Opinion
23-cv-0655-WQH-MMP
07-31-2024
DAVID C.,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MERITS BRIEF
[ECF NO. 14]
HON.MCHELLE M. PETTIT, United States Magistrate Judge
Plaintiff David C. (“Plaintiff”) appeals the final decision of the Commissioner of Social Security denying his application for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act. [ECF No. 1.]
This matter comes before the Court for a Report and Recommendation (“R&R”) on Plaintiff's Merits Brief. [ECF No. 14.] Defendant filed a Responsive Brief, and no reply brief was filed. [ECF No. 20.] After a thorough review of the parties' submissions, the administrative record, and applicable law, the Court RECOMMENDS the District Judge REVERSE the Commissioner's denial and REMAND the matter for further proceedings consistent with this opinion.
I. BACKGROUND
A. Procedural History
On January 8, 2021, Plaintiff filed applications for disability insurance and supplemental security income benefits, alleging disability beginning September 1, 2020. Administrative Record (“AR”) 263-75. Plaintiff's alleged impairments include high blood pressure, degenerative disc disease, neck problems, and depression. AR 109, 139, 294. The claims were denied by initial determination on April 8, 2021, and upon reconsideration on August 11, 2021. AR 171-76, 178-89.
Plaintiff filed a written request for a hearing. AR 190-91. On February 8, 2022, the Administrative Law Judge (“ALJ”) held a telephonic hearing. Plaintiff, represented by counsel, as well as an impartial vocational expert testified. AR 51-105. Following the hearing, two additional consultative examinations were conducted, including the psychological consultative examination by Dr. Montez McCarthy, Psy.D., which is a subject of Plaintiff's appeal. AR 23; see AR 568. On June 29, 2022, the ALJ issued an unfavorable decision denying benefits. AR 22-45.
Plaintiff requested Appeals Council review, which was denied on March 3, 2023. AR 1-7. The ALJ's decision then became the final decision of the Commissioner of Social Security.
B. General Background
Plaintiff was a fifty-two-year-old male at the time of the alleged onset of disability. AR 38. His most recent employment was as a mess hall attendant at Camp Pendleton from approximately 2010 to 2015; however, he lost his job due to difficulties with transportation and had not worked since then. AR 31, 60-61, 64-65, 296, 300. Plaintiff did not complete high school or obtain his GED. AR 60.
At some point in 2019, Plaintiff was hit by a car while attempting to walk across the 76 freeway. AR 65-66. Plaintiff testified he was treated at Tri-City Medical Center on the day of the incident and Palomar Medical Center in Escondido the following day, though there are no medical records from either alleged treatment. Plaintiff also testified both hospital visits confirmed he did not have any broken bones or blood clots, though he testified he was “off” and could not walk for four days. AR 67. The record contains Plaintiff's subsequent treatment records beginning April 17, 2019 through December 2021.
Plaintiff testified he was homeless at the time and staying in a tent down on a riverbed. Id.
II. SUMMARY OF ALJ'S FINDINGS
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the claim is denied. 20 C.F.R. § 404.1520(a)(4)(i) and (b); see also 20 C.F.R. § 416.920(a)(4)(i) and (b).
If the claimant is not currently engaged in substantial gainful activity, the second step requires the ALJ to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting his ability to do basic work activities, and which has lasted or is expected to last for a continuous period of at least twelve months; if not, the claimant is not disabled, and the claim is denied. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c), 404.1509 (setting forth the twelve-month duration requirement); see also 20 C.F.R. §§ 416.920(a)(4)(ii) and (c), 416.909.
If the claimant has a “severe” impairment or combination of impairments, the third step requires the ALJ to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 20 C.F.R. § 404.1520(a)(4)(iii) and (d); see also 20 C.F.R. § 416.920(a)(4)(iii) and (d).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation process. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step requires the ALJ to determine whether the claimant has sufficient residual functional capacity (“RFC”) to perform his past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the ALJ determines a claimant has sufficient RFC to perform past relevant work, the claimant is not disabled, and the claim is denied. 20 C.F.R. § 404.1520(a)(4)(iv) and (f)-(g); see also § 416.920(a)(4)(iv) and (f-g).
At step five, the burden then shifts to the ALJ to establish the claimant is not disabled because there is other work existing in “significant numbers in the national economy” the claimant can do, considering the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1560(c), 416.960(c); see also 20 C.F.R. §§ 404.1520(a)(4)(v) and (g)(1), 416.920(a)(4)(v) and (g)(1). The ALJ usually meets this burden either (1) by the testimony of a vocational expert who assesses the employment potential of a hypothetical individual with all the claimant's physical and mental limitations supported by the record or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Id. The determination of this issue comprises “the fifth and last step” in the sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
B. The ALJ's Application of the Five-Step Process
1. Steps One
At step one, the ALJ found Plaintiff had “not engaged in substantial gainful activity since September 1, 2020, the alleged onset date.” AR 25.
2. Step Two
At step two, the ALJ found Plaintiff had the following severe impairments: “degenerative disc disease with a history of fusion causing chronic neck and back pain with right upper extremity limitations; borderline intellectual functioning; personality disorder with anxious mood; depressive disorder; and marijuana and stimulant use disorders.” AR 25 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ found Plaintiff had the following additional, non-severe impairments: “headaches, hypertension, right hip and right knee pain, and abdominal pain.” AR 26. The ALJ found these impairments were “only slight abnormalities” that did not affect Plaintiff “more than minimally over the required longitudinal period.” Id.
3. Step Three
At step three, the ALJ found Plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). In particular, the ALJ found Plaintiff's “physical impairments, considered singly and in combination, [did] not meet or medically equal the criteria of any impairment listed in Sections 1.15 and 1.16” and the “severity of [Plaintiff's] mental impairments, considered singly and in combination, [did] not meet or medically equal the criteria of listings 12.04, 12.05, and 12.11.” AR 27.
4. RFC Determination
The ALJ determined Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except:
he cannot climb ladders, ropes, or scaffolds, or crawl, but he can occasionally perform all other postural activities; he cannot do overhead reaching bilaterally; he can occasionally push and/or pull with his dominant right upper extremity; he can frequently handle and finger with his dominant right upper extremity, but he cannot do forceful gripping, grasping, or torquing; he must avoid concentrated exposure to extreme cold, vibrations, and hazards such as unprotected heights and moving and dangerous machinery; and he can understand, remember, and carry out simple, routine, and repetitive tasks.AR 30.
In determining Plaintiff's RFC, the ALJ explained he “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” and “also considered the medical opinion(s) and prior administrative medical finding(s).” AR 30. The ALJ found Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms” but his “statements concerning the intensity, persistence and limiting effects” of his symptoms were “not entirely consistent with the medical evidence and other evidence in the record” including Plaintiff's activities of daily living. AR 32.
