Reynolds v. Kijakazi, No. 2:2022cv00273 - Document 15 (E.D. Wash. 2023)

Court Description: ORDER GRANTING PLAINTIFF'S BRIEF 11 AND DENYING DEFENDANT'S BRIEF 13 . This case is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Order. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Reynolds v. Kijakazi Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JULIE R., NO. 2:22-CV-0273-TOR Plaintiff, 8 9 10 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ briefs effectively seeking summary 14 judgment in this case. ECF Nos. 11, 13. This matter was submitted for 15 consideration without oral argument. The Court has reviewed the administrative 16 record, the completed briefing, and is fully informed. For the reasons discussed 17 below, Plaintiff’s request for remand, ECF No. 11, is GRANTED, and Defendant’s 18 request to affirm the ALJ, ECF No. 13, is DENIED. 19 JURISDICTION 20 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: The Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158–59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” 7 means relevant evidence that “a reasonable mind might accept as adequate to 8 support a conclusion.” Id. at 1159 (quotation and citation omitted). Stated 9 differently, substantial evidence equates to “more than a mere scintilla[,] but less 10 than a preponderance.” Id. (quotation and citation omitted). In determining 11 whether this standard has been satisfied, a reviewing court must consider the entire 12 record as a whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An “error is harmless 20 where it is ‘inconsequential to the ultimate nondisability determination.’” Id. at ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 2 1 1115 (citation omitted). The party appealing the ALJ’s decision generally bears 2 the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 3 409–10 (2009). 4 5 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be unable “to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 11 impairment must be “of such severity that [he or she] is not only unable to do [his 12 or her] previous work[,] but cannot, considering [his or her] age, education, and 13 work experience, engage in any other kind of substantial gainful work which exists 14 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 17 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). At step one, the Commissioner 18 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 19 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 3 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 4 1 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 2 404.1545(a)(1), 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 3 analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 7 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 8 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 9 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 10 11 analysis proceeds to step five. At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 14 the Commissioner must also consider vocational factors such as the claimant’s age, 15 education and work experience. Id. If the claimant is capable of adjusting to other 16 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 17 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 18 work, the analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. Id. 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant 5 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); 6 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On February 7, 2020, Plaintiff filed an application for Title II disability 9 insurance benefits and Title XVI supplemental security income benefits, alleging 10 an onset date of November 20, 2019. Tr. 238–45. The applications were denied 11 initially on July 20, 2020, Tr. 57–82, and again on reconsideration on October 5, 12 2020. Tr. 85–114. Plaintiff appeared at a telephonic hearing before an 13 administrative law judge (“ALJ”) on October 22, 2021. Tr. 33–56. The ALJ 14 denied Plaintiff’s claim on November 10, 2021. Tr. 15–27. On September 23, 15 2022, the Appeals Council denied review, Tr. 1–6, making the decision final for 16 purposes of judicial review. See 20 C.F.R. §§ 404.981, 416.1481, 422.210. 17 The ALJ found Plaintiff meets the insured status requirements of the Social 18 Security Act through June 30, 2024. Tr. 17. At step one of the sequential 19 evaluation, the ALJ found Plaintiff has not engaged in substantial gainful activity 20 since November 20, 2019, the alleged onset date. Id. At step two, the ALJ found ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 6 1 Plaintiff has the following severe impairments: morbid obesity, fibromyalgia, 2 functional movement disorder, tachycardia, anxiety disorder, and PTSD. Id. At 3 step three, the ALJ found Plaintiff does not have an impairment or combination of 4 impairments that meets or medically equals the severity of the listed impairments. 5 Tr. 18. The ALJ then found Plaintiff had the RFC to perform a full range of 6 sedentary work with the following limitations: 7 8 9 [Plaintiff] needs the option to take 15-20 seconds for any shifts from sitting to standing; she can frequently balance, kneel, and crawl, but only occasionally climb, stoop, and crouch; she cannot have concentrated exposure to pulmonary irritants or hazards, such as unprotected heights and moving mechanical parts; and she can have only superficial contact with the public, supervisors, and coworkers. 