Northrup v. Comm'r of Soc. Sec. Admin.

Full title: Scott Northrup, Plaintiff, v. Commissioner of Social Security…

Court: United States District Court, District of Arizona

Date published: May 2, 2024

CV 23-01250 PHX SMB (CDB) (D. Ariz. May. 2, 2024)

Opinion

CV 23-01250 PHX SMB (CDB)

05-02-2024

Scott Northrup, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

Camille D. Bibles United States Magistrate Judge

THE HONORABLE SUSAN M. BRNOVICH

REPORT AND RECOMMENDATION

Camille D. Bibles United States Magistrate Judge

This case was referred to the Magistrate Judge for a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for the District of Arizona. Plaintiff Scott Northrop is represented by counsel, and the matter is briefed and ready for the Court's review.¹

1 Plaintiff's name is spelled incorrectly by his counsel in the Complaint and, accordingly, in the caption in this matter. In his application to proceed in forma pauperis, in the Commissioner's record documents, and in the medical records in the record on appeal, Plaintiff's surname is spelled “Northrop.” Northrop did not file a reply addressing the arguments raised in the Commissioner's answering brief.

I. Procedural Background

Northrop filed an application for Title II Social Security disability insurance benefits on August 12, 2020. (ECF No. 12-7 at 2-4). In his application Northrop alleged disability beginning July 31, 2020, due to strokes, various cardiac issues including congestive heart failure and cardiomyopathy, chronic kidney disease, hypertension, lupus, and antiphospholipid syndrome. (ECF No. 12-7 at 6). Northrop's claim was denied initially on September 17, 2020, and upon reconsideration on November 18, 2021. (ECF No. 12-4 at 2-17, 20-28). Northrop requested a hearing before an Administrative Law Judge (“ALJ”), which was conducted June 21, 2022. (ECF No. 12-3 at 37-63). In an order entered July 6, 2022, the ALJ determined Northrop was not disabled. (ECF No. 12-3 at 13-36). Northrop sought review of the ALJ's decision by the Social Security Appeals Council, which denied relief on May 11, 2023. (ECF No. 12-3 at 2-6), making the ALJ's decision the final, appealable decision of the Commissioner.

II. Governing Law

Northrop seeks disability benefits pursuant to Title II of the Social Security Act. Disability insurance benefits pursuant to Title II are paid to disabled persons who have contributed to the Social Security program regardless of financial need. 42 U.S.C. §§ 401-425.

To establish eligibility for benefits based on disability, the claimant must show they suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months and the impairment renders the claimant incapable of performing the work that they previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. 20 C.F.R. § 404.1505. If a claimant meets both of these requirements, they are by definition “disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002). To be entitled to disability insurance benefits pursuant to Title II, the claimant must also establish they were either permanently disabled, or subject to a condition which became so severe as to disable them, prior to the date upon which their disability insured status expired, i.e., prior to their “date last insured” for benefits. See, e.g., Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).

A five-step sequential evaluation governs eligibility for disability-based benefits under Title II. See 20 C.F.R. §§ 404.1520; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). First, the claimant must establish they were not gainfully employed at the time of their application. 20 C.F.R. § 404.1520(a)(4)(i). Next, the claimant must be suffering from a “medically severe” impairment or “combination of impairments.” Id. § 404.1520(a)(4)(ii). The third step is to determine whether any of the claimant's impairments meets or equals one of the “listed” impairments included in Appendix 1 to this section of the Code of Federal Regulations. See Id. § 404.1520(a)(4)(iii). If any of the claimant's impairments meets or equals one of the impairments listed in Appendix 1, the claimant is conclusively “disabled.” See id.

The fourth step of the process requires the ALJ to determine whether the claimant, despite their impairments, can perform work similar to work they have performed in the past. This requires the ALJ to make an assessment of the plaintiff's “residual functional capacity” to do work-related tasks on a sustained basis. A claimant whose “residual functional capacity” allows them to perform their “past relevant work,” despite their impairments, is denied benefits. Id. § 404.1520(a)(4)(iv).

The claimant bears the burden of proof throughout the first four steps of the evaluation. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Valentine v. Social Sec. Admin., 5 74 F.3d 685, 689 (9th Cir. 2009). If the claimant cannot perform their past relevant work because of their impairments, the ALJ proceeds to step five. At step five of the evaluation the burden shifts to the ALJ to demonstrate the claimant can perform other substantial gainful work that exists in the national economy, given their residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(v); Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). In making this determination the ALJ must consider vocational factors such as the claimant's age, education, and past work experience. Id. § 404.1520(g). If the claimant can adjust to other work, the ALJ must find that the claimant is not disabled. Id. § 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and entitled to benefits.

III. Standard of Review

The Court's jurisdiction extends to review of the final decision of the ALJ denying Northrop's application for Social Security disability-based benefits. 42 U.S.C. § 405(g). Judicial review of a decision of the ALJ is based upon the pleadings and the administrative record of the contested decision. See Id. The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards to Northrop's claims for benefits and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See Id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Satisfying the substantial evidence standard requires more than a scintilla but less than a preponderance of record evidence. E.g., Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence has been defined as the amount of relevant evidence a reasonable mind would accept as adequate to support a conclusion. Id. See also Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022); Garrison, 759 F.3d at 1009.²

2 The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. []. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. []. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).

The Court must consider the record evidence in its entirety, weighing both the evidence that supports and detracts from the ALJ's conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). A reviewing court may not affirm the ALJ's denial of benefits by isolating a specific quantum of supporting evidence. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); Revels v. Berryhill, 784 F.3d 648, 654 (9th Cir. 2017). However, where “the evidence can reasonably support either affirming or reversing a decision,” the Court may not substitute its judgment for that of the ALJ. Garrison, 759 F.3d at 1010. See also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). And, if the ALJ's legal error was harmless, i.e., if there is substantial evidence in the record to support the ALJ's conclusion on the challenged issue absent the legal error, the case need not be remanded for further proceedings. See, e.g., Ford, 950 F.3d at 1154; Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015).

IV. Record on Appeal

Northrop was born in 1968, and was 51 years of age when he applied for benefits and 53 years of age on the date of the ALJ's decision denying benefits. Northrop completed two years of community college. (ECF No. 12-7 at 7). From 1992 through July 31, 2020, Northrop worked as a customer service representative for the Arizona Department of Transportation. (ECF No. 12-7 at 7, 16-17). He reported his work tasks as helping “customers become a licensed motor vehicle dealer. I would answer phones and use the computer as well as deal with paper work daily.” (ECF No. 12-7 at 8).

Northrop alleged disability beginning July 31, 2020, due to strokes, atrial fibrillation, dilated cardiomyopathy, a microvalve replacement, mitral regurgitation, hypertension, chronic kidney disease, cardiomegaly, congestive heart failure, verrucous endocarditis, chronic venous hypertension, subcutaneous defibrillator, paroxysmal atrial fibrillation, NICMC/Cardio Myopathy,³ lupus, and antiphospholipid syndrome.⁴ (ECF No. 12-7 at 6 Northrop reported his prescription medications as Coumadin (warfarin, a blood thinner), furosemide (for congestive heart failure and heart disease), lamotrigine (to treat seizures), levothyroxine, losartan (a blood pressure medication), metoprolol (a blood pressure medication), mycophenolate (for “kidney issues”), omeprazole (for acid reflux), Plaquenil (to treat lupus), and prednisone (to treat lupus). (ECF No. 12-7 at 9).

3 “NICMC/Cardio Myopathy,” also known as non-ischemic heart disease, is a term encompassing any condition resulting in abnormal heart function other than those caused by blocked arteries or heart attacks.

4 Antiphospholipid syndrome is an autoimmune disorder where the immune system mistakenly produces antibodies that attack normal proteins in the blood. This condition increases the risk of blood clots in various parts of the body, including the legs, lungs, brain, and kidneys.

In his application for disability benefits Northrop reported he was not seeing a mental health care professional or receiving treatment for any mental or emotional conditions, and he did not seek disability benefits based on any mental health condition or symptoms. (Id.). However, the record demonstrates that prior to the alleged onset of disability and thereafter he was receiving counseling for personal and family issues from Dr. Perez, a psychologist at Northlight Counseling Associates (“Northlight”).

Notes from a June 17, 2019, session at Northlight state:

Claudia [Northrop's wife] and and Scott present.... He is n A- fib and going to have a procedure ... Health issues .. .. .. dealing with both of theirs health issues ...... He has issues at work .. . .. . Elisa 27 still at home Amber is 6 and love her ., . It is Amber that we have to take care of ...... issues health /job/ daughter/ granddaughter .. etc .... [sic]

(ECF No. 12-8 at 255) (ellipses and typographical errors in original).⁵

5 Dr. Perez's treatment records all contain numerous spelling and punctuation errors, including numerous strings of variously spaced periods and commas. The records infra will be placed in block quotes and some punctuation and spelling will be corrected; in these quotes ellipses do not generally represent deleted text.

In each record from Northlight throughout the relevant time period Dr. Perez records a diagnosis of Bipolar II disorder with a “plan” of “Behavioral Activation,” “Cognitive Behavioral Therapy,” and “Bring in wife as is poss[ible].” There is no explanation of the diagnosis of bipolar disorder, nor any indication in the record that testing was performed to establish the diagnosis of bipolar disorder, nor any indication that any medication to treat bipolar disorder was ever prescribed. Additionally, each treatment record states: “Comparing their current condition versus that at intake, this patient's condition is minimally improved since the initiation of treatment. Had a number of months of phys and emotional challenges … and now improved … Ablation failure disappointing … Depression is up.” (E.g., ECF No. 128 at 256). Each treatment record also indicates Northrop's appearance was disheveled, and that he displayed cooperative behavior, normal speech, euthymic mood, congruent mood, goal directed thought process, no abnormal content of thought, intact insight and judgment, and alert and aware consciousness. (Id.).

Northrop went to the Banner Desert Medical Center emergency department (“ED”) on August 14, 2019, complaining of a right-sided headache and a transient episode of aphasia and vertigo lasting for approximately ten minutes. (ECF No. 12-8 at 74, 85). His symptoms had resolved on arrival at the ED. (Id.). He denied any prior similar episodes or recent seizures. (Id.). He reported his last seizure was ten years ago. (Id.). A CT of his head was negative. (Id.). Medical records indicated an “episode of AFib” “on device check on 08/05/2019.” (ECF No. 12-8 at 83). Northrop was admitted for observation, with an impression of a transient ischemic attack and chronic kidney disease, and released the following day. (ECF No. 12-8 at 90).

Notes from Northlight dated August 31, 2019, state:

Lots of health issues and events … Defibrillator went off... Had a false Stroke … Banner … 5 days … INR was high … He has to watch the heat … Vein bad surgeries … Issues with his Family … Claudia [Northrop's wife] wrote letter … Tells her point of view … Some may be interpretations ? but not disrespectful …Though she called them Hypocrites … Beth texted him back and was unforgiving cut off all communication …

(ECF No. 12-8 at 252).

Northrop was seen at the Banner Desert Medical Center ED on October 2, 2019, complaining of a cough, worsening lower extremity edema, and shortness of breath. (ECF No. 12-8 at 116-17, 122). He reported he did “not feel as if he is having an a fib episode.” (Id.). He was given an IV and later evaluated as “doing well,” and the doctor noted: “May just need to be discharged on higher dose diuretic.” (ECF No. 12-8 at 117, 119, 127, 131). The following day Northrop was “doing well” and “significantly better,” he “want[ed] to go home,” and he was discharged. (ECF No. 12-8 at 139-41).

Notes from a session at Northlight dated on October 12, 2019 state:

… He presents and reports that he has been suspended w/o pay for a period of one week ... Aggressive ? Loud … He can be ... He doesn't remember the incident and has no idea why .... He is focused on his work …. Has received letter of reprimand … Had a meeting set up … for retirement meeting and couldn't attend because he was in the hospital with Pulmonary Edema …. We discuss the letter of reprimand … He feels he is needing to retire … He cant make it … He is not sure if PETTITE MALL SIESURES [sic] have happened but he doesn't remember events … His Med Dr.

surprised and worried ... Not sure how to approach but he can not [sic] go on … he is teary and disappointed … He needs to consider Medical Leave … ST /LT Behavioral?????? (A) unable to work in any capacity due to emotional cog difficulties … Filled info for FMLA … Recommend 2 [months] and go from there …

(ECF No. 12-8 at 249).

Northrop was seen by Dr. Niazi at Tri-City Cardiology on November 20, 2019, to review the results of an echocardiogram. (ECF No. 12-8 at 167). The chief complaint was noted as atrial fibrillation (Id.). Dr. Niazi's notes state:

This is a 51-year-old man with a history of hypertension, severe mitral regurgitation status post mitral valve replacement and paroxysmal atrial fibrillation status post atrial fibrillation ablation as well as nonischemic cardiomyopathy status post dual-chamber ICD implantation presents to clinic for follow-up. Patient had an ICD shock for atrial fibrillation with a rapid ventricular response. Patient's device was adjusted accordingly. Patient has severe left atrial enlargement on his recent transthoracic echo but has had a recovery and his left ventricular systolic function to 50%. He does endorse some chronic shortness of breath and decreased exercise tolerance but denies any further shocks, pain, PND or syncope. He's been compliant with his medications as well as his follow-up.

(Id.). Northrop's gait was normal and he reported he was able to exercise. (ECF No. 12-8 at 169).

Notes from a Northlight session on January 18, 2020, state:

Scott presents having come by bus. He is ok and manages well .. Phys frail and gait evidence of limp … Work is ok will try to make it to Nov … His feeling is that he'd be quitting … This is discussed … Pros and cons … Retirement … LTD … Claudia is disappointed as Ive [sic] changed my mind … Memory not the best … Nov Full Retirement … Diss retirement … He is recommended to consider Med retirement.

(ECF No. 12-8 at 246).

Northrop saw Dr. Perez at Northlight on February 15, 2020. The notes state:

Scott presents and changed his mind to Retirement at full retirement … Not Disability retirement … Big issues … He'll clear 900$ ? after med ins … He doesn't want to go disability because he'd feel like he is quitting his job …We discuss his conditions …

(ECF No. 12-8 at 243).

Northrop was seen by Dr. Niazi at Tri-City Cardiology on February 25, 2020. (ECF No. 12-8 at 171). The notes state:

Patient presents to clinic for follow-up. He states he's been doing well. He denies any complaints. He denies any PND, orthopnea or syncope. His heart rates been better controlled. He continues to have atrial fibrillation. [He] had severe left atrial enlargement and severe mitral valve vegetation that is post MVR. He's been doing well and compliant with his oral intake regulation. We'll continue to follow him from a clinical standpoint. I discussed with him that he's had inappropriate shocks for atrophic relation in the past and that [he] consider turning off his ICD⁶ but patient as well as his time. We will continue to follow with extended detection and high zone therapies.

(Id.). Upon examination Northrop was negative for dizziness, memory loss, seizures, depression, joint pain, and myalgia. (ECF No. 12-8 at 173). Northrop's gait was normal and he reported being able to exercise. (Id.).

Notes from a therapy session at Northlight on March 14, 2020, state:

Sched a retirement seminar for end of April ... Claudia is ok … The Corona Virus thing … She thinks its overblown … Talks gov ... an[d] the ramifications of future challenges … He is more tired and run down … Sees his Dr … as he should ... Getting out/public transportation … gets home wiped out ... No seizures n over 10 yrs. … Now the heart - A·fib and Mitra[l] Valve … Claudia is looking forward to his retirement, He at 27 yrs is ready also …

(ECF No. 12-8 at 240).

6 An implantable cardioverter-defibrillator (ICD) is a small battery-powered device placed in the chest which detects and stops irregular heartbeats (arrhythmias). An ICD checks the heartbeat and delivers electric shocks, when needed, to restore a regular heart rhythm. An ICD is not the same thing as a pacemaker, which prevents dangerously slow heartbeats.

