. Tr. 653. 14 First, the ALJ found the forms completed by Dr. Colby and Dr. Eisenhauer 15 and not medical opinions because they were generated to review eligibility for 16 state benefits, and that they are not assessments of functional limitations. Tr. 653. 17 Medical opinions are statements from acceptable medical sources that reflect 18 judgments about the nature and severity of the claimant’s impairments, including 19 the claimant’s symptoms, diagnosis and prognosis, what the claimant can do 20 despite any impairment, and the claimant’s physical or mental restrictions. 20 21 C.F.R. § 416.927(a)(1). Neither the ALJ nor the Defendant explain why the ORDER - 22 1 statements of Drs. Colby and Eisenhauer are not medical opinions. Tr. 653; ECF 2 No. 11 at 15. The forms completed by both Dr. Colby and Dr. Eisenhauer ask 3 them to review medical evidence and indicate whether the diagnoses and 4 functional limitations in a prior evaluation are supported by the objective medical 5 evidence. Tr. 521-22, 1133-34. The forms ask for rationale for the opinion; the 6 impact of substance use, if any; and whether duration and onset in the prior 7 evaluation are supported by the medical evidence. Tr. 521-22, 1133-34. Dr. 8 Eisenhauer also evaluated Plaintiff’s mental limitations; assigned a level of 9 impairment for work related abilities based on a review of previous mental health 10 evaluation; determined the severity of each mental impairment based upon clinical 11 findings; and listed the diagnosis for each mental health condition that impairs 12 work function. Tr. 1131-32. Completion of these forms involves a professional 13 judgment about the nature and severity of the claimant’s impairments and 14 constitutes a medical opinion that cannot be disregarded based on form alone. 15 Second, the ALJ rejected the opinions because neither Dr. Colby nor Dr. 16 Eisenhauer treated or examined Plaintiff, and because their opinions are based on 17 reviewing other evaluations. The regulations direct that all opinions, including the 18 opinions of nonexamining providers, should be considered. 20 C.F.R. § 416.927(b), 19 (c). Furthermore, the ALJ gave great weight to other nonexamining providers 20 without regard to the lack of treating relationship. Tr. 650. This is not a specific, 21 ORDER - 23 1 legitimate reason for rejecting the opinions. The opinions of Drs. Colby and 2 Eisenhauer must be reconsidered on remand. 3 5. Jenifer Schultz, Ph.D. 4 Dr. Schultz conducted a clinical interview and prepared a Mental Evaluation 5 report in March 2020. Tr. 1473-77. She diagnosed bipolar disorder and indicated 6 rule out unspecified learning disorder. Tr. 1476. Dr. Schultz found that Plaintiff’s 7 ability to reason and understand are fair and his memory is intact. Tr. 1476. She 8 found he could focus efficiently during the assessment and his concentration is fair 9 even though he could not complete serial 7s. Tr. 1476. She opined that “his 10 occupational and daily living skill adaptation is poor but his social adaptation is 11 fair.” Tr. 1476. 12 The ALJ gave little to no weight to Dr. Schultz’s opinion. Tr. 651. The ALJ 13 agreed the record indicates Plaintiff retains memory and concentration skills to 14 understand, remember, and persist at simple routine tasks in a routine work 15 environment with limited social interaction with others. Tr. 651. However, the ALJ 16 did not give more weight to Dr. Schultz’s opinion because she used non-specific and 17 qualified terms without finite definitions, such as “fair,” “intact,” and “poor.” An 18 ALJ may reject a medical opinion that fails to specify any functional limitations or 19 describes limitations equivocally. See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 20 2020) (finding a physician's descriptions of the plaintiff’s limitations “as ‘limited’ or 21 ‘fair’ were not useful because they failed to specify functional limits”); Valentine v. ORDER - 24 1 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009). Dr. Schultz’s 2 opinion was vague as to Plaintiff’s functional limitations. Tr. 353. Her use of the 3 terms “fair,” “intact,” and “poor” in her functional assessment was a specific and 4 legitimate reason to discount her opinion. 5 Plaintiff argues Dr. Schultz’s opinion “appeared to go to off-task and 6 productivity limitations, which were vocationally defined.” ECF No. 10 at 14. 7 Plaintiff argues “these terms” have “vocational meaning.” ECF No. 12 at 7. 