10 11 Tr. 20. 12 At step four, the ALJ did not make a finding about whether Plaintiff is able 13 to perform any past relevant work. Tr. 25. At step five, the ALJ found, based on 14 Plaintiff’s age, education, work experience, and RFC, there are other jobs that exist 15 in significant numbers in the national economy that Plaintiff can perform, such as 16 escort vehicle driver, document preparer, and nut sorter. Tr. 26. The ALJ 17 concluded Plaintiff was not under a disability, as defined in the Social Security 18 Act, from November 20, 2019 through November 10, 2021, the date of the ALJ’s 19 decision. Tr. 27–28. 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 7 1 ISSUES 2 1. Whether the ALJ properly conducted a step two evaluation; 3 2. Whether the ALJ properly assessed Plaintiff’s subjective complaints; 4 3. Whether the ALJ properly evaluated the medical opinion evidence; and 5 4. Whether the ALJ properly conducted a step five evaluation. 6 ECF No. 14 at 7. 7 DISCUSSION 8 I. 9 Plaintiff contends the ALJ erred at step two by finding Plaintiff’s 10 11 Step Two impairments such as diabetes and headaches as non-severe. ECF No. 11 at 6–8. At step two of the sequential process, the ALJ must determine whether a 12 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 13 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). To show a severe impairment, the claimant must first prove the 15 existence of a physical or mental impairment by providing medical evidence 16 consisting of signs, symptoms, and laboratory findings; the claimant’s own 17 statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1521, 416.921. 18 An impairment may be found non-severe when “medical evidence 19 establishes only a slight abnormality or a combination of slight abnormalities 20 which would have no more than a minimal effect on an individual’s ability to work ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 8 1 . . . .” Social Security Ruling (SSR) 85-28, 1985 WL 56856, at *3. Similarly, an 2 impairment is not severe if it does not significantly limit a claimant’s physical or 3 mental ability to do basic work activities, which include walking, standing, sitting, 4 lifting, pushing, pulling, reaching, carrying, or handling; seeing, hearing, and 5 speaking; understanding, carrying out and remembering simple instructions; 6 responding appropriately to supervision, coworkers and usual work situations; and 7 dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1522, 416.922; 8 see also SSR 85-28. 9 Step two is “a de minimis screening device to dispose of groundless claims.” 10 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted). “Thus, 11 applying our normal standard of review to the requirements of step two, [the 12 Court] must determine whether the ALJ had substantial evidence to find that the 13 medical evidence clearly established that [Plaintiff] did not have a medically 14 severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 15 683, 687 (9th Cir. 2005). 16 The ALJ found Plaintiff’s diabetes, hypertension, hyperlipidemia, PMS, and 17 headaches were not severe medically determinable impairments where they are 18 effectively controlled with medication or medical treatment. Tr. 18. The ALJ 19 found that Plaintiff receives care for type 2 diabetes mellitus without complication 20 or long-term current insulin use since at least April 2019, Plaintiff reported glucose ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 9 1 levels of 100-300 in February 2019, Plaintiff has good clinical response to 2 Metformin and Victoza, Plaintiff’s blood pressure is well controlled with 3 Lisinopril, and Plaintiff was prescribed birth control for hormonal management for 4 symptoms associated with PMS. Id. This is a valid basis to find impairments non- 5 severe. 20 C.F.R. §§ 404.1522, 416.922; see also Bagdasaryan v. Saul, 787 F. 6 App’x 423, 424 (9th Cir. 2019) (upholding finding impairments were non-severe 7 when “well-controlled with medication and did not required specialist care”). 8 9 Even if the ALJ’s decision was error, any error would be harmless because the step was resolved in Plaintiff’s favor and the ALJ considered Plaintiff’s 10 limitations resulting from these impairments when assessing Plaintiff’s residual 11 functional capacity. Burch v. Barnhart, 400 F.3d 676, 682–83 (9th Cir. 2005) 12 (finding harmless error where the ALJ failed to identify an impairment as severe at 13 step two but accounted for the impairment at step five). 14 II. 15 Plaintiff contends the ALJ did not rely on clear and convincing reasons in 16 Plaintiff’s Symptom Testimony rejecting Plaintiff’s subjective complaints. ECF No. 11 at 11–18. 17 An ALJ engages in a two-step analysis to determine whether a claimant’s 18 subjective symptom testimony can be reasonably accepted as consistent with the 19 objective medical and other evidence in the claimant’s record. Social Security 20 Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *2. “First, the ALJ must determine ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 10 1 whether there is ‘objective medical evidence of an underlying impairment which 2 could reasonably be expected to produce the pain or other symptoms alleged.’” 