Northrop was seen for counseling on May 23, 2020. (ECF No. 12-8 at 237). The notes state:

Stressed out New system ... His supervisor is retiring in a month or so. He trusts and she has gone to batt [sic] for him … Claudia wants to see me make it through Dec … He is now not sure he can make it They are not communicating … and resolving their issues … He has never wanted to consider disability … Feels he is not disabled … He walks with a cane - so

what … Current supervisor understands me … The job is very challenging … New system and training and a big struggle … Physically ok ... Emotions are very bothersome … Talking with Claudia is helping emotionally …. Disability ????? he needs to consider .…

(Id.).

Northrop was seen by Dr. Niazi at Tri-City Cardiology on June 18, 2020. (ECF No. 12-8 at 175). The notes state:

Patient presents to clinic for follow-up. He states he's been doing well. He denies any complaints. He denies any PND, orthopnea or syncope. His heart rates been better controlled. He continues to have atrial fibrillation. [He] had severe left atrial enlargement and severe mitral valve vegetation that is post MVR. He's been doing well and compliant with his oral intake regulation. We'll continue to follow him from a clinical standpoint. I discussed with him that he's had inappropriate shocks for atrophic relation in the past and that [he] consider turning off his ICD but patient as well as his time. We will continue to follow with extended detection and high zone therapies.

… [He] was recently hospitalized for volume overload. He did develop pulmonary edema. He [is] not following his diet and has started gaining weight as well as fluid in his legs.⁷ He denies any chest pain, palpitations, PND, orthopnea or syncope. We have diuresed with intravenous furosemide. I'll increase his furosemide to 40 mg now. Patient will continue to take his furosemide and check daily weights. I'll have him seen in heart failure clinic so we have a closer follow-up with him. Patient understands this and I discussed the plan of care with his wife in great detail. Patient from a cardiac stand point can return to work on Monday.

(Id.). Dr. Niazi's notes indicate Northrop was “negative” for dizziness, memory loss, seizures, depression, joint pain, and myalgia. (ECF No. 12-8 at 177).

7 At that time Northrup was six feet tall and weighed 252 pounds, with a body mass index (“BMI”) of 31.5. (ECF No. 12-8 at 177).

Northrop was seen by Dr. Chung at the Banner Health BUMP Neuroscience Institute Epilepsy, on June 30, 2020. (ECF No. 12-8 at 214). Dr. Chung noted “previous medical refractory partial onset seizures arising from the right hemisphere.” (Id.). The doctor noted that on September 22, 2009, Northrop had a “right selective amygdalohippocampectomy and since that time, he became seizure-free.” (Id.). Dr. Chung further noted that in September of 2015 Northrop had a “diagnosis of a stroke when he presented with right foot drop and right leg weakness, which has been improving over time.” (Id.). A “kidney biopsy” “confirmed” Northrop had “antiphospholipid syndrome.” (Id.). Dr. Chung stated Northrop “remain[ed]” “seizure-free on Lamictal monotherapy,” and that Northrop had been “hospitalized recently for pulmonary edema” and was “feeling better now.” (Id.). The review of symptoms included, with regard to “neurologic” issues, “[p]ositive for right foot weakness.” (Id.). Northrop did not report anxiety or depression, but did report “short-term memory deficit.” (Id.). Muscle strength and tone were all normal, other than “right hemiparesis with foot drop,” and a notation indicates Northrop used a “cane on the left side mainly for balance.” (ECF No. 12-8 at 215).

Northrop presented, by ambulance, at the Banner University Medical Center ED on Tuesday, July 28, 2020, at 4:50 p.m., complaining of weakness and a sudden onset of dizziness with numbness on the top of his head while at work. (ECF No. 13-2 at 86, 108, 136, 143).⁸ Upon arrival at the ED he reported the issue had resolved. (ECF No. 13-2 at 136, 154). Numerous tests were performed and Northrop was given IV fluids. An EKG did not show evidence of acute ischemia or right-sided heart strain. (ECF No. 13-2 at 152). He was discharged at midnight (seven hours later) with instructions regarding the prevention of dizziness, syncope, and fainting, and he was advised to follow-up with his primary care physician and sent home in a taxi. (ECF No. 13-2 at 124, 130, 154).

8 [Northrup] presents the emergency room from work following a transient episode of “dizziness” described as “numbness on the top of my head”. Patient denies any other numbness, or any weakness or tingling. He denies any vision changes or speech changes. He denies feeling as if he was going to syncopized during the event. He states one prior history of similar episode several months ago of which cause was not clearly identified. Patient on arrival states significant symptomatic improvement and is denying active symptoms. (ECF No. 13-2 at 150).

Northrop's last day of work was July 31, 2020. Notes from a session at Northlight on August 1, 2020, state:

… Retired this last Friday. Not ready but must … Financially some more concerns but is trying to manage … He feels it is mess emotionally … He expected to go to 30 years. Disappointment in self. … Was in Hospital after a positional vertigo event at work … Was there for a few (9) hrs. Went back to work the next day … He regrets the retirement/his work ethic/life plans … He has to think about his health … He is slightly more depressed if at all … I feel I am in limbo … [Wife] has “honey-do-list” … Work is all I've known for past 28 yrs … We just bought a house … It is done and my name is not on it for protection against my family … … Health is stable … Spoke with Cardiologist and nephrologist and [Rheumatologist] … All is stable …

(ECF No. 12-8 at 234).

Northrop was seen by a nurse at Tri-City Cardiology on August 10, 2020. The notes indicate:

Pt presents today to assess for any adverse effects of long term anticoagulation therapy following a one time Coumadin dose increase for a subtherapeutic INR [having a blood level of Coumadin (warfarin) below the therapeutic range]. Pt will have one time Coumadin dose increase today to 4mg, then will have overall Coumadin does increase to 2 mg M, W, F and 4mg all other days. Pt will return for INR recheck in 2 weeks.

(ECF No. 12-8 at 180).

Northrop filed his application for Title II Social Security disability insurance benefits on August 12, 2020. (ECF No. 14-7 at 3). In his application Northrop alleged disability beginning July 31, 2020, due to strokes, various cardiac issues including congestive heart failure and “NICMC/Cardio Myopathy,” chronic kidney disease, hypertension, lupus, and antiphospholipid syndrome; he did not list any emotional or mental conditions as a basis for disability. (ECF No. 12-7 at 6).

Northlight notes from September 8, 2020, state (as with previous records): “Had a number of months of phys and emotional challenges … and now improved … Ablation failure disappointing … Depression is up.” (ECF No. 128 at 235). The doctor noted “Disability may be necessary at some point.” (ECF No. 128 at 236). The notes also state:

Scott is retired and having difficulty about retirement … Claudia presents also ... He … Relaxing ... ??? Started walking .. Can he make a list of things to accomplish ???? or is he just not doing it … He is asked is it

lazy or is it not knowing ... He does his house chores ... Asked if he does house chores and how long a day ... Thirty minutes he says ... Claudia says after COVID 19 to volunteer ... She hates to see him take unnecessary risks ... House work is not his thing ... Watering plants ...??? She cant take this on for Scott. She is spent and wont manage his needs ... He does laundry, very well ... He suffers anxiety “Oh my gosh it is pitiful” Blames his mother ... Domineering and controlling ... You never do anything right ... I'll do it ... here give it to me ... I'll do it ... He broke a lamp shade and I was upset ... He is inconsolable ... and a nervous wreck ... By the time she gets home from work she is done ... House looks like shit ... Not to her standard ... He does not participate in home schooling ... Scott and Amber have a good rel/watch tv/ ... He will commit to walking ... Scott to write down what to work on.

(ECF No. 12-8 at 234-35).

Northrop's claim for disability benefits was denied initially on September 16, 2020. (ECF No. 12-4 at 2-17).

Northrop was seen by a nurse at Tri-City Cardiology on September 29, 2020. (ECF No. 12-10 at 4-5). The notes indicate Northrop was taking Jantoven (a form of warfarin, a blood thinner) as directed, and Northrup did not report any signs or symptoms of stroke or deep vein thrombosis. (ECF No. 12-10 at 2).

Notes from a session at Northlight on September 29, 2020, state:

Scott is informed of my recovery issue ... List Sweep and clean Kitchen and bathroom ... Laundry and yard ... He feels good about it and is accomplishing ... He is walking but some pain ... Depression better ... Saw a movie By Betty Davis Now Voyager ... It made sense ... and it helped ... Claudia also watched it ... She had been trying to get him to watch it for years ... Got a letter from social security and was denied. All medical Drs were there ... Next step is Cardiologist letter that he is unable to to work in any form ... He cant work anywhere. His frequent medical issues would preclude him from being hired ... His history is extensive of illness. The slow and steady decline of ... kidney and heart ... They are trying to survive ... will avoid immobility and inactivity ... (P) will write a note to SSA about his incapacity to work any job.

(ECF No. 12-9 at 31-32).

Northrop was seen by a nurse at Tri-City Cardiology on September 29, 2020, for continuing anti-coagulation therapy. (ECF No. 12-10 at 4). Northrop was taking warfarin as directed, and he did not report any signs or symptoms of stroke or deep vein thrombosis. (Id.).

Northrop was seen by Jodie Brasfield, a nurse practitioner (Brasfield is “MS ACNP,” i.e., one who holds a master of science in nursing), at Tri-City Cardiology on October 7, 2020.⁹ The notes indicate a follow-up for chronic venous insufficiency:

9 Dr. Del Giorno is listed as the treatment provider, and the doctor reviewed and signed the treatment notes as “available at the time of service,” but the treatment notes are signed by MS ACNP-C Brasfield. (ECF No. 12-10 at 6, 9).

Patient was in the emergency room for purple toes. His left toes are fine. The right distal foot and a few of his toes are slightly discolored, there is no pain, foot and toes feel normal in temperature. He is on Jantoven. He has an extensive cardiac history. He has a history of MVR with a bioprosthetic mitral valve in 2015. Left heart catheterization at that time showed no significant occlusive coronary artery disease. Had a follow-up echocardiogram showing a decline in EF to 30%, and has an ICD now. He has been followed closely by electrophysiology for inappropriate shocks, they are reluctant to turn off the device, this was discussed with the electrophysiology service. No acute heart failure at this time though he has had acute pulmonary edema with ejection fraction of 30%. He had pulmonary vein isolation, unfortunately not successful in maintaining sinus rhythm. He has had venous ablation procedures. Currently, there is no lower extremity edema, but the lower extremities are chronically discolored. No pain.

(ECF No. 12-10 at 6). The notes indicate Northrop was negative for dizziness, memory loss, seizures, depression, joint pain and myalgia. (ECF No. 12-10 at 8). Upon examination he was not in acute distress. (Id.). The impression and plan states: “Patient needs letters from Dr. Niazi. Please assist … 2-D Echo, Complete w/CFD within 1 month. Kahlon [the referring physician] to read echo. Schedule with Dr. Kahlon in 5 weeks.” (Id.). It was noted that a bioprosthetic mitral valve was functioning normally, and Northrop was due for a follow-up echocardiogram. (Id.). With regard to atrial fibrillation, the notes state Northrop is “status post pulmonary vein isolation, and unfortunately he is back in A. Fib, currently being scheduled for cardioversion. He was followed closely by our electrophysiology service and continues to do so.” (Id.).

The notes also state:

4. History of epilepsy

5. History of chronic kidney disease and not a good candidate for ACE inhibitor therapy, stable GFR is 38

6. Underlying antiphospholipid syndrome with neurologic event on life long anticoagulation

7. History of significant venous reflux disease, multiple veins with significant reflux, unresponsive to conservative measures will need venous ablation

8. Nonischemic cardiomyopathy. Ejection fraction approximately 30%. He has an ICD in place. Patient has been followed closely by the electric physiology service. It was suggested at one point that possibly turn off the ICD for the inappropriate shocks, but family is reluctant at this time. He has not reestablished with his new electrophysiologist and they will handle his rhythm issues.

9. The patient went to the emergency room for purple toes, he was sent home. Left toes are fine, he does have some discoloration of the distal right foot and toes. There is no discomfort at all, the toes are warm. It is not severe by any means. It has not worsened.

(Id.).

Northrop was seen by Dr. Allabban, a rheumatologist at Arizona Rheumatology Consultants, on October 8, 2020. (ECF No. 13-1 at 96). The doctor noted:

… he has been switched to Jantoven, and his INR has been better controlled as he said. He has felt some exacerbation in the right lower extremity weakness that he has had chronically after having had a CVA 2 years ago. Denied having had falls or injuries.

(ECF No. 13-1 at 96) (emphasis added). The doctor opined: “Recommended the patient to be evaluated by physical medicine rehabilitation and neurology regarding the worsening right lower extremity weakness that the patent has reported. I doubt the patent having had a new stroke, but rather an exacerbation of the old stroke motor deficit.” (ECF No. 13-1 at 97).

Notes from Northlight regarding a session on October 20, 2020, state:

Scott presents in an upbeat mood … Started PT with the first interview being yesterday … Twice a week … They are actually going see if they can make my leg stronger … Financially difficult if [it is more] than 2x week ... Recently in Banner Baywood ... Reaction to Coumadin … Still will need INR check ... Claudia is shopping because house is in need of painting …

and will be done soon … Going with greens ... and cream puff … Claudia sees Scott doing well and getting information about his heart ... Last Echo EF 30?%, .. A new Echo will be done by Dr. Espinosa. Rheumatologist will also do an eval … He has A-Fib a Difibrilator !!!! How can one not be at risk … Lupus/Seisure [sic] Disorder - Epilepsy/Strokes and resulting right sided leg weakness ... Memory issues as well as cognitive ... He is a relatively young man with memory and cognitive issues ... His relationship with mom led to a self deprecating and self perception of damage … He is not able to work in any capacity in any job. Too unstable physically/medically and psychologically ... They are looking for the Tri City Cardiology-Cardiologist that said he needs to be off of work … He is less stressed when compared to work and had been worried about new programing that he knew he couldn't handle … He is more stable physically and emotionally. They say disability/retirement has saved his life … He is able to remain active but at a manageable level, not being forced as he was in a work environment … Will send them Emotional Cognitive issues … significant decline exacerbated by work difficulties … Waiting for evaluator to make some recommendation … Scott is ok with focus on self rather than work responsibility being the primary and and most critical focus in his life … He is different and grateful he feels he is able …

(ECF No. 12-9 at 34-35).

Northrop had a session with Dr. Perez at Northlight on October 23, 2020. (ECF No. 12-8 at 234). Dr. Perez noted: “The approach for treatment for this patient is principle-driven. The specific details are: CBT marital and rel w mother conflicts … managing multiple serious medical challenges … surgeries.” (Id.). Dr. Perez noted “epilepsy and number of medical issues recent heart surgery/stroke and sign family conflict. Medical conditions cardiovascular/thrombosis … Recent marriage being challenged.” (Id.).

Northrop was seen at the Banner Desert Medical Center ED on October 29, 2020, complaining of a cough and mild shortness of breath with exertion. (ECF No. 12-9 at 221, 226). After labs and x-rays showed no serious issue he was improved, stable, and “feeling much better,” and was released. (Id.).

An undated letter (included in the record on appeal on November 4, 2020), signed by Dr. Niazi of Dignity Health Heart Arrhythmia Center, states in its entirety:

To whom it may concern,

Scott Northrop, date of birth 10/21/1968 has been under my care for the last year. Mr. Northrop suffers from several significant cardiovascular morbidities that limits his ability to work. Namely, he has been under my care for significant mitral valvular disease that required operative intervention, persistent atrial fibrillation, non-ischemic cardiomyopathy limiting his physical exercise tolerance and requiring an implantable-cardioverter defibrillator and multiple debilitating strokes. As a result of these I do not believe he is fit for work and needs careful medical attention and care. Please do not hesitate to reach out to me for any questions.

(ECF No. 12-9 at 2).

