Opinion
CV-21-1873-PHX-SMB (JFM)
09-22-2022
David Jason Tansy, Plaintiff v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security who denied him disability insurance benefits and supplemental security income benefits under the Social Security Act.
This matter is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules of Civil Procedure.
A. SUMMARY OF THE CASE
Plaintiff has asserted that he became disabled as of October 7, 2016, when he was 38 years old, based on PTSD, anxiety, hypertension, diabetes, fatty liver disease, cervical and lumbar spinal impairments, and chronic headache, some of which Plaintiff relates to a broken neck at age 12. He has past relevant work as a warehouse worker, cashier II, merchandise deliverer, kitchen helper, and grinder/chipper II.
Plaintiff had filed prior applications for disability benefits in 2014, which were denied on June 7, 2016. He filed for benefits in the instant case in 2019.
In a decision issued June 14, 2021, the ALJ found:
- changed circumstances regarding the RFC to avoid the presumption of
continuing non-disability and new and material evidence to avoid the res judicata effect of findings from the prior proceedings;
- Plaintiff was generally eligible for benefits given his date last insured, and nonemployment;
- Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, lumbar spondylosis with facet syndrome, obesity, generalized anxiety disorder, posttraumatic stress disorder (PTSD);
- Plaintiff had the following non-severe impairments: hypertension, diabetes, fatty liver disease, hyperlipidemia, asthma, testosterone deficiency, stage II chronic kidney disease, and potential adrenal and thyroid gland deficiencies;
- no combination of impairments established disability under the listings;
- Plaintiff had the residual functional capacity to perform medium work, except he had the following additional limitations:
he can frequently climb ladders, ramps, and stairs, but never ropes or scaffolding. He can have occasional exposure to heat, humidity, vibration, and workplace hazards, such as dangerous machinery and unprotected heights. He can interact with supervisors, coworkers, and the public occasionally. He can perform simple, routine tasks. He can tolerate occasional changes in a routine work setting.
(AR 25.)
- Plaintiff was unable to perform past relevant work;
- Given his RFC, age and education, there were available jobs, including: industrial cleaner, laundry worker, and automobile detailer;
- Plaintiff was not disabled through the date of the decision.
The Administrative Record (Doc.) is referenced herein as “AR”, and the labelled Exhibits including in the Administrative Record are referenced herein as “Ex. .”
In reaching an RFC, the ALJ rejected portions of Plaintiff's symptoms testimony related to his mental impairments, and physical limitations. The ALJ evaluated the RFC opinions, and rejected as unpersuasive the psychological RFC opinion from the state agency psychological consultant and the physical RFC opinion from the examining physician, but found persuasive the opinion of the state agency medical consultant.
Plaintiff argues (Doc. 20) that the ALJ erred as follows:
(1) In rejecting the psychological consultant's opinion that Plaintiff's mental RFC was limited to one and two step tasks, and limited contact with coworkers and the public, and finding instead an RFC for simple tasks and occasional contact limits extended to supervisors. The error was in finding the opinion inconsistent with the record without providing adequate reasons and without substantial evidence, relying instead on the ALJ's own lay interpretation of the medical evidence.
(2) In adopting inconsistent findings on Plaintiff's physical RFC, by finding the medical consultant's opinion persuasive when the ALJ rejected that same opinion in finding material change to avoid the presumption of nondisability, without reconciling the inconsistency.Plaintiff seeks a reversal and remand for further hearing.
B. STANDARDS OF REVIEW
Reviewed Decision - In this instance, because the Appeals Council denied review (AR 1), the ALJ's decision is the final decision of the agency, and the decision now under review. 20 C.F.R. § 404.981.
Bases for Reversal - The court may set aside the agency's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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 sufficient 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. Substantial evidence, this Court has said, is more than a mere scintilla. It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotations, alterations and citations omitted).
To the extent that the Commissioner argues for a different standard based on NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939) (Answer, Doc. 21 at 34), Bisetek forecloses that argument.
Limited to ALJ's Reasoning - In reviewing the ALJ's decision, neither the parties nor the Court can manufacture their own reasons to support the decision made by the ALJ. “We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014); see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss.”).
But in identifying the ALJ's reasons, the Court is not constrained solely by the ALJ's organization of his opinion, and can make reasonable inferences reading the decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
Citations to Record Not Required - The ALJ is not mandated to provide record citations, but rather to provide reasons based on facts which are supported by substantial evidence in the record. “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).