8 However, Plaintiff cites no authority for this argument and the Court finds none. 9 The vocational expert testified that “adaptation poor” and “concentration fair” are 10 not vocational questions. Tr. 708. Plaintiff argues that if Dr. Schultz’s opinion is 11 ambiguous, the ALJ should have requested clarification through interrogatories to 12 Dr. Schultz as he requested at the hearing. EF No. 10 at 14 (citing Tr. 708-09). 13 Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to 14 allow for proper evaluation of the evidence, triggers the ALJ’s duty to “conduct an 15 appropriate inquiry.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); 16 Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). Here, 17 the ALJ reasonably concluded the functional assessment is non-specific and there is 18 no error with respect to Dr. Schultz’s opinion. 19 6. Kyle Heisey, M.D. 20 In September 2015, Dr. Heisey completed a DSHS Physical Evaluation form. 21 Tr. 500-08. He diagnosed seizure disorder, obstructive sleep apnea, intellectual ORDER - 25 1 disability/learning disability, encephalomalacia with left hemiparesis, and 2 depression/anxiety. Tr. 500. He assessed the severity of Plaintiff’s seizure disorder 3 as marked and his learning disability and encephalomalacia/left hemiparesis as 4 moderate, affecting his ability to lift, carry, handle, push, pull, reach, stoop, crouch, 5 and communicate. Tr. 501. Dr. Heisey opined Plaintiff was limited to sedentary 6 work and should not drive, use machinery, or work at heights. Tr. 502. 7 In May 2016, Dr. Heisey completed a Medical Source Statement form. Tr. 8 491-92. He listed diagnoses of seizure disorder, learning disability, left hemiparesis 9 due to brain damage in utero, obstructive sleep apnea, and depressive/bipolar 10 disorder. Tr. 491. Dr. Heisey opined Plaintiff’s prognosis is poor because his 11 seizure disorder, learning disability, and hemiparesis are permanent. Tr. 492. He 12 also opined that Plaintiff would probably miss four or more days of work per month 13 because, “[h]e would not likely tolerate stress of a regular work week.” Tr. 492. 14 In August 2017, Dr. Heisey also opined in treatment notes that regarding 15 Plaintiff’s developmental learning difficulties, “I think [Plaintiff] should qualify for 16 disability.” Tr. 614. 17 The ALJ gave little to no weight to Dr. Heisey’s opinions. Tr. 651. First, the 18 ALJ credited Dr. Heisey’s assessment that Plaintiff should not drive, use machinery, 19 or work at heights. Tr. 651. However, the ALJ found that medical evidence 20 indicated Plaintiff had not had a seizure for the two previous year and discredited 21 Dr. Heisey’s 2015 opinion that Plaintiff’s seizure disorder is of marked severity. Tr. ORDER - 26 1 651 (citing Tr. 396, 461, 607, 611, 614, 1137, 1139, 1368, 1431, 1436, 1488). 2 Plaintiff does not challenge the ALJ’s findings regarding Dr. Heisey’s assessment of 3 his seizure disorder. ECF No. 10 at 15-16. 4 However, Plaintiff argues the ALJ erred by failing to address limitations 5 assessed by Dr. Heisey resulting his left sided hemiparesis. ECF No. 10 at 15; see 6 infra. Dr. Heisey’s 2015 opinion indicated that Plaintiff’s left side hemiparesis 7 moderately impacted his functioning in several areas. Tr. 501. The ALJ did not 8 address Dr. Heisey’s assessment of lifting, carrying, handling, and other limitations 9 associated with hemiparesis at step two or in evaluating the RFC, and did not 10 address them in rejecting his opinions. See infra. Dr. Heisey’s 2015 opinion must 11 be reconsidered on remand. 12 Second, the ALJ found Dr. Heisey’s May 2016 opinion that Plaintiff would 13 miss four or more days of work per month is inconsistent with other evidence in the 14 record showing Plaintiff could maintain attendance. Tr. 651. An ALJ may discount 15 a medical source opinion to the extent it conflicts with the claimant’s daily activities. 16 Morgan, 169 F.3d at 601-02. The ALJ cited Plaintiff’s activities of attending 17 medical appointment, mental health classes, babysitting, caring for his family, and 18 contacting family. Tr. 651. Attending medical appointments and mental health 19 classes and contacting family does not involve the stress of an eight-hour workweek 20 which is the basis for the limitation assessed by Dr. Heisey. This portion of the 21 ALJ’s reasoning is insufficiently supported. ORDER - 27 1 With regard to babysitting, the record indicates that during the period from 2 April 2019 to July 2019 Plaintiff reported babysitting his niece and others while 3 adults were at work and his brother was in the hospital. Tr. 649, 