Clinical treatment notes by Dr. Espinosa at Honor Health dated November 4, 2020, state the following issues were addressed: “Personal history of congestive heart failure;” “Anticoagulated on Coumadin;” “Abnormal antibody test;” “Cerebrovascular accident (CVA) due to other mechanism;” “Seizure disorder;” “High blood pressure disorder;” “Stage 3b chronic kidney disease;” and “stroke.” (ECF No. 12-9 at 4).

A letter dated November 4, 2020, signed by Dr. Espinosa, states in its entirety:

To Whom it May Concern:

Scott Northrop was seen in my clinic on 10/26/2020. Scott is pursuing an early retirement given his significant medical issues of having a history of Congestive heart failure and Pulmonary hypertension, history of cerebral vascular disease and history of a cerebrovascular accident, chronic kidney disease and a seizure disorder. I feel that given his multiple medical issues, he should pursue withdrawal from working.

(ECF No. 12-9 at 3).

Notes from a November 9, 2020, examination by Dr. Kahlon at Tri-City Cardiology, state:

Patient is here for cardiac evaluation as he has a history of MVR with a bioprosthetic mitral valve in 2015. Left heart catheterization at that time showed no significant occlusive coronary artery disease. Follow-up echo in November 2020 revealed EF of 40% with normally functioning bioprosthetic mitral valve. His main concern has been recent complaints of shortness of breath requiring hospitalization despite compliance with diuretic therapy and current medical regimen. His rate control has been optimal in current medical regimen. BMI remained essentially unchanged.

No history of device discharge. Main concern that shortness breath with mild to moderate activity. His current NYHA class is 2.¹⁰

(ECF No. 12-10 at 12). Northrop did not report dizziness, memory loss, or seizures. (ECF No. 12-10 at 14). The doctor noted normal breathing, regular heart rhythm, and normal pulse, and Northrop displayed appropriate mood. (Id.). The treatment plan was to continue with current medications with an evaluation in one month. (ECF No. 12-10 at 15). Dr. Kahlon referred Northrop for a sleep evaluation to rule out sleep apnea as contributing to recurrent fibrillation. (Id.).

10 The most commonly used classification system, the New York Heart Association (“NYHA”) Functional Classification, places patients in one of four categories based on limitations of physical activity. A patient diagnosed with stage C or stage D heart failure is assigned a classification of their condition by their health care professional as they undergo treatment, allowing the care team to measure how well treatment is working. A Class II patient's symptoms involve slight limitation of physical activity and the patient is comfortable at rest, but ordinary physical activity results in fatigue, palpitation, shortness of breath or chest pain. Class III is marked by limitation of physical activity, i.e., less than ordinary activity causes fatigue, palpitation, shortness of breath or chest pain. Class IV is indicative of symptoms of heart failure at rest and any physical activity causes further discomfort.

A letter dated November 9, 2020, signed by Dr. Kahlon, states in its entirety: “Mister Northrop [sic] has history of congestive heart failure requiring hospitalizations despite compliance with diuretic therapy. He also has concomitant history of chronic kidney disease. Given his overall clinical status patient is not able to perform active duties, as [a] result [he] would be good candidate for disability.” (ECF No. 12-9 at 17).

Notes from a visit at Northlight dated November 10, 2022, state:

He reports he is a bit down with the uncertainty and all that is going on ... He feels overboard and not capable to express self even about his medical and emotional Issues … Drs are reporting he shouldn't be working due to health concerns ... Cardiologist changed his Potassium level. He reports he was in Hospital with Pulmonary Edema the ER ... Couldn't catch his breath that well or better yet /a lot of coughing … He just started taking the meds (RX yesterday) today and will go to have blood test … ?? Claudia did receive the paper work. He asks about the difficulty in concentration … He is basically trying to get through all of this ... He is overwhelmed … Another thing is his daughter ... They have been living with us for a while ... Still some arguments and Claudia wants peace ... He feels emotionally challenged rel[ative] to the relationship … We discuss ho[w] to manage the

interaction and communicate better ... He promised Claudia he wont share related to conflicts with the daughter … She talks to Claudia about changing the room and he is not included in the decisions ... But it is really his doing because he does not engage and feels they disregard him ... He is trying to not loose it as he is prone to being reactive and angry ... He needs to learn his place … ??? Perhaps to give space and pick his battles … Also consider that if he does not engage, he may be presenting as disinterested. He will send some notes as to history and current stressors. (P) will write to SS Admin regarding his status … Dissability [sic] determination from the 6th edition.

(ECF No. 12-9 at 38).

Northrop was seen by NP Smith at Tri-City Cardiology on November 16, 2020:¹¹

Patient is here for follow-up. He has a history of MVR with a bioprosthetic mitral valve in 2015. Left heart catheterization at that time showed no significant occlusive coronary artery disease. Had a follow-up echocardiogram showing a decline in EF to 30%, and has an ICD now. He had pulmonary vein isolation for atrial fibrillation, but has unfortunately had recurrent atrial fibrillation, and now just a few days ago was seen in the emergency room and evaluated for ICD shock. He was indeed shocked inappropriately for rapid atrial fibrillation. Cardiology was consulted and his metoprolol ER was increased to 100 mg daily. The patient is intolerant to amiodarone, is allergic to it. Currently taking diuretics. He denies any CP, SOB, palpitations, LH, fatigue, LE swelling, or weight gain. He is overall feeling much better.

(ECF No. 12-10 at 16). The notes also state: “The bioprosthetic mitral valve is functioning normally without any significant regurgitation. Recent LVEF on echo from 11/2020 showed LVEF improved to 40% with sever LAE Moderate AR, bioprosthetic mv.” (ECF No. 12-10 at 18). Northrop was advised to continue his medications and keep a blood-pressure journal. (ECF No. 12-10 at 19).

11 The were reviewed and approved by Dr. Kolli. (ECF No. 12-10 at 19).

Northrop filed a disability report on November 25, 2020, when he was seeking reconsideration of the denial of benefits. (ECF No. 12-7 at 38-45, 47-52). In response to the question: “Since you last told us about your medical conditions, do you have any new physical or mental conditions,” he answered “No.” (ECF No. 12-7 at 38). With regard to a change in the previously-reported conditions, he stated only that he was experiencing “additional weakness in right leg.” (ECF No. 12-7 at 38-39). He reported a change in his daily activities, but did not specify these activities, and stated he was experiencing “additional weakness in right leg; dizzie [sic]; light headed; less energy and sleeping more.” (ECF No. 12-7 at 43). Northrop noted he had seen Dr. Perez for approximately twenty years, for “mental and emotional support,” noting Dr. Perez had not performed any tests for the “condition” of “mental and emotional support.” (ECF No. 12-7 at 41-42). Northrop further noted that Tri-City Cardiology had “recommended that I retire,” and that Dr. Espinosa had “recommend[ed] that [Northrop was] not able to work.” (ECF No. 12-7 at 40-41).

Northrop was seen by a nurse at Tri-City Cardiology for anti-coagulation therapy on November 30, 2020. (ECF No. 12-10 at 23). He reported he was not experiencing any signs or symptoms of stroke. (Id.).

Notes from Northlight dated December 8, 2020, state Northrop was “doing better” with regard to “[s]elf care.” (ECF No. 12-9 at 40).

Still depressed and down … Ready to cry maybe once a week … Better than had been …Today it was one of those days he felt like crying … Within 5 [minutes] he felt in control ... HE doesn't feel he has done well with the sharing the house work … Not paying much attention about getting it done and the quality is acceptable to me … but perhaps not as much to her perspective ... Claudia reports he is doing better … They have not seen a Cardiologist ... Could it be anxiety … HE laughs he has not been in the Hospital … Application with SS … Recently communicated with them … Someone was assigned to our case ... He is waiting to hear … and may need to go to atty ... Lots of stress … [His observation] is that his entire existance [sic] has been micromanaged … He now has a lot of freedom ... We will discuss as they go on … Xmas no plans ... We could be doing better on finances … Bought / closed house On Anniversary … They had 6K in bank … House was looked at and found exposed block and wood … Big bite of money … Then Catalytic converters then the rack and pinion went … Now this is the issue Now the insurance asked for that … It is the situation … SS would be helpful … Next month the [insurance] is going to 1200 a month, quite desperate … Financial is a concern that nothing can be done about it … She has a dream to have the Federal Style of [furniture] … [Kitchen] in diner style likes the variety … Has a unique style and likes the variety very much … Will e-mail letter to SS ...

(ECF No. 12-9 at 41-42).

Northrop was seen by NP Brasfield at Tri-City Cardiology at Tri-City on December 15, 2020. (ECF No. 12-10 at 27).¹² The notes state:

12 Dr. Ritchie reviewed and approved the treatment notes. (ECF No. 12-10 at 30).

Patient is here for follow-up with history of MVR with a bioprosthetic mitral valve in 2015. Left heart catheterization at that time showed no significant occlusive coronary artery disease. Follow-up echo in November 2020 revealed EF of 40% with normally functioning bioprosthetic mitral valve. His main concern has been recent complaints of shortness of breath requiring hospitalization, and now he is doing better. His weight has been stable. Device interrogation does reveal episodes of atrial fibrillation. He is anticoagulated. The longest episode of A. fib was 7.9 hours. He is followed by electrophysiology as well. It was recommended that he decrease the Lasix to once daily, but the wife of the patient was reluctant to do that. …. No acute heart failure today. His current NYHA class is 2.

(ECF No. 12-10 at 27). Northrop denied dizziness, memory loss, seizures, depression, joint pain, and myalgia. (ECF No. 12-10 at 29).

Dr. Perez's notes from Northlight dated January 13, 2021, state:

He is trying to keep up with health related behaviors … Feels he is doing pretty good … note his difficulty with change.*****We discuss this and it is why he could be at the job for years what might have been considered beyond acceptable ... Discussion regarding SS and how I feel about it … He feels underserving and worries if it has been earned … I don't like being disabled but my Doctors tell me “you can no longer work.” Staying home is not beneficial and trying to remain active … He is reassured he is deserving of benefits and should rest easy with his decision … Claudia feels positive that he should be accepted … Day to day he is physically feeling stable but needs to do more to maintain … Issues as always SIESURE [sic] DISORDER I KIDNEY HEART I STROKE/ANTICOAGULATION I EDEMA PROBLEMS / HOST OF OTHER RELATED CONDITIONS … He is trying to maintain and follow medical recommendation … Keeping weight from 215-220 … Has not seen a cardiologist due to insurance issues … Their health care is not the same since her retirement …

(ECF No. 12-9 at 45).

Northrop was seen by his rheumatologist on January 4, 2021. (ECF No. 13-1 at 93-94). Dr. Allabban recommended he be “very compliant taking the blood thinners,” and follow-up with hematology to keep his “INR” (a measurement of the risk of bleeding or the coagulation status of patients with kidney issues) in a safe range. (Id.).

Northrop was seen by a nurse at the Tri-City Cardiology anti-coagulation therapy unit on January 15, 2021. (ECF No. 12-10 at 2-3). The notes indicate Northrop was taking Jantoven as directed, and Northrup did not report any signsor symptoms of stroke, deep vein thrombosis, or “PE.” (ECF No. 12-10 at 2).

Northrop was again seen at Tri-City's anti-coagulation clinic on February 8, 2021. (ECF No. 12-10 at 33). His INR remained within target range. (Id.).

Northrop was seen by Dr. Sung at Tri-City Cardiology on February 24, 2021. (ECF No. 12-10 at 35). The notes state:

Scott Northrop is a 52 year old male, previous patient of Dr. Niazi, with a history of persistent AF s/p ablation (1/07/2019, El Masry) s/p DCCV x2 (2/13/2019 and 6/27/2019, El Masry) on metoprolol and warfarin, severe MR due to Libman-Sacks endocarditis s/p bioprosthetic mitral valve replacement (2015), nonischemic cardiomyopathy s/p Bos Sci ICD (3/02/2018), CKD, and HTN who presents to the clinic for follow up. He was last seen in the clinic by Dr. Niazi on 8/25/2020. At that time he was recently hospitalized for decompensated heart failure, and was diuresed. He was doing well with adjustment to his diuretics. … He is accompanied by his wife today.

Per his wife, he has mild L > R lower extremity edema. He remains compliant with his diuretics. He reports lightheadedness when exerting or standing up, requiring rest. He denies shortness of breath, shocks, chest pain, or syncope.

(ECF No. 12-10 at 35) (emphasis added). Northrop denied dizziness, memory loss, seizure, depression, joint pain, and myalgia. (ECF No. 12-10 at 37). The doctor noted recent test results and recommended conservative treatment, i.e., continuing to monitor the ICD performance continuing with regular echocardiograms, continuing on the same dose of warfarin and “[i]f dizziness occurs or systolic BP < 90, take 0.5 tablet of metoprolol and losartan for that day,” following-up with Dr. Kahlon “as scheduled,” and following up with Dr. Sung or his nurse practitioner in one year. (ECF No. 12-10 at 38).

Notes from Northlight dated March 16, 2021, state:

Scott presents and Claudia joins him … He reports he messed up … Family friend stayed here for a while … HE became jealous and wanted him out of the house … [] Lifelong friend of Claudia's lost his job and ended up at her house. … She is not going to sever her friendship ... And Scott told her she wasn't being a wife to him … She helped [the friend] to get set up … And spent 400 or so helping him … She feels everything she does is wrong ...

(ECF No. 12-9 at 48-49).

When seen for therapy at Northlight on March 31, 2021, Northrop reported “things are improving a bit” and that he was “understanding more and more.” (ECF No. 12-9 at 53). He also stated his “[health] condition has been more stable,” and he was “trying to remain positive and make changes.” (Id.).

Northrop was seen by a rheumatologist on April 5, 2021. (ECF No. 13-1 at 91). The doctor advised him to continue to be compliant with his medications, and “stay away” from using NSAIDs. (ECF No. 13-1 at 92).

On May 19, 2021, during a session at Northlight, Northrop reported his depression had improved, but his health was “deteriorating.” (ECF No. 12-9 at 55). He reported his energy was bad, he was getting cold easier, his blood pressure was “coming down so cut back on RX meds,” and his memory was shorter. (Id.). Northrop reported he was “doing [real] well with his ailments except he has been getting a good number of headaches and is low energy.” (Id.).

Northrop was seen by Dr. Espinosa at Honor Health on May 25, 2021. He complained of headaches and rectal bleeding, and was referred for a colonoscopy. (ECF No. 13-1 at 19). He reported he had been “seizure free” for more than four years. (ECF No. 13-1 at 20). The doctor noted the headache was a “new problem.” (Id.). Northrop reported associated symptoms of seizures and weakness. (Id.). He reported his headaches were exacerbated by stress and poor sleep. (Id.). Northrop reported fatigue. (ECF No. 13-1 at 20-21). Northrop averred he was not experiencing cold intolerance. (ECF No. 13-1 at 21). With regard to psychiatric symptoms, Dr. Espinosa noted: “Positive for behavioral problems and sleep disturbance. Negative for dysphoric mood. The patient is not nervous/anxious.” (Id.). Northrop also reported “[s]ome cognitive decline issues.” (Id.). The doctor recommended a low sodium diet, portion control, increased activity, and follow-ups with cardiology and neurology. (ECF No. 13-1 at 22).

On June 23, 2021, Northrup reported to Dr. Perez that his health was “deteriorating,” and that he had fallen and couldn't get up. (ECF No. 12-9 at 61).

Northrop was seen at Arizona Rheumatology on June 29, 2021. (ECF No. 13-1 at 89). He reported occasional positional dizziness. (Id.). It was recommended that he stop furosemide “considering the dizziness,” and see with an ophthalmologist. (ECF No. 13-1 at 90).