Of course, discussions of the evidence are not superfluous. “Though the ALJ need not address every piece of evidence, he must articulate, at some minimum level, his analysis of the record so that the reviewing court can follow his reasoning.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). “If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). See also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss.” (emphasis added)).
Harmless Error - “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. An error is harmless if it either “occurred during a procedure or step the ALJ was not required to perform,” or if it “was inconsequential to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Harmlessness does not require the court to determine what ultimate decisions the ALJ would have made if the error had not been committed, but only to ask whether the remaining bases for the decision are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
C. MENTAL RFC
1. ALJ's Decision
The ALJ assessed Plaintiff's mental RFC as having the following restrictions:
He can interact with supervisors, coworkers, and the public occasionally. He can perform simple, routine tasks. He can tolerate occasional changes in a routine work setting.(AR 25.) The ALJ reached this conclusion by assessing the four mental functional areas as follows:
- Mild limitations in “understanding, remembering, or applying information,”
- Moderate limitations in “interacting with others”
- Moderate limitations in “concentrating, persisting or maintaining pace,”
- Moderate limitations in “adapting or managing oneself”
In evaluating the mental opinions, the ALJ found unpersuasive the opinions of the state agency psychological consultant, opining:
The undersigned finds the prior administrative medical finding from the state agency psychological consultant generally unpersuasive. In January 2020, the psychological consultant advised that the claimant remained able to maintain concentration and pace for simple, one-and two-step mental tasks due to psychologically based symptoms (Exhibits B7A, B8A). He wrote that the claimant could maintain the social demands of a work-like setting involving limited contact with coworkers and the general public. Concerning the claimant's ability to adapt to changes, he advised that the claimant adapt in a work-like setting involving simple cognitive tasks and limited social contacts. Though the consultant supported these findings with review of the record available at the time, the undersigned finds them incomplete and inconsistent when considering the totality of the current evidence. First, the record does not support further limitation to one-and two-step tasks, which is a fairly extreme limitation where the claimant presents as intelligent and capable. Rather, a restriction to simple, routine tasks accounts for his difficulties in concentration and pace and other areas, as discussed above. Furthermore, the consultant recommended “limited contact” with coworkers and members of the public, but he did not quantify or explain the degree of the recommended limitation, which is insufficiently vague. The undersigned also finds limitations for interaction with supervisors appropriate, as discussed above.(AR 31 (emphasis added).)
The ALJ also opined that his physical but non-exertional RFC restrictions were also impacted by Plaintiff's anxiety, including:
Accordingly, he must limit exposure to hazards of the workplace, including unprotected heights, dangerous machinery, and climbing of ropes or scaffolding. He must further limit climbing of ramps, stairs, and ladders to a frequent, and not constant, basis. For similar reasons, and noting his history of other chronic conditions, even if nonsevere or mild, he may have no more than occasional exposure to heat, humidity, and vibration in the work environment.(AR 28.)
The following compares the ALJ's assessments of the mental limitations and impairments/restrictions to that of the consultant:
The ALJ's decision uses the term “occasional contact.” Plaintiff does not suggest a meaningful distinction between “limited” and “occasional” contact. The undersigned finds none.
2. Special Technique for Mental Impairments
The regulations establish a “special technique” for evaluating mental impairments. 20 C.F.R. § 404.1520a. The technique requires an evaluator to first identify a claimant's functional limitations in each of four specific areas of mental function: “Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” Id. at (c)(3). The undesigned references these areas as: informational, social, pace, and adaptability.
The functional limitations are evaluated on a “five-point scale: None, mild, moderate, marked, and extreme. The last point on the scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.” Id. at (c)(4). Based on that evaluation, the evaluator then rates the severity of the claimant's mental impairments, and if any is a severe limitation (at Step Two), they will be compared with the Listings to see if meets a listed mental disorder (at Step Three). Id. at (d)(1) and (2). If not, then the mental impairment is evaluated as part of the residual functional capacity determination (at Step Four).
This process must be applied and document at every level of administrative review Id. at (a). The agency's final decision, i.e. that of the ALJ or Appeals Council, “must incorporate the pertinent findings and conclusions based on the technique,” including “a specific finding as to the degree of limitation in each of the functional areas.” Id. at (e)(4).
