Opinion
CV-21-00205-TUC-CKJ (EJM)
07-22-2022
Robert Condit, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Plaintiff Robert Condit brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises one issue on appeal: the Administrative Law Judge's (“ALJ”) residual functional capacity (“RFC”) determination is not supported by substantial evidence and is the product of legal error where the ALJ failed to properly evaluate every opinion in the record by an examining or treating source and crafted Plaintiff's RFC out of whole cloth. (Doc. 25).
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 25, 31, & 32). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, affirm the Commissioner's decision.
I. Procedural History
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on June 28, 2018. (Administrative Record (“AR”) 382, 386). Plaintiff alleged disability beginning on May 15, 2017 based on heart attacks in 2017 and 2018, high blood pressure, left knee injury, back injury/chronic back pain, and memory loss. (AR 101-02). Plaintiff's applications were denied upon initial review (AR 97, 99) and on reconsideration (AR 192-93). A hearing was held on February 6, 2020 (AR 40), after which ALJ Laura Speck Havens found, at Step Five, that Plaintiff was not disabled because he was capable of performing other work. (AR 206-08).
On June 29, 2020 the Appeals Council remanded the case back to an ALJ to issue a new decision and correct specific errors, finding that the hearing decision did not contain an adequate evaluation of the Paragraph B criteria and did not contain sufficient rationale with specific references to evidence of record to support the RFC assessment for light work with additional limitations. (AR 216). The Appeals Council directed the ALJ to further evaluate Plaintiff's mental impairments under the Paragraph B criteria, give further consideration to Plaintiff's maximum RFC, and, if warranted, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base. (AR 217).
A second hearing was held on October 1, 2020 (AR 71), after which ALJ Laura Speck Havens again found, at Step Five, that Plaintiff was not disabled because he was capable of performing other work. (AR 31-32). On March 18, 2021 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 2).
Plaintiff's date last insured (“DLI”) for DIB purposes is December 31, 2022. (AR 17). Thus, to be eligible for benefits, Plaintiff must prove that he was disabled during the time period of the AOD of May 15, 2017 and the DLI of December 31, 2022.
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on August 29, 1970, making him 46 years old at the alleged onset date of his disability. (AR 101). Plaintiff completed two years of college and worked as an assistant IT administrator from 2007 to 2017. (AR 43-44, 428).
A. Medical Evidence
i. Dr. Glenn Marks
On August 30, 2018 Plaintiff saw Dr. Glenn Marks for a psychological consultative examination. (AR 810). Plaintiff stated that it was he and his ex-wife's understanding that during his first heart attack in 2017, his heart stopped beating for an indeterminate period of time, and that afterwards he started to experience significant cognitive concerns. He started not being able to remember how to engage in certain tasks that he had done throughout his professional career and could not keep up with reading technical information. Plaintiff also reported poor concentration and slow and inefficient mental processes. He and his ex-wife reported ongoing forgetfulness; he put information in his phone calendar and set multiple alarms but forgot what he needed to do when the alarm went off, and made lists but forgot to look at them. His ex-wife called several times a day to remind him to do tasks, and even though she set his medications out, he forgot to take them. They also described word-finding difficulties, which Dr. Marks noted was evident during the evaluation, and that Plaintiff slurred his words as if he was drunk, which became more problematic when he was tired. (AR 811). Plaintiff reported spacing out while watching TV and his ex-wife observed him zoning off and staring into space. He drove to Phoenix for medical care but later wouldn't remember most of the drive. Plaintiff stated he woke up around 8 or 9 a.m. and spent his days sitting outside listening to the radio, drinking coffee, playing with the dogs, and watching TV. He gave up on reading because he couldn't remember what he just read and had to keep re-reading the same passage.
On exam Plaintiff was highly articulate and able to provide a high level of detail regarding his history, and level of intellectual functioning appeared above average. (AR 812). Mood was somewhat frustrated and affect varied; Plaintiff was frustrated by his limitations and perplexed about why he was having these problems and how he could improve them. Although Plaintiff reported frequent forgetfulness, there was little evidence during the evaluation, and he was able to stay on track and maintain focus.
Plaintiff scored 29/30 on the Mini-Mental State Examination (“MMSE”) with his only error an inability to recall one of three words in a delayed recall trial.
Dr. Marks diagnosed cognitive disorder post myocardial infarction and stated there was no evidence of clinical inconsistency; although there was no evidence during the evaluation of significant cognitive problems other than word finding difficulties, both Plaintiff and his ex-wife reported symptoms consistent with likely anoxia. Dr. Marks stated that it was not possible to ascertain the extent that Plaintiff's difficulties might impact his ability to work without a more thorough evaluation of his cognitive functioning.
Dr. Marks also completed a Psychological/Psychiatric Medical Source Statement and opined that Plaintiff's abilities for social interaction and adapting to change appeared sufficient on exam. (AR 813). As to Plaintiff's understanding and memory, although there was no evidence of difficulties with learning during the evaluation, Plaintiff and his ex-wife reported daily forgetfulness; he would likely need a high level of structure with limited variations in routines to remember what he needs to do. As to sustained concentration and persistence, Plaintiff demonstrated the ability to follow the conversation, but reported he lost track of what he was watching on TV and was no longer able to follow what he reads.
ii. Dr. Jerome Rothbaum
On September 5, 2018 Plaintiff saw Dr. Jerome Rothbaum for a consultative examination. (AR 824). Plaintiff reported substantial memory issues, mostly short-term; he had been seen by a neurologist and was scheduled for an MRI and MRA. Dr. Rothbaum noted that Plaintiff had been placed on a substantial dose of statin drugs at the time of his first heart attack, recently reduced, and Plaintiff reported a history of high cholesterol that had declined with medication. Plaintiff also reported chronic low back pain stemming from an injury in 1999 that had never been treated or evaluated; he decided to just live with it. He had three prior surgeries on his right knee, the last one in 2007, and had pain and stiffness in both knees. He also had loss of sensation in the 4th and 5th fingers of his left hand but did not have substantial weakness; an attempted ulnar nerve transposition was unsuccessful.
On exam Plaintiff was alert, oriented, appropriate, and cooperative with adequate recall. (AR 826). Plaintiff pointed to the lumbar area as the source of his back pain; there was no direct tenderness, no anatomic abnormality, and straight leg raise was 75 degrees bilaterally. (AR 827). Examination of the hands showed no synovitis, grip and pinch strength were 5/5 bilaterally, ulnar nerve function 5/5 bilaterally, and Plaintiff was able to cock both wrists back normally; light touch sensation was absent over the 4th and 5th fingers of the left hand. Knee flexion was 130 degrees bilaterally and extension 0 degrees bilaterally with no tenderness or effusion.
Dr. Rothbaum's impression was ulnar neuropathy, left, sensory, status post-surgical release; degenerative joint disease, right knee status post arthroscopic repair x3; history of memory loss, recent, possibly related to statin therapy; coronary artery disease, status post myocardial infarction x2, status post stent placement x2; and myofascial low back pain. (AR 827).