Northrop was admitted to Banner Desert Medical Center on August 29, 2021, complaining of “midsternal chest pressure, described as 5-6 out of 10. It is not worse by activities … Initial ER assessment thought that there was pneumonia.” (ECF No. 12-9 at 103). He was “symptom-free” shortly after admission. (ECF No. 12-9 at 104). The physician noted acute renal insufficiency. (Id.; ECF No. 12-9 at 111). A nephrologist was consulted, and Northrop told him he was not drinking water. (ECF No. 12-9 at 106). The doctor noted a kidney injury secondary to volume depletion, and normal creatinine after receiving IV fluids. (ECF No. 12-9 at 110). Northrop was discharged on September 2, 2021. (ECF No. 12-9 at 103, 111).

Northrop was seen at Arizona Rheumatology on September 29, 2021. (ECF No. 13-1 at 87). The notes indicate a hospitalization in August, also noting “he has felt better since then …” (Id.). Northrop reported he felt “weak in general, especially in the right lower extremity …” (Id.).

Northrop's application for disability benefits was denied upon reconsideration on November 18, 2021. (ECF No. 12-4 at 2-17, 20-28).

Northrop obtained counsel and filed a “Disability Report-Appeal,” on January 25, 2022. (ECF No. 12-7 at 54-58). He reported a change in his conditions in 2022, stating he was “still in stage 4 kidney disease and lupus, he sustained 2 strokes and has memory impairment and cognitive decline.” (ECF No. 12-7 at 55). He reported he was not experiencing any new physical or mental conditions. (Id.). He also reported a change in his daily activities, stating his “conditions prevent him from performing daily activities.” (ECF No. 12-7 at 57).

Brasfield completed a residual functional capacity assessment on February 21, 2022. (ECF No. 13-1 at 33). She noted Northrop had been a patient since 2014. (Id.). With regard to objective medical evidence confirming diagnoses, Brasfield noted: “Multiple hospitalizations for various cardiac issues - Please get records to review.” (ECF No. 13-1 at 33 (emphasis in original)). She opined Northrop's prognosis was “fair.” (ECF No. 13-1 at 34). She opined the symptoms were “variable, can be intermittent depending on whether acute process or chronic.” (Id.). She also noted Northrop was taking multiple medications, “many of which cause dizziness.” (Id.). She indicated Northrop exhibited angina, chest pain, palpitations, dizziness, shortness of breath, edema, fatigue, and weakness. (Id.). She opined Northrop could lift and carry less than ten pounds, could stand and walk less than one hour per workday, and that his ability to sit was limited depending on his cardiac status. (ECF No. 13-1 at 35). She noted Northrop suffered from significant fatigue, and was fatigued “walking to our office from parking lot.” (Id.). She opined Northrop could “maybe” engage in sedentary work activity and could not engage in any light work activity. (Id.). Brasfield stated: “This patient is chronically ill with multiple conditions - he cannot do much of anything without resting or assistance and has memory issues as well.” (ECF No. 13-1 at 35). With regard to understanding and memory, and sustained concentration and persistence, Brasfield opined Northrop had extreme limitations in all areas, but did not elaborate further. (ECF No. 13-1 at 37-38). Brasfield also opined Northrop would miss “most” days of work per month, “likely daily.” (ECF No. 13-1 at 39). In summary, she stated: “Again - this patient has multiple cardiac issues as well as medical issues requiring multiple medications. His conditions alone affect him physically and the medications affect him physically and mentally - and he already has memory loss and seizure disorder. I recommend full disability for this patient.” (ECF No. 13-1 at 39) (emphasis in original).

When seen at Arizona Rheumatology on April 8, 2022, Northrop stated he was “satisfied with the response to [his] treatment. He follows up with hematology regarding the leukocytosis.” (ECF No. 13-1 at 82). He denied “shortness of breath” and chest pain, and reported fatigue. (Id.).

Northrop saw Dr. Espinosa, a family medicine practitioner at Honor Health, for his annual exam on April 26, 2022. (ECF No. 13-1 at 120). Northrop's wife presented “extensive paperwork she would like [the doctor] to fill out today as he is applying for disability.” (Id.). The doctor noted, inter alia, that Northrop had a history of seizure disorders and “mild organic brain syndrome” and had been free of seizures for over four years. (ECF No. 13-1 at 121).

Dr. Espinosa's evaluation was as follows:

Hypertension

This is a chronic (no medication changes from the recent hospitalization, medication list is up to date) problem. The current episode started more than 1 year ago. The problem is unchanged. The problem is controlled. Pertinent negatives include no anxiety, blurred vision, chest pain, headaches, neck pain, orthopnea, palpitations, peripheral edema or shortness of breath.

...

Seizures

This is a chronic ([history] of CVA, [seizure] free for 4 years) problem. Associated symptoms include muscle weakness. Pertinent negatives include no headaches, no visual disturbance, no chest pain

...

Thyroid Problem

Presents for follow-up visit. Symptoms include depressed mood, fatigue, and tremors. Patient reports no anxiety, cold intolerance ... or palpitations. The symptoms have been stable. ... The treatment provided significant relief.

...

Heart Problem

This is a chronic (history of cardiomegaly and endocarditis, has had heart valve surgery) problem. Episode onset: Libman-Sacks Endocarditis with a severe mitral regurg requiring mitral valve replacement with bioprosthetic valve 4/15. Associated symptoms include fatigue and weakness. Pertinent negatives include no ... arthralgias, chest pain, chills, ... headaches ... Review of Systems

Constitutional: Positive for fatigue. Negative for activity change

...

Respiratory: Negative for cough, chest tightness and shortness of breath

...

Cardiovascular: Negative for chest pain, palpitations…

Endocrine: Negative for cold intolerance. …

Neurological: Positive for tremors, seizures and weakness. Negative for syncope, numbness and headaches. …

Psychiatric/Behavioral: Positive for behavioral problems, decreased concentration and sleep disturbance. Negative for dysphoric mood. The patient is not nervous/anxious. cognitive decline issues Memory impairment.

(ECF No. 13-1 at 121-22) (italics added). Upon examination Dr. Espinosa noted Northrop was obese, used a cane, and displayed poor balance and slow gait. (ECF No. 13-1 at 123). The doctor noted normal coordination and reflexes, and that Northrop displayed “[s]omewhat slow affect as always.” (Id.).

Dr. Espinosa concluded Northrop's “[e]ssential hypertension” was “benign,” and recommended he avoid NSAID use and follow a low sodium diet, adopt portion control, and increase his activity level. (ECF No. 13-1 at 124). The doctor advised continuing surveillance of Northrop's cardiac condition. (Id.). With regard to his kidney disease, the doctor advised an increased water intake. (ECF No. 13-1 at 125).

Under the heading “Disability examination,” Dr. Espinosa noted:

He applied and got turned down apparently for social security/disability previously but they have an open case and again they want me to fill out extensive paperwork which would be above and beyond typical time spend for a Physical exam and addressing his multiple medical problems I do not do disability determination or forms typically but I am willing to fill out this paperwork to the best of my ability per [Northrop's wife's] request stating his underlying health issues for their reconsideration

(Id.) (underlining in original).

Dr. Espinosa completed a Residual Functional Capacity Assessment on April 26, 2022. (ECF No. 13-2 at 2-9). He noted Northrop had a history of cerebral vascular accident, stage three chronic kidney disease, a history of congestive heart failure, a seizure disorder, and antiphospholipid syndrome. (ECF No. 13-2). With regard to “objective medical evidence confirming the diagnoses,” the doctor stated: “arm weakness secondary to CVA, gait abnormality, dyspnea on exertion secondary to CHF.” (Id.). Dr. Espinosa opined Northrop's prognosis was “fair.” (Id.). In addition to right-side foot drop and weakness, the doctor noted gain abnormality, further stating coordination and balance issues created an “increased risk for falls.” (ECF No. 13-2 at 3). The doctor opined as to an inability to lift and carry less than ten pounds, and stated Northrop could sit for about six hours in a workday. (Id.). He also stated Northrop could not “walk more than 1 city block due to weakness, fatigue and dyspnea on exertion.” (Id.). Dr. Espinosa opined Northrop had the physical energy to engage in sedentary or light work for less than two hours per workday, and that he could only occasionally finger, feel, or handle, due to “difficulty with fine motor skills.” (ECF No. 13-2 at 4). He also opined Northrop had extreme limitations with regard to understanding and memory, and sustained concentration and persistence, due to “memory impairment” and “memory issues extreme impairment.” (ECF No. 13-2 at 6). The doctor further stated Northrop had extreme and marked limitation in adaptability, due to “anxiety & depression.” (ECF No. 13-2 at 7). Dr. Espinosa opined Northrop was “unable to work due to both physical and mental/cognitive issues.” (ECF No. 13-2 at 8).

Northrop was seen for a follow-up visit at Ironwood Cancer & Research Centers on May 6, 2022, “to discuss recent lab work and physical exam due to history of APS.” (ECF No. 13-2 at 67). Northrop reported “moderate fatigue …” (Id.). The treatment notes state: “ECOG 1: Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, e.g., light house work, office work.” (ECF No. 13-2 at 68).¹³ The treatment recommendation was “No Action Needed,” with a notation that “leukocytosis and mild anemia are present; he is taking 4 mg of dexamethasone [a corticosteroid] daily.” (Id.).

13 To conduct clinical trials for the treatment of cancer in a consistent manner across many participating hospitals, cancer centers, and clinics requires the use of standard criteria for measuring how the disease impacts a patient's daily living abilities, known to physicians and researchers as a patient's performance status. The ECOG Performance Status Scale [0 to 5, with 0 being fully functional and 5 being “dead”] is one such measurement. It describes a patient's level of functioning in terms of their ability to care for themself, daily activity, and physical ability (walking, working, etc.). ECOG-ACRIN Cancer Research Group, availableathttps://ecogacrin.org/resources/ecog-performance-status (last checked May 6, 2024).

On May 18, 2022, Dr. Chung, a neurologist at Banner Health, completed a Residual Functional Capacity Assessment Neurological Disorders. (ECF No. 13-2 at 59-66). The doctor noted Northrop had been a patient for ten years, and that he last examined Northrop on August 3, 2021. (ECF No. 13-2 at 59). Dr. Chung noted Northrop had been diagnosed with a seizure disorder, which Dr. Chung “characterize[d]” as being moderately severe and had been treated with brain surgery. (Id.). Dr. Chung also noted a diagnosis of “stroke-right side weakness, mod to severe.” (Id.). With regard to “objective medical evidence confirming” these diagnoses, the doctor stated right side weakness, and “Impaired memory from brain surgery and seizures.” (Id.). He noted Northrop had been on “multiple seizure medications” and undergone brain surgery. (Id.). Dr. Chung stated the current prognosis was “seizures stable but continues to have cognitive/physical deficit.” (ECF No. 13-2 at 60). The only limitation assessed with regard to upper or lower extremities was right side weakness. (Id.). In response to a question with regard to whether Northrop experienced “persistent auras or ‘brain fog,'” Dr. Chung opined: “Yes, cognitively declined but seizures are better controlled.” (Id.). Dr. Chung also checked boxes indicating “significant cognitive decline from a prior level of functioning” in the areas of “Complex Attention,” “Executive Function,” “Learning & Memory,” and “Perceptual-Motor,” with the further elaboration of “From brain surgery and stroke.” (ECF No. 13-2 at 61). Dr. Chung opined Northrop could occasionally and frequently carry more than five but less than ten pounds, that he could stand or walk for two to four hours in a workday, and that he could only occasionally climb, kneel, crouch, finger, feel, handle, and reach. (ECF No. 13-2 at 62). With regard to fatigue and what diagnosed medical conditions accounted for fatigue, the doctor noted Northrop had fatigue “due to underlying condition and seizure meds.” (ECF No. 13-2 at 63). Dr. Chung further opined Northrop could engage in sedentary or light work activity for four to five hours per workday. (Id.). Dr. Chung opined Northrop had only mild¹⁴ limitation in understanding and memory related to his ability to remember locations and work-like procedures, his ability to understand and remember new information, and his ability to understand and remember detailed instructions. (ECF No. 13-2 at 64). Dr. Chung found mild limitation in ability to maintain attention and concentration for extended periods, moderate limitation in ability to maintain regular attendance at work on a full-time basis, and both mild and moderate limitation with regard to sustaining an ordinary routine without special supervision. (Id.). Dr. Chung found mild limitation with regard to Northrop's ability to respond appropriately and adapt to changes in the work setting, to tolerate normal levels of stress, to manage psychologically based symptoms (such as anxiety or depression), and to work through and manage mental fatigue. (ECF No. 13-2 at 65). Dr. Chung opined Northrop would be off-task for twenty percent of a workday, and he would be likely to miss four to five days of work per month. (Id.).

14 Defined as “limitations on ability to function, but they are mild or transient,” and the lowest level of limitation. (ECF No. 12-3 at 63). This is compared to a “more than mild” limitation, a “seriously limited ability” to function, or an extreme limitation (“The ability to function in this area is precluded). (Id.).

Exhibit 25F in the record on appeal is comprised of records from Banner Health dated May 31, 2022, when Northrop presented complaining of dizziness and an inability to get out of his chair. (ECF No. 13-6 at 84; ECF No. 13-5 at 122 (“Patient is admitted for dizziness and vertigo along with weakness especially in lower extremities. …”)). Notes dated June 3, 2022, state: “The patient is seen and examined. The patient is seen for acute kidney injury. Patient is without any physical complaints at the time.” (ECF No. 13-6 at 34). At that time pending diagnostic test results included included a bone marrow chromosome analysis (biopsy) to evaluate leukocytosis (a high white blood cell count, which can indicate a range of conditions, including infections, inflammation, injury and immune system disorders). (ECF No. 13-6 at 34, 59-61). Upon discharge, the bone marrow biopsy results were “worrisome for a myeloproliferative neoplasm, best classified as chronic myeloid leukemia (CML). However, reactive etiologies need to be completely excluded first.” (ECF at 13-5 at 95, 116). Upon discharge on June 4, 2022, although there had been no bone marrow pathology report, the notes indicate “Possible myeloproliferative disorder,” “Overall very suspicious for CML,” and Northrop was referred to an oncologist. (ECF No. 13-5 at 159-60, 169, 172, 180, 190, 197). At that time Northrop's BMI was 35.7. (ECF No. 13-5 at 117). A brain MRI found no indication of “acute” ischemia. (ECF No. 13-6 at 62-64).

Northrop's wife submitted a witness statement on May 28, 2022:

8. Scott was in the hospital from May 11, 2022 to May 13, 2022 for an elevated white blood cell count and blacking out, where he just goes vacant and cannot move or speak. The elevated white blood cell count was caused by a medication reaction. When we were at his primary care doctor for the hospitalization follow up, Dr. Espinosa asked Scott why he was in the hospital. Scott responded that it was because he was slightly dehydrated. … The blackouts are becoming more frequent and lasting longer, ten to fifteen minutes. Scott is following up with Dr. Chung, his neurologist who treats him for his epilepsy, in August regarding these blackouts.

9. I coordinate all of Scott's medical appointments. He cannot remember what doctor he is to see, where they are located, or the date and time of the appointment. He also does not remember what all of his diagnoses are. As an example, he has had to cope with finding out that he has stage 4 kidney disease multiple times. On our way to a doctor's visit, I go over with him what condition this doctor treats him for. That way during the visit, he is not surprised to learn about the same condition he has been treated for, for years. …

Scott is very seldom left alone. … [My daughter] and I arrange our schedules so that someone is always available to care for Scott.

Scott also has to cope with the emotions that come with all of this. He suffers from depression and anxiety, frustration and feeing of worthlessness.

Since 2014, I have observed a steady decline is his physical abilities and memory, which caused him to have to retire in July 2020. Within the last two year, the decline in his physical abilities and memory has most definitely increased.

(ECF No. 12-7 at 86-87).