3. Standard for Evaluating Medical Opinions
For applications filed after March 27, 2017, like Plaintiff's, the “new” regulations under 20 C.F.R. § 404.1520c apply. The new regulations require the ALJ to articulate “how persuasive” it finds the medical opinions and administrative findings. 20 C.F.R. § 404.1520c(b). The new regulations state:
Under prior regulations establishing a hierarchy of medical opinions, the Ninth Circuit enforced a hierarchical system for evaluating medical opinions, distinguishing between treating, examining, and consulting providers. See e.g. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources ... The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.20 C.F.R. § 404.1520c (emphasis added). The regulations require an ALJ to explain their reasoning with specific reference to how they considered the supportability and consistency factors for each source (but not for each specific opinion). 20 C.F.R. § 404.1520c(b)(1) and (2).
In Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022), the Ninth Circuit found these regulations supplant the old hierarchical system:
As a threshold matter, we must decide whether recent changes to the Social Security Administration's regulations displace our longstanding case law requiring an ALJ to provide “specific and legitimate” reasons for rejecting an examining doctor's opinion. We conclude that they do. For claims subject to the new regulations, the former hierarchy of medical opinions-in which we assign
presumptive weight based on the extent of the doctor's relationship with the claimant-no longer applies. Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.Id. at 787. Thus, the ALJ is not required to provide “specific and legitimate reasons” for rejecting a provider's opinions.
However, neither the new regulations nor Woods leave ALJs to dispense with medical opinions willy-nilly.
Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, Id. § 404.1520c(b)(2).Id. at 792 (emphasis added).
Other factors, including the treating relationship (including length, frequency, purpose, extent, and examinations), specialization, familiarity with other evidence and agency standards, and new evidence not considered by other providers), 20 C.F.R. § 404.1520c(c)(3)-(4), are still relevant, but the ALJ needs to articulate the consideration of those factors only when two or more opinions are equally supported and consistent with the record. 20 C.F.R. § 404.1520c(b)(1) and (2).
Summary - Thus, the ALJ's decision must be upheld if: (a) it articulates how persuasive it found each source's medical opinion(s); (b) it explains how the supportability and consistency factors were considered; (c) if two or more opinions are equally supported and consistent, it explains how the other factors were considered to choose between them; and (d) its supplied reasons are supported by substantial evidence (which includes a reasonable mind consideration).
4. Arguments
Opening Brief - Plaintiff argues that the ALJ erred in reaching his mental RFC by rejecting a limitation to “one and two step tasks” prescribed by the only medical opinion, that by the state agency psychiatric consultant. Plaintiff argues this opinion was based on “his impairments in sustaining concentration and pace.” Plaintiff argues the ALJ conceded the consultant's opinion was well supported, and in applying the consistency factor relied on a finding that “the claimant presents as intelligent and capable.” Plaintiff complains the ALJ fails to explain the evidence leading him to that conclusion, indicating that the ALJ was applying his own lay interpretation of the medical evidence.
Plaintiff relies on SSR 96-8p for the proposition that if the ALJ's RFC assessment conflicts with a medical opinion, the ALJ must explain why the opinion was not adopted. (Opening Brief, Doc. 20 at 13.) The undersigned questions the applicability of SSR 968p to a post-March 17, 2017 disability application, given: (1) its reliance at least in part on the since abandoned hierarchical system for evaluating opinions; and (2) the limitations on the ALJs burden of addressing medical opinions adopted in the new regulations. See e.g. 20 C.F.R. § 404.1520c(b)(1) (only source level evaluations required to be articulated). In any event, Plaintiff does not suggest that the ALJ did not attempt to explain away the conflicting opinions, only that the explanations were legally erroneous or inadequately supported.
Plaintiff further argues that the ALJ erred by failing to assess a difference in limitations on interaction between interactions with a supervisor and interactions with groups (e.g. co-workers or the public). Plaintiff argues his testimony supported the consultant's prescription of limited contact with coworkers and the public, but no similar limitations with a supervisor.
Answering Brief - The Commissioner argues that the ALJ properly applied the functional area criteria, and assessed the necessary accommodation for informational limitations based on Plaintiff having highly intelligence, good memory, and no cognitive deficits (even when irritable). The Commissioner argues that these findings are supported by substantial evidence and are a proper determination under the consistency factor.