Dr. Rothbaum also completed a Medical Source Statement of Ability to do Work-Related Activities (Physical). (AR 828). He opined that Plaintiff could occasionally lift/carry up to 20 pounds and frequently lift/carry 10 pounds due to his coronary artery disease and low back pain. He could stand/walk at least 2-4 hours, probably 3 1/2 hours per day, 45 minutes at a time with brief rest, and had no sitting limitations. (AR 828-29). He could occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl, and could never climb ladders/ropes/scaffolds, but had no limitations on reaching, handling, fingering, or feeling. (AR 829). On the final section of the form for “Additional Comments,” Dr. Rothbaum wrote: “History of memory loss possibly statin related.” (AR 830).
iii. Dr. Joseph Burridge
On October 5, 2018 Plaintiff saw Dr. Joseph Burridge for a consultative examination to assess his ability to perform work-related tasks. (AR 500). Plaintiff reported knee, back, shoulder, and triceps pain during some functional testing measures and problems concentrating and feeling frustrated by some activities. (AR 501-06). Dr. Burridge observed that Plaintiff presented as compliant and demonstrated a credible effort on tasks and no self-limiting behaviors were displayed; standardized testing results showed varied abilities and inconsistent pace on work sampling activities. (AR 506). Dr. Burridge opined that Plaintiff demonstrated skills and abilities required to perform work-related tasks from a vocational standpoint: he understood, remembered, and carried out basic and multistep job instructions effectively; transitioned without difficulty between work-related tasks; maintained motivation; responded appropriately to supervision; and his aptitudes and abilities to make simple judgments and basic work-related decisions in skilled or unskilled work settings appeared reasonable. (AR 507). Dr. Burridge concluded that Plaintiff's ability to perform work-related tasks in a gainful employment setting would require further insights of medical doctors or behavioral health professionals.
iv. Dr. Marisa Menchola
On April 8, 2019 Plaintiff saw Dr. Marisa Menchola for a neuropsychological exam. (AR 978). Plaintiff reported cognitive problems of slowed thinking, difficulty paying attention and staying focused, domestic accidents like leaving the stove on, repetitiveness, occasional difficulty remembering to take medication, hazy memory of events occurring a year or two before his heart attack, difficulty remembering important events like his children's birthdays, word-finding difficulties, paraphasia and slurred speech when fatigued, difficulty understanding when people talk to him and what he reads, difficulty finding his way when driving, losing coordination when tired, worsening handwriting/texting when fatigued, and tripping over things. (AR 980). Plaintiff described feeling weighed down and reported increased frustration with his cognitive changes; frustration made his cognitive functioning worse.
Dr. Menchola observed that Plaintiff was alert and oriented; hearing and vision were adequate for testing; expressive language fluent and coherent with no paraphasia, word-finding difficulties, or dysarthria; receptive language grossly intact with no difficulty understanding questions or instructions; and mood was euthymic and not significantly depressed or anxious. (AR 982). Plaintiff was socially appropriate and cooperative throughout the evaluation and seemed to put forth appropriate effort during testing; however, two performance validity indicators suggested invalid performance. (AR 982-83). Dr. Menchola thus concluded that Plaintiff's profile on testing was not a valid representation of his current cognitive status, and her ability to draw conclusions from the evaluation was therefore significantly limited. (AR 984). She opined that scores within normal limits might be an underestimate but reflected at least his lower limits of functioning, while impaired scores could not be confidently interpreted, and that it was important to note that many of Plaintiff's cognitive domains remained at least within normal limits. Dr. Menchola stated that Plaintiff should be reassured that many of his cognitive functions, including his ability to engage in complex problem-solving, remain intact, and that he should be encouraged to remain as cognitively and physically active as possible in daily life.
v. Dr. Joshua Goodman
On June 24, 2019 treating physician Dr. Joshua Goodman completed a Physical Medical Source Statement. (AR 1049). Plaintiff's diagnoses were memory impairment, chronic knee and back pain, and muscle twitch in hand, and his prognosis was chronic, stable, and not significantly improved. Clinical findings were pain with range of motion bilateral knees, decreased range of motion at lumbar spine, and muscle spasm of lumbar paraspinal muscles; Dr. Goodman left the “treatment and response” question blank. He opined that Plaintiff could frequently lift less than 10 pounds and 10 pounds, occasionally lift 20 pounds, and never lift 50 pounds. (AR 1050). He could rarely twist or crouch/squat and could occasionally stoop and climb ladders/stairs. Dr. Goodman indicated that Plaintiff had significant limitations with reaching, handling, or fingering but did not specify what those limitations were, and the form appears to be missing several pages. He left the question blank asking whether there were any other limitations (such as psychological, limited vision, difficulty hearing, etc.) that would affect Plaintiff's ability to work on a sustained basis, and stated the assessed symptoms and limitations applied as of August 2011. (AR 1051).
vi. Dr. Bruce Coull
On June 25, 2019 treating physician Dr. Bruce Coull completed a Manipulative Limitations Medical Opinion. (AR 1052). As to symptoms affecting the upper extremities, he indicated that Plaintiff had muscle weakness, reduced grip strength, loss of dexterity, hand twitching, and paresthesia related to left ulnar nerve repositioning, and numbness over the 4th and 5th fingers of the left hand. Dr. Coull opined Plaintiff could lift 2-3 pounds with the left arm and 10 pounds with both arms, with no limitations for the right arm. (AR 1053). Dr. Coull opined to the following limitations for percentage of time during the workday that Plaintiff could use his hands/arms: grasp, turn and twist objects 50% right and 10% left; fine manipulation 50% right and 5% left; reach in front 50% right and 40% left; and reach overhead 50% right and 40% left. (AR 1053). Plaintiff could use the right hand continuously for 10 minutes and right fingers continuously for 20 minutes with a 10-minute rest break after each, and could use the left hand continuously for 2 minutes and left fingers continuously for 3 minutes with a 10-minute rest break after each.
Dr. Coull also completed a Neurological Listings Medical Source Statement. (AR 1054). Plaintiff's impairments were vascular insult to the brain (due to cardiac arrest) and peripheral neuropathy, and his symptoms were intermittent tremor, physical and mental fatigue, muscle weakness, trouble sleeping, impaired attention, concentration, memory, and judgment, difficulty solving problems, speech difficulties, and ineffective communication. Dr. Coull left the questions blank for “treatment and response” and “prognosis.” (AR 1055). He opined that Plaintiff was moderately physically limited and that he had disorganization of motor function in two extremities resulting in an extreme limitation in the ability to use the upper extremities-that is, a loss of function of both upper extremities that very seriously limited the ability to independently initiate, sustain, and complete work-related activities involving fine and gross motor movements. (AR 1055-56). Dr. Coull opined that Plaintiff had a marked limitation in adapting in the workplace and moderate limitations in ability to understand, remember, and apply information, concentrate, persist, and maintain pace, and manage oneself in the workplace. (AR 1056). He stated the assessed symptoms and limitations applied as of March 2017. (AR 1057).