The ALJ next considered four medical opinions and prior administrative medical findings regarding Plaintiff's physical impairments. Dr. James Joachim, M.D., a Board eligible internal medicine physician, conducted an internal medicine consultative examination on March 22, 2022. Id. The ALJ noted Dr. Joachim found Plaintiff was “generally within normal limits” with normal gait and balance and had “full range of motion in his back with no muscle spasm and his straight leg raising was negative.” Id. Dr. Joachim diagnosed Plaintiff with “chronic neck pain/cervical disc disease at ¶ 3 through C7, mild; chronic lumbar discomfort/pain, stable and without limitation on exam, mild; history of polysubstance addiction, crystal methamphetamine and tobacco; and hypertension, stable on lisinopril.” Id. The ALJ noted Dr. Joachim found Plaintiff had “no physical functional limitations, and stated that he was not physically impaired and can work.” AR 33. The ALJ concluded Dr. Joachim's opinion was “partially persuasive to the extent it is consistent with the medical evidence.” AR 33. However, the ALJ explained he “also took into consideration [Plaintiff's] subjective complaints” and therefore assessed Plaintiff “a more restrictive residual functional capacity than opined by Dr. Joachim.” Id.
The ALJ next discredited Nurse Practitioner (“NP”) Maokhamphiou's opinion as to Plaintiff's physical impairments, explaining she “opined [Plaintiff] is limited to the equivalent of a reduced sedentary exertional level” and thus “assessed functional limitations that would preclude [Plaintiff] from working at any level of substantial gainful activity.” AR 33. The ALJ found NP Maokhamphiou's opinion “wholly unrealistic and unpersuasive.” Id.
The ALJ also considered the assessments of the State agency medical consultants, Drs. Subin and Spetzler. AR 34. The ALJ explained Dr. Subin at the initial review level found Plaintiff was “limited to the equivalent of the light exertional level with no climbing of ladders, ropes, or scaffolds, occasionally performing the remaining postural [activities], and he must avoid concentrated exposure to hazards.” Id. The ALJ found Dr. Subin's assessment “partially persuasive” but gave Plaintiff “a somewhat more restrictive” RFC based on his subjective complaints. Id. The ALJ noted Dr. Spetzler on reconsideration “did not provide an opinion, citing insufficient evidence and failure to cooperate” which the ALJ found “unpersuasive.” Id.
With respect to Plaintiff's mental impairments, the ALJ considered four medical opinions and prior administrative medical findings. AR 34-37. The ALJ found the opinion of consultative examiner Dr. McCarthy “generally persuasive in that limiting the claimant to simple, routine, and repetitive tasks seems warranted” but did “not incorporate limitations for avoiding public contact.” AR 36.
The ALJ next found “unpersuasive” NP Maokhamphiou's mental health related opinion that Plaintiff “had moderate impairment only in the ability to sustain an ordinary routine and schedule, and to complete full work-days as required.” AR 36. The ALJ reasoned Plaintiff had no treatment history with the nurse, and the opinion appeared to be based on Plaintiff's subjective complaints, was inconsistent with Plaintiff's admitted activities of daily, and “seem[ed] to undervalue [Plaintiff's] mental health issues” compared with Dr. McCarthy's opinion. Id. In addition, the ALJ found because NP Maokhamphiou “filled out both a physical opinion form and a mental health opinion form, it is not clear what her specialty, qualifications, or practice area entail.” Id. The ALJ, however, relied on NP Maokhamphiou's opinion to conclude Plaintiff “does not have any limitations in regards to public contact,” reasoning NP Maokhamphiou “apparently relying on the claimant's subjective complaints and explanations as she had no treatment history to work of, noted that he had no difficulties with social functioning.” AR 36-37.
The ALJ also considered the assessments of the State agency psychological consultants Drs. Paxton and Khan. The ALJ explained at the initial review level, Dr. Paxton concluded Plaintiff's mental health impairment consisted of only a non-severe depressive disorder. AR 37. The ALJ found Dr. Paxton's opinion “only somewhat persuasive” explaining “[w]hile this finding appeared accurate based on the evidence available to Dr. Paxton at the time, . . . it [was] more appropriate to limit [Plaintiff] to simple, routine, and repetitive tasks based in part on the subsequent mental health consultative examination” of Dr. McCarthy. Id. The ALJ further explained on reconsideration, Dr. Khan found insufficient evidence, which the ALJ found “unpersuasive” because “the record now contains additional evidence.” Id.
5. Step Four
At step four, the ALJ found Plaintiff was unable to perform any past relevant work.
6. Step Five
At step five, the ALJ found Plaintiff was “an individual closely approaching advanced age, on the alleged disability onset date” with limited education. AR 38. The ALJ determined transferability of job skills was not an issue because Plaintiff's past relevant work was unskilled. AR 38. The ALJ concluded “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. (citing 20 C.F.R. §§ 404.1569, 404.1569a, 416.969, 416.969a).
Thus, the ALJ determined Plaintiff had “not been under a disability, as defined in the Social Security Act, from September 1, 2020, through the date of this decision.” AR 39 (citing 20 C.F.R. §§ 404.1520(g), 416.920(g)).
III. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The Commissioner's decision will be disturbed only if “it is either not supported by substantial evidence or is based upon legal error.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018)).
The substantial-evidence standard requires a reviewing court to “look to the existing administrative record and ask whether it contains sufficient evidence to support the agency's factual determinations.” Id. (citing Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)) (internal quotation marks omitted). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 139 S.Ct. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The standard requires “more than a mere scintilla, but less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Overall, the standard of review is highly deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (quoting Rounds v. Comm'r, 807 F.3d 996, 1002 (9th Cir. 2015), as amended). Thus, “[w]here evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Woods, 32 F.4th at 788 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).
A reviewing court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The ALJ is responsible for resolving conflicts in medical testimony as well as any ambiguities in the record. Id. The Court will “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.” Id. at 1010; see also Ferguson v. O'Malley, 95 F.4th 1194, 1203 (9th Cir. 2024) (“[C]ourts can consider only the reasons the ALJ asserts.”) (internal citation and quotation marks omitted).
A court may also reverse the Commissioner's denial of benefits if the denial is based on legal error. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). However, even if the Court finds the ALJ committed legal error, a court may not reverse an ALJ's decision if the error is harmless, “which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination.” Id. at 932 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)) (internal quotation marks omitted).
IV. ANALYSIS
Plaintiff challenges the ALJ's evaluation of the medical opinions of (1) psychologist consultative examiner Dr. McCarthy and (2) NP Debbie Maokhamphiou as to Plaintiff's physical impairments. The Court addresses each in turn.
A. Applicable Law for Evaluating Medical Opinions
Plaintiff's claims are subject to the 2017 amendments governing the evaluation of medical opinions because they were filed after March 27, 2017. 20 C.F.R. §§ 404.1520c, 416.920c. The revised regulations eliminated the deference given to treating or examining physicians and instead require an evaluation of the ‘persuasiveness' of medical opinions based on the following factors: supportability, consistency, relationship factors, specialization, and “other factors.” See Woods, 32 F.4th at 787, 792; 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5).
The “most important factors” the ALJ considers when evaluating the persuasiveness of medical opinions are “supportability” and “consistency.” Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 404.1520c(a)). “Supportability means the extent to which a medical source supports the medical opinion by explaining the ‘relevant . . . objective medical evidence.'” Id. at 791-92 (citing 20 C.F.R. § 404.1520c(c)(1)). “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); see also § 416.920c(c)(1). “Consistency means the extent to which a medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.'” Woods, F.4th at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). “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.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The ALJ must articulate “how persuasive” he finds “all of the medical opinions” from each doctor or other source and must also “explain how [he] considered the supportability and consistency factors” in reaching his findings. Woods, 32 F.4th at 792; see 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). “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.” Woods, 32 F.4th at 792.