3 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Vasquez v. Astrue, 4 572 F.3d 586, 591 (9th Cir. 2009)). “The claimant is not required to show that her 5 impairment ‘could reasonably be expected to cause the severity of the symptom 6 she has alleged; she need only show that it could reasonably have caused some 7 degree of the symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 13 omitted). General findings are insufficient; rather, the ALJ must identify what 14 symptom claims are being discounted and what evidence undermines these claims. 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 17 explain why he or she discounted claimant’s symptom claims). “The clear and 18 convincing [evidence] standard is the most demanding required in Social Security 19 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 11 1 The ALJ is instructed to “consider all of the evidence in an individual’s 2 record,” “to determine how symptoms limit ability to perform work-related 3 activities.” SSR 16-3p, 2016 WL 1119029, at *2. When evaluating the intensity, 4 persistence, and limiting effects of a claimant’s symptoms, the following factors 5 should be considered: (1) daily activities; (2) the location, duration, frequency, and 6 intensity of pain or other symptoms; (3) factors that precipitate and aggravate the 7 symptoms; (4) the type, dosage, effectiveness, and side effects of any medication 8 an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, 9 other than medication, an individual receives or has received for relief of pain or 10 other symptoms; (6) any measures other than treatment an individual uses or has 11 used to relieve pain or other symptoms; and (7) any other factors concerning an 12 individual’s functional limitations and restrictions due to pain or other symptoms. 13 Id. at *7–8; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 14 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to 15 cause some of the alleged symptoms. Tr. 23. However, the ALJ found Plaintiff’s 16 statements concerning the intensity, persistence, and limiting effects of those 17 symptoms were not entirely consistent with the other evidence in the record. Tr. 18 24. 19 20 1. Excessive Sweating The ALJ found Plaintiff’s allegation of excessive sweating failed the first ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 12 1 prong on the symptom-evaluation test where there is no medically-determinable 2 impairment that could reasonably be expected to cause this symptom. Tr. 24. The 3 ALJ noted that no physical exam has documented the profuse sweating she alleges. 4 Id. 5 Plaintiff contends that several of her impairments “are sometimes known to 6 cause sweating, including morbid obesity, diabetes, tachycardia, PCOS, anxiety 7 disorder, and PTSD.” ECF No. 11 at 12–13. Plaintiff cited to the record where 8 medical providers observed Plaintiff’s increased perspiration. ECF No. 11 at 13 9 (citing Tr. 361, 372, 481). 10 The ALJ erred in summarily finding Plaintiff’s excessive sweating could not 11 reasonably be expected to be caused by any of her medically determinable 12 impairments and in finding no physical exam documented Plaintiff’s sweating. 13 The ALJ cites to treatment notes associating Plaintiff’s sweating with her 14 tachycardia. Tr. 22. Additionally, as pointed out by Plaintiff, physical exams 15 document Plaintiff’s perspiration. See Tr. 361, 372, 481. Therefore, the ALJ’s 16 finding was not supported by substantial evidence. On remand, the ALJ is 17 instructed to reconsider Plaintiff’s symptom testimony regarding excessive 18 sweating and its impact on her RFC, if any. 19 20 2. Objective Medical Evidence Plaintiff challenges the ALJ’s finding that Plaintiff’s symptom testimony ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 13 1 2 was not supported by the objective medical evidence. ECF No. 11 at 19. Objective medical evidence is a relevant factor, along with the medical 3 source’s information about the claimant’s pain or other symptoms, in determining 4 the severity of a claimant’s symptoms and their disabling effects. 20 C.F.R. §§ 5 404.1529(c)(2); 416.929(c)(2). However, an ALJ may not discredit a claimant’s 6 symptom testimony and deny benefits solely because the degree of the symptoms 7 alleged is not supported by objective medical evidence. Id. 8 9 The ALJ found the objective medical evidence otherwise unremarkable, with physical exams showing no distress, normal gait, normal neurological 10 findings, and rarely, tremor that decreases with distraction, and almost entirely 11 normal mental status exams. Tr. 24. The ALJ’s finding is supported by substantial 12 evidence. 13 14 3. Course of Treatment Plaintiff contends the ALJ erred in finding her course of treatment 15 contradicted her symptom testimony because the it was the only available course 16 of treatment for her impairments. ECF No. 11 at 14. Plaintiff contends her 17 conditions of fibromyalgia, diabetes, obesity, and mental health disorders can 18 typically only be treated with conservative methods such as medications, lifestyle 19 changes, and therapy. Id. 20 A claimant’s course of treatment and any other measures taken to relieve ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 14 1 symptoms are relevant factor in considering the severity of symptom allegations. 