1278, 1296, 1307, 4 1402 (duplicate); see also Tr. 1274, 1302. The ability to care for young children 5 without help may undermine a disability claim. Rollins, 261 F.3d at 857. However, 6 “the mere fact that [a claimant] cares for small children does not constitute an 7 adequately specific conflict with [the claimant’s] reported limitations.” Trevizo v. 8 Berryhill, 871 F.3d 664, 681 (9th Cir. 2017). Plaintiff argues that his babysitting 9 activities were limited, as his nieces and nephews were mostly older and school-age. 10 ECF No. 10 at 20. Plaintiff testified that he watched his nieces and nephews during 11 spring break or for a few hours before school if his brother had to work early in the 12 morning. Tr. 677-78. He also testified that he tried to change the diaper of his 13 youngest nephew, but he was not good at it. Tr. 678. Without more, Plaintiff’s 14 somewhat limited babysitting activities do not by themselves undermine Dr. Heisey’s 15 assessment that the stress of a regular workweek would impact his attendance. 16 Third, the ALJ found Dr. Heisey’s May 2016 opinion that Plaintiff “would not 17 likely tolerate stress of a regular workweek” is vague and does not convey function- 18 by-function work limitations. Tr. 651. An ALJ may reject an opinion that does “not 19 show how [the claimant’s] symptoms translate into specific functional deficits which 20 preclude work activity.” Morgan, 169 F.3d at 601. However, Dr. Heisey assessed a 21 specific functional deficit resulting from the inability to tolerate the stress of a ORDER - 28 1 workweek: Plaintiff would miss four or more days of work per month. This is not a 2 specific, legitimate reason for rejecting this limitation. Dr. Heisey’s May 2016 3 opinion must be reconsidered on remand. 4 Fourth, the ALJ rejected Dr. Heisey’s 2017 opinion that Plaintiff should 5 qualify for disability based on his learning disability because he “never” examined 6 Plaintiff for this impairment and his treatment notes “never” reflected abnormal 7 findings related to this impairment. Tr. 651. A medical opinion may be rejected if it 8 is unsupported by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 9 1195; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tonapetyan, 242 F.3d 10 at 1149; Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). However, as 11 Plaintiff observes, in 2013 Dr. Heisey noted developmental learning difficulties and 12 idiopathic generalized epilepsy in Plaintiff’s chart, and in 2015 he noted Plaintiff 13 had congenital central nervous system abnormalities on a CT scan with associated 14 left side hemiparesis. Tr. 604. In May 2016 Dr. Heisey’s treatment notes indicate 15 developmental learning difficulties as a chronic issue “related to his central nervous 16 system lesion.” Tr. 609. In March 2017, Dr. Heisey noted Plaintiff’s “lifelong 17 learning disabilities” which “prevented him from functioning normally” and 18 impacted his ability to keep his apartment clean. Tr. 612. The ALJ’s statements that 19 Dr. Heisey “never” noted abnormalities related to Plaintiff’s learning disability is not 20 correct. 21 ORDER - 29 1 The ALJ also rejected this statement because it is inconsistent with Dr. 2 Heisey’s 2015 opinion that Plaintiff’s learning disorder is moderate. Tr. 651. 3 Where a treating physician’s opinion is itself inconsistent, it should be accorded less 4 deference. Johnson v. Chater, 87 F.3d 1015, 1018 (9th Cir. 1996). This may be a 5 specific, legitimate reason for rejecting the opinion. However, in light of the ALJ’s 6 misstatement noted above and other issues in evaluating Dr. Heisey’s opinions, the 7 2017 opinion should be reconsidered on remand. 8 7. Greg Saue, M.D., and Debra Baylor, M.D. 9 In Marcy 2016, Dr. Saue reviewed the record and assessed limitations 10 consistent with light work and various postural limitations. Tr. 138-40. He also 11 assessed manipulative limitations of limited reaching in front and/or laterally with 12 both arms and limited handling, fingering, and feeling of the left hand. Tr. 139. He 13 opined Plaintiff’s left upper extremity is limited to assisting with lifting and handling 14 but could only occasionally grip. Tr. 139. 15 In September 2019, Dr. Baylor reviewed the record and assessed essentially 16 the same limitations as Dr. Saue: light work with postural and manipulative 17 limitations. Tr. 831-35. Dr. Baylor assessed the same manipulative limitations of 18 bilateral limited reaching in front and/or laterally and limited handling, fingering, 19 and feeling of the left hand. Tr. 834. She similarly explained that the left upper 20 extremity is limited to assisting with lifting and handling but can only occasionally 21 ORDER - 30 1 grip. Tr. 834. She noted this was due to reported left arm and leg numbness and 2 Plaintiff’s other impairments. Tr. 835. 