Dr. Perez completed a Psychological Residual Functional Capacity Assessment on June 20, 2022. (ECF No. 13-2 at 211-15). Dr. Perez stated Northrop's first exam was “[a]pproximately 20+ years ago,” and the most recent session was April 21, 2022. (ECF No. 13-2 at 211). He reported diagnoses of Bipolar II disorder, severe, and severe depression due to medical condition. (Id.). Dr. Perez allowed that no clinical tests had been administered to substantiate these diagnoses, but stated the diagnoses were found “(in therapy setting).” (Id.).¹⁵ With regard to the onset of impairment, Dr. Perez stated: “Scott first presented 20-25 years ago w[ith] depression impulse control and epilepsy. He has continued in therapy throughout the years during which emotional stability was difficult to achieve. During the episodes he had great difficulty with focus, concentration and anger management.” (ECF No. 13-2 at 211).

15 Severe bipolar disease describes when a person experiences manic episodes almost every day for at least 7 days, or severe symptoms of mania that require urgent medical attention. A person may also experience depressive episodes that last for 2 weeks or more, and psychosis symptoms, such as hallucinations. Severe bipolar disease is a long-term condition that typically recurs over time. A diagnosis of severe bipolar disorder is made by a psychiatrist and is the result of various medical tests, including blood work and a physical examination and a formal mental health evaluation. With treatment, a person can help manage the condition and should typically see an improvement in symptoms. Some treatment options can include mood stabilizers, which can help prevent or reduce the intensity of manic and depressive episodes. A doctor may also prescribe atypical antipsychotic medications and antidepressants. Treatment may also include “talk therapy,” which can help a person recognize when they are about to have a manic or depressive episode and develop ways to cope with the symptoms. Additionally, if medications and psychotherapy are not effective, the patient may consider electroconvulsive therapy, a procedure that stimulates the brain with short electrical currents and can help relieve symptoms, or repetitive transcranial magnetic stimulation, a type of brain stimulation therapy that can relieve symptoms of a depressive episode using magnetic waves. It is noted that Dr. Perez is a clinical psychologist (or psychotherapist), not a psychiatrist, and only a psychiatrist can prescribe medication. There is no indication in the record on appeal that Northrop was prescribed medication for bipolar disorder, depression, or any other mental health disorder.

With regard to medications and side effects, the Dr. Perez noted: “See Psychiatric Records.” (ECF No. 13-2 at 212). The doctor noted marked limitation in ability to remember locations and work-like procedures, to understand and remember short and simple instructions, and an extreme limitation in the ability to understand and remember detailed instructions, short-term memory recall, and executive function “in manic or episodes of anger.” (Id.). Dr. Perez did not elaborate with regard to these limitations. The doctor also found marked limitation in ability to maintain attention and concentration for extended periods, and extreme limitation in ability to maintain regular attendance and sustain an ordinary routine, citing “behavioral and physical condition are incapacitating.” (ECF No. 13-2 at 213). Dr. Perez also noted an extreme limitation in the ability to work in coordination with others without being distracted, stating “overreactive and easily is in conflict w. coworkers.” (Id.). Dr. Perez did not elaborate further. With regard to social interaction, the doctor opined Northrop had extreme limitations in ability to interact appropriately with the general public, ability to interact appropriately with other co-workers, ability to interact appropriately with supervisors,. (Id.). With regard to the ability to maintain socially appropriate behavior, Dr. Perez noted an extreme limitation and “easily frequent overreactivity [sic] and aggresive [sic] posture.” (Id.). Dr. Perez noted only mild limitation with regard to the ability to adhere to basic standards of neatness, cleanliness, and hygiene. (ECF No. 13-2 at 213-14). As to an explanation for the marked and extreme limitations, Dr. Perez stated: “See notes in rating scores.” (ECF No. 13-2 at 214).¹⁶ With regard to adaptation, Dr. Perez noted both extreme and marked limitations in some areas, explaining “Scott is unable to handle change. He is often contradictory and inflexible.” (Id.). He opined Northrop would be off task 50-100 percent “of days which are off these days are too frequent to allow work function to be at acceptable level.” (Id.). He opined Northrop would miss work ten or more days per month, stating he was “not able to determine as his episodes could be prolonged and or if shorter duration could be frequent.” (ECF No. 13-2 at 215). In summary, Dr. Perez concluded Northrop could not work on a regular and sustained basis, averring Northrop was “[a]bsolutely not capable of achieving work function with any degree of stability. These problems were moderate to severe decades ago. In past 10 yrs Mr. Northrop medica [sic] condition have exacerbated. The emotional difficulties in an extreme degree Mr. Northrop would present as a liability in any work environment.” (Id.).

16 The requisite forms state: “For any limitations considered MARKED or EXTREME, please elaborate further.” There were no “notes” in “rating scores” other than those quoted.

A hearing on the application for benefits was conducted before an Administrative Law Judge (“ALJ”) on June 21, 2022. (ECF No. 12-3 at 37-63).

With regard to the basis for Northrop's application for disability benefits, Northrop's counsel stated:

Mr. Northrop [sic] falls in the age category between 50 and 51 throughout his -- throughout the relevant period. His past work history was entirely for the Department of Transportation. Sedentary position, very much computer based. The record shows he had suffered two strokes and he also had brain -- brain surgery and a subsequent diagnosis of epilepsy, along with severe bipolar 2 disorder and severe depression. My argument is -- would be that in addition to the argument in the brief that he would meet GRID Rule 201.14 if he's found to possess the capacity for sedentary work. But that he also meets listing 11.04C as there is documented evidence of his vascular insult to the brain. That does result in marked limitations in physical functioning. He does ambulate with -- with assistance and there's -- with the assistance of an ambulatory device. And that he has marked limitations in his understanding, remembering, applying information, as well as concentrating, persisting, or maintaining pace per several opinions on the record, which include the newly exhibited 24F, 18F, as well as 14 F.

(ECF No. 12-3 at 42-43).¹⁷

17 Exhibit 14F is the cardiology residual functional capacity assessment of MSACNP Brasfield dated February 25, 2022. (ECF No. 13-1 at 33-39). Exhibit 18F is the residual functional capacity assessment by Dr. Espinoza, dated April 26, 2022. Exhibit 24F is the mental residual functional capacity assessment of Dr. Perez, dated June 20, 2022.

Counsel asked Northrop if he had any medical issues prior to the new computer program introduced at his workplace, and Northrop noted that he had strokes and heart valve replacement surgery prior to that time. (ECF No. 12-3 at 45-46).

In response to questioning from his counsel, Northrop reported that after the Department of Transportation had installed a new computer program he had to request help every day “to get to the new segment of the program that was being used,” and that he “couldn't remember the protocol for it. …” (ECF No. 12-3 at 46). He testified that his job “was essentially a total sit-down job.” (Id.). He described his job as “eight hours a day on a computer based program developing dealer licenses and a lot of paperwork,” and that he “mainly dealt -- dealt with my customers also over the phone.” (Id.). Counsel asked what difficulties Northrop began having after the introduction of the new computer software, and Northrop responded: “Memory mostly, and a lot to do with memory retention. I was having trouble taking in the information given to me with regards to how I was supposed to use in the program.” (ECF No. 12-3 at 47). Northrop also testified that in the prior year he had more than ten “falls,” although none of the falls required hospitalization. (ECF No. 12-3 at 48). He also testified that his energy went “down as the day progresses,” and he was laying down or reclining “[a]ll day. All day mostly. I take a nap more often than I used to because I get very tired.” (Id.). He further testified that he was “recently” at Banner for “roughly six days,” stating he was diagnosed with leukemia after a bone biopsy. He stated: “And mainly it was my stroke, previous stroke that caused me to go to the hospital. It was a mini stroke that I had.” (ECF No. 12-3 at 49).

In response to a question from counsel regarding why Northrop could not return to his past work, notwithstanding any issues with the new “computer system,” Northrop stated he would not be able to return to his prior work “because of the memory and the weakness …” (Id.). Northrop also stated his “attention span” had “gone down.” (Id.). He testified he had difficulty “keeping up” with conversations, i.e., he forgot what others had “just said” to him, and at times he needed to be reminded to take his medication and and “to remind me of the things I need to do.” (ECF No. 12-3 at 50).

In response to a question from the ALJ, Northrop averred his condition had “gone down” since he quit working, i.e., it was “more difficult to walk,” and he was using a walker or two canes “to help get around.” He also stated he could not do housework, other than taking out the trash. (ECF No. 12-3 at at 51-52). He stated he did not help take care of his nine-year-old granddaughter. (Id.).

A vocational expert (“VE”) testified at the hearing, stating Northrop's past work as performed and as classified by the Dictionary of Occupational Titles (”DOT”), as a “license clerk,” was classified at the light exertional level. He stated a residual functional capacity providing an individual could perform only sedentary work would preclude performance of Northrop's prior work as classified by the DOT. (ECF No. 13-2 at 53).

The ALJ then asked Northrop “how much did you have to lift in that job?” and Northrop responded that he lifted “boxes or reams of paper” when needed to refill the office's printers. (ECF No. 12-3 at 54). When asked how often that would occur, he stated “About a couple of times a week.” (Id.). He also stated he had to lift water bottles, which weighed more than ten pounds, to replenish the water cooler. (Id.). The vocational expert testified that the lifting of paper and water was not an “essential” part of Northrop's prior work, but instead was “incidental,” because it was not performed “up to one-third of the day.” (ECF No. 12-3 at 54-55). The VE allowed that the position was classified by the Dictionary of Occupational Titles as “light” work, but opined that as performed by Northrop the job would be sedentary: “He's standing and walking two, sitting six. He's primarily sitting with occasionally -- not even occasionally, twice a week picking up more than ten pounds.” (ECF No. 12-3 at 55). The ALJ asked the VE whether, given the residual functional capacity assessed by the ALJ, Northrop's prior work was sedentary as performed and whether an individual with the assessed residual functional capacity could do that job, and the VE said yes. (ECF No. 12-3 at 56). The VE opined that with the additional mental limitation of being able to perform only simple and routine tasks, Northrop would not be able to perform that work. (Id.). In response to counsel's question regarding whether the amount of time each eight-hour workday an employer would allow the employee to be off-task, the VE opined that an employer would tolerate being off-task only 10 percent of the time, i.e., six minutes per hour. (ECF No. 13-3 at 57).

V. ALJ Decision

The ALJ concluded Northrop had the severe impairments of epilepsy, cardiomyopathy, mitral valve regurgitation status post mitral valve replacement, atrial fibrillation, and transient ischemic attack. (ECF No. 12-3 at 19). The ALJ found the conditions of hypertension, chronic kidney disease, antiphospholipid syndrome, and lupus to be “not severe” because they were “managed medically,” and “should be amenable to proper control by adherence to recommended medical management and medication compliance,” also noting “no further aggressive treatment was recommended or anticipated for these conditions.” (Id.).

The ALJ also found Northrop's medically determinable mental impairments of depression and bipolar disorder considered singly or in combination did not cause more than minimal limitation in his ability to perform basic mental work activities and were, therefore, “non-severe.” (ECF No. 12-3 at 20). In reaching this conclusion the ALJ determined Northrop's reported “activity and objective mental exams do not support limitations beyond mild in any area,” further noting the function reports submitted by Northrop describing his activities of daily living (including using his computer and doing laundry, needing no special reminders for taking care of personal needs, grooming, or taking medicine, preparing his own meals, traveling on his own using public transportation, and shopping for groceries, paying bills, and using a checkbook), supported this conclusion. (Id.). The ALJ also noted Northrop indicated no problems getting along with family, friends, neighbors, or others. (Id.).

The ALJ also noted:

The record reflects mental health treatment through Northlight Counseling Associates for bipolar II disorder. (Exhibits 8F) However, objective exams were generally normal. Exams dated January 18, 2020, to April 21, 2022, generally show the claimant presented as disheveled but were otherwise normal. The claimant was appropriately dressed, had cooperative behavior, and normal speech with normal rate, amplitude, and prosody. He had euthymic mood, mood congruent affect, goal directed thought process, no abnormal thought content, intact insight/judgment, alert/awake consciousness and was oriented times four. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

At the initial level, State Agency physician A. Kerns, Ph.D. determined that the claimant had no significant limitations due to a medically determinable mental impairment that interferes with sustained activities in a competitive, remunerative work context. He found no severe mental impairment. (Exhibit 2A) At reconsideration, Raymond Novak, M.D. similarly found no severe mental impairments. (Exhibit 5A)

The opinions of Dr. Kerns and Dr. Novak are considered persuasive, as they are supported by the balance of objective mental health exams, as discussed above, which are generally normal. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6).

Because the claimant's medically determinable mental impairment causes no more than “mild” limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in the claimant's ability to do basic work activities, it is non-severe (20 CFR 404.1520a(d)(1)).

(ECF No. 12-3 at 20-21).

The ALJ determined none of Northrop's impairments met or equaled a listed impairment. The ALJ also found:

Counsel argued that the claimant meets listing 11.04C. This listing requires a marked limitation persisting for at least 3 consecutive months after insult in one of the following areas: understanding, remembering, or applying information, interacting with others, concentrating, persisting, or maintaining pace, or adapting or managing oneself. However, as discussed herein, the claimant has no more than mild limitation in all areas, he was generally negative for memory loss and objective mental status exams were generally normal. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

(ECF No. 12-3 at 22) (emphasis added).¹⁸

18 11.04 Vascular insult to the brain, characterized by A, B, or C:

A. Sensory or motor aphasia resulting in ineffective speech or communication (see 11.00E1) persisting for at least 3 consecutive months after the insult; or

B. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, persisting for at least 3 consecutive months after the insult; or

C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a) and in one of the following areas of mental functioning, both persisting for at least 3 consecutive months after the insult:

1. Understanding, remembering, or applying information (see 11.00G3b(i)); or

2. Interacting with others (see 11.00G3b(ii)); or

3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or

4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. § Pt. 404, Subpt. P, App. 1.

The ALJ determined Northrop had the residual functional capacity to perform sedentary work as defined in 20 CFR § 404.1567(a), with some exceptions. (ECF No. 12-3 at 22).

The ALJ noted, as a basis for this finding:

In a Disability Report, the claimant reported limitations due to stroke and several cardiovascular related conditions including atrial fibrillation, dilated cardiomyopathy, microvalve replacement in heart, mitral regurgitation, cardiomegaly, congestive heart failure, verrucous endocarditis, and subcutaneous defibrillator, as well as hypertension, chronic kidney disease, antiphospholipid syndrome, and lupus. (Exhibit 2E/2) In a Function Report, the claimant reported having problems with memory and retention of information. He noted difficulty following directions or instructions without confusion. He reported difficulty walking to the light rail or bus. He noted that his right leg is getting progressively weaker because of the drop foot issue after his strokes. He indicated having to use a cane. He related difficulty stepping up and down. He indicated that his heart rate is almost always A-fib. He noted that it speeds up and he becomes dizzy and has to sit down. He indicated that his balance is getting worse, and he is afraid of falling.

During the hearing, the claimant, through counsel, indicated experiencing two strokes, brain surgery and having subsequent diagnosis of epilepsy as well as issues with bipolar and depression. The claimant testified graduating high school and completed some college but did not graduate. He indicated retiring due to medical issues at the alleged onset date due to memory issues, and retention. He noted having trouble learning a new computer program at his job. The claimant reported having strokes. He reported having open heart surgery to replace a mitral valve. He reported that his ability to stand has worsened. He reported using a walker. He noted having 10 falls in the last year but acknowledged requiring no hospitalizations. He indicated that his energy goes down as the day progresses. He reported taking more naps than he used to because he gets very tired.