vii. Dr. Dev Ashish
On August 3, 2020 Plaintiff saw Dr. Dev Ashish for a neuropsychological reexamination after being referred by neurologist Dr. Steven Rapcsak. (AR 1352). Dr. Ashish summarized the relevant background as follows: Plaintiff presented to Banner UMC on September 5, 2018 with concerns about memory loss after cardiac arrest. (AR 1353). MRI on October 9, 2018 did not reveal any strokes but demonstrated advanced mineralization of the red nuclei and basal ganglia that can sometimes be seen in metabolic disease including hemochromatosis or Wilson's, or heavy metal exposure. At an October 18, 2018 evaluation with Dr. Rapcsak, MMSE was 27/30 and the impression was possibility of cognitive problems due to anoxia during cardiac arrest/resuscitation; neuropsychological evaluation was recommended. (AR 1353-54). Neuropsychological exam with Dr. Menchola on April 8, 2019 was suggestive of invalid results not allowing firm conclusions to be drawn based on performance validity indicators. (AR 1353). However, language and visuospatial function, working memory, and cognitive flexibility and problem-solving were intact. Neurological exam with Dr. Rapcsak on September 4, 2019 showed Plaintiff was oriented and able to remember 2/3 words after delay, and he demonstrated good recall of recent personal events but had limited ability to remember recent public events, possibly related to his lack of interest in following the news. (AR 1353). General neurological exam was otherwise unremarkable, other than residual findings related to left ulnar neuropathy.
Plaintiff and his ex-wife reported cognitive problems starting in March 2017 with rapid onset after cardiac arrest, slowly progressive. (AR 1354). Plaintiff stated that he is easily distractible, sometimes misplaces things, often has attention lapses such as losing train of thought or track of conversations or track of what he is doing, has to re-read for understanding, and has difficulty multitasking. He forgets conversations or their details but sometimes hints help, and he often forgets dates, details of recent events, and plans for the day. Plaintiff reported constant word finding difficulty, some comprehension difficulties, slowed thinking, some difficulty with planning, organizing, and problem solving, frustrated and irritated mood, and lack of confidence. (AR 1355). He had tinnitus and hearing problems starting in 2017 but the ENT could not diagnose any hearing issues, had occasional tremor in the left hand after ulnar nerve surgery, and had no vision or balance changes or falls. He had difficulty paying attention to the road when driving and sometimes forgot where to turn, but no accidents. His ex-wife managed finances, appointments, and medications; he did not cook due to distractibility and had given up reading because of memory difficulties. He helped with chores and was independent in basic activities of daily living (“ADL”). Plaintiff described his mood as “mostly ok” with good days and bad days; he was stressed about finances and had been more frustrated since his heart attacks. He mostly watched TV and movies, took care of the yard, occasionally played with the dog, walked with his son, and threw a football with his son. (AR 1356).
Dr. Ashish observed that Plaintiff had no evidence of gait or motor disturbance, hearing and vision were adequate, and he was adequately oriented to person, place, situation, and time, but had a tendency to give up and required prompting for date. (AR 1356). Speech was normal in rate, prosody, and volume but with response delays. Comprehension for interview questions and evaluation instructions was adequate and Plaintiff was an adequate historian. Thought processes were within normal limits but judgment/insight appeared to be reduced into his cognitive and psychological problems. Attention was variable with slight impulsivity and he was fidgety. Overall, Plaintiff was pleasant and cooperative but had a tendency to give up, especially on memory tasks, and his engagement was variable based on his interest and confidence. Dr. Ashish stated Plaintiff's performance was variable on independent and embedded performance validity measures; thus, the evaluation did not appear to be an accurate representation of his current cognitive functioning and should be interpreted with a lot of caution. Dr. Ashish further noted that most patients with similar profiles on performance validity measures were either not fully engaged in testing or had advanced dementia, and that “[e]ffort, motivation, engagement, and performance can be affected by a number of issues, including mood, pain, sleep issues, distraction, and/or exaggeration of deficits.” (AR 1359). Thus, Plaintiff's results suggested that “impairments noted on concurrently administered psychometric testing should be considered unlikely reflection of his actual cognitive functioning.” Id. Dr. Ashish also observed that Plaintiff endorsed an unusual degree of concern about physical functioning and health matters with vague complaints of ill health and fatigue consistent with somatization disorder. (AR 1360).
Dr. Ashish made the following impressions: 1) the results of the evaluation should be interpreted with caution given inconsistency in engagement based on performance validity measures; 2) results show Plaintiff's intellectual functioning and overall cognitive functioning is largely within normal limits, and despite invalid performance, verbal memory is also within normal limits; other results are likely an underestimation of Plaintiff's true cognitive abilities due to suboptimal engagement; and 3) it was not possible to comment on the effect of cardiac arrest on Plaintiff's cognition given his inconsistency in engagement, but his performance appeared to have improved since the last evaluation and was generally within normal limits in most cognitive domains; the effect of mood was also suspected to contribute to Plaintiff's complaints. (AR 1360-61). Dr. Ashish made several recommendations and noted that Plaintiff's cognition might improve further with addressing hearing issues, better mood management, pain management, and good sleep, and that psychotherapy could be helpful in developing understanding about the role of mental mechanisms in cognitive and health problems. (AR 1361). Dr. Ashish stated that:
Given [Plaintiff's] largely intact cognitive functioning but reported difficulty with daily functioning, oversight of daily activities may be necessary at present in an effort to minimize any error or risk but [Plaintiff] should be encouraged to be
more independent over time, especially with improvement in mood symptoms with treatment. It is recommended that he does one thing at a time and reduce background distractions. He should write down information and use external memory aids, such as, timers, lists, and calendar.(AR 1361). Dr. Ashish concluded that a repeat neuropsychological evaluation was not recommended at this time and that if additional treatment could improve Plaintiff's mood, motivation, and engagement, then he could be referred for another evaluation in 12-18 months to assess his cognitive functioning. (AR 1362).
B. Plaintiff's Testimony
On a Function Report dated July 23, 2018 Plaintiff reported that his conditions limited his ability to work because his memory affected concentration and ability to do the job; anything prior to two days, he did not remember all events, but still retained some childhood memories. (AR 444). He was unable to stay focused and on track, numbness in his left hand limited his ability to grip, constant knee pain limited his ability to lift or stand for long periods, bending and stooping caused his back to hurt, and constant ringing in his ears made it hard to concentrate when it was quiet. On a typical day he would get up and have coffee, sit outside to allow time for his body and mind to start functioning, watch the dogs play, use his phone for games, social media, and news, listen to the radio, and watch TV. He cared for/supervised his 11-year-old son and took care of their pets, and got help with these tasks from his ex-wife and mother-in law. (AR 437). He had no problems with personal care but did not cook, needed daily visual and verbal reminders to take his medications, and was able to do most chores that did not require physical exertion. (AR 438-39). Plaintiff went outside daily, was able to go out alone, and could drive a car, but could not remember to pay bills. (AR 439-40). He could not do outdoor hobbies because he was afraid to be far from a hospital for emergency reasons and got tired/hurt very fast. (AR 440). He had no problems getting along with others but stated he didn't hang out with friends as much because his memory issues made it difficult to keep up with conversations. (AR 441).