3 The ALJ gave little to no weight to the opinions of Dr. Saue and Dr. Baylor. 4 Tr. 650. The ALJ gave two reasons for rejecting both opinions: (1) they did not 5 consider additional medical evidence subsequently generated or provided; and (2) 6 they are inconsistent with that evidence. Tr. 650. The ALJ did not further explain 7 this reasoning or cite any specific inconsistencies. 8 Plaintiff argues the ALJ’s finding is insufficiently explained. ECF No. 10 at 9 16-17. Merely to state that a medical opinion is not supported by enough objective 10 findings does not achieve the level of specificity our prior cases have required. 11 Rodriguez v. Bowen, 876 F.2d 759,762 (9th Cir. 1989) (citing Embrey v. Bowen, 849 12 F.2d 418, 421 (9th Cir. 1988)). “The ALJ must do more than offer his conclusions. 13 He must set forth his own interpretations and explain why they, rather than the 14 doctors’, are correct.” Embrey, 849 F.2d at 421-22. Indeed, it is noted that the 15 opinion of Norman Staley, M.D., another reviewing physician, was given significant 16 weight by the ALJ. Tr. 650. In March 2020, six months after Dr. Baylor issued her 17 opinion that Plaintiff is limited to light work with manipulative and postural 18 limitations, Dr. Staley opined that Plaintiff is limited to medium work, has no 19 manipulative limitations, and the only postural limitation is no climbing to heights. 20 Tr. 852-59. Neither the ALJ nor Dr. Staley indicated what evidence was added to 21 the record from September 2019 to March 2020 which makes Dr. Staley’s opinion ORDER - 31 1 more persuasive than the two prior consistent decisions of Drs. Saue and Baylor. Tr. 2 650, 852-59. On remand, the ALJ should reconsider the opinions of Drs. Saue and 3 Baylor and provide legally sufficient reasons for the weight assigned to each 4 opinion. 5 C. 6 Symptom Testimony Plaintiff contends the ALJ failed to properly assess his symptom claims. ECF 7 No. 10 at 17-21. An ALJ engages in a two-step analysis to determine whether a 8 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 9 ALJ must determine whether there is objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other 11 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 12 Second, “[i]f the claimant meets the first test and there is no evidence of 13 malingering, the ALJ can only reject the claimant’s testimony about the severity of 14 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 15 rejection.” Ghanim, 763 F.3d at 1163 (internal citations and quotations omitted). 16 Second, “[i]f the claimant meets the first test and there is no evidence of 17 malingering, the ALJ can only reject the claimant’s testimony about the severity of 18 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 19 rejection.” Id. “General findings are insufficient; rather, the ALJ must identify 20 what testimony is not credible and what evidence undermines the claimant’s 21 complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas, 278 F.3d at ORDER - 32 1 958 (“[T]he ALJ must make a credibility determination with findings sufficiently 2 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 3 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 4 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 5 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 6 924 (9th Cir. 2002)). 7 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 8 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 9 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 10 daily living activities; (4) the claimant’s work record; and (5) testimony from 11 physicians or third parties concerning the nature, severity, and effect of the 12 claimant’s condition. Thomas, 278 F.3d at 958-59. 13 The ALJ found that Plaintiff “has some restrictions, but his statement 14 concerning his incapacity are not borne out by the evidence of record, the well- 15 considered medical opinions, or the consistency of his own reported and 16 demonstrated functional ability.” Tr. 644. The ALJ gave the following reasons for 17 rejecting Plaintiff’s symptom claims: (1) the physical and objective exam findings 18 regarding Plaintiff’s epilepsy and sleep apnea do not to establish the limitations 19 alleged; (2) the record regarding Plaintiff’s mental health does not indicate that 20 work is precluded; (3) Plaintiff made inconsistent statements regarding his claim; 21 ORDER - 33 1 (4) Plaintiff’s activities were inconsistent with his allegations; and (5) Plaintiff’s 2 work history was sporadic. Tr. 644-50. 