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

The claimant has a history of TIA/strokes. However, overall, the record shows few residual issues aside from chronic leg weakness, which has been considered in limiting the claimant to sedentary work. A report dated June 30, 2020, indicates that in September 2015, the claimant had a diagnosis of stroke when he presented with right foot drop and right leg weakness, which has been improving over time. (Exhibit 6F/1) A physical

exam shows the claimant had normal rapid alternating movements on coordination exam and was able to walk with a cane on the left side mainly for balance. He was assessed with a stroke in September 2015, with right leg weakness, which has been stable now. (Exhibit 6F/2) Cardiovascular records dated September 8, 2020, to January 26, 2022, generally show the claimant did not report any signs/symptoms of stroke. (Exhibit 12F/1, 3, 9, 20, 22, 24, 30, 32, 39, 41, 43, 50, 52, 58, 60, 19F/6, 24, 26)

The record reflects a history of epilepsy, but this condition appears to be under control. On June 16, 2020, the claimant was assessed with seizure disorder, status-post surgical therapy without recurrent seizures, but “does remain on medications”. (Exhibit 4F/8) A June 30, 2020, history of present illness indicates as follows, in part. The claimant had previous medical refractory partial onset seizures arising from the right hemisphere. He underwent quite comprehensive epilepsy evaluation, which showed that his seizures originated from the right temporal lobe as well as MRI scan showing T2 signal increase in the right side. Subsequent PET study showed mild hypometabolism on the right side. Even though he had frequent epileptiform discharges arising from the left side, it was decided that he was a good candidate for selective resection on the right hippocampus. On September 22, 2009, he had right selective amygdalohippocampectomy and since that time, he became seizure-free. He remains seizure free on Lamictal. (Exhibit 6F/1) He was assessed with complex partial epilepsy with generalization and with intractable epilepsy but remains seizure free. (Exhibit 6F/2) Overall, the record reflects few seizures, or epilepsy episodes during the period at issue. Of note, during the hearing, the claimant did not mention any difficulty secondary to seizures/epilepsy during his testimony.

The claimant was treated from May 29, 2022, to June 4, 2022, complaining of transient vertigo with some whooshing sound in his right ear that lasted for 10 minutes during that time he was slightly confused and got weak but resolved by itself. The history of present illness reveals he has chronic weakness in his right lower extremity from previous strokes. However, a study shows he had no acute intracranial abnormality. (Exhibit 25F/277) A CT head and MRI of the brain did not reveal any acute infarct but did reveal chronic infarcts on MRI brain. He was found to have transient vertigo resolved of unclear etiology but possible TIA. (Exhibit 25F/278)

At the hearing, the claimant affirmed having cardiomyopathy and mitral valve replacement. A September 11, 2019, medical report prior to the alleged onset date, indicates the claimant is status post mitral valve replacement. (Exhibit 2F/21) A June 21, 2020, report also prior to the alleged onset date indicates he is status post bovine mitral valve replacement and paroxysmal atrial fibrillation. (Exhibit 4F/8) However,

cardiology records generally reflect the claimant had no consistent symptomology and exams were generally negative. For instance, on February 25, 2020, the claimant stated doing well. He denied any complaints and “his heart rates been better controlled”. (Exhibit 5F/14) Of note, a physical exam shows his gait was normal and was able to exercise. (Exhibit 5F/16) On June 18, 2020, the claimant again stated, “doing well” and denied any complaints. (Exhibit 5F/18) On November 9, 2020, a history of present illness indicates his rate of control has been optimal in current medical regimen and currently NYHA class 2. (Exhibit 12F/11) On November 16, 2020, he denied shortness of breath, palpitations, and fatigue and “he is overall feeling much better”. (Exhibit 12F/15) A December 15, 2020, report indicates that a follow up echo in November 2020 reveals ejection fraction of 40 percent with normally functioning bioprosthetic mitral valve and “now he is doing better”. (Exhibit 12F/26) On February 24, 2021, he denied shortness of breath, shocks, chest pain or syncope. (Exhibit 12F/34) Notably, cardiac exams dated November 9, 2020, to December 15, 2021, were generally negative. (Exhibit 12F/13, 17, 36, 47, 19F/10-11, 16, 21, 30)

The claimant was treated from August 29, 2021, to September 2, 2021, for complaint of chest pain since yesterday. (Exhibit 11F/37) However, he was ultimately assessed with atypical chest pain and was symptom free. A consultation report indicates he had a stress test three months ago that was normal. He was discharged in stable condition. (Exhibit 11F/38, 45) On September 4, 2021, the claimant reported improvement since admission. (Exhibit 11F/110) On September 5, 2021, the claimant was evaluated for his ventricular arrhythmia and assessed as currently much improved. (Exhibit 11F/113, 118)

The claimant was prescribed a walker. (Exhibit 15F/40) However, as discussed herein, the vocational expert testified that the use of a cane or a walker would not have much effect on the claimant's past relevant work, as it is basically sitting at a desk/counter using a computer and doing paperwork.

The claimant alleged having trouble learning, memory issues and retention issues. However, objective exams do not corroborate these complaints. As noted, exams show he had goal directed thought process, no abnormal thought content, intact insight/judgment, alert/awake consciousness and was oriented times four. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

The claimant also complained of dizziness, but the record shows few complaints of dizziness. Of note, cardiology records generally show the claimant was negative for dizziness. These records also show the claimant was generally negative for memory loss. (Exhibits 5F/3, 6, 12, 16, 20, 12F/7, 13. 16, 28, 36, 47, 56, 19F/3, 10, 16, 21, 30)

He reported taking more naps than he used to because he gets very tired. However, there is no medical evidence that this has been recommended by a physician and thus appears to be a self-imposed restriction.

The claimant's reported activity is generally neutral and neither supports disability nor non-disability. The claimant noted that his day involves getting dressed, taking his medications, eating breakfast, watching TV, or getting on his computer. He indicated maybe doing a load of laundry and taking out the trash. He noted thawing something for his wife to make for dinner and watching more TV. He reported microwaving lunch. He indicated taking medications in the evening, eating dinner, and going to bed. (Exhibit 5E/2) The claimant indicated needing no special reminders for taking care of personal needs, grooming, or taking medicine. He indicated preparing his own meals. (Exhibit 5E/3) He noted doing chores including laundry and watering cactus in the yard weekly. (Exhibit 5E/4) He indicated being able to go out alone and travel by riding in a car or using public transportation. He reported shopping for groceries in store and by computer. (Exhibit 5E/4) He related being able to pay bills, count change, handle a savings account, and use a checkbook. He indicated spending time with others including shopping with wife and playing with 7-year-old step granddaughter. He listed grocery store and pharmacy as places he goes to on a regular basis. (Exhibit 5E/5) The claimant indicated no problems getting along with family, friends, neighbors, or others. (Exhibit 5E/6) A September 8, 2020, report, indicates he started walking, and will commit to walking. (Exhibit 10F/2-3) On September 29, 2020, reveals he is walking but with some pain. (Exhibit 10F/5) A medical report dated May 30, 2022, indicates he is independent with activities of daily living (ADLs). (Exhibit 25F/945)

The regulations require we consider all evidence, including statements from non-medical sources. The third-party reports and statements completed by Claudia Northrop (“Mrs. Northrop”), the claimant's wife, Marsha Spencer (sister in law), and Emalie Wiley (Sister-in-law), were fully considered herein. (Exhibits 4E, 12E, 13E, 14E) However, the undersigned is not required to articulate in the decision how these statements were considered. (20 CFR 404.1520c(d), 416.920c(d)). Their reports are generally consistent with the claimant's allegations, but the undersigned is unable to find the claimant more limited than found in this decision based on these third party reports and statements, which are based on casual observation of the claimant and not objective medical records.

As for medical opinion(s) and prior administrative medical finding(s), the undersigned cannot defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical

finding(s) or medical opinion(s), including those from medical sources. The undersigned has fully considered the medical opinions and prior administrative medical findings as follows:

In an undated letter, Osama Niazi, D.O. noted that the claimant suffers from several significant cardiovascular morbidities that limits his ability to work. He opined that he did not believe the claimant was fit for work and needs careful medical attention and care. (Exhibit 9F/1)

In a letter dated November 4, 2020, Karl Espinosa, M.D. opined that given his multiple medical issues, he should pursue withdrawal from working. (Exhibit 9F/2)

On November 9, 2020, Jaskamal Kahlon, M.D. opined the given his overall clinical status, he is not able to perform active duties, as result would be good candidate for disability. (Exhibit 9F/16)

The opinions of Dr. Niazi, Dr. Espinosa and Dr. Kahlon are rejected and found unpersuasive, as they provided only conclusory statements concerning the claimant's ability to work, which is an issue reserved for the Commissioner of Social Security. They did [not] cite to any objective medical records to support their conclusions. They did not provide a function-by-function analysis of the claimant's impairments. They did not provide any dates or timeframes associated with their statements. The undersigned cannot imply that their statements concerning the claimant's ability to work were intended to be permanent or otherwise last 12 continuous months.

In an assessment dated February 21, 2022, J. Brasfield, MSA-CNP opined as follows, in part. The claimant could lift and/or carry less than 10 pounds, stand and/or walk less than one hour, and sit less than 2 hours to about 6 hours in an 8-hour day, depending on cardiac status. [Sh]e opined that the claimant should never stoop, kneel, crouch, crawl, occasionally reach and frequently finger, feel and handle. [Sh]e determined that the claimant has extreme limitation in understanding and memory, sustained concentration and persistence, stress, and mental fatigue. (Exhibit 14F)

In an assessment dated April 26, 2022, Karl Espinosa, M.D. made generally similar opinions as those proposed by Mr. [sic] Brasfield. [Sh]e found that the claimant could lift and/or carry less than 10 pounds, sit about 6 hours. [Sh]e opined that the claimant should never stoop, kneel, crouch, crawl, frequently reach and occasionally finger, feel and handle. [Sh]e determined that the claimant has extreme limitation in understanding and memory, and sustained concentration and persistence. (Exhibit 18F)

The opinions of [] Brasfield, and Dr. Espinosa are found unpersuasive, as the medical record does not support the degree of limitations they proposed. As noted, while the claimant has cardiac issues, which were considered herein, objective cardiac exams were generally negative. (Exhibit 12F/13, 17, 36, 47, 19F/10-11, 16, 21, 30) These

evaluators provided no specific reason for limiting the claimant's ability to finger, feel, handle and reach. They opined that the claimant had extreme limitations in several mental areas, but this is not corroborated by objective mental exams, which were generally normal. As discussed herein, the claimant was appropriately dressed, had cooperative behavior, and normal speech with normal rate, amplitude, and prosody. He had euthymic mood, mood congruent affect, goal directed thought process, no abnormal thought content, intact insight/judgment, alert/awake consciousness and was oriented times four. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

In an assessment dated May 18, 2022, Steve Chung, M.D. noted diagnoses of seizure disorder and stroke. He determined that the claimant could lift less than 10 pounds, stand and/or walk 2-4 hours in an 8-hour workday and sit less than 2 hours in an 8-hour workday. He indicated that the claimant could occasionally finger, feel, handle and reach. He opined that the claimant had moderate limitations in areas of sustained concentration and persistence. (Exhibit 21F) Dr. Chung's opinion is found unpersuasive, as the degree of limitations proposed is not reasonably supported by the medical evidence. As with the other opinions, Dr. Chung does not explain why the claimant would have any limitations concerning his ability to finger, feel, handle, and reach or why he is limited to sitting less than 2 hours. Of note, the claimant did not allege any significant limitations in his ability finger, feel, handle, and sit during the hearing. As noted, herein, the record supports that the seizures have been generally under control and cardiology records largely show the claimant did not report any signs/symptoms of stroke. (Exhibit 12F/1, 3, 9, 20, 22, 24, 30, 32, 39, 41, 43, 50, 52, 58, 60, 19F/6, 24, 26) Further, as noted above, objective cardiac exams were generally negative. (Exhibit 12F/13, 17, 36, 47, 19F/10-11, 16, 21, 30) In addition, objective mental exams were generally normal, as discussed above. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

In an assessment dated June 20, 2022, Javier Perez, Ph.D. indicated diagnoses of bipolar II disorder and depression. He opined that the claimant had marked to extreme limitation in most mental health related areas and would miss 10 or more day of work per month because of mental health impairments. (Exhibit 24F) Dr. Perez's opinion is found unpersuasive, as it out of proportion with the evidence in this case. As mentioned, the claimant's mental impairments were found non-severe in this case. Dr. Perez's opinion is inconsistent with the balance of objective mental exams which show generally normal findings. As noted, the claimant was appropriately dressed, had cooperative behavior, and normal speech with normal rate, amplitude, and prosody. He had euthymic mood, mood congruent affect, goal directed thought process, no abnormal thought

content, intact insight/judgment, alert/awake consciousness and was oriented times four. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6) Moreover, as noted, records generally show the claimant was negative for memory loss. (Exhibits 5F/3, 6, 12, 16, 20, 12F/7, 13. 16, 28, 36, 47, 56, 19F/3, 10, 16, 21, 30) His opinion is also not supported by the medical opinions of Dr. Kerns and Dr. Novak, as discussed herein, who found non-severe mental impairments in this case.

At the initial level, State Agency medical consultant E. Wavak, M.D. opined that the claimant could perform a range of light work. …

At reconsideration, State Agency medical consultant Dennis Swena, M.D. determined that the claimant could perform a range of sedentary work. …

The opinion of Dr. Wavak is found unpersuasive, and the opinion of Dr. Swena is found persuasive, as Dr. Swena's opinion is more restrictive and most consistent with the claimant's history of cardiac issues, TIA's and epilepsy as well as lower extremity weakness and use of assistive devices, as discussed herein.

(ECF No. 12-3 at 23-29).

The ALJ concluded Northrop could perform his past relevant work as a license clerk because it did not require the performance of work-related activities precluded by the assessed residual functional capacity. (ECF No. 12-3 at 29).

VI. Analysis of Claims for Relief

A. Sufficient support for the assessed residual functional capacity

Northrop asserts the “ALJ erred by formulating a residual functional capacity [] contrary to the record as a whole,” arguing the assessed residual functional capacity “is not supported by substantial evidence. The ALJ failed to properly account for Northrop's impairments that cause mental and physical deficiencies established by the record as a whole.” (ECF No. 14 at 1, 4). Northrop asserts:

… Plaintiff's cognitive decline due to his strokes and seizure disorder with surgery was established by the record, but the ALJ disregarded these deficiencies entirely when forming the RFC. … the ALJ ignored Northrup's cognitive dysfunction by simply finding mental impairments not severe without considering the impact to Plaintiff's mental capacities due to physical injuries. … the ALJ solely focused on mental impairments in error when fashioning the RFC. The ALJ found mental impairments not severe,

and simply terminated his evaluation of Northrup's mental incapacity without explanation. The ALJ did so by relying on agency physician opinions who considered the record evidence only with respect to Northrup's mental impairments when forming the RFC. In this case, Plaintiff's mental deficiencies are attributable to the damage caused by traumatic insults to his brain, and not due to typical or ordinary mental impairments. …

(ECF No. 14 at 5).

Northrop maintains the ALJ failed to include any limitations with regard to Northrop's alleged memory and cognitive issues in the assessed residual functional capacity. However, a claimant's own statement of symptoms alone is insufficient to establish a medically determinable impairment. See 20 C.F.R. §§ 404.1508, 416.908. To establish a medically determinable impairment, a claimant must provide evidence from a medically acceptable source, such as laboratory results or a licensed physician. 20 C.F.R. § 404.1513(a). A symptom, such as fatigue, dizziness, or memory loss, or a combination of symptoms, cannot establish a medically determinable physical or mental impairment “unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.” SSR 96-4p, 1996 WL 374187, at *1. See Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (noting that “a medical opinion offered in support of an impairment must include ‘symptoms [and a] diagnosis.'”), cited in Clark v. Colvin, 2014 WL 4826690, at *9 (D. Ariz. Sept. 29, 2014). See also Coffey v. Saul, 2019 WL 4667982, at *8 (D. Ariz. Sept. 25, 2019).