The revised regulations also provide the ALJ “may, but [is] not required to, explain how” he considered relationship factors, specialization, or “other factors.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2); see also Cross v. O'Malley, 89 F.4th 1211, 1214 (9th Cir. 2024) (“An ALJ may discuss other factors, . . . but generally has no obligation to do so.”).
B. Plaintiff's Challenges to Dr. McCarthy's Opinion
1. Dr. McCarthy's Opinion
On April 20, 2022, Dr. Montez McCarthy, Psy.D, completed a “Comprehensive Psychological Evaluation/Complete Mental Status Evaluation” consisting of a mental status examination as well as intellectual functioning and psychological tests. AR 568-78. He opined as to Plaintiff's functional capacity as it relates to mental health and cognitive functioning. AR 574.
In his written summary, Dr. McCarthy noted Plaintiff's mental health complaints included depression, memory problems, substance abuse, and Plaintiff reported “depressed mood with anxiety, avolition, and anhedonia secondary to long-term chronic pain without relief” as well as “insomnia related to pain.” AR 569. Dr. McCarthy further noted Plaintiff's prescribed medications were Sertraline and Lisinopril, and Plaintiff did not report self-harm, suicidality, homicidal ideation, or hospitalizations. Id. Dr. McCarthy summarized Plaintiff's family/social, educational, employment, and legal history as well as his substance abuse as reported by Plaintiff. AR 569-70.
Dr. McCarthy noted Plaintiff reported he could perform the following activities of daily living:
Claimant can take care of his own hygiene, bathing, and dressing. He has difficulty with buttons at times.
Claimant can drive but does not have the means to do so.
Claimant can independently grocery shop.
Claimant can make basic meals for himself.
Claimant is limited in ability to perform household chores and cleaning due to medical problems. He requires help with cleaning activities.
Claimant relies on family for his social interactions and support in daily living. He likes to go fishing when [he] can but has not gone fishing in a very long time. He likes drives on the beach and spending time with his family.
Claimant can manage money.AR 570.
Upon performing a mental status examination, Dr. McCarthy found Plaintiff was “alert and oriented to person, place, time, and purpose,” “presented as coherent and organized,” and “communicated in a relevant, logical, linear, goal-directed manner.” Id. Dr. McCarthy also found Plaintiff scored in the “borderline range” on the “WMS cognitive status exam” and noted there was “no evidence of circumstantiality, derailment, flight of ideas, perseveration, tangentiality, or blocking.” Id. With respect to Plaintiff's thought content, Dr. McCarthy found there was “no evidence of delusional, ideas of reference, obsessions, bizarre, or psychotic thought content.” AR 571. Dr. McCarthy did not observe paranoid ideation and further concluded Plaintiff “did not appear to be attending to internal stimuli during the interview.” Id. In the course of his examination, Dr. McCarthy observed Plaintiff appeared “causally and minimally groomed” and
His eyes were red, and he appeared tired. He is of thin build. He appears much older than his chronological age with tanned, weather-beaten skin. The claimant made no eye contact with the interviewer. Psychomotor agitation was present for the duration of the session. He shifted in his chair often. Gait was slow and careful. His hands visibly shook with tremor....Id. Dr. McCarthy found Plaintiff's “overall behavior was congruent with” his reported depressed and anxious mood, observing Plaintiff “appeared worn down and generally distressed.” Id. Dr. McCarthy also found Plaintiff's speed was “slow and limited, consistent with depressed mood.” Id.
Dr. McCarthy administered standardized psychological test(s) to assess Plaintiff's various abilitiesand concluded as follows:
Dr. McCarthy provided the following background and context:
Claimant was administered 10 subtests of the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV). His composite scores are derived from these subtest scores. The Full Scale IQ (FSIQ) composite score is derived from 10 subtest scores and is considered the most representative estimate of global intellectual functioning.AR 572.
Claimant is a 53-year-old male who completed the WAIS-IV. His general cognitive ability, as estimated by the WAIS-IV, is in the borderline range (FSIQ = 70). Claimant's verbal comprehension and perceptual reasoning abilities were both in the borderline range (VCI = 74, PRI= 75), [Claimant's] ability to sustain attention, concentrate, and exert mental control is in the borderline range (WMI = 71). [Claimant's] ability in processing simple or routine visual material without making errors is in the borderline range when compared to his peers (PSI = 76). He demonstrated borderline auditory memory processes and extremely low visual memory processes. He demonstrated mild to moderate impairment in executive functioning. His performance is considered a true representation of his overall functioning. It is likely that his performance on testing represents and [sic] accurate picture of functioning prior to drug use explaining his performance in school and ultimately dropping out.AR 573.
Dr. McCarthy diagnosed Plaintiff with “Borderline Intellectual Functioning,” “Persistent Depressive Disorder, with Anxious Distress, Moderate, with persistent major depressive episode,” and “Stimulant Use Disorder, Amphetamine-type Substance,” and opined Plaintiff had the following mental and cognitive functional capacity limitations:
1. Ability to understand, remember, and perform simple one or two-step written and oral job/task instructions.
Mild to Moderate Limitation depending on the novelty of the instructions.
2. Ability to understand, remember, and perform simple one or two-step written and oral job/task instructions over an eight-hour day, 40-hour work week without consistent supervision.
Mild to Moderate Limitation depending on the novelty of the instructions and can be negatively impacted by unstable depressed and/or anxious mood states over extended periods of time.
3. Ability to understand, remember, and perform detailed and complex written and oral instructions. Claimant demonstrates borderline working memory processes on formal testing.
Moderate to Marked limitations.
4. Ability to understand, remember, and perform detailed and complex written and oral instructions over an eight-hour day, 40-hour work week without emotional decompensation is limited by his general cognitive functioning and unstable mood states that could result in emotional decompensation under stress of demands for sustained efforts over long periods of time.
Moderate to Marked limitations.
5. Ability to maintain concentration and attention as demonstrated on formal testing measures is in the borderline range.
Moderate Limitation.
6. Ability to maintain reasonable persistence and pace.
Mild to Moderate Limitation over extended periods based on requirements for attention /concentration which are negatively impacted by depressed and anxious mood states.
7. Ability to understand safety rules and regulations and to maintain safety on the job.
No Limitation.
8. Ability to maintain regular attendance in the workplace, deal with the usual stressed encountered in competitive work, and ability to complete a normal workday or workweek without interruption resulting from any psychiatric condition(s)
Moderate Limitations as claimant is likely to decompensate under duress.
9. Ability to accept instructions from supervisors.
No Limitation.
10. Ability to perform work activities without special or additional supervision.
No Limitation.
11. Ability to relate and interact with coworkers and the public.
Mild to Moderate limitations based on unstable mood states.
12.Ability to maintain own finances/ handle funds. His arithmetic skills are mildly to moderately limited.
Mild to Moderate limitation.AR 573-75.