2 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Tommasetti v. Astrue, 533 3 F.3d 1035, 1040 (9th Cir. 2008) (recognizing that a favorable response to treatment 4 can undermine a claimant’s complaints of debilitating pain or other severe 5 limitations). A claimant’s “unexplained, or inadequately explained, failure to seek 6 treatment or follow a prescribed course of treatment” can undermine symptoms 7 reports. Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989). 8 9 The ALJ found Plaintiff pursued a routine, conservative course of treatment, including that she did not begin mental health treatment counseling until a few 10 months ago, she engaged in low-frequency counseling, sought only one 11 rheumatology consult with no follow-up, sought minimal treatment for migraines, 12 and sought no treatment with a neurologist. Tr. 24. The ALJ’s finding is 13 supported by substantial evidence. 14 4. Inconsistent Statements 15 Plaintiff contends the ALJ erred in supporting his assertion that Plaintiff’s 16 reports to providers are inconsistent with disability. ECF No. 11 at 15. Plaintiff 17 contends her ability to walk 15-30 minutes in a grocery store does not indicate she 18 is capable of doing sedentary work for up to two hours daily. Id. 19 20 In considering a claimant’s symptoms, the ALJ may consider a claimant’s inconsistent statements. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 15 1 The ALJ found Plaintiff’s pattern of past, contemporaneously-recorded 2 reports to providers was inconsistent with disability. The ALJ noted she reported 3 very low PHQ-9 and GAD-7 scores throughout the record, reported she does not 4 faint, can walk 15-30 minutes in a grocery store, and once reported that her overall 5 pain was tolerable. Tr. 24. The ALJ also found her weekly migraines at times not 6 congruent with past reports, which reflect few reports. Id. The Court notes that 7 the ALJ does not explain how some of these past reports, such as no fainting or the 8 amount Plaintiff is able to walk, is inconsistent with Plaintiff’s symptom 9 testimony. As this matter is already remanded, the ALJ is instructed to reconsider 10 11 12 13 14 this factor. 5. Daily Activities Plaintiff challenges the ALJ’s finding that Plaintiff’s symptom testimony conflicted with her daily activities. ECF No. 11 at 15–16. A claimant’s daily activities is a relevant factor in assessing a claimant’s 15 symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). An adverse credibility 16 finding is warranted if (1) Plaintiff’s activities contradict other testimony, or (2) 17 Plaintiff “is able to spend a substantial part of [her] day engaged in pursuits 18 involving the performance of physical functions that are transferable to a work 19 setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citation omitted). 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 16 1 The ALJ found Plaintiff has high-functioning daily activities. Tr. 24. The 2 ALJ noted Plaintiff makes the bed, works on crafts, makes meals, does laundry, 3 washes dishes, plants flowers, goes outside daily, goes out alone, drives, shops in 4 stores, manages financial accounts, and regularly goes to church. Id. The ALJ 5 noted Plaintiff “essentially” alleges she is bed-bound, yet she is functioning 6 “essentially unimpaired.” Id. 7 The ALJ finding that her activities contradict Plaintiff’s testimony that 8 “essentially” claims she is “bed-bound” is not supported by substantial evidence in 9 that Plaintiff did not claim to be “essentially bed bound.” While it may be 10 presumed, the ALJ did not address whether her “essentially unimpaired daily 11 functioning” supports physical functions transferable to a work setting. Therefore, 12 the ALJ is instructed to reconsider this factor on remand. 13 6. Treating Providers 14 The ALJ found that “[t]he fact that none of the medical professional who 15 know the claimant best has endorsed disabling limitations … provides multiple 16 points of confirmation that the claimant is not disabled.” Plaintiff contends the 17 ALJ erred because the record contains no opinion from a treating provider that 18 states Plaintiff’s functional limitations are not disabling. ECF No. 11 at 17–18. 19 While reasonable inferences may be drawn, an ALJ must not use “presumptions, 20 speculations and suppositions.” SSR 82-62. The Court agrees, and finds the ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 17 1 ALJ’s finding was not supported by substantial evidence, but rather speculation 2 and suppositions. As this matter is already remanded, the ALJ is instructed to 3 reconsider this factor. 4 III. 5 Plaintiff challenges the ALJ’s evaluation of the medical opinion of Dr. 6 7 Medical Opinion Evidence Khurana. ECF No. 11 at 8–11. For claims filed on or after March 27, 2017, new regulations apply that 8 change the framework for how an ALJ must evaluate medical opinion evidence. 