The Commissioner further argues that the ALJ properly applied a reduced limitation on interactions based on Plaintiff's self-reports and observations of others, citing various records. And, the Commissioner argues the ALJ properly applied determined the limitations in the remaining functional areas. Consistency and pace limitations were based on reports of good attention and concentration. And adaptation and self management limitations were based on reports of improvement and fair to good reports. The Commissioner argues that the accommodations properly addressed the various limitations.
Finally, the Commissioner argues that the ALJ properly addressed the weight to be given to the state examiner, and properly relied on inconsistencies with the balance of the record to reject that opinion (i.e. the limitations to one-to-two step tasks and limited social contact and was inconsistent with the functional limitations).
Reply Brief - Plaintiff argues the Commissioner attempts to apply the wrong standard for finding substantial evidence, and ignores that the decision also contained legal error by failing to account for all of Plaintiff's mental limitations. Plaintiff argues that the ALJ's explanations, even if supported by substantial evidence in the record, was insufficient because the ALJ did not cite to any records, and the evidence referenced was not discussed elsewhere in the opinion.
5. Discussion
Here, the ALJ generally complied with the evaluation regulations in addressing the state agency consultant's opinions opining on their persuasiveness (“generally unpersuasive”) and the supportability of the consultant's opinions, finding them supported by a “review of the records available at the time” but (given the “current evidence”) incomplete. (AR 31.) Indeed, the ALJ observed at the outset of his decision: “The record also contains new and material evidence regarding the claimant's residual functional capacity. As discussed throughout in this decision, the claimant alleges and the record shows impairments not previously in evidence or evaluated, including years of additional treatment since the prior 2016 decision.” (AR 22.)
In determining persuasiveness, the ALJ must also evaluate how consistent an opinion is “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Here, the ALJ opined that the consultant's opinions were inconsistent with “the totality of the current evidence.” (AR 31.)
a. “Simple Tasks” Limitation
Plaintiff argues that the ALJ erred in reaching his mental RFC by rejecting a limitation to “one and two step tasks” prescribed by the only medical opinion, that by the state agency psychiatric consultant. Plaintiff argues this opinion was based on “his impairments in sustaining concentration and pace.” Plaintiff argues the ALJ conceded the consultant's opinion was well supported, and in applying the consistency factor relied on a finding the fact that “the claimant presents as intelligent and capable.” Plaintiff complains the ALJ fails to explain the evidence leading him to that conclusion, indicating that the ALJ was applying his own lay interpretation of the medical evidence.
The Commissioner argues that Plaintiff's intelligence and memory were relied on to reject the consultant's opinion on the informational impairment. (Answer, Doc. 21 at 4.) If that were the case, then the informational impairment found by the consultant (“simple and some more complex instructions”) was less restrictive than that found by the ALJ (“simple tasks”).
However, the ALJ's analysis of the informational and pace functional areas are intertwined. The ALJ relied upon a lesser limitation in the informational area -- based on intelligence and memory -- to conclude that the consultant's consistency and pace limitation was unjustifiably limited to one and two-step tasks rather than just simple tasks. This approach is reasonable. For example, an intellectually proficient worker might solve hundreds of quadratic equations throughout a day even if plagued with problems in concentration. A less proficient worker might take all day to solve one, even without concentration problems.
(1). Combined RFC Restriction
Plaintiff argues that courts have found that multiple functional areas (e.g. informational and pace) restrictions cannot be addressed by a single RFC restriction. (Opening Brief, Doc. 20 at 16-17.) But those decisions simply reject a complete failure to address a limitation in a particular area, and do not preclude crafting a restriction that addresses more than one area. See e.g. Melton v. Astrue, 2010 WL 3853195, at *8 (D. Or. Sept. 28, 2010), aff'd sub nom. Melton v. Comm'r of Soc. Sec. Admin., 442 Fed.Appx. 339 (9th Cir. 2011) (ALJ found pace limitations, but proposed only informational restrictions); and Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed.Appx. 709 (9th Cir. 2013) (same).
Rather, the courts have found such combined restrictions adequate, especially where they have been proposed by medical personnel. See e.g. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“The ALJ translated Stubbs-Danielson's condition, including the pace and mental limitations, into the only concrete restrictions available to him-Dr. Eather's recommended restriction to ‘simple tasks.'”); Woodward v. Colvin, 2015 WL 8023227, at *7 (C.D. Cal. Dec. 4, 2015), judgment entered, 2015 WL 8134375 (C.D. Cal. Dec. 4, 2015) (“Where the medical testimony does not establish any specific restrictions based on a claimant's difficulty with concentration, persistence, or pace, or social functioning, the ALJ does not err in adopting the physician's limitation to simple tasks.”).