Dr. McCarthy also completed a “Medical Statement of Ability to Do Work-Related Activities (Mental)” form dated May 4, 2022. AR 576-77. Dr. McCarthy opined Plaintiff had “moderate” restrictions for the following work-related mental activities: “understand and remember simple instructions,” “carry out simple instructions,” and “[t]he ability to make judgments on simple work-related decisions.” AR 576. Dr. McCarthy further opined Plaintiff had “marked” limitations in his ability to “[u]nderstand and remember complex instructions,” “[c]arry out complex instructions,” and “make judgments on complex work-related decisions.” Id. When asked to identify the factors that support his assessment, Dr. McCarthy explained:
Claimant is functioning in the Borderline Range of intellectual capacity with limited memory processes which are also negatively impacted by unstable depressed and anxious mood states. He may follow simple instructions for familiar activities, however, he may demonstrate moderate difficulty with novel instructions. Due to his borderline functioning in general, he will have marked limitations with complex instructions.AR 576.
Dr. McCarthy also opined Plaintiff's ability to interact appropriately with the public and respond to changes in routine work settings was affected by his impairment. AR 577. Dr. McCarthy opined Plaintiff had no restrictions in interacting appropriately with supervisors or coworkers, a “moderate” restriction when “interact[ing] appropriately with the public,” and “marked” restriction for “respond[ing] appropriately to usual work situations and to changes in a routine work setting.” AR 577. Dr. McCarthy supported his assessment as follows:
Claimant has no limitation in working with co-workers or supervisors in general but the stressors involved with working with the general public can be moderately limited due to unstable depressive and anxious mood states. He may have marked limitations with unexpected changes in a routine work setting due to borderline intellectual and memory functioning.AR 577.
When asked about other capabilities affected by Plaintiff's impairment, Dr. McCarthy explained:
Claimant may experience mild to moderate limitations at maintaining persistent pace over extended periods due to moderate limitations in his ability to attend and concentrate which are negatively impacted at this time by depressed and anxious mood states.AR 577. Dr. McCarthy further identified the following factors in support of his assessment: “Borderline Intellectual and memory functioning that is negatively impacted by depressed and anxious mood states.” Id.
Finally, Dr. McCarthy opined Plaintiff can manage benefits in his own best interest. AR 578.
2. The ALJ's Consideration of Dr. McCarthy's Opinion
The ALJ found Dr. McCarthy's opinion was “generally persuasive in that limiting the claimant to simple, routine, and repetitive tasks seems warranted” but “did not incorporate limitations for avoiding public contact as this does not seem be supported longitudinally from the medical evidence.” AR 36. To support the latter, the ALJ provided two reasons. First, the ALJ cited inconsistencies in Plaintiff's activities of daily living, finding “he reported that he can independently grocery shop and drive to hang out at the beach where he has to interact with the public contact at times.” Id. (citing AR 318-22, 571). Second, the ALJ cited inconsistencies with Plaintiff's treatment records, finding “psychiatric examinations and neurological examinations show he was generally essentially normal.” Id. The ALJ explained:
Here, although the claimant's mental impairment screening indicates the claimant complained of symptoms were related to anxiety, the claimant's psychiatric examination at that time was largely normal (Ex. 5F/7-8, 9). The undersigned notes the claimant has history of drug use but he was no longer using methamphetamine, just occasional use of marijuana for pain and sleep, with a recent meth relapse (Exs. 2F/5; 10F). He was also diagnosed with major depressive disorder which could be situational and secondary to the claimant's physical pain and unemployment (Ex. 2F/8, 16). It is noted that he had marked improvement and was feeling better with conservative treatment of medications, as he was noted to be less depressed and more even tempered (Ex. 2F/11). Overall, the claimant's psychiatric examinations and neurological examinations show he was generally essentially normal (Exs. 2F/7, 42, 56, 68; 3F/6; 5F/4, 9; 6F/4). The claimant underwent routine followup examinations, mainly in medication reviews and refills (Exs. 2F/8, 11, 18; 3F; 5F; 6F).AR 36.
The ALJ did not explicitly address any other of Dr. McCarthy's opined limitations.
3. The Parties' Arguments
Plaintiff asserts the following challenges regarding Dr. McCarthy's opinion: (1) the ALJ failed to address the supportability factor; (2) substantial evidence does not support the ALJ's determination that Plaintiff's identified activities of daily living are inconsistent with Dr. McCarthy's opined moderate limitation on Plaintiff's ability to relate to and interact with the public; (3) the ALJ failed to explain which, if any, of Dr. McCarthy's other opined limitations he found persuasive; and (4) substantial evidence does not support the ALJ's RFC determination because he failed to account for Dr. McCarthy's opined limitations.
Defendant maintains generally the ALJ properly evaluated Dr. McCarthy's opinion and gave valid reasons for finding the assessment of a moderate social limitation unpersuasive. Defendant also contends the ALJ reasonably accounted for limitations the ALJ found persuasive in the RFC determination.
4. Analysis
a. The ALJ Erred in His Evaluation of the Requisite Supportability and Consistency Factors
Plaintiff first argues the ALJ erred by failing to address the supportability factor in evaluating Dr. McCarthy's opinion. [ECF No. 14 at 15-16.]
The revised regulations specifically provide an ALJ must explain the supportability and consistency factors in his decision. 20 C.F.R § 404.1520c(b)(2) (“Therefore, we will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.”) (emphasis added); see also § 416.920c(b)(2) (same). Both the Ninth Circuit and district courts have recognized the 2017 amendments require an ALJ to articulate how he considered the supportability and consistency factors when evaluating the persuasiveness of a medical opinion. Woods, 32 F.4th at 792 (“The agency must . . . ‘explain how [it] considered the supportability and consistency factors' in reaching these findings”) (citing 20 C.F.R. § 404.1520c(b)(2)) (emphasis added); Cross, 89 F.4th at 1214 (“ALJs must explain how persuasive they find the medical opinion by expressly considering the two most important factors for evaluating such opinions: ‘supportability' and “consistency.'”) (citing 20 C.F.R. § 416.920c(b)(2)); see id. at 1215 (“The 2017 regulations require an ALJ to discuss the supportability and consistency of medical evidence-the factors the agency has historically found to be the most important in evaluating medical opinions-while allowing for discussion of other factors listed in paragraphs (c)(3) through (c)(5), as appropriate.”); Tracy F. v. O'Malley, No. 22-cv-233, 2024 WL 1701572, at *3 (D. Idaho Apr. 19, 2024) (recognizing “consideration of supportability and consistency is mandatory” under the regulations); Christpher B. v. O'Malley, No. 23-cv-00098, 2024 WL 304083, at *5 (E.D. Wash. Jan. 26, 2024) (“Supportability and consistency are the most important factors, and therefore the ALJ is required to explain how both factors were considered.”); Alan F. v. Kijakazi, No. 22-cv-1771, 2024 WL 324787, at *7 (S.D. Cal. Jan. 29, 2024) (finding the ALJ erred “by failing to adequately discuss the mandatory supportability and consistency factors”).
Here, the ALJ did not explain how he considered the supportability factor when evaluating Dr. McCarthy's opinion for persuasiveness. This was error. Defendant acknowledges the ALJ's shortcoming but argues such error was harmless because the consistency factor supports the ALJ's evaluation of Dr. McCarthy's opinion, and in particular, his rejection of Dr. McCarthy's opined mild-to-moderate limitation in Plaintiff's ability to relate to and interact appropriately with the public. [ECF No. 20 at 7 n.3.] Defendant cites various authorities in support of his harmless error claim, but none address the situation presented here where it is undisputed the ALJ did not explain how he considered the supportability factor in evaluating a medical opinion.