3 First, the ALJ found the physical and objective exam findings regarding 4 Plaintiff’s epilepsy and sleep apnea do not support the limitations alleged. Tr. 644- 5 45. This is not a clear and convincing reason for rejecting Plaintiff’s symptom 6 claims. Plaintiff did not allege his epilepsy and sleep apnea were disabling on their 7 own. ECF No. 10 at 18. Plaintiff instead argues that he has consistently alleged 8 that he is most limited by being too slow, not performing activities correctly or to 9 the satisfaction of supervisors, and having limitations in reading and writing. ECF 10 No. 10 at 18 (citing Tr. 64-65, 688-89). As to the remaining reasons given by the ALJ for rejecting Plaintiff’s 11 12 symptom claims, the evaluation of a claimant’s symptom statements and alleged 13 limitations relies, in part, on the assessment of the medical evidence. See 20 C.F.R. 14 § 416.929(c); Social Security Ruling 16-3p, 2017 WL 5180304 (effective October 15 25, 2017). Therefore, in light of the case being remanded for the ALJ to readdress 16 the medical opinions addressed above, a new assessment of Plaintiff’s subjective 17 symptom statements will be necessary. 18 C. Left Arm Impairment 19 Plaintiff argues the ALJ erred by failing to properly assess his left arm 20 limitations. ECF No. 10 at 3. In September 2013, the same ALJ issued a decision 21 ORDER - 34 1 finding Plaintiff not disabled regarding a prior application. 4 Tr. 92-109. Plaintiff 2 asserts the ALJ should have adopted findings from the 2013 nondisability decision 3 regarding his left arm impairment. ECF No. 10 at 3-4. 4 In the 2013 decision, the ALJ’s step two finding included the severe 5 impairment of status post cerebral artery infract/left sided hemiparesis. Tr. 97. The 6 finding was based on evidence that Plaintiff “experienced a cerebral artery infract 7 and mild left-sided hemiparesis resulting in limited use of his left arm and leg, when 8 compared to his right side. He often had to use his other hand for help. There was 9 easier fatigability of the left side of his body.” Tr. 97. The 2013 RFC finding 10 included the following limitation: “The claimant has unlimited reaching and 11 handling with the right, upper extremity and with the left, upper extremity he can 12 assist in lifting and handling but can only occasionally grip.” Tr. 99. 13 “The principles of res judicata apply to administrative decisions, although the 14 doctrine is applied less rigidly to administrative proceedings than to judicial 15 proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1998) (citing Lyle v. 16 Sec’y of Health and Human Servs., 700 F.2d 566, 568 n.2 (9th Cir. 1983)). Social 17 Security Acquiescence Ruling 97-4(9) followed Chavez and explains that it “applies 18 only to cases involving a subsequent disability claim with an unadjudicated period 19 20 4 21 reopen the prior application. Tr. 638. The merits of the 2013 decision are not at issue. The ALJ found no basis to ORDER - 35 1 arising under the same title of the [Social Security] Act as a prior claim on which 2 there has been a final decision by an ALJ or the Appeals Council that the claimant is 3 not disabled.” Acquiescence Ruling (AR) 97-4(9), 1997 WL 742758. A previous 4 final determination of nondisability creates a presumption of continuing 5 nondisability with respect to any subsequent unadjudicated period of alleged 6 disability. Lester, 81 F.3d at 827; AR 97-4(9). “The claimant, in order to overcome 7 the presumption of continuing nondisability arising from the first administrative law 8 judge’s findings of nondisability, must prove ‘changed circumstances’ indicating a 9 greater disability.” Chavez, 844 F.2d at 693 (citation omitted). 10 AR 97-4(9) directs adjudicators to follow a two-step inquiry in considering a 11 prior nondisability decision. First, adjudicators must apply the presumption of 12 continuing nondisability. Id. A claimant “may rebut this presumption by showing a 13 ‘changed circumstance’ affecting the issue of disability with respect to the 14 unadjudicated period;” for example, an increase in the severity of the claimant’s 15 impairments or the alleged existence of an impairment not previously considered. 