Here, the ALJ did not fail to address a pace limitation. Nor did he eschew the consultant's proposed type of pace restriction (to an intellectually limited subset of tasks) altogether. The consultant proposed a limitation based on pace to “simple one or two-step tasks,” and the ALJ imposed the same type of restriction, only moderating it from simple, limited-step tasks to any simple tasks. And that moderation was based on the ALJ's rejection of the consultant's evaluation of the degree of Plaintiff's intellectual limitations.
Finally, the undersigned observes that the cases cited by Plaintiff all hail from a pre-March 2017 era when ALJs were highly limited in their ability to reject medical opinions. One has to question whether these courts would reach the same conclusions under regulations that contend: “We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c.
The only post-2017 case cited was Solomon v. Comm'r of Soc. Sec. Admin., 376 F.Supp.3d 1012 (D. Ariz. 2019), but even it dealt with an application filed in February 2012. Id. at 1015. Plaintiff also cites Turner v. Berryhill, 705 Fed.Appx. 495 (9th Cir. 2017), but that was reviewing a district court decision from 2015, and an application in March, 2010. See Turner v. Comm'r of Soc. Sec. 2015 WL 3546057 at *7 (N.D. Cal. June 5 2015).
(2). Evidence to Support Finding
Plaintiff complains the ALJ fails to explain the evidence leading him to that conclusion, indicating that the ALJ was applying his own lay interpretation of the medical evidence. But earlier in the Step Four discussion, the ALJ had addressed his evaluation of the informational area in detail, complete with citations to the record:
In understanding, remembering, or applying information, the claimant has mild limitation. At the hearing, the claimant testified to problems with his memory. The record, however, suggests no particular difficulty with these functions on a sustained basis. Within the objective evidence, he is noted to be highly intelligent, and his memory often appeared intact or good, with no deficits of cognition, even when irritable (e.g., Exhibit B8F, pages 331, 336, 340, 346, 380, 385; Exhibit B16F, page 14; Exhibit B17F, pages 162, 258, 266-67). Occasionally, his short-term memory appeared mildly impaired, but it returned back to intact or normal after a couple of months otherwise (Exhibit B17F, pages 209, 270, 279, 286, 291, 299, 304, 322, 334). Neurological examinations reflected that he answered and asked questions, followed commands, and demonstrated good concentration and short-term memory (Exhibit B5F, page 2; Exhibit B21F, pages 1-2). Overall, the evidence shows that the claimant has the mental capacity to understand, remember, and carry out simple, routine tasks, and the undersigned assesses no more than mild limitation in this area.(AR 29.) See Magallanes, 881 F.2d at 755 (decision read as a whole). Apart from complaining the ALJ was playing doctor, Plaintiff proffers no reason to find that these conclusions were not supported by substantial evidence.
Plaintiff argues in his Reply that the ALJ's analysis is deficient because it does not provide citations to the record, citing the analysis at ¶ 31. (Reply Brief, Doc. 22 at 78.) Of course, the citations are contained in the prior discussions. Plaintiff complains this is not sufficient because the earlier discussions don't discuss the opinion. An ALJ need not reiterate an analysis at every step of the decision on which it is relied. Magallanes, 882 F.2d at 755. And Plaintiff posits no reason that the ALJ's discussion at ¶ 31 should not be read as incorporating his discussion of the same limitations, impairments and restrictions discussed just 1 or 2 pages earlier in the decision. The undersigned finds it a fair inference that the latter is based on the former.
Moreover, ALJs are not required to provide citations to the record, only factual support for their reasoning. See supra Section B, Standards of Review.
With regard to playing doctor, it is true the ALJ cannot make his own independent medical findings, Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006), or reject all the medical opinions and render wholesale a new medical opinion based on raw medical data, Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). However, “[i]t is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
That determination is made “based on all of the relevant medical and other evidence,” 20 C.F.R. § 404.1545(a)(3), and in doing so the ALJ must “evaluate the persuasiveness of medical opinions,” 20 C.F.R. § 404.1520c(a), including by comparison with “the objective medical evidence,” 20 C.F.R. § 404.1520c(c)(1) and (2). That is what the ALJ did here, in concluding that the consultant's opinion was not supported by the objective medical evidence, and that the objective medical evidence on the informational functional area (discussed at ¶ 29) and the pace functional area all indicated Plaintiff's RFC extended to performing any simple tasks. See Nichols v. Comm'r of Soc. Sec. Admin., 2022 WL 909435, at *4 (D. Ariz. Mar. 29, 2022) (“ALJ was not playing doctor,” because the ALJ “was not interpreting raw medical data but was guided by physician notes supporting the exertional limitations the ALJ assessed”).