Defendant's reliance on Allen v. Kijakazi, No. 22-35056, 2023 WL 2728857, at *1 (9th Cir. Mar. 31, 2023) (unpublished), is misplaced, as the Ninth Circuit explicitly found “[a]s required, the ALJ considered both the ‘supportability' and ‘consistency' of Dr. Gritzka's opinion.” Defendant also cites a footnote in Woods, 32 F.4th at 793 n.4 in which the Ninth Circuit addressed the ALJ's lack of precision in using the terms “consistent” and “supported”-noting the ALJ stated the medical opinion at issue was “not supported by” when, in fact, the ALJ meant only the medical opinion was “inconsistent” with other record evidence. As a result, the Ninth Circuit cautioned “[a]lthough the ALJ's meaning here is clear from context, to avoid confusion in future cases, ALJs should endeavor to use the terms of art-‘consistent' and ‘supported'-with precision.” Id. While the footnote may apply to the ALJ's opinion here given the lack of precision with the use of “supported” when, in fact, Defendant concedes the ALJ only addressed “inconsistencies with the evidence,” ECF No. 20 at 7 n.3., it does not support Defendant's argument the ALJ's error in failing to explain the supportability factor altogether was harmless. Moreover, elsewhere in the Woods decision, the Ninth Circuit recognized “[t]he agency must . . . ‘explain how [it] considered the supportability and consistency factors” in reaching these findings. Woods, 32 F.4th 792 (quoting § 404.1520c(b)(2)). Finally, Defendant also cites comments from the Federal Register when the revised regulations were published; however, these comments also explicitly-and repeatedly-recognize the ALJ is required to articulate the supportability and consistency factors. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 5859 (March 27, 2017) (to be codified at 20 C.F.R. pts. 404, 416).
The Court is not persuaded by Defendant's harmless error argument. As an initial matter, the ALJ did not accurately characterize Plaintiff's reported activities of daily living, namely Plaintiff can “drive to hang out at the beach where he has to interact with the public contact at times.” AR 36. The two exhibits the ALJ cited do not support this conclusion. Plaintiff's Function Report did not address driving to the beach or interacting with the public. AR 318-25. While Dr. McCarthy reported Plaintiff stated “[h]e likes drives on the beach and spending time with his family” which the ALJ accurately acknowledged earlier in his opinion, AR 31, Dr. McCarthy did not address Plaintiff's ability to “hang out” at the beach or the extent to which Plaintiff interacted with the public, if at all, during these activities. AR 570. Thus, substantial evidence does not support the ALJ's factual determination.
In opposition, Defendant omits any discussion of the ALJ's characterization of Plaintiff's beach activity. Instead, Defendant asserts “Plaintiff acknowledged that he had no issue walking around in public at a grocery store” and “the ALJ cited activities in which Plaintiff engaged that required him to be around the public, which was directly relevant to the opinion that he was limited in his ability to be around the public.” [ECF No. 20 at 78.] But Dr. McCarthy did not opine Plaintiff could not be around the public or must “avoid[] public contact” as the ALJ found; rather, he opined Plaintiff had a moderate limitation in his ability to interact appropriately with the public. AR 575, 577. To support this opined limitation, Dr. McCarthy further explained Plaintiff had “no limitations in working with co-workers or supervisors in general but the stressors involved with working with the general public can be moderately limited due to unstable depressive and anxious mood states.” AR 577.
Moreover, even assuming the ALJ's characterization of Plaintiff's activities was accurate, the ALJ did not explain how the identified activities were inconsistent with Dr. McCarthy's opined moderate limitation in interacting with the public. In his Function Report, Plaintiff stated he shopped for food accompanied by his older sister two to three times per week. AR 321, 319. In his mother's Third-Party Function Report, she indicated Plaintiff went “for rides to the beach or park” or other trips to the ocean or park accompanied by both his younger sister and mother on weekends two to three times per month. AR 310, 314. The Court agrees with Plaintiff it is unclear to what extent, if any, Plaintiff was required to relate to or interact appropriately with the public on a sustained basis during these activities, particularly when, as here, the record suggests he engaged in these activities only sporadically and while accompanied by another family member. Further, the fact Plaintiff could grocery shop a few times per week or went to the beach two to three times per month is not inherently inconsistent with Dr. McCarthy's opined limitation on Plaintiff's ability to relate to and interact appropriately with the general public in a work environment. Accordingly, the Court finds substantial evidence does not support the ALJ's conclusion the identified activities of daily living are inconsistent with Dr. McCarthy's opined moderate limitation in Plaintiff's ability to interact appropriately with the public. See, e.g., Smolen v. Chater, 80 F.3d 1273, 1287 n.7 (9th Cir. 1996) (“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” (citation omitted in original); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons (in this case, Bjornson's husband and other family members), and is not held to a minimum standard of performance, as she would be by an employer.”) (citations omitted in original).
Defendant asserts, in addition to relying on inconsistencies with Plaintiff's “public activities,” the ALJ also properly discounted Dr. McCarthy's opined social limitation based on inconsistencies with the medical record, finding Plaintiff's “psychiatric examinations and neurological examinations show he was generally essentially normal.” [ECF No. 20 at 8]; see AR 36 (citing AR 377, 412, 426, 438, 445, 460, 463, 479). Many of the records the ALJ relied on for this finding, however, are from 2019 and thus predate Plaintiff's initial diagnosis and treatment for depression on June 13, 2020 as well as the alleged onset of disability date. Compare AR 438 (Plaintiff treated on April 17, 2019 for right knee swelling), AR 426 (Plaintiff seen on July 8, 2019 to receive x-ray results of his right knee), AR 412 (Plaintiff treated on October 28, 2019 for follow up office visit for complaints of vision loss) with AR 386-89 (upon examination on June 13, 2020, finding Plaintiff was experiencing anxiety, excessive worrying, feeling down, depressed or hopeless nearly every day and diagnosing Plaintiff with “[c]urrent moderate episode of major depressive order without prior episode”). In addition, the vast majority of the records the ALJ relied on involve treatment for Plaintiff's physical impairments only, where Plaintiff's medical providers noted, upon a physical or virtual exam, Plaintiff was oriented to time, place, person, and situation and had appropriate mood and affect. See, e.g., AR 377 (visit on December 22, 2020 for physical exam with complaints of neck pain and noting Plaintiff was oriented and demonstrated appropriate mood and affect as well as normal insight and judgment), AR 460 (visit for hypertension medication refill on December 3, 2021 and noting Plaintiff was oriented and demonstrated appropriate mood and affect), AR 479 (emergency room visit for constipation on December 23, 2021 and noting Plaintiff was awake and alert and presented with normal mood and affect). These brief assessments by providers during treatment for physical complaints do not constitute substantial evidence Plaintiff was “essentially normal” and thus no longer experiencing depression or anxiety. To the contrary, in the most recent mental health screening in November 2021, Plaintiff's responses suggested he was experiencing severe anxiety and moderately severe depression, and Plaintiff reported it was “[e]xtremely difficult” to get along with other people. AR 463-66. Furthermore, the ALJ also does not explain how notations that Plaintiff was properly oriented are inconsistent with Dr. McCarthy's opined moderate limitation in interacting appropriately with the public in a work environment, particularly as Dr. McCarthy also found Plaintiff was “alert and oriented to person, place, time, and purpose” in the consultative examination. AR 571. Based on the ALJ's asserted rationale, the Court cannot find substantial evidence supports the ALJ's conclusion.