Plaintiff stated that he could walk 50 yards before needing to rest for 10-15 minutes, could lift 25 pounds, and depending on the day, his knees started to hurt after standing for 15-60 minutes. (AR 441, 444-45). He could only pay attention for a few minutes, did not finish what he started, could follow written instructions if he stayed focused, and could not follow spoken instructions. (AR 441). He struggled daily with short-term memory, struggled to complete tasks because he got sidetracked, and couldn't concentrate on anything for more than 15 minutes without getting sidetracked or lost in thought. (AR 445).
On a Disability Report dated July 2, 2019 Plaintiff stated his conditions and symptoms continued to worsen and he suffered from shortness of breath, constant chest pain, lack of concentration, and needed assistance from others to complete ADL. (AR 459). He was unable to stand for more than 30 minutes at a time and could not sit longer than an hour before needing to move around.
At the February 6, 2020 hearing before the ALJ Plaintiff testified that he quit his job in IT because he was struggling to remember things and clients were starting to notice, so he put in his two-weeks' notice to save face for the company. (AR 44). His supervisors noticed the change in his performance and spoke to him a few times about things he forgot or needed to fix, but he was never written up for it. (AR 53). One of the reasons he had to leave is because technology is always changing and he couldn't keep up with learning because he constantly forgot things. (AR 51). His wife used to leave him notes to remind him to do things, but she quit doing that because he would forget to look at the list. (AR 63).
Plaintiff was able to dress and bathe himself without help but did not do any household chores, cleaning, or grocery shopping. (AR 44). He had no hobbies and rarely did anything outside of the home and pretty much watched TV all day; he used a phone or computer “at times” and spent less than an hour per day on the internet. (AR 45-46). He exercised “rarely” and drove “occasionally” and was able to drive for about two hours max. (AR 46). Plaintiff stated he could walk or stand for 1-2 hours and sit for 1-2 hours but would need to take breaks to lay down for an hour or more; he could lift 10-15 pounds with his right hand but had no strength or dexterity in his left hand; he could use his right hand on a keyboard but not his left. (AR 48-49, 58-59). He had pain in his knees and back 80% of the time making it hard to move and twist, and bending was out of the question. (AR 49). Plaintiff stated his average pain was 7/10 and that he only took ibuprofen because he was addicted to street drugs in his youth and would not take any narcotics. (AR 50). Once a week he had a bad day where he just laid in bed and watched TV and didn't bother to shower because it hurt to get up. (AR 60).
At the October 1, 2020 hearing, the ALJ summarized Plaintiff's testimony from the prior hearing regarding his daily activities and functional limitations and Plaintiff confirmed everything was the same. (AR 77-80). His pain varied from day to day but he was pretty much in constant pain and rated his average pain 5/10. (AR 80). Because he wouldn't take opiates, the only thing he could do for his pain was lay down or take ibuprofen; he hadn't had any evaluations or done physical therapy since his knee surgery in 2007 or 2008. (AR 83-84). The pinky and ring finger of his left hand were completely numb and he had no strength in the left hand, but if he had to, he could maybe lift a pound. (AR 86).
Plaintiff stated that the doctors thought he suffered from depression but he disagreed, and he was still not seeing anyone for mental health treatment. (AR 77-78). His short-term memory was shot, and if he had a conversation with someone on Monday and another one on Tuesday, by Thursday or Friday he would mix them together and think it was all one conversation. (AR 80). Things were slowly getting worse and when he woke in the mornings, he was in a complete fog for 1-4 hours; when people talked to him in that state, they thought he was drunk or on drugs. (AR 81). He had problems keeping on task and focusing because he got distracted very, very easily, which is why his family wouldn't let him cook because one time he walked away from the stove and boiled a pot dry. (AR 84). Plaintiff stated there was no plan of how to improve his cognitive issues and his neurologist said there was nothing he could do and this is just how it was going to be. (AR 85).
When asked why he wouldn't be able to make it through an 8-hour workday five days a week, Plaintiff said that it wouldn't matter what kind of job it was because even something as unskilled as a parking lot attendant has some level of training and he would struggle and every day would feel like day one. (AR 82). The employer would have to keep retraining him and he wouldn't be able to learn the job during the probationary period and would be let go. Plaintiff further stated that most jobs require you to sit or stand for more than a couple of hours and he wasn't capable of that; sitting caused his back to hurt and then when he stood up to relieve his back, his knees started to hurt; once his knees started hurting, he couldn't find a comfortable position unless he was laying down. (AR 83).
C. Vocational Testimony
At the hearing before the ALJ, Tracy Remas testified as a vocational expert. (AR 88). He classified Plaintiff's past work as a network control operator, skilled, and light.
The ALJ asked Remas to assume a hypothetical individual who could do a full range of medium work but could understand, remember, and carry out simple job instructions only. (AR 89). Remas testified that such an individual could not perform Plaintiff's past work but could do other jobs such as cleaner II, unskilled, medium; hand packager, unskilled, medium; and laundry laborer, unskilled, medium. On questioning by Plaintiff's attorney, Remas testified that if there was a limitation to reach and handle frequently, the person could still do the job of laundry laborer and there would be other jobs available. (AR 90).
Plaintiff misstates the record by claiming that Remas testified that only the job of laundry laborer would remain. (Doc. 25 at 5).
Plaintiff's counsel proposed another hypothetical individual who could do a range of light work but could only stand for 2-4 hours and could only occasionally use the left upper extremity for handling and fingering. (AR 92). Remas testified that such an individual could do Plaintiff's previous job of network control operator if there was an accommodation because the job required frequent fingering; the limitation to only occasional fingering with the left arm would interfere with the job but not necessarily preclude it. If the hypothetical individual was off-task for five minutes every hour because of the weakness and decreased ability to use the left arm, it would not affect their ability to sustain employment because five minutes per hour is less than 10% and would likely fall within the ebb and flow of work. (AR 93-94). Remas testified that 12-13% time off-task was borderline and 15% was the threshold and definitely over the top. (AR 94). The tolerance for absenteeism was one day per month if it was with notice and excused, but unexcused absences were not tolerated. (AR 94-95).
D. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of coronary artery disease, hypertension, degenerative joint disease of the knees, degenerative disc disease, neurocognitive disorder, and somatic disorder, but that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. (AR 17-18). The ALJ considered the Paragraph B criteria set out in the social security disability regulations for evaluating mental disorders and found that Plaintiff had a moderate limitation in understanding, remembering, and applying information. (AR 19). The ALJ also found that Plaintiff had mild limitations in concentrating, persisting, or maintaining pace, interacting with others, and the ability to adapt or manage oneself. (AR 20-21). Because the ALJ did not find “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning, the Paragraph B criteria were not satisfied. (AR 21).