It is true that in cases where the existing medical evidence does not address an issue or that involve an irresolvable ambiguity or insufficiency in the evidence, the ALJ may be required to obtain an additional consultative examination before deciding the case. See 20 C.F.R. § 404.1520b(b)(2); Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). But Plaintiff proffers nothing to show that substantial evidence does not support the ALJ's determination, only that a medical opinion did not.
As with the informational area, the ALJ did not explain in detail his evaluation of the pace area when discussing the consultant's opinion, but he had done so earlier in the opinion:
With regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitation. The claimant indicated some difficulty in this area, writing that he can somewhat follow instructions and sometimes finish what he starts (Exhibit B6E, page 6). Much of his treatment appears focused on fluctuations of his mood, often based in stressors or feelings of irritability, and their effect on his ability to persist at tasks (see Exhibit B8F, pages 14, 18, 336- 39; Exhibit B17F, pages 17-25, 338-43). Still, with appropriate treatment, his providers often observed intact, fair, normal, or good concentration and attention, and he reported a relatively intact set of activities (see Exhibit B5F, page 2; Exhibit B8F, pages 334, 340, 346, 351; Exhibit B17F, pages 258, 270, 286, 299; Exhibit B6E, pages 34; Hearing Testimony). He reported interest in working part-time or full-time (Exhibit B8F, page 14). Based on this record, the undersigned assesses moderate limitation in this area. The claimant is able to sustain the attention and concentration necessary to carry out work-like tasks with reasonable pace and persistence, as long as he is limited to simple, routine tasks in a restricted social environment and routine work setting, where his ability to function in these areas-concentration, persistence, and pace-is higher.(AR 30.) Plaintiff proffers nothing to show that this was not a legal, reasonable analysis nor that it was not supported by substantial evidence. ALJs routinely and properly rely on effective treatment to find that a variable limitation does not justify a more restrictive RFC.
It is true that, particularly in the mental health arena, ALJs cannot “pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Mental health “symptoms wax and wane in the course of treatment”, and “[c]ycles of improvement and debilitating symptoms are a common occurrence.” Id. But that does not foreclose relying on improvement, and here Plaintiff proffers nothing to show that the ALJ's decision (unlike the ALJ in Garrison) was based on records showing Plaintiff's “condition had improved due to medication at a few points” that are belied by the balance of the record, Garrison, 759 F.3d at 1017, instead of showing that “with “appropriate treatment” Plaintiff was “often” improved.
(3). Conclusion re Simple Tasks Limitation
The undersigned finds no reversible error in the ALJ's adoption of a “simple tasks” limitation.
b. “Contact with Supervisors” Limitation
The consultant opined that Plaintiff's abilities were restricted to “limited contact with co-workers and the general public.” Since some contact with supervisors is an inherent part of every employment, the consultant's failure to include any restriction on such contact must be read as finding no reason to limit Plaintiff's contact with supervisors. Indeed, Plaintiff summarizes the consultant's opinion as restricting Plaintiff to “limited social contact with coworkers and the public but has no similar restrictions when interacting with a supervisor.” (Opening Brief, Doc. 20 at 16.) The ALJ instead adopted an RFC which also restricted him to contact “on an occasional basis” with supervisors, as well as co-workers and the public. (AR 28.)
Plaintiff fails to explain how this additional restriction harmed him. Indeed, Plaintiff's entire discussion on harmless error is devoted to Plaintiff's informational and pace limitations. (Id. at 17-18.) Plaintiff does argues that the harmfulness of the errors in the mental RFC finding must be evaluated in conjunction with the errors in the physical RFC. (Doc. 22 at 9-10.) But there are no other errors to cumulate.
Plaintiff goes to lengths to argue that this contact restriction failed to address Plaintiff's difficulties in interacting with groups. (Opening Brief, Doc. 20 at 15-16.) But no such restriction had been posited by the consultant. To the extent that Plaintiff simply contends that the ALJ should have also sua sponte protected him from “groups,” Plaintiff fails to show why the limited contact restrictions were inadequate to do so.