Finally, the ALJ also relied on NP Maokhamphiou's mental health related opinion to support his rejection of Dr. McCarthy's opined social functioning limitation. AR 36-37. The ALJ found NP Maokhamphiou's mental health opinion generally “unpersuasive” for various reasons including it was a check-box form, there was no treatment history, her specialization was unclear, “the opinion appears to be based on the subjective complaints of the claimant,” and her opinion was inconsistent with other evidence, specifically “when compared to the psychological consultative examination, the nurse's opinion seems to undervalue the claimant's mental health issues.” AR 36. Despite the ALJ's clear rejection of this opinion, he nevertheless relied on it to conclude “[Plaintiff] does not have any limitations in regards to public contact” reasoning “Nurse Maokhamphian [sic], apparently relying on the claimant's subjective complaints and explanations as she had no treatment history to work of, noted that he had no difficulties with social functioning.” AR 36-37 (emphasis in original). The ALJ rejected NP Maokhamphiou's opinion, among other reasons, that it was based on Plaintiff's subjective complaints only and no treatment history and then purported to adopt NP Maokhamphiou's opinion regarding Plaintiff's social functioning capabilities based on this same reasoning. This was not rational. Further, while NP Maokhamphiou's opinion itself addresses interacting with others generally in the check-box form, it does not specifically address or delineate interactions with the public. See AR 550. Thus, the Court finds substantial evidence does not support the ALJ's rejection of Dr. McCarthy's opined moderate limitation with interacting appropriately with the public in a work environment based on NP Maokhamphiou's mental capacity assessment.
In sum, the Court finds the ALJ erred by failing to address the supportability factor when evaluating Dr. McCarthy's opinion, and substantial evidence does not support the ALJ's consistency finding based on the ALJ's asserted rationale. Furthermore, the error was not harmless. Thus, the Court has discretion to either remand for further proceedings before the ALJ or remand for an award of benefits. Garrison, 759 F.3d at 1019. Where “additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.” Id. (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). The Court finds remand for further administrative proceedings is appropriate. On remand, the ALJ should specifically articulate how he considered the supportability and consistency factors in evaluating Dr. McCarthy's medical opinion in accordance with the governing regulations. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
b. Substantial Evidence Does Not Support the ALJ's RFC Determination
Next, Plaintiff argues the ALJ failed to explain which of Dr. McCarthy's other opined limitations, if any, he found persuasive. According to Plaintiff, the ALJ's RFC mental limitation that Plaintiff can understand, remember, and carry out simple, routine, and repetitive tasks “appears to only account for Plaintiff's mild limitations in understanding, remembering, and applying information.” [ECF No. 14 at 23.] Plaintiff's argument is twofold: if the ALJ found Dr. McCarthy's opinion generally persuasive, he failed to account for numerous opined limitations in the RFC. Conversely, if the ALJ implicitly rejected other portions of Dr. McCarthy's opinion, he failed to provide a sufficient explanation for doing so. [Id. at 12, 17.] In essence, Plaintiff argues substantial evidence does not support the ALJ's evaluation of Dr. McCarthy's opinion and the RFC determination because it is unclear which of Dr. McCarthy's opined limitations the ALJ found persuasive and thus should have incorporated into the RFC. [Id. at 22.]
Defendant contends generally the ALJ's RFC determination is entirely consistent with Dr. McCarthy's assessment as well as the ALJ's own findings including Plaintiff was only moderately limited in his ability to maintain concentration and pace. [ECF No. 20 at 4.] Overall, Defendant maintains “this RFC adequately accounts for the limitations that Dr. McCarthy assessed and with which the ALJ agreed.” [Id. at 3.]
The RFC is “an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); SSR 96-8p, 1996 WL 374184, at *1 (“RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.”). An RFC assessment must include an individual's functional limitations or restrictions as a result of all of his impairments-even those that are not severe-and must assess his “work-related abilities on a function-by-function basis.” SSR 96-8p, 1996 WL 374184, at *1, *5; see 20 C.F.R. §§ 404.1545(a)(1)-(2) and (e), 416.945(a)(1)-(2) and (e); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“[A]n RFC that fails to take into account a claimant's limitations is defective.”). An RFC determination must be based on “all the relevant evidence in [the] case record.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). A court must uphold an ALJ's RFC assessment when “the ALJ applied the proper legal standard and his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ errs when he provides an incomplete RFC determination that ignores or discounts “significant and probative evidence in the record favorable to [the plaintiff's] position.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
Preliminarily, the parties disagree as to how the ALJ evaluated Dr. McCarthy's opinion-Defendant maintains the ALJ found Dr. McCarthy's opinion “generally persuasive” and though Plaintiff appears to agree at times, he also characterizes the ALJ's evaluation and RFC determination as an “implicit rejection of a portion of Dr. McCarthy's assessed limitations.” [ Compare ECF No. 20 at 3 with ECF No. 14 at 9-12, 17, 18.] In fact, the ALJ found “the opinion of Dr. McCarty is generally persuasive in that limiting the claimant to simple, routine, and repetitive tasks seems warranted.” AR 36 (emphasis added). In other words, the ALJ found Dr. McCarthy's opinion generally persuasive to the extent it supported the RFC, which is a backward approach to determining the RFC. See 20 C.F.R. § 404.1545(c) (“When we assess your mental abilities, we first assess the nature and extent of your mental limitations and restrictions and then determine your residual functional capacity for work activity on a regular and continuing basis.”) (emphasis added); § 416.945(c) (same); see also Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) (finding consideration of credible evidence such as a claimant's testimony after determining the RFC is an “improper procedure” that “both inverts and subverts the way an RFC must be determined relying on credible evidence”); Revels, 874 F.3d at 666 (“To determine the RFC first and then assess claimant's testimony is to ‘put[] the cart before the horse.'”) (emphasis in original) (internal citation omitted).
During the hearing on February 8, 2022, the ALJ posed a hypothetical to the vocational expert with the restriction that Plaintiff “can understand, remember, and carry out simple, routine, and repetitive tasks.” AR 92. Dr. McCarthy performed a psychological consultative examination after the hearing on April 20, 2022 and thereafter submitted his Medical Statement of Ability to Do Work-Related Activities (Mental) dated May 4, 2022. AR 568-78. Despite Dr. McCarthy's very detailed and specific opinion, the ALJ appears to have found it “generally persuasive” only to the extent it supported the hypothetical posed to the vocational expert, without any evaluation or discussion of the specific limitations other than Dr. McCarthy's opined mild to moderate limitation in relating and interacting appropriately with the public discussed above.