The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms diminished his capacity for basic work activities only to the extent to which they could reasonably be accepted as consistent with the objective medical and other evidence of record and the RFC assessment. (AR 22). The ALJ further stated that Plaintiff's allegations regarding his impairments and their impact on his ability to work were not sufficiently supported by the record as a whole in light of the objective medical findings, the medical history and degree of medical treatment required, and Plaintiff's description of his ADL. (AR 22, 26). Finally, the ALJ found that Plaintiff's allegations of acute functional deficits were inconsistent with observations made by Social Security Representatives during initial interviews. (AR 26).
The ALJ found that the prior administrative medical opinions were not persuasive because while they were somewhat supported by citations to the evidence, the findings were generally inconsistent with the evidence of record, including normal findings on clinical exams, largely benign findings on laboratory imaging and testing, and good control of Plaintiff's coronary artery disease and hypertension with medications. (AR 2627). The ALJ further stated that no greater limitations than the ones described in the RFC were supported by and consistent with Plaintiff's exertionally-demanding activities such as playing football with his son, walking, and driving. (AR 27).
The ALJ found that the prior administrative psychological opinions that Plaintiff had a moderate limitation in concentrating, persisting, or maintaining pace were not entirely persuasive because such a limitation was not generally consistent with clinical notations in the record that Plaintiff was attentive and able to maintain concentration. (AR 27). Further, while some deficits in processing speed were noted, they were usually determined to be the result of inconsistent engagement or effort by Plaintiff.
The ALJ found that Dr. Marks' consultative examiner opinion that Plaintiff would need a high level of structure with limited variations in routine was not persuasive because it was not supported by his own assertion that Plaintiff did not demonstrate significant cognitive deficits, and because Dr. Marks relied solely on Plaintiff's and his ex-wife's subjective allegations. (AR 27-28).
The ALJ found that Dr. Rothbaum's consultative examiner opinion of Plaintiff's exertional limitations was not persuasive because the opinion was not supported by his own clinical evaluation demonstrating normal findings, and because the opinion was not consistent with similar physical functioning noted on other exams or with Plaintiff's reported ADL. (AR 28).
The ALJ found that Dr. Goodman's treating physician opinion was not persuasive because Dr. Goodman generally found Plaintiff's functioning to be unremarkable, which did not lend support to his opinion, and because many other clinical notations in the record showing similar physical functioning were not consistent with the opinion. (AR 28). The ALJ also noted that Dr. Goodman's report appeared incomplete and did not specify what “significant” reaching, handling, or fingering limitations Plaintiff had.
The ALJ found that Dr. Coull's treating physician opinion was not persuasive because he did not provide substantial explanations for his conclusions. (AR 28). The ALJ further stated that the lifting limitations appeared to be internally inconsistent, that the record at large showed normal findings in the upper extremities, and that Plaintiff did not seek or receive substantial treatment for his ulnar neuropathy; thus, the evidence did not support and was not consistent with Dr. Coull's lifting and manipulative restrictions. (AR 28-29). As to Dr. Coull's mental opinion, the ALJ found that Dr. Coull's own clinical observations did not support the limitations; further, impairments in Plaintiff's cognition appeared to be inconsistent because at times he did not put forth full effort, resulting in inconsistent test results. (AR 29). The ALJ also stated that Plaintiff's mental status examinations throughout the record were within normal limits, he did not seek or receive psychiatric treatment, and Plaintiff's ability to engage in basic ADL contradicted Dr. Coull's finding that Plaintiff would be markedly limited in adapting in the workplace.
The ALJ found that neuropsychologist Dr. Ashish's opinion was persuasive overall because his statements were supported by his clinical evaluation of Plaintiff. (AR 29). The ALJ stated that Dr. Ashish appropriately considered Plaintiff's subjective allegations in saying that Plaintiff might need oversight of daily activities but should otherwise lead an independent life, and that Dr. Ashish's statements appeared to be suggestions rather than opinions of Plaintiff's work-related capacities. The ALJ noted that she took Dr. Ashish's opinion and recommendations into account when limiting Plaintiff to performing simple job instructions. (AR 30).
The ALJ found that Plaintiff had the RFC to perform a full range of medium work except that he was limited to understanding, remembering, and carrying out simple job instructions only. (AR 21-22). Based on testimony by the VE, the ALJ found that Plaintiff was unable to perform his past relevant work but was capable of performing other jobs existing in significant numbers in the national economy. (AR 30-31). The ALJ therefore concluded that Plaintiff was not disabled. (AR 32).
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) the claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and is “more than a mere scintilla, but less than a preponderance.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (internal quotations and citation omitted). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998). “Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[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). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011), superseded on other grounds by 20 C.F.R § 404.1504. An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citation omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm 'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
IV. Discussion
Plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence and is the product of legal error because the ALJ failed to properly evaluate every opinion in the record by an examining or treating source and crafted Plaintiff's RFC out of whole cloth. Plaintiff specifically contends that the ALJ failed to properly consider the factors of supportability and consistency in evaluating the opinions of Drs. Goodman, Coull, Rothbaum, and Marks. Plaintiff states that this constitutes harmful error warranting remand to properly evaluate the medical opinions and determine Plaintiff's ability to engage in sustained work activity.
The Commissioner contends that the ALJ properly evaluated the medical opinions by adequately explaining the required factors of supportability and consistency and that the RFC finding should be affirmed. The Commissioner states that, at most, Plaintiff presents an alternate interpretation of the evidence, but because the ALJ's decision is supported by substantial evidence of record, it must be affirmed.
The undersigned has considered the parties' arguments and thoroughly reviewed the record in this matter. For the reasons explained below, the undersigned finds that the ALJ properly considered the required factors of supportability and consistency in evaluating the medical opinions of Drs. Goodman, Coull, Rothbaum, and Marks to determine their persuasiveness. As such, the undersigned further finds no harmful error in the ALJ's RFC assessment because the ALJ was only required to incorporate the limitations that she found credible and supported by the record. Accordingly, because the ALJ's decision is supported by substantial evidence of record, the undersigned recommends that the Commissioner's decision be affirmed.