The undersigned finds no error with regard to the contact limitations.
D. PHYSICAL RFC
1. ALJ's Decision
In addressing Plaintiff's physical RFC, the ALJ adopted the following RFC: “medium work.. .with the following exceptions: he can frequently climb ladders, ramps, and stairs, but never ropes or scaffolding. He can have occasional exposure to heat, humidity, vibration, and workplace hazards, such as dangerous machinery and unprotected heights.” (AR 25.)
The ALJ summarized his reasoning:
The relatively limited evidence does not indicate medical conditions that warrants additional functional accommodations, including any particular limitations in walking. As noted above, the claimant's treatment has been somewhat sporadic and, where present, indicative of well-managed pain and other conditions that he describes as “tolerable” or not that bad (Exhibit B7F, page 14; Exhibit B5F, pages 1-3; Exhibit B14F, pages 12, 14). The record demonstrates a history of conservative management of neck pain, as well as hypertension, diabetes, asthma, and chronic headache, and these conditions are adequately accommodated in the exertional, postural, and environmental limitations above. There is very little treatment related to severe back pain. The treatment in evidence generally appears successful, in that his physical examinations are routinely unremarkable, and he has declined other interventions (Exhibit B7F, pages 2, 6, 9-10, 15; Exhibit B15F, pages 12, 19; Exhibit B11F, page 18; Exhibit B14F, pages 10-15, 19-23, 24-29). Functionally, he reported that he felt better when walking a lot, and he described no difficulties with household chores or activities like fishing and walking his dog twice daily (Exhibit B15F, page 12; Exhibit B8F, page 156; Exhibit B17F, pages 109, 238, 269, 306; Exhibit B6E; Hearing Testimony). Ultimately, the undersigned agrees with the claimant that the functional difficulties caused by his symptoms require limitations for work activity. However, the evidence as a whole, as explained throughout this decision, does not warrant additional restrictions at this time.(AR 28.)
In reaching these conclusions, the ALJ found persuasive the October 2020 opinion of the state agency medical consultant (Dr. Jack Kundin), summarizing: “The medical consultant adequately supported his findings with review of the record available, and the overall updated hearing-level record is consistent with this set of limitations.” (AR 31.) The ALJ's RFC grossly tracked that of the consultant
The ALJ found unpersuasive the opinions of the consulting examiner (Dr. Keith Cunningham, M.D.), who opined Plaintiff:
remained capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing and/or walking two hours in an eighthour day, and sitting without limitation never climb ladders, ropes, or scaffolding, kneel, or crawl, and occasionally climb ramps and stairs, stoop, and crouch. He assessed no manipulative limitations. He advised that the claimant avoid working around heights.(AR 31-32.) The ALJ reasoned that the examiner's opinions were supported only in part by his attached report, and that they were “inconsistent with the overall record.” (AR 32.)
2. Evaluation of Medical Consultant's Opinion
Here, the ALJ found “persuasive” the medical consultant's opinions, finding them partially supported, and consistent with the overall record.
In his Opening Brief, Plaintiff argues the ALJ erred in adopting this opinion because the ALJ failed to explain his basis for finding it consistent with the other evidence. (Doc. 20 at 18.) The Commissioner does not address this argument, which Petitioner notes in his Reply. (Doc. 22 at 10.)
The undersigned finds, however, that the ALJ had previously provided explanations for his finding of consistency between the medical record and his own RFC, which was commensurate with the medical consultant's RFC opinion. Indeed, he analyzed the medical record regarding “a history of medication management of hypertension, reflux, high cholesterol, and a possible thyroid disorder,” and discussed the record of chronic pain from back and neck pain and the history of its treatment, including discussions of limited and effective treatment and pain free periods. (AR 27.) It is a reasonable inference that the ALJ's subsequent summary treatment of the consultant's similar RFC opinion was based on this earlier discussion.
Except as discussed herein, Plaintiff fails to show how these explanations fail to support the ALJ's findings of consistency.
3. Inconsistency Regarding Reopened Applications
“The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings. The claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge's findings of nondisability, must prove ‘changed circumstances' indicating a greater disability.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (citations omitted).