9 20 C.F.R. §§ 404.1520c, 416.920c; see also Revisions to Rules Regarding the 10 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 11 2017). The ALJ applied the new regulations because Plaintiff’s claims were filed 12 after March 27, 2017. 13 Under the new regulations, the ALJ will no longer “give any specific 14 evidentiary weight . . . to any medical opinion(s).” Revisions to Rules, 2017 WL 15 168819, 82 Fed. Reg. 5844-01, 5867–68. Instead, an ALJ must consider and 16 evaluate the persuasiveness of all medical opinions or prior administrative medical 17 findings from medical sources. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). 18 The factors for evaluating the persuasiveness of medical opinions and prior 19 administrative medical findings include supportability, consistency, relationship 20 with the claimant, specialization, and “other factors that tend to support or ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 18 1 contradict a medical opinion or prior administrative medical finding” including but 2 not limited to “evidence showing a medical source has familiarity with the other 3 evidence in the claim or an understanding of our disability program’s policies and 4 evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). 5 The ALJ is required to explain how the most important factors, 6 supportability and consistency, were considered. 20 C.F.R. §§ 404.1520c(b)(2), 7 416.920c(b)(2). These factors are explained as follows: 8 9 10 11 12 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 13 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2). 14 The ALJ may, but is not required to, explain how “the other most persuasive 15 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 16 404.1520c(b)(2); 416.920c(b)(2). However, where two or more medical opinions 17 or prior administrative findings “about the same issue are both equally well18 supported . . . and consistent with the record . . . but are not exactly the same,” the 19 ALJ is required to explain how “the most persuasive factors” were considered. 20 20 C.F.R. §§ 404.1520c(b)(2) 416.920c(b)(2). ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 19 1 These regulations displace the Ninth Circuit’s standard that require an ALJ 2 to provide “specific and legitimate” reasons for rejecting an examining doctor’s 3 opinion. Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). As a result, the 4 ALJ’s decision for discrediting any medical opinion “must simply be supported by 5 substantial evidence.” Id. 6 The ALJ found Dr. Khurana’s opinion unpersuasive. Tr. 24–25. Dr. 7 Khurana opined Plaintiff’s complexity and severity of medical and psychiatric 8 illnesses make it unrealistic for her to ever work again in a meaningful, long-term 9 capacity. Tr. 24. Dr. Khurana found Plaintiff has moderate to marked difficulty 10 with simple instructions, moderately to markedly impaired work-related judgments 11 and ability to carry out more complex instructions, mild to moderate impairment in 12 understanding, severe impairment for sustained concentration and persistence, 13 severe impairment in social interactions, and marked impairment in responding to 14 changes in the work routine. Id. 15 As to supportability, the ALJ found the opinion unsupported by his own 16 exam findings that Plaintiff was friendly, attentive, communicative, casually 17 groomed, happy-appearing, cooperative, attentive with normal speech, mood ok 18 with fairly bright affects, insight and judgment intact, and completion of tests such 19 as serial 7s and spelling WORLD backwards. Tr. 25. As to consistency, the ALJ 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 20 1 found the opinion inconsistent with the treatment record showing little to no 2 anxiety or depression and minimal health treatment. Id. 3 4 The Court finds that the ALJ provided substantial evidence for finding Dr. Khurana’s opinion unpersuasive. 5 IV. 6 Plaintiff contends the ALJ erred by failing to conduct an adequate analysis at Step Five 7 step five. ECF No. 11 at 18–20. Plaintiff asserts the ALJ erred in providing the 8 vocational expert an incomplete hypothetical. Id. In light of the Court’s 9 instruction to remand, the ALJ is instructed to conduct a new sequential analysis 10 taking in the above considerations. 11 12 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes 13 that the ALJ’s decision is not free of harmful legal error. Remand is appropriate. 14 ACCORDINGLY, IT IS HEREBY ORDERED: 15 16 17 18 1. Plaintiff’s Brief (effectively a motion for summary judgment), ECF No. 11, is GRANTED. 2. Defendant’s Brief (effectively a motion for summary judgment), ECF No. 13, is DENIED. 19 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 21 1 3. This case is REVERSED and REMANDED pursuant to sentence four 2 of 42 U.S.C. § 405(g) for further administrative proceedings consistent 3 with this Order. 4 5 6 The District Court Executive is directed to enter this Order and Judgment for Plaintiff accordingly, furnish copies to counsel, and CLOSE the file. DATED June 23, 2023. 7 8 THOMAS O. RICE United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S BRIEF AND DENYING DEFENDANT’S BRIEF ~ 22

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