Though the Ninth Circuit has recognized this backward approach to determining the RFC is not necessarily reversible error and can be harmless, Laborin, 867 F.3d at 1154; here it is not. Defendant maintains the ALJ's “RFC adequately accounts for the limitations that Dr. McCarthy assessed and with which the ALJ agreed.” [ECF No. 20 at 4.] The problem is, apart from rejecting Dr. McCarthy's opined limitation as to public interaction, the ALJ did not specifically address any other of Dr. McCarthy's opined limitations. Notably, Dr. McCarthy opined Plaintiff had numerous moderate to marked limitations in mental functioning including: a mild-to-moderate limitation in his ability to maintain reasonable persistence and pace, moderate limitations in his ability to maintain concentration and attention and to maintain regular attendance in the workplace and deal with the usual stresses encountered in competitive work, and a marked limitation in his ability to respond appropriately to usual work situations and changes in a routine work setting as well as in the ability to make judgments on complex work-related decisions. AR 574-78. The ALJ did not explain which of Dr. McCarthy's opined limitations he found persuasive “in that limiting [Plaintiff] to simple, routine, and repetitive tasks seems warranted.” AR 36. Conversely, the ALJ did not explain which of Dr. McCarthy's opined limitations, if any, he rejected and the basis for doing so. Thus, contrary to Defendant's argument, it is unclear which limitations “Dr. McCarthy assessed and with which the ALJ agreed.”Further, because it is not clear which of Dr. McCarthy's opinions the ALJ found persuasive, the Court cannot determine whether the ALJ's RFC determination was complete. See Hill, 698 F.3d at 1161 (finding the ALJ's RFC determination was incomplete where “the ALJ improperly ignored or discounted significant and probative evidence in the record favorable to [the plaintiff's] position”).
The parties' briefing focuses on whether the ALJ's RFC limiting Plaintiff to “simple, routine, and repetitive tasks” adequately accounts for Dr. McCarthy's opined moderate limitation with concentration, persistence, and pace. Plaintiff relies on Brink v. Comm'r Soc. Sec. Admin, 343 Fed. App'x 211, 212 (9th Cir. 2009), while Defendant contends Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) is binding precedent. Even if Defendant is correct, the cited decision addresses only one of Dr. McCarthy's opined limitations. Dr. McCarthy opined Plaintiff had numerous other moderate to marked limitations in mental functioning identified above, and it is unclear which of the remaining limitations, if any, the ALJ found persuasive.
As Plaintiff correctly points out, the ALJ did not present the vocational expert with a hypothetical question that incorporated the limitations opined by Dr. McCarthy. [ECF No. 14 at 24-25.] As noted above, the ALJ did not have the benefit of Dr. McCarthy's opinion at the time of the hearing and did not pose a hypothetical to the vocational expert incorporating any of Dr. McCarthy's opined limitations; rather the only hypothetical the ALJ posed to the vocational expert regarding mental functioning included the limitation reflected in the RFC. See AR 92.
In sum, based on the ALJ's stated reasoning, the Court cannot conclude substantial evidence supports the ALJ's evaluation of Dr. McCarthy's opinion and the ALJ's RFC determination as to Plaintiff's mental limitations. On remand, the ALJ must identify which of Dr. McCarthy's opined restrictions he finds persuasive.
C. The ALJ's Evaluation of Nurse Practitioner Maokhamphiou's Physical Assessment
Plaintiff next challenges the ALJ's discrediting of NP Maokhamphiou's medical opinion as to Plaintiff's physical impairments.
1. NP Maokhamphiou's Physical Assessment
On January 20, 2022, NP Maokhamphiou completed a “Physical Assessment” form in which she listed Plaintiff's diagnosis as “chronic neck pain.” AR 553-54. The form is a mixture of check-the-box and short answer questions. NP Maokhamphiou opined Plaintiff's symptoms were “seldom” severe enough to interfere with the attention and concentration required to perform simple work-related tasks. AR 553. When asked to “[i]dentify the side effects of any medications which may impact their capacity for work, i.e. dizziness, drowsiness, stomach upset, etc.,” NP Maokhamphiou wrote in the medication names “Lisinopril / Hydrochlorothiazide” but did not identify any side effects. Id.
NP Maokhamphiou did not respond to the question “[w]ould your patient need to recline or lie down during a hypothetical 8-hour workday in excess of the typical 15-minute break in the morning, the 30-60 minute lunch, and the typical 15-minute break in the afternoon?” AR 553.
When asked, “[a]s a result of your patient's impairments, please estimate your patient's functional limitations if your patient were placed in a competitive work environment on a sustained basis,” NP Maokhamphiou wrote in “L arm limited to fully grip objects > 5 lbs.” AR 553. She did not identify any other functional limitations.
In response to the question, “[h]ow many city blocks can your patient walk without rest or significant pain” NP Maokhamphiou responded “walks often.” Id.
When asked to identify how many total number of hours Plaintiff can sit and stand/walk in an eight-hour day, NP Maokhamphiou left the questions blank and did not respond. AR 553.
NP Maokhamphiou opined Plaintiff will need to take four fifteen (15)-minute unscheduled breaks during an eight-hour workday, and Plaintiff can lift and carry less than ten pounds frequently, ten pounds occasionally, and twenty pounds or more never. Id. NP Maokhamphiou opined Plaintiff has limitations in doing repetitive reaching, handling, or fingering, explaining Plaintiff's left hand is weak. Id. NP Maokhamphiou further opined Plaintiff can use his right hand, finger, and arm 100% of the time for grasping, turning, twisting objects, fine manipulation, and reaching; however, she opined Plaintiff is limited in use of his left hand to 60% during an eight-hour workday. Id. NP Maokhamphiou also opined Plaintiff will likely be absent from work “more than four times a month” because of their impairments or treatments, though she did not elaborate on what basis. AR 554.
2. The ALJ's Evaluation of NP Maokhamphiou's Physical Assessment
The ALJ rejected NP Maokhamphiou's opinion as follows:
In the Physical Assessment dated January 20, 2022, the nurse assessed functional limitations that would preclude the claimant from working at any level of substantial gainful activity. The nurse opined the claimant is limited to the equivalent of a reduced sedentary exertional level. The nurse did not provide an explanation for this assessment, did not propose any specific functional limitations that would prevent the claimant from working, and did not provide an opinion on what the claimant could still do despite the claimant's impairments. The nurse primarily summarized the claimant's subjective complaints, diagnoses, and treatment, but she did not provide medically acceptable clinical or diagnostic findings to support the functional assessment. The undersigned finds the opinion wholly unrealistic and unpersuasive because this opinion is inconsistent with the objective medical evidence as a whole already discussed above in this decision. The consultative examiner, a more qualified medical expert familiar with the social security regulations, directly rebuts the nurse's opinion. In addition, the claimant admitted he only saw this the nurse once, and it was just to have the form completed. There is no treatment history with the nurse; the opinion appears to be entirely based on the subjective complaints of the claimant. This opinion is also inconsistent with the claimant's admitted activities of daily living, which have already been described above in this decision. Lastly, the nurse even described the incorrect upper extremity as being limited, as she said he was limited in
his left arm, whereas the record supports a finding that his right arm is the limited extremity.AR 33-34.
3. The Parties' Arguments
Plaintiff challenges the ALJ's rejection of NP Maokhamphiou's physical assessment on the following grounds: (1) the ALJ failed to assess the supportability and consistency factors, (2) the ALJ failed to consider NP Maokhamphiou's December 9, 2019 treatment notes, (3) the ALJ failed to explain how the opinion was inconsistent with internal medicine consultative examiner Dr. Joachim, (4) the ALJ did not sufficiently identify activities of daily living the ALJ found inconsistent with her opinion, and (5) the ALJ's finding that NP Maokhamphiou identified the incorrect upper extremity is insufficient to reject the opinion as a whole.
Defendant contends generally the ALJ properly evaluated NP Maokhamphiou's opinion regarding Plaintiff's physical impairments, and substantial evidence supports the ALJ's finding the opinion unpersuasive.