Regardless of the underlying cause of Northrop's alleged mental and cognitive issues, the ALJ properly evaluated whether the mental impairments alleged by Northrop, i.e., his memory issues and his cognitive awareness, were severe and the degree to which they limited his ability to work. Notably, Northrop's strokes and seizures occurred years prior to the date he quit working, and when he applied for benefits Northrop did not allege cognitive deficiencies arising from his stroke as a basis for disability nor did he allege cognitive deficiencies as a basis for disability upon reconsideration. The ALJ found Northrop's statements regarding the severity of his memory and cognitive issues were not supported by his reported daily activities. The ALJ also found Northrop's reports of his “trouble learning, memory issues and retention issues” were not corroborated by any objective medical evidence, further noting Northrop “also complained of dizziness, but the record shows few complaints of dizziness. Of note, cardiology records generally show the claimant was negative for dizziness. These records also show the claimant was generally negative for memory loss.” (ECF No. 12-3 at 25). In support of this conclusion the ALJ cited, inter alia, the treatment notes from Tri-City Cardiology dated June 18, 2020, October 7, 2020, November 9, 2020, November 16, 2020, December 15, 2020, and February 24, 2021 (ECF No. 12-8 at 175-79 (“Review of Systems” including “NEURO - Negative for dizziness, memory loss, seizures …”); ECF No. 12-10 at 8, 14, 17,¹⁹ 29,²⁰). The ALJ also noted, with regard to fatigue, Northrop “reported taking more naps than he used to because he gets very tired,” but concluded “there is no medical evidence that this has been recommended by a physician and thus appears to be a self-imposed restriction.” (ECF No. 12-3 at 25).

19 On November 16, 2020, Northrop also denied fatigue and “was overall feeling much better” since a recent hospitalization for “ICD shock.” (ECF No. 12-10 at 16).

20 On that date Northrop denied shortness of breath, dizziness, and memory loss. (ECF No. 12-10 at 35, 37).

“When objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original). Substantial evidence “means only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 139 S.Ct. at 1150. Numerous medical records support the ALJ's decision finding Northrop's cognitive symptoms were less severe than alleged. The ALJ's conclusion that the objective medical evidence did not fully support Northrop's allegations was reasonable. See Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009) (reiterating that the substantial evidence standard of review is highly deferential). The records cited by the ALJ provide more than a scintilla of evidence to support the ALJ's conclusion, satisfying the requisite standard. The ALJ's findings are fully supported by substantial evidence and are a reasonable interpretation of that evidence, and therefore the findings must be affirmed. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”).

The ALJ noted Northrop reported his activities of daily living included getting dressed, taking his medications, using his computer, doing laundry, and that he stated he needed no special reminders for taking care of personal needs, grooming, or taking medicine. Northrop reported, and the record indicates, he was able to go out alone and use public transportation. Northrop reported he was able to pay bills, count change, handle a savings account, and use a checkbook. The ALJ also noted a hospital record dated May 30, 2022, stating Northrop advised he was independent of his activities of daily living. (ECF No. 13-5 at 215). This record evidence, notably Northrop's ability to use his computer to shop, to use public transportation, and to handle his finances, further supports the ALJ's findings regarding Northrop's abilities with regard to his cognitive skills and memory, and the exclusion of cognitive functioning limitations in the assessed residual functional capacity.

Throughout the first four steps of the relevant sequential evaluation the burden is on the claimant to produce a sufficient quantum of evidence establishing disability. A “To Whom It May Concern” letter falls short of what is required to establish an impairment, and a physician's restatement of the claimant's subjective complaints as reported to the physician does not establish an impairment, particularly where the physician's treatment records do not reference the results from any “medically acceptable clinical diagnostic techniques” that would support a finding of impairment. Ukolov, 420 F.3d at 1005-06 (finding a physician's report of a claimant's subjective complaints, including dizziness, “limitations with regards to sustained ambulation,” and “increased tendency to fall,” did not support a finding of impairment because they are based solely on the claimant's own “perception or description” of their problems). Where none of the record medical opinions contain a diagnosis based on treatment notes or objective test results establishing a specific ailment, the claimant fails to meet their burden of establishing disability. Ukolov, 420 F.3d at 1006 (“Because none of the medical opinions included a finding of impairment, a diagnosis, or objective test results, Ukolov failed to meet his burden of establishing disability.”), cited in Haverlock v. Colvin, 2014 WL 670202, at *5 (E.D. Cal. Feb. 20, 2014). The objective evidence in this matter does not contain substantial evidence to support a more limited residual functional capacity regarding memory and cognitive disabilities. Where there is an absence of record evidence to support a claimant's allegations regarding a specific condition or symptoms, the ALJ's decision finding that condition non-severe or non-disabling may be affirmed. See Henry v. Saul, 835 Fed.Appx. 924, 924-25 (9th Cir. 2021) (“The conclusion that [the claimant's hand tremor, carpal tunnel syndrome, and bipolar disorder were also non-severe impairments is supported by the absence of evidence establishing severe impairment during the relevant period.”), citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

B. Medical opinion evidence

Northrop asserts the ALJ ignored medical evidence that Northrop's cognitive functioning deficiencies were attributable to physical injuries to his brain. Northrop argues that the ALJ “wholly ignored” Dr. Espinosa and Dr. Chung's conclusions that his “mental incapacity” was due to physical impairments, such as strokes and brain surgery. (ECF No. 14 at 8-11).

Northrop contends:

The ALJ erred with respect to the supportability and consistency factors regarding Dr. Chung. Although the ALJ held that Dr. Chung's assessment regarding Plaintiff's concentration and persistence limitations was not supported by the medical evidence, he cited no examples of inconsistency. Also, the ALJ wholly ignored Dr. Chung's conclusion that Plaintiff's mental incapacity was due to his previous strokes and brain surgery.

(ECF No. 14 at 8).

The Social Security Administration amended the regulations for evaluating medical evidence in 2017. See Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5844 (Jan. 18, 2017) (codified at 20 C.F.R. pts. 404 & 416, available at 2017 WL 168819) (“2017 Revisions”). In Woods v. Kijakazi the Ninth Circuit Court of Appeals held that under the revised regulations the ALJ must address whether each medical source opinion in the record is “persuasive.” 32 F.4th 785, 792 (9th Cir. 2022). The ALJ “must ‘articulate ... how persuasive' it finds ‘all of the medical opinions' from each doctor or other source, and ‘explain how it considered the supportability and consistency factors' in reaching these findings.” Id., citing 20 C.F.R. §§ 404.1520c(b) & 404.1520(b)(2). With regard to the “supportability” factor, the regulations provide: “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) ... the more persuasive the medical opinions ... will be.” 20 C.F.R. § 404.1520c(c)(1) (emphasis added). With regard to the “consistency” factor, the regulations provide: “The more consistent a medical opinion(s) ... is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) ... will be.” Id. § 404.1520c(c)(2). Additionally, the ALJ must explain the considerations of consistency and supportability in sufficient detail to allow a reviewing court to determine whether the ALJ's reasoning is free of legal error and supported by substantial evidence. See Ford, 950 F.3d at 1154; Zhu v. Commissioner of Soc. Sec. Admin., 2021 WL 2794533, at *6 (10th Cir. July 6, 2021).

The ALJ did not “ignore” the opinions of Dr. Chung and Dr. Espinosa. The ALJ explicitly noted Dr. Chung diagnosed seizure disorder and stroke, and the ALJ explained that per the record Northrop's seizures had been “generally under control” and he “did not report any signs/symptoms of stroke.” (ECF No. 12-3 at 28). Additionally, Dr. Espinosa did not explicitly attribute Northrop's mental limitations to a physical impairment; Dr. Espinosa's narrative explanation for the assessed limitation of impaired memory was attributed to the “diagnoses” of, inter alia, cerebral vascular accident and seizure disorder.²¹ (ECF No. 13-2 at 2, 6). Furthermore, both Dr. Chung's and Dr. Espinosa's findings of cognitive limitation appear to be based solely on Northrop's self-reported symptoms rather than clinical observations or objective testing, and the ALJ noted the extreme cognitive limitations Northrop asserts were inconsistent with the normal cognitive findings reported in each physician's treatment notes. Furthermore, there is insufficient evidence in the record on appeal to establish the mental and cognitive issues forming the basis for Northrop's claim for benefits. Notably, the record on appeal indicates Northrop was able to work for several years after his last stroke and his last seizure. The medical records indicate Northrop's seizure condition was “well-controlled” at the time he allegedly became disabled. There is no objective medical evidence of a stroke affecting Northrop's cognitive abilities at the time he quit working or medical evidence of Northrop suffering a stroke after that date. Northrop did not allege cognitive issues as a basis for seeking disability benefits either initially or on reconsideration.

21 The form completed by Dr. Espinosa, prepared by Northrop's counsel, asks the physician to rate the “impairments or limitations in the Patient's mental functioning due to their diagnosed medical condition(s) along with any side effects from medications or treatment.” (ECF No. 13-2 at 5). The form does not require the physician to specify which mental functioning abilities are impaired or limited with regard to which specific diagnosed medical condition.

The ALJ discussed Dr. Chung's opinion as follows:

In an assessment dated May 18, 2022, Steve Chung, M.D. noted diagnoses of seizure disorder and stroke. … He opined that the claimant had moderate limitations in areas of sustained concentration and persistence. (Exhibit 21F) Dr. Chung's opinion is found unpersuasive, as the degree of limitations proposed is not reasonably supported by the medical evidence. As with the other opinions, Dr. Chung does not explain why the claimant would have any limitations concerning his ability to finger, feel, handle, and reach or why he is limited to sitting less than 2 hours. Of note, the claimant did not allege any significant limitations in his ability finger, feel, handle, and sit during the hearing. As noted, herein, the record supports that the seizures have been generally under control and cardiology records largely show the claimant did not report any signs/symptoms of stroke. (Exhibit 12F/1, 3, 9, 20, 22, 24, 30, 32, 39, 41, 43, 50, 52, 58, 60, 19F/6, 24, 26) Further, as noted above, objective cardiac exams were generally negative. (Exhibit 12F/13, 17, 36, 47, 19F/10-11, 16, 21, 30) In addition, objective mental exams were generally normal, as discussed above. (Exhibit 8F/2, 5, 8, 11, 14, 17, 10F/6, 9, 12-13, 16, 20, 24, 27-28, 30, 33, 36, 39, 20F/2-3, 5-6)

(ECF No. 12-3 at 28).

In finding Dr. Chung's opinion unpersuasive the ALJ properly considered the supportability and consistency factors under the revised regulations. Dr. Chung's opinion as to the degree of Northrop's mental limitations was based on Northrop's statements; there is no objective evidence of memory or other cognitive deficiencies. Furthermore, Dr. Chung opined that all of Northrop's mental limitations as a result of his seizures and brain surgery were mild. There is no indication in the record on appeal, including the treatment notes of Dr. Chung, that any clinical testing revealed cognitive disability. In his assessment of Northrop's residual functional capacity Dr. Chung did not explain any examination or treatment notes, clinical findings, or tests underpinning his opinion. Dr. Chung's functional capacity actually supports a conclusion that with regard to mental limitations, Northrop could perform his prior work, although he also opined that fatigue would render Northrop “off task” for 20 percent of each workday, a finding which appears to be based solely on Northrop's own report of fatigue. Given the paucity of objective evidence from the other medical sources in the record, such as treatment notes and tests, or other clinical evidence, the ALJ did not err in finding Dr. Chung's assessed functional limitations were not consistent with the record. Although Dr. Espinosa and Brasfield also assessed functional limitations, neither of these opinions was supported by any objective medical evidence or their own treatment records.

To the extent Northrop asserts error because the ALJ did not use the word “supportability” when discussing Dr. Chung's opinion, the recitation of “magic words” is not required. E.g., Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“It is true that the ALJ did not recite the magic words … But our cases do not require such an incantation. As a reviewing court, we are not deprived of our faculties for drawing … inferences from the ALJ's opinion.”). See also Kelsie K. v. Commissioner, Soc. Sec. Admin., 2022 WL 17414506, at *5 (D. Or. Dec. 5, 2022). The Court is able to discern from the context of the decision that the ALJ discounted Dr. Chung's opinion because of both consistency and supportability issues. See Sanchez v. Comm'r of Soc. Sec. Admin., 2022 WL 4798452 at *14 (D. Ariz. 2022).²² Even if the Commissioner erred in failing to provide a more detailed explanation about the persuasiveness of Dr. Chung's opinion, any error was harmless because the record evidence indicates Dr. Chung's opinion was not supported by objective medical evidence and his own treatment notes. See Braun v. Commissioner of Soc. Sec. Admin., 2023 WL 5926355, at *6 (D. Ariz. Sept. 12, 2023); Bischoff v. Kijakazi, 2023 WL 5319251, at *1 (9th Cir. Aug. 18, 2023); Scrum v. Commissioner of Soc. Sec. Admin., 2022 WL 17688201, at *5 (D. Ariz. Dec. 15, 2022). The Ninth Circuit has concluded that an ALJ may discount a medical source's opinion when it is unsupported by objective medical evidence. Woods, 32 F.4th at 791-92. Cf. Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1195 n.3 (9th Cir. 2004) (finding a brief and conclusory report did not provide support for the assessed limitations in the absence of objective medical evidence in the source's treatment notes).

22 The ALJ is not mandated to provide record citations, but rather to provide reasons. So long as the purported “facts” underlying those reasons find support in the record, the ALJ's decision must be sustained. “Thus, it is clear that both this court and the district court may look to any evidence in the record regardless of whether it has been cited by the Appeals Council.” Walker v. Sec'y of Health & Hum. Servs., 884 F.2d 241, 245 (6th Cir. 1989). See also 4 Soc. Sec. Law & Prac. § 55:67 (2022). Indeed, the reviewing court may reverse “only if the ALJ's decision was not supported by substantial evidence in the record as a whole.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (emphasis added). Sanchez v. Commissioner of Soc. Sec. Admin., 2022 WL 4798452, at *2 (D. Ariz. Aug. 26, 2022), report and recommendation adopted, 2022 WL 4783758 (D. Ariz. Sept. 30, 2022).

Northrop also contends the ALJ “improperly rejected Dr. Espinosa's assessment of [his] mental capacities, but again, the ALJ ignored considering whether Plaintiff's CVA contributed to his mental deficiencies …” (ECF No. 14 at 9). He also argues: “And though the ALJ provided some reasoning to discount Dr. Espinosa's opinion regarding limitations caused by anxiety and depression, the ALJ provided no reason to reject Dr. Espinosa's RFC findings attributed to Northrop's history of a CVA.” (ECF No. 14 at 10).

The ALJ determined, with regard to Dr. Espinosa's opinions:

In a letter dated November 4, 2020, Karl Espinosa, M.D. opined that given his multiple medical issues, he should pursue withdrawal from working. (Exhibit 9F/2) …

The opinion[] of … Dr. Espinosa … [is] rejected and found unpersuasive, as [he] provided only conclusory statements concerning the claimant's ability to work, which is an issue reserved for the Commissioner of Social Security. [He] did cite to any objective medical records to support [his] conclusions. [He] did not provide a function-by-function analysis of the claimant's impairments. They did not provide any dates or time frames associated with their statements. The undersigned cannot imply that their statements concerning the claimant's ability to work were intended to be permanent or otherwise last 12 continuous months.

***

In an assessment dated April 26, 2022, Karl Espinosa, M.D. made generally similar opinions as those proposed by [] Brasfield [, finding] the claimant could lift and/or carry less than 10 pounds, sit about 6 hours. … the claimant should never stoop, kneel, crouch, crawl, frequently reach and occasionally finger, feel and handle … the claimant has extreme limitation in understanding and memory, and sustained concentration and persistence. (Exhibit 18F)

The opinions of [] Brasfield, and Dr. Espinosa are found unpersuasive, as the medical record does not support the degree of limitations they proposed. As noted, while the claimant has cardiac issues, which were considered herein, objective cardiac exams were generally negative. (Exhibit 12F/13, 17, 36, 47, 19F/10-11, 16, 21, 30) These evaluators provided no specific reason for limiting the claimant's ability to finger, feel, handle and reach. They opined that the claimant had extreme limitations in several mental areas, but this is not corroborated by objective mental exams, which were generally normal. As discussed herein, the claimant was appropriately dressed, had cooperative behavior, and normal speech with normal rate, amplitude, and prosody. He had euthymic mood, mood congruent affect, goal directed thought process, no abnormal thought content, intact insight/judgment, alert/awake consciousness and was oriented times four. …

(ECF No. 12-3 at 27).