When adjudicating the subsequent claim involving an unadjudicated period, adjudicators will apply a presumption of continuing nondisability and determine that the claimant is not disabled with respect to that period, unless the claimant rebuts the presumption. A claimant may rebut the presumption by showing a "changed circumstance" affecting the issue of disability with respect to the unadjudicated period, e.g., a change in the claimant's age category under 20 CFR 404.1563 or 416.963, an increase in the severity of the claimant's impairment(s), the alleged existence of an impairment(s) not previously considered, or a change in the criteria for determining disability.
If the claimant rebuts the presumption, adjudicators then must give effect to certain findings, as explained below, contained in the final decision by an ALJ or the Appeals Council on the prior claim, when adjudicating the subsequent claim. For this purpose, this Ruling applies only to a finding of a claimant's residual functional capacity, education, or work experience, or other finding required at a step in the sequential evaluation process for determining disability provided under 20 CFR 404.1520, 416.920 or 416.924, or a finding required under the evaluation process for determining disability provided under 20 CFR 404.1578, as appropriate, which was made in the final decision on the prior disability claim. Adjudicators must adopt such a finding from the final decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.SSA Acquiescence Ruling 97-4(9) (applying Chavez) (emphasis added).
Here, the ALJ opined:
In this case, the claimant has rebutted the presumption of continuing non-disability and shown “changed circumstances.” The record also contains new and material evidence regarding the claimant's residual functional capacity. As discussed throughout in this decision, the claimant alleges and the record shows impairments not previously in evidence or evaluated, including years of additional treatment since the prior 2016 decision. The criteria for establishing the severity of mental impairments has since changed as well, which bars adoption of prior findings of severity and concerning the listings of impairments. The evidence and updated rules and regulations overall also warrant additional review of the claimant's residual functional capacity without complete adoption of the previous hearing decision's residual functional capacity finding.(AR 22 (emphasis added).)
Plaintiff argues that the ALJ fails to provide sufficient reasons for his physical RFC because the adoption of the medical consultant's RFC opinion contradicts with the ALJ's finding of new and material changes (justifying a reopening of his application) where the medical consultant had found “no significant new and material changes.” (Doc. 20 at 19.)
The Commissioner answers that the ALJ was not inconsistent with respect to the new and material changes because the ALJ did not adopt wholesale the medical consultant's opinions, but reached the same conclusions only after consideration of all the evidence. (Doc. 21 at 11-12.)
Plaintiff replies that the RFC opinion credited to the medical consultant was not the consultant's own opinion, but that of the prior ALJ's RFC, which the consultant adopted based on his conclusion that there was no new and material evidence to avoid the res judicata effect of the ALJ's findings. (Doc. 22 at 9.)
Plaintiff fails to show that, having rejected the consultant's view on “new and material changes,” the ALJ was obligated to reject the consultant's RFC. Such an argument suggests that a finding of “new and material changes” is the equivalent of finding the prior rulings now erroneous. Neither Chavez nor Acquiescence Ruling 97-4(9) mandate such a standard.
Moreover, the “new and material changes” issue is not a purely medical determination, but involves the application of law. This is illustrated by the ALJ's reliance, in part, on the changes in the applicable regulations “for establishing the severity of mental impairments.” (AR 22.)
The undersigned finds no error based on the rejection of the consultant's “new and material changes” opinion.
4. Consideration of Excluded Employment
Finally, Plaintiff complains that the ALJ's RFC restricted Plaintiff to “occasional exposure to heat, humidity” (AR 28), but the ALJ ultimately concluded Plaintiff was employable as a laundry worker, which requires frequent exposure to extreme heat and humidity, and the ALJ failed to reconcile the disparity. (Doc. 20 at 19). While this suggests some error by the ALJ, Plaintiff fails to show that it derives from some lack of logic or support in determining the RFC at Step Four, as opposed to an error in applying the RFC at Step Five when determining available employment.
As argued by the Commissioner (Doc. 21 at 12), any error at Step Five was harmless because the evidence showed other available work at Plaintiff's RFC, i.e. industrial cleaner and automobile detailer, both of which require only occasional exposure to extreme heat or humidity. (Doc. 21 at 11-12.)
E. CONCLUSION
Plaintiff fails to show any harmful error in the ALJ's decision.
IT IS THEREFORE RECOMMENDED:
(A) The final decision of the Commissioner of Social Security be AFFIRMED.
(B) The Clerk be directed to enter judgment accordingly.
EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72(b), 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”