4. Analysis
The Court finds substantial evidence supports the ALJ's rejection of NP Maokhamphiou's opinion as to Plaintiff's physical limitations. In finding the opinion unpersuasive, the ALJ evaluated all five factors set forth in the regulations-supportability, consistency, relationship factors, specialization, and other factors. First, the ALJ found the opinion unsupported, reasoning she “did not provide an explanation for this assessment, did not propose any specific functional limitations that would prevent the claimant from working, and did not provide an opinion on what the claim could still do despite the claimant's impairments.” AR 33. Rather, the ALJ found she “primarily summarized [Plaintiff's] subjective complaints, diagnoses, and treatment, but she did not provide medically acceptable clinical or diagnostic findings to support the functional assessment.” Id. Substantial evidence supports this finding. See 20 C.F.R. § 404.1520c(c)(1) (“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.”) (emphasis added); Amy W. v. Comm'r of Soc. Sec. Admin., No. 22-cv-01605, 2023 WL 7300758, at *2 (D. Or. Nov. 6, 2023) (“For supportability, the ALJ considers the relevancy of the objective medical evidence and supporting explanations presented by the medical source to justify their own opinion.”).
The ALJ also evaluated the consistency factor, finding NP Maokhamphiou's opinion was inconsistent with the medical evidence as a whole and, in particular, the opinion of the internal medicine consultative examiner Dr. Joachim. See Amy W., 2023 WL 7300758, at *2 (“For consistency, the ALJ considers how consistent a medical opinion is with the other evidence in the record.”). In making this finding, the ALJ also considered the specialization factor and “other factors” set forth in the governing regulations, reasoning Dr. Joachim was “a more qualified medical expert familiar with social security regulations” than NP Maokhamphiou, AR 33, and the ALJ separately noted “since the nurse filled out both a physical opinion form and a mental health opinion form, it is not clear what her specialty, qualifications, or practice area entail.” AR 36; see 20 C.F.R. § 404.1520c(c)(4) (“The medical opinion . . . of a medical source who has received advanced education and training to become a specialist may be more persuasive about medical issues related to his or her area of specialty than the medical opinion . . . of a medical source who is not a specialist in the relevant area of specialty.”); see also 20 C.F.R. § 416.920c(c)(4) (same); 20 C.F.R. § 404.1520c(c)(5) (“We will consider other factors that tend to support or contradict a medical opinion or prior administrative medical finding. This includes, but is not limited to, evidence showing a medical source has . . . an understanding of our disability program's policies and evidentiary requirements.”); 20 C.F.R. § 416.920c(c)(5) (same). While Plaintiff contends the ALJ erred by not detailing the specific ways Dr. Joachim's opinion contradicted NP Maokhamphiou's opinion, the Court is not convinced this level of detail was required, particularly as each provider offered only one medical opinion as to Plaintiff's physical impairments.
The ALJ also found NP Maokhamphiou's opined limitations regarding Plaintiff's left arm were inconsistent with the medical records, explaining “the nurse even described the incorrect upper extremity as being limited, as she said he was limited in his left arm, whereas the record supports a finding that his right arm is the limited extremity.” AR 3334. Substantial evidence supports the ALJ's conclusion, as the treatment records establish Plaintiff reported pain in his right arm, not his left. See AR 371 (complaints of right upper arm pain), AR 450 (complaints of right arm weakness that made it difficult to lift things), AR 444 (reported weakness in right hand). While Plaintiff contends this inaccuracy is insufficient to reject the entire opinion, the Court finds such a fundamental inaccuracy in a medical provider's assessment is substantial evidence supporting the ALJ's conclusion the opinion was inconsistent with the other evidence in the record and thus unpersuasive. See 20 C.F.R. § 404.1520c(c)(2) (“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.”); § 416.920c(c)(2) (same).
In addition, the ALJ found the opinion unpersuasive based on the relationship factors, explaining Plaintiff did not have a treatment history with the nurse and Plaintiff only saw her once. AR 33; see 20 C.F.R. § 404.1520c(3)(i)-(ii) (recognizing both the “length of time a medical source has treated” a plaintiff, as well as the frequency of visits with that medical source “may help demonstrate whether the medical source has a longitudinal understanding of [the plaintiff's] impairment(s)”). Plaintiff asserts the ALJ failed to consider the evidence NP Maokhamphiou “presented in support of her findings” referencing the December 2019 treatment notes, the only other treatment by this provider. [ECF No. 14 at 27.] However, the form completed by NP Maokhamphiou invited her to “attach all relevant treatment notes, laboratory and test results” yet she neither referenced nor attached the December 2019 treatment notes to her opinion. See AR 553. Thus, contrary to Plaintiff's assertion, she did not present the December 2019 notes to support her medical opinion, and the ALJ did not err by not explicitly addressing them. Further, the December 2019 treatment notes do not support her opinion, as the visit occurred prior to the alleged disability onset date and the physical examination found Plaintiff's neck was “normal.” AR 407.
Lastly, Plaintiff contends the ALJ's did not sufficiently identify and explain his finding NP Maokhamphiou's opinion was inconsistent with Plaintiff's “activities of daily living which have already been described in the above decision.” AR 33. Earlier in the decision, the ALJ explained:
The claimant stated he lived alone at that point and could do the following activities of daily living: read; take short walks; go to physical therapy sessions; go to the store for food with his older sister; watch television; maintain his physical care; prepare his own meals; do the laundry; wash the dishes; clean the kitchen; take out the trash bags; walk; ride in a car; use public transportation; go out alone; shop in stores for food and clothes; and manage his own finances.AR 31. Though the ALJ did not explain the activities of daily living he found inconsistent with NP Maokhamphiou's opinion, the Court finds any error was harmless, as the numerous other reasons asserted by the ALJ satisfy the substantial evidence standard to support the ALJ's rejection of her physical assessment. See Amy W., 2023 WL 7300758, at *3 (finding the ALJ's discounting of a medical opinion as inconsistent with activities of daily living was unsupported but “harmless as the ALJ properly discounted Dr. Pitchford's medical opinion on other grounds”); Vaden v. Kijakazi, No. 22-cv-00504, 2023 WL 6843453, at *9 (D. Nev. Oct. 17, 2023) (“The court agrees that the ALJ did not adequately explain the basis for this portion of the evaluation of Dr. Bloch's opinions, but because the ALJ provided other reasons concerning the supportability and consistency that are supported by substantial evidence relative to Dr. Bloch's opinions, this error regarding the daily activities is harmless.”).
In sum, the Court finds substantial evidence supports the ALJ's finding unpersuasive NP Maokhamphiou's opinion as to Plaintiff's physical impairments. See Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (“Substantial evidence . . . is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
V. CONCLUSION AND RECOMMENDATION
The Court submits this Report and Recommendation to United States District Judge William Q. Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c)(1)(a) of the United States District Court for the Southern District of California. For the reasons set forth above, IT IS HEREBY RECOMMENDED that the District Judge issue an Order: (1) approving and adopting this R&R, and (2) reversing the Commissioner's decision, and (3) remanding the matter for further administrative proceedings consistent with this opinion.
IT IS HEREBY ORDERED that any party to this action may file written objections with the Court and serve a copy on all parties no later than August 14, 2024 . The document should be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with the Court and served on all parties no later than fourteen (14) days after being served with written objections.
IT IS SO ORDERED.