The ALJ's conclusion that Dr. Espinosa's assessment of extreme limitations and disability was unpersuasive was supported by sufficient recent evidence and was a reasonable interpretation of the record evidence, notably an absence of evidence in Dr. Espinosa's treatment notes of these extreme limitations and an absence of evidence to support extreme limitations in the other record evidence. Additionally, Dr. Espinosa's finding of extreme limitations was provided summarily, i.e. without explanation, on a “check box” form provided by counsel, and the limitations appear to be based solely on Northrop's self-reported symptoms and self-reported severity.

C. Symptom testimony

Northrop argues that when “considering Northrop's stated reasons for disability, the ALJ recognized Northrop's alleged mental disturbance as a result of his brain injury due to his CVA and brain surgery …” (ECF No. 14 at 15). He contends the ALJ then erred by failing to properly weigh his testimony. (Id.). Northrup asserts the “ALJ repeatedly referenced Northrop's physical circumstances as a result of his CVA to reject his statements, without discussing mental limitations directly caused by this impairment …” (Id.). Northrop argues the ALJ provided an insufficiently specific explanation as to whether he accepted or rejected Northrop's statements regarding the mental limitations allegedly caused by his “cerebral vascular accident,” and that the ALJ mischaracterized that “accident” as a transient ischemic attack. (ECF No. 14 at 15).²³

23 It is clear that years prior to the alleged onset of disability Northrop suffered a stroke which manifested in, inter alia, right foot drop. In the summary finding at the third step of the evaluation, the ALJ stated: “The claimant has the following sever impairments: epilepsy … and transient ischemic attack (“TIA”). (ECF No. 12-3 at 19). The ALJ later mentions: “The claimant was treated from May 20, 2022, to June 4, 2022, complaining of transient vertigo … A CT head and MRI of the brain did not reveal any acute infarct … He was found to have transient vertigo resolved of unclear etiology but possible TIA.” (ECF No. 12-3 at 24). This accords with the hospital treatment record of this even. Elsewhere in the opinion the ALJ mentions that Northrop had reported “experiencing two strokes, brain surgery and having subsequent diagnosis of epilepsy … He noted having trouble learning a new computer program at his job. The claimant reported having strokes. He reported having open heart surgery to replace a mitral valve.” (ECF No. 12-3 at 23). The ALJ further noted that Northrup reported limitations due to stroke in an activities of daily living report (2E) and that at the hearing counsel asserted Northrop “experienc[ed] two strokes, brain surgery and having subsequent diagnosis of epilepsy…” (Id.). The ALJ concluded Northrup “has a history of TIA/strokes …” (Id.). The ALJ found: “Cardiovascular records dated September 8, 2020, to January 26, 2022, generally show the claimant did not report any signs/symptoms of stroke. (Exhibit 12F/1, 3, 9, 20, 22, 24, 30, 32, 29, 41, 43, 50, 52, 58, 60, 19F/6, 24, 26).” (ECF No. 12-3 at 23-24).” Northrup does not point to, nor does a thorough perusal of the record indicate, a medical source record stating definitively that Northrop suffered a stroke after the alleged onset of disability.

When evaluating a claimant's symptom testimony, the Commissioner must engage in a two-step analysis. The ALJ must determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ proceeds to consider all of the evidence presented to determine the persistence and intensity of the alleged symptoms. Id. § 404.1529(c). If there is no evidence of malingering, the ALJ may reject the claimant's symptom testimony only by giving specific, clear, and convincing reasons supported by evidence in the record. E.g., Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021).²⁴ The ALJ must “set forth the reasoning behind [their] decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Court may set aside the ALJ's decision only when it is not supported by “substantial evidence” or is based on harmful legal error. Trevizo, 871 F.3d at 674. “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. And even when the ALJ commits legal error, their decision must be upheld when that error is harmless, i.e., the error “is inconsequential to the ultimate nondisability determination,” or “the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Treichler v. Commissioner of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). See also Brown-Hunter, 806 F.3d at 492; King v. Commissioner of Soc. Sec. Admin., 2020 WL 5587429, at *2 (D. Ariz. Sept. 18, 2020). Although the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. E.g., Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. E.g. Ahearn, 988 F.3d at 115-16, citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Trevizo, 871 F.3d at 674-75.

24 The “clear and convincing standard” applies only to cases within the jurisdiction of the Ninth Circuit Court of Appeals. See Stephen E. Smith, Asking Too Much: The Ninth Circuit's Erroneous Review of Social Security Disability Determinations, 26 Lewis & Clerk L. Rev. 229, 233-34 (2002).

It is the ALJ's prerogative to “determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.” Treichler, 775 F.3d at 1098. The ALJ is not required to believe every allegation of disability, otherwise disability benefits would be available for the asking, a result plainly contrary to the Social Security Act. See Ahearn, 988 F.3d at 1116. When a claimant establishes an underlying impairment, the ALJ must evaluate whether their symptom testimony is consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. § 404.1529(c)(2)-(3); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).

Northrop contends the ALJ offered only a “generic assessment” of Northrop's hearing testimony. Northrop cites the following portion of the ALJ's order:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. (Tr. at 23.)

(ECF No. 14 at 15, quoting ECF No. 12-3 at 23).

The ALJ, elsewhere in the decision under consideration, noted that record did not support any “residual issues” from Northrop's 2015 stroke “aside from chronic leg weakness.” (ECF No. 12-3 at 23). The ALJ noted Northrop had testified to “10 falls in the last year but acknowledged requiring no hospitalizations.” (Id.). The ALJ noted the records from September of 2020 through January 26, 2022, indicated Northrop did “not report any signs/symptoms of stroke.” (ECF No. 12-3 at 24). Although Northrop predicated disability partially on a seizure disorder and epilepsy, the ALJ noted “the record reflects few seizures, or epilepsy episodes during the period at issue. Of note, during the hearing, the claimant did not mention any difficulty secondary to seizures/epilepsy …” (Id.). The ALJ also cited specific record evidence: “cardiology records generally reflect the claimant had no consistent symptomology and exams were generally negative,” that at times Northrop reported “doing well,” and that his “heart rates [were] better controlled,” that he was able to exercise,” and that his heart condition was well-controlled, i.e., “NYHA class 2.” (Id.). The ALJ cited records from November and December of 2020, four and five months after Northrop allegedly became too disabled to work, stating he was “overall feeling much better,” and “no he is doing better,” and a record from February 24, 2021, where Northrop told his physician he was not experiencing shortness of breath, chest pain, or syncope. (ECF No. 12-3 at 25). The ALJ also cited cardiac examination notes from November of 2020 through December of 2021 that “were generally negative” for heart issues. (Id.). The record also indicated a normal cardiac stress test in 2021. (Id.). The ALJ found there was no objective examination evidence of “trouble learning, memory issues, and retention issues.” (Id.). The ALJ also noted that although Northrop testified he experienced dizziness and memory loss, his cardiology treatment records showed he denied dizziness and he was “generally negative for memory loss.” (Id.). That a claimant's testimony is not supported by the record medical evidence is a clear and convincing reason for discounting such testimony.

Northrop contends the ALJ's lack of analysis regarding Northrop's testimony “fell short of the necessary requirements” established in Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).” (ECF No. 14 at 16). He maintains: “The ALJ made no evaluation of Northrop's specific testimony of debilitating mental deficiencies caused by his CVA history, which would preclude work. The ALJ was obligated to provide clear and convincing reasons or rationale to justify disregarding his testimony. Instead, the ALJ ignored Northrop's evidence in error.” (ECF No. 14 at 17). However, the ALJ explicitly considered Northrop's testimony concerning cognitive deficits and reasonably discounted this testimony, inter alia because it was inconsistent with the medical evidence and his reported activities. Inconsistency with the medical evidence, in tandem with other valid reasons, is a legitimate reason to discount a claimant's symptom testimony. See Carmickle v. Commissioner of Soc. Sec. Admin., 553 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (holding an ALJ may consider whether the alleged symptoms are consistent with the medical evidence); Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998) (concluding a determination that a claimant's subjective complaints are “inconsistent with clinical observations” satisfies the clear and convincing requirement). Northrup's claimed symptoms were not substantiated by the objective record medical evidence and were belied by contradictory reports to his medical care providers, his reported activities of daily living, and the evidence that his impairments were controlled by treatment. The ALJ sufficiently identified clear and convincing reasons, supported by substantial record evidence, to reject Northrop's testimony regarding the degree to which his ailments limited his ability to perform sedentary labor, such as his prior job. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding inconsistencies between the record and medical evidence supports a rejection of a claimant's credibility); Warre v. Commissioner of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (holding impairments that are effectively controlled with medication are not disabling); Orn v. Astrue, 495 F.3d at 638 (concluding an ALJ may discount a claimant's credibility based on their reported daily activities). Northrop denied symptoms of stroke and memory loss to his treating physicians, he exhibited normal objective cognitive findings, and he was independent in his activities of daily living. The ALJ determined Northrop's reports of his activities of daily living, such as using his computer, tending to his own hygiene and meals, doing laundry, using public transportation, handling finances, and an absence of issues getting along with others, and his May 30, 2022, statement to a medical care provider that he was independent with his activities of daily living, supported a conclusion that he was not as hampered by his various ailments as he testified. (ECF No. 12-3 at 25-26).

Any error with regard to the ALJ's identification of specific testimony regarding specific symptoms and connecting this testimony to specific work-related tasks was harmless error. If the ALJ's interpretation of evidence was rational, the reviewing court must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation. See Burch, 400 F.3d at 680-81. Therefore, because there is evidence to support the ALJ's conclusion, and the ALJ's conclusion was rational, the decision must be upheld.

D. Classification of past work

Northrop contends the ALJ “improperly concluded that Northrop could perform his past work of license clerk,” asserting the

… ALJ made this determination while erroneously characterizing the tasks performed by Plaintiff in his past work that demonstrated the unsuitability of the license clerk job. Specifically, Plaintiff's work as a license clerk required lifting in amounts that exceeded the sedentary RFC found by the ALJ. Despite Northrup's testimony that established how the license clerk job was incompatible, the ALJ determined the lifting tasks described by Plaintiff were not “essential” functions of the work, but “incidental.” (Tr. at 29.) … The ALJ reasoned that, after removal of the non-essential lifting tasks, Plaintiff could perform the license clerk job as performed because the remaining tasks did not exceed the sedentary work RFC. Id. The ALJ erred with respect the characterization of Northrup's lifting activities required in his past job, and in disregarding additional lifting activities set forth by Plaintiff that also confirmed the unsuitability of the license clerk job.

(ECF No. 14 at 19).

Northrop contends the ALJ erred in their definition of what constituted an “essential task.” He argues:

Essential tasks are not identified by their frequency alone. For example, a manager of a cash-based operation, such as a pizza shop, who is required to make a bank deposit following their shift. This activity occurs only once a day, but it would be defined as an essential task of the job as it is an integral part of the necessary operation of the business. Likewise, Plaintiff's task of retrieving paper for the printer or copier is essential to the function of the activities necessarily performed when printing items as part of his tasks as a license clerk. … The ALJ mischaracterized Northrup's task to lift and carry paper in excess of ten pounds a couple of times a week as not essential …

(ECF No. 14 at 21-22). Northrop argues:

… Plaintiff would be unable perform the core of his job tasks without paper. Pursuant to the DOT, Northrup's tasks required him to issue licenses

or permits, obtain and record information, and conduct written performance tests to determine applicant qualifications. All of these tasks or activities require paper in carrying out the essential and integral tasks. The fact that Northrup was asked to retrieve the paper further demonstrates that his task of lifting and carrying paper was an expected component of his job regardless of its frequency. And though the VE advised Plaintiff's need to lift and carry paper was an incidental task and not essential, the VE's testimony was irrelevant to the legal determination as to whether a task or activity is essential, integral, or expected, and if it must be accounted for in an RFC.

(ECF No. 14 at 22-23).

At the fourth step of the sequential evaluation the claimant has the burden of proving they can no longer perform their past relevant work in the manner they performed it or as generally performed in the national economy. E.g., Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001); Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (“The claimant has the burden of proving an inability to return to his former type of work and not just to his former job.”). The ALJ's duty at this step of the evaluation is to make factual findings by comparing the limitations imposed by the claimant's residual functional capacity to the physical and mental demands of a particular job and to reach a conclusion as to whether the claimant can perform that job. Pinto, 249 F.3d at 844-45, cited in Solorio v. Commissioner of Soc. Sec. Admin., 2022 WL 4545751, at *3 (D. Ariz. Sept. 29, 2022).

The ALJ did not err in concluding that lifting and carrying paper to refill the copy machine was not an “essential” component of Northrop's job. In his work history report, Northrop described this work as “basic office duties,” where he “mostly worked on computer, answered phones, [and] reviewed applications/paperwork.” (ECF No. 12-7 at 17). With regard to required lifting and carrying, despite stating the heaviest weight he lifted was twenty pounds (a box of printer paper), Northrop specified that he was required to lift paper “only as supplies were needed” and that this activity was “not always done by me.” (Id.). A rational reading of the hearing transcript reveals Northrop was not required to lift and carry entire cases of paper, but instead he could generally lift a ream of copy paper (approximately five pounds) at a time, and that Northrop shared this task with his coworkers. (ECF No. 12-3 at 54). Additionally, when the frequency of a task is a “common and obvious” part of the job in question, the ALJ should ask and may rely upon the testimony of a vocational expert in determining whether the specific task, in this matter the lifting and carrying of copier paper, is an essential part of the job as actually performed. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding an “ALJ may take administrative notice of any reliable job information, including information provided by a [vocational expert].”); Caudillo v. Commissioner of Soc. Sec. Admin., 2018 WL 3154472, at *4 (D. Ariz. June 28, 2018), citing Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). See also Solorio, 2022 WL 4545751, at *4. Common experience provides that sufficient paper to restock a copy machine or printer could be lifted a ream or partial ream at a time, and that Northrop could reasonably ask a coworker to reload the apparently shared printer or copier with paper. The ALJ reasonably accepted and adopted the opinion of a vocational expert that this task was not an “essential” requirement of Northrop's past work.²⁵

25 Northrop also testified that he occasionally lifted water bottles to place on a water cooler. (ECF No. 12-3 at 54). There is no indication in the record, including any testimony by Northrop or cited section of the Dictionary of Occupational Titles, that replacing water cooler bottles (the “additional lifting activities” referred to by Northrop) was an “essential” part of his assigned tasks; common experience suggests that this chore would be shared among the workers who availed themselves of the water. The vocational expert testified that this activity was not “an essential function” of the job but instead that it was a “convenience for the office more than a requirement.” (ECF No. 12-3 at 55). Northrup concedes that this activity was not an “essential function” of his past work. (ECF No. 14 at 23).

VII. Conclusion

The Ninth Circuit Court of Appeals has recognized that the threshold for substantial evidentiary sufficiency is “not high,” and the Court must uphold an ALJ's conclusion if the evidence is susceptible to more than one rational interpretation. See Farlow v. Kijakazi, 53 F.4th 485, 487-88 (9th Cir. 2022); Peebles v. Kijakazi, 2023 WL 5567156, at *1 (9th Cir. Aug. 29, 2023). The ALJ's ultimate decision in this matter regarding disability is reasonable, free of harmful legal error, and supported by substantial evidence in the record and, according, the ALJ's decision should be affirmed.

Accordingly, IT IS RECOMMENDED that the decision of the Commissioner denying claims for disability-based benefits be affirmed, and that the Complaint be dismissed with prejudice.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).