A. Evaluation of Medical Testimony
For disability claims filed on or after March 27, 2017, medical opinions are evaluated pursuant to the factors set forth in 20 C.F.R. § 416.920c. Pursuant to the new regulations, the Commissioner does “not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s) . . . .” Id. § 416.920c(a). Rather, medical opinions are evaluated pursuant to the factors set forth in § 416.920c(c)(1)-(5), with the most important factors being supportability and consistency:
As this Court has explained: “Since 1991, the Ninth Circuit has distinguished between the opinions of treating physicians, examining physicians, and non-examining physicians. This distinction was known as the ‘treating physician rule.' In March of 2017, The Social Security Administration amended their regulations to abrogate the treating physician rule, among other changes.” Alonzo v. Comm'r Soc. Sec. Admin., 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) (internal quotations and citations omitted). “Although it was debated for years, recently, the Ninth Circuit definitively ruled that the ‘specific and legitimate' standard does not apply to Social Security cases after the regulations were revised.” Noderer v. Comm'r of Soc. Sec. Admin., 2022 WL 1839102, at *3 (D. Ariz. June 3, 2022) (citing Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. Our requirement that ALJs provide ‘specific and legitimate reasons' for rejecting a treating or examining doctor's opinion, which stems from the special weight given to such opinions is likewise incompatible with the revised regulations. Insisting that ALJs provide a more robust explanation when discrediting evidence from certain sources necessarily favors the evidence from those sources-contrary to the revised regulations.”)); see also Steele v. Saul, 520 F.Supp.3d 1198, 1209-10 (D. Alaska 2021) (“The Commissioner's new regulations still require the ALJ to explain his or her reasoning, and to specifically address how he or she considered the supportability and consistency of the opinion. Obviously the ALJ's reasoning must remain legitimate, meaning lawful or genuine, as it must still be supported by substantial evidence and free from legal error.” (citation omitted)). To the extent that the undersigned cites cases below that apply the old standard of “specific and legitimate reasons” to reject a medical opinion, the undersigned does so only by way of general example to support the undersigned's finding that the ALJ Serly considered the factors of supportability and consistency in evaluating the ical opinions at issue in this case.
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.
The regulations specifically require the ALJ to explain how he or she considered supportability and consistency in evaluating medical opinions and making the disability determination. Id. § 416.920c(b)(2). Other relevant factors that the ALJ may, but is not required to, discuss include the medical source's relationship with the claimant, specialization of the medical source, and “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.” Id. § (c)(3)-(5).
Here, Plaintiff specifically challenges the ALJ's findings as to the persuasiveness of the opinions by Drs. Goodman, Coull, Rothbaum, and Marks on Plaintiff's physical and cognitive impairments. The undersigned will address each of these in turn.
i. Dr. Goodman
The ALJ stated that Dr. Goodman's opinion was not persuasive because Dr. Goodman generally found Plaintiff's respiratory, cardiovascular, abdominal, musculoskeletal, and neurological functioning to be unremarkable and described his coronary artery disease and hypertension as adequately controlled. (AR 28). The ALJ concluded that this evidence did not lend support to Dr. Goodman's opinions on Plaintiff's physical limitations. Plaintiff does not challenge the ALJ's decision on this basis, and the ALJ may properly discount a medical opinion when that opinion is not supported by the provider's own examination findings. See § 416.920c(c)(1); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.”).
The ALJ further found that many other clinical notations in the record showing similar physical functioning were not consistent with Dr. Goodman's opinion. (AR 28). Plaintiff contends that finding an opinion inconsistent with the record as a whole cannot be a legally sufficient reason supported by substantial evidence to reject a medical opinion because the Court is left to wonder what evidence the ALJ relied on when rejecting the opinion. Here, however, the ALJ specifically cited to numerous exhibits in the record to support her finding that benign examination findings throughout the record were inconsistent with the limitations Dr. Goodman assessed. Thus, the Court finds no error on this point. See § 416.920c(c)(2); see also Tommassetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (physician's opinion may properly be rejected where it is inconsistent with the medical records).
The undersigned further rejects Plaintiff's arguments that the ALJ's summary of the medical record contains some evidence that supports a finding of upper extremity limitations and that Dr. Goodman's treatment notes offer additional supportive evidence that the ALJ failed to cite. Plaintiff's argument is a veiled invitation for the Court to reweigh the evidence-something the Court plainly may not do-and “[w]hen the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson, 359 F.3d at 1198; see Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); see also Owen v. Saul, 808 Fed.Appx. 421, 423 (9th Cir. 2020) (rejecting claimant's argument that other evidence supported medical opinion that ALJ discounted, stating “this simply highlights a conflict in the evidence[, and r]esolving conflicts is the ALJ's responsibility and prerogative”). Moreover, while Plaintiff contends such evidence supports the fingering and handling limitations assessed by Dr. Goodman, as the ALJ noted, Dr. Goodman indicated that Plaintiff had significant limitations with reaching, handling, or fingering but did not specify what those limitations were, and his report appears incomplete. (AR 28, 1050). Thus, while the record might contain some evidence in support of upper extremity limitations, the undersigned finds no error here where the ALJ appropriately considered the factors of supportability and consistency and Dr. Goodman did not actually opine to any specific limitations in the first place. See also AR 829 (Dr. Rothbaum opined that Plaintiff had no limitations on reaching, handling, fingering, or feeling).
ii. Dr. Coull
The ALJ first stated that she found Dr. Coull's opinions on Plaintiff's physical and mental capacities not persuasive because he did not provide substantial explanations for his conclusions. (AR 28). Plaintiff does not challenge the ALJ's decision on this basis and the Court finds no error. The regulations specifically provide that the more relevant the supporting explanations presented by a medical source are to support his or her opinions, the more persuasive the medical opinions will be. § 416.920c(c)(1); see also Bayliss, 427 F.3d at 1216 (“[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.”).
As to Plaintiff's physical impairments, the ALJ found that Dr. Coull's opinion was not persuasive because the lifting limitations appeared to be internally inconsistent. (AR 28-29). Plaintiff does not challenge this reason and the Court finds no error.
The ALJ also stated that while the record documented mild to moderate ulnar neuropathy in Plaintiff's left arm with clinical notations of reduced muscle strength and sensation, these observations were infrequent in the record, and the record at large showed normal mobility, muscle strength, and sensation in the upper extremities. (AR 29). As with Dr. Goodman's opinion, Plaintiff contends that finding an opinion inconsistent with the record as a whole cannot serve as a legally sufficient reason supported by substantial evidence because the Court cannot determine what evidence the ALJ relied on in rejecting the opinion. Here again, however, the ALJ cited to specific exhibits in the record to support her finding that the evidence did not support and was not consistent with Dr. Coull's significant lifting and manipulative restrictions. See id. Thus, the Court finds no error on this point. See § 416.920c(c)(2); see also Tommassetti, 533 F.3d at 1041 (physician's opinion may properly be rejected where it is inconsistent with the medical records).
The undersigned likewise rejects Plaintiff's argument that the ALJ's summary of the medical record contains some evidence that supports the upper extremity limitations Dr. Coull assessed. It is not this Court's province to reweigh the evidence; Plaintiff's argument “simply highlights a conflict in the evidence[, and r]esolving conflicts is the ALJ's responsibility and prerogative.” Owen, 808 Fed.Appx. at 423; see Batson, 359 F.3d at 1198. For the same reason, the undersigned rejects Plaintiff's argument that the ALJ failed to consider how Dr. Coull's treatment notes support his opinion. The ALJ cited to Dr. Coull's treatment notes documenting reduced muscle strength and sensation in Plaintiff's left upper extremity and nerve testing results showing mild to moderate left ulnar neuropathy. See AR 29 (citing Ex. 39F at 11 (AR 1299) and Ex. 40F at 2-3 (AR 1323-24)). The ALJ determined that despite this evidence, the record as a whole documented largely normal findings in the upper extremities. See id. It is up to the ALJ, not the reviewing Court, to resolve conflicts in the evidence, and an ALJ may properly determine that the overall evidence of record is not supportive or consistent with a source's opined limitations. See § 416.920c(c)(1), (2); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“a federal court's review of Social Security determinations is quite limited . . . [and courts] leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record” (internal quotations and citation omitted)); Matney, 981 F.2d at 1019 (“the [ALJ] and not the reviewing court must resolve conflicts in the evidence”).
Lastly, the ALJ noted that Plaintiff did not seek or receive substantial treatment for his ulnar neuropathy. (AR 29). Plaintiff does not challenge this reason and the Court finds no error. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“[I]f a claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated.”).
As to Plaintiff's mental impairments, the ALJ found that Dr. Coull's own clinical observations did not support the limitations assessed. (AR 29). The ALJ noted that while Plaintiff scored 24/30 on the MMSE at a September 2018 evaluation, Dr. Coull also documented that Plaintiff was fully oriented, had normal speech and language, demonstrated intact attention, concentration, and fund of knowledge, and answered questions and followed commands appropriately. The ALJ further noted that Dr. Coull documented the same findings on another exam a year later. Plaintiff does not challenge the ALJ's decision on this basis and the Court finds no error. See § 416.920c(c)(1); see also Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“A conflict between treatment notes and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a treating physician or another treating provider.”).
The undersigned thus rejects Plaintiff's argument that the ALJ failed to consider the supportability factor and the explanations proffered by Dr. Coull. Plaintiff cites to his impairments and symptoms as reported on Dr. Coull's MSS and Dr. Coull's statement that, based on his review of Dr. Rapcsak's assessment, Plaintiff seems to have short-term memory issues but they are static. (Doc. 25 at 22) (citing AR 1054, 1324). To the extent that this statement is an explanation in support of Dr. Coull's assessed mental limitations, the undersigned declines Plaintiff's invitation to reweigh the evidence. See Owen, 808 Fed.Appx. at 423. As discussed herein, the ALJ gave several reasons supported by substantial evidence in the record to support her finding that Dr. Coull's opinion on Plaintiff's mental impairments was not persuasive because it was not supported by his own clinical observations and was not consistent with other evidence in the record.
The ALJ also noted that the record showed that impairments in Plaintiff's cognition appeared to be inconsistent because at times he did not put forth full effort, resulting in inconsistent test results. (AR 29). Plaintiff does not challenge this reason and the Court finds no error. See § 416.920c(c)(1), (2).
The ALJ next stated that Plaintiff's mental status examinations throughout the record were within normal limits and Plaintiff did not seek or receive psychiatric treatment. (AR 29). Plaintiff contends that the Court should reject this reason because the ALJ is required to consider the record as a whole, which documents that Plaintiff consistently reported problems with his memory. Plaintiff's argument is misplaced. The ALJ's reasoning is not based on what Plaintiff reported to his providers, but on the providers' examination findings. And, despite Plaintiff's complaints, the record does reflect an absence of treatment for mental impairments. See, e.g., Leal v. Astrue, 2009 WL 800935, at *6 (E.D. Cal. Mar. 25, 2009) (“Claimant's lack of treatment-seeking behavior for an allegedly disabling problem, at a minimum, creates considerable uncertainty about the veracity of Claimant's subjective complaints . . .”). To the extent that the ALJ did err in her reasoning, any such error is harmless because the ALJ provided other legally sufficient reasons to find that the opinion was inconsistent with and unsupported by the evidence of record. See Batson, 359 F.3d at 1197 (so long as there remains “substantial evidence supporting the ALJ's decision” and the error “does not negate the validity of the ALJ's ultimate conclusion,” such error is deemed harmless and does not warrant reversal); Molina, 674 F.3d at 1115; Stout, 454 F.3d at 1055.
Finally, the ALJ found that Plaintiff's ability to engage in basic ADL contradicted Dr. Coull's finding that Plaintiff would be markedly limited in adapting in the workplace. (AR 29). Plaintiff does not specifically challenge this reason and the Court finds no error. See Tommassetti, 533 F.3d at 1041 (opinion may properly be rejected when it is inconsistent with a claimant's ADL).
iii. Dr. Rothbaum
The ALJ found that Dr. Rothbaum's opinion of Plaintiff's exertional limitations was not persuasive because the opinion was not supported by his own clinical evaluation, which demonstrated normal cardiovascular function, no edema in the extremities, full 5/5 motor strength, range of motion, and sensation in the bilateral upper and lower extremities aside from absent light touch sensation in the 4th and 5th fingers of the left hand, and intact mobility of the back with normal ambulation. (AR 28). While Plaintiff does not specifically challenge the ALJ's decision on this basis, Plaintiff states that the ALJ's summary of the evidence contains citations to abnormal findings in Dr. Rothbaum's exam documenting reduced range of motion in the cervical and lumbar spine, straight leg raising to 75 degrees, and hip flexion to 90 degrees. See Doc. 25 at 13; AR 827. That Dr. Rothbaum's evaluation documented some abnormal findings does not mean that the ALJ could not rely on the benign findings that were inconsistent with Dr. Rothbaum's assessed limitations. The regulations do not impose a black and white rule; rather, it is up to the ALJ to evaluate all the evidence of record, resolve conflicts in testimony, determine credibility, and resolve ambiguities. Andrews, 53 F.3d at 1039; see Owen, 808 Fed.Appx. at 423.
The ALJ further found that Dr. Rothbaum's opinion was not consistent with other clinical exams documenting benign findings similar to those noted by Dr. Rothbaum. (AR 28). The Court rejects Plaintiff's argument that the ALJ mischaracterized the evidence and that there is other evidence of record that could be supportive of Dr. Rothbaum's assessed limitations. The ALJ cited to numerous exhibits in the record in support of her statement that Dr. Rothbaum's opinion was not consistent with other physical function findings noted throughout the record, and the Court will not reweigh the evidence and substitute its judgment for that of the ALJ. See § 416.920c(c)(2); Matney, 981 F.2d at 1019; see also Tommassetti, 533 F.3d at 1041 (opinion may properly be rejected when it is inconsistent with the medical records).
Finally, the ALJ stated that Dr. Rothbaum's opinion was not consistent with Plaintiff's reported activities of playing football with his son, walking, and driving. (AR 28). Plaintiff contends that this is not a reason supported by substantial evidence because while the ALJ cited to Plaintiff's ADL as he described them to Dr. Ashish, the ALJ failed to explain which activities were contrary to Dr. Rothbaum's assessed limitations, or how Plaintiff's ADL demonstrate an ability to engage in sustained work activity. Plaintiff further contends that the ALJ failed to discuss how Plaintiff qualified his ability to perform certain activities such as really just supervising his son, getting help from his exwife and son to care for their dogs, and only performing chores that don't require physical exertion. (Doc. 25 at 15). To the extent that the ALJ erred in discounting Dr. Rothbaum's opinion on this basis, the undersigned finds any such error was harmless because the ALJ provided other legally sufficient reasons to find that the opinion was inconsistent with and unsupported by the evidence of record. See Batson, 359 F.3d at 1197; Molina, 674 F.3d at 1115; Stout, 454 F.3d at 1055.
To the extent that Plaintiff attempts to insert an argument here that the ALJ erred in discounting his subjective symptom testimony and ADL, the Court declines to address this point further. Plaintiff did not present a challenge to the ALJ's evaluation of his testimony as an issue for review and any argument is therefore waived. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which are argued specifically and distinctly in a party's opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim . . . .”); Schopp v. Colvin, 2014 WL 4722524, at *4 (D. Or. Sept. 22, 2014) (“A plaintiff challenging the Commissioner's final decision regarding disability must specifically and directly argue issues in his or her opening brief.”). Further, the ALJ may reject a medical opinion that is based on a claimant's subjective complaints that have been properly discounted. See Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Tommassetti, 533 F.3d at 1041 (opinion may be properly rejected when it is inconsistent with a claimant's testimony or ADL).
iv. Dr. Marks
The ALJ rejected Dr. Marks' opinion that, although there was no evidence of difficulties with learning, Plaintiff would likely need a high level of structure with limited variations in routines in order to remember what he needs to do. (AR 27). The ALJ first stated that this opinion was not persuasive because it was not supported by Dr. Marks' own assertion that Plaintiff did not demonstrate significant cognitive deficits. (AR 2728). The ALJ noted, for example, that Plaintiff scored 29/30 on the MMSE. Thus, the ALJ appropriately considered the required factor of supportability in determining that Dr. Marks' opinion was not supported by his own evaluation notes. See § 416.920c(c)(1); Bayliss, 427 F.3d at 1216.
Plaintiff's contention that the ALJ discounted Dr. Marks' opinion solely because Plaintiff scored 29/30 on the MMSE misstates the record. Rather, the ALJ stated that Dr. Marks' opinion that Plaintiff would need a high level of structure was not supported by his own assertion that Plaintiff did not demonstrate significant cognitive defects. The ALJ then cited the MMSE score as one example of Dr. Marks' largely normal examination findings. See also AR 812 (Dr. Marks observed that Plaintiff was highly articulate and his level of intellectual functioning appeared above average; there was no evidence of significant cognitive problems during the evaluation, other than word finding difficulties; although Plaintiff reported frequent forgetfulness, there was little evidence during the evaluation and he was able to stay on track and maintain focus). (AR 812). Further, as discussed below, the ALJ stated that when determining Plaintiff's RFC and limiting Plaintiff to understanding, remembering, and carrying out simple job instructions only, she took into account all of the MMSE scores in the record ranging from 24 to 29 out of 30. (AR 28). Lastly, while Plaintiff argues that the Court should reject the ALJ's reliance on the MMSE because it is only a snapshot of functioning and not designed for adjudicative determinations, this is generally true of many testing measures used in evaluations.
The ALJ further noted that Dr. Marks' opinion was based solely on Plaintiff's and his ex-wife's subjective allegations that he needs reminders to do activities. (AR 27-28). A claimant's self-reported symptoms are one of the factors considered by the SSA in adjudicating disability applications and evaluating mental impairments, and the Court recognizes that “[a] patient's report of complaints, or history, is an essential diagnostic tool” that physicians rely on when opining on a claimant's functional limitations. Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (citation omitted); 20 C.F.R. § 404.1529 (agency considers claimant's statements about his/her symptoms, but claimant's statements alone do not establish disability); 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.00(C)(2) (“We will consider all relevant medical evidence about your disorder from your physician . . . [including y]our reported symptoms.”). However, the regulations do not give any special deference to a claimant's self-reported difficulties or to a medical opinion based on those subjective complaints. See Treicherler v. Comm 'r. Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014) (“an ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)”). The ALJ's reasoning explains that she discounted Dr. Marks' opinion on Plaintiff's need for a high level of structure with limited variations in routine because it was not supported by Dr. Marks' own finding of no significant cognitive defects. The undersigned thus rejects Plaintiff's contention that Dr. Marks' “opinion is entirely consistent with his evaluation of Plaintiff's symptoms and his history of heart attack” as another improper invitation to reweigh the evidence and reach an alternate conclusion more favorable to Plaintiff. (Doc. 25 at 21); see Mayes, 276 F.3d at 459; Flaten, 44 F.3d at 1457; Magallanes, 881 F.2d at 750.
To the extent that Plaintiff contends that the ALJ failed to properly assess how his ADL are inconsistent with his memory and cognitive issues, Plaintiff does not present a challenge to the ALJ's evaluation of his testimony as an issue for review and the undersigned declines to address this argument further. See supra n.5.
In sum, based on the foregoing analysis, the undersigned finds that the ALJ properly complied with the requirements of § 416.920c by explaining how she considered the factors of supportability and consistency in evaluating the opinions by Drs. Goodman, Coull, Rothbaum, and Marks. While the evidence before the ALJ may be subject to more than one rational interpretation, and perhaps one more favorable to Plaintiff, it is not this Court's role to second-guess it. See Batson, 359 F.3d at 1198; Matney, 981 F.2d at 1019; Flaten, 44 F.3d at 1457; Missell v. Colvin, 2014 WL 2048082, *6 (D. Ariz. May 19, 2014) (“This Court cannot substitute its judgment for the ALJ simply because the evidence could be given more than one possible meaning.”).
B. RFC Assessment
RFC is “the most [a claimant] can still do despite [his] limitations” and is an assessment of how the claimant's impairment(s) and related symptoms affect what he can do in a work setting. 20 C.F.R. § 404.1545(a)(1). The RFC is based on all of the relevant evidence of record, including statements by medical sources and information provided by the claimant and their family, friends, or others. Id. § (3). Further, the RFC takes into account all of the claimant's medically determinable impairments, including those that are not severe. Id. § (2). The Commissioner retains the ultimate responsibility for assessing a claimant's RFC. Id. § 404.1546; see also Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC”). However, an ALJ need not include all possible limitations in the assessment of what a claimant can do, but rather is only required to ensure that the RFC “contain[s] all the limitations that the ALJ found credible and supported by the substantial evidence in the record.” Bayliss, 427 F.3d at 1217 (finding no error in RFC where ALJ took into account the limitations for which there was record support that did not depend on the claimant's subjective complaints); see also Dschaak v. Colvin, 2015 WL 181803, *3 (D. Or. Jan. 14, 2015) (“An ALJ's RFC need only incorporate credible limitations supported by substantial evidence in the record and must be consistent with the restrictions identified in the medical testimony.”)
Here, the ALJ found that Plaintiff could perform a full range of medium workexcept that he was limited to understanding, remembering, and carrying out simple job instructions only. (AR 21-22). Plaintiff contends that because the ALJ failed to properly evaluate the medical opinion evidence, the ALJ crafted the RFC without benefit of any opinion evidence and defined her own limitations for Plaintiff. (Doc. 25 at 16). The undersigned rejects this argument as unsupported by the record. As analyzed above, the ALJ properly considered the required factors of supportability and consistency in evaluating the medical opinion evidence and explained why she found some of the opinions