16 Id. 17 Second, if the claimant rebuts the presumption, the adjudicator must still 18 give effect to certain findings in the final Appeals Council or ALJ decision on the 19 prior claim while adjudicating the subsequent claim, including findings regarding a 20 claimant’s severe impairments, whether the claimant’s impairments meet or equal 21 a Listing, RFC, education, or work experience. Id. Such findings must be adopted ORDER - 36 1 in determining whether the claimant is disabled for the unadjudicated period 2 “unless there is new and material evidence relating to such a finding or there has 3 been a change in the law, regulations or rulings affecting the finding or the method 4 for arriving at the finding.” Id. 5 In the current matter, the ALJ concluded that “there has been a change in the 6 claimant’s medical or vocational status since the prior decision as well as a change 7 in the criteria for determining disability; thus, [the] presumption of continuing 8 nondisability was rebutted.” Tr. 638. The ALJ did not specify which changes in 9 medical or vocational status or criteria for determining disability apply. 10 At step two, the ALJ acknowledged Plaintiff’s history of left-sided 11 hemiparesis but found it to be nonsevere. Tr. 641. The ALJ found that although 12 Plaintiff alleged very little mobility in his left arm, Tr. 417, 525, there are no 13 physical examinations or neurological findings in the record. Tr. 641. The ALJ 14 observed that treatment notes document congenital nervous system abnormalities 15 found on a computerized tomography scan with associated left sided hemiparesis. 16 Tr. 641 (citing Tr. 500, 604). The ALJ noted that Plaintiff’s “own doctor said that 17 his hemiparesis is only slight.” Tr. 641 (citing Tr. 491). On this basis, the ALJ 18 concluded Plaintiff’s left sided hemiparesis is nonsevere and did not include any 19 limitation regarding Plaintiff’s left arm in the RFC. 20 21 The ALJ found there are “no physical examinations or neurological findings in the record.” Tr. 641. This seems to suggest that there is no new and material ORDER - 37 1 evidence relating to Plaintiff’s left-sided limitations. Furthermore, the ALJ’s 2 statement that Plaintiff’s long-time treating physician, Dr. Heisey, characterized his 3 hemiparesis as “slight” is not correct. Dr. Heisey actually indicated that Plaintiff 4 experience “slight left side weakness” but assessed moderate limitations in lifting, 5 carrying, handling, pushing, pulling, reaching, stooping and crouching due to 6 encephalomalacia and hemiparesis. Tr. 491. Although the ALJ rejected Dr. 7 Heisey’s opinion, Tr. 651, as discussed supra, the ALJ’s evaluation of the medical 8 opinion evidence is flawed. 9 Defendant argues the failure to include hemiparesis as a severe impairment is 10 harmless because the ALJ continued the sequential evaluation analysis and took into 11 account nonsevere impairments in evaluating the RFC. ECF No. 11 at 3. While 12 Defendant argues the ALJ took into account left-sided hemiparesis in evaluating the 13 RFC, the ALJ only noted Plaintiff’s testimony that he could not carry anything 14 heavy with his left arm, Tr. 643, but did not specifically address Plaintiff’s history of 15 hemiparesis in evaluating the medical evidence or Dr. Heisey’s 2015 opinion 16 assessing limitations due to hemiparesis. Tr. 644-46, 651. 17 Because this matter is remanded for reconsider of Dr. Heisey’s opinion and 18 other medical and psychological opinions, the ALJ should also reevaluate Plaintiff’s 19 left side hemiparesis in light of the prior ALJ decision and the medical record. 20 21 ORDER - 38 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes the 3 ALJ’s decision is not supported by substantial evidence and free of harmful legal 4 error. On remand, the matter shall be assigned to a new ALJ who will reevaluate the 5 medical evidence and Plaintiff’s subjective complaints and, as necessary, reconsider 6 findings of the sequential evaluation. It may be helpful to obtain testimony from a 7 medical expert regarding the extent of limitations related to Plaintiff’s impairments, 8 including left side hemiparesis and unspecified learning disorder. 9 Accordingly, 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. 12 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order 13 and provide copies to counsel. Judgment shall be entered for Plaintiff and the file 14 shall be CLOSED. 15 DATED December 15, 2023. 16 17 LONNY R. SUKO Senior United States District Judge 18 19 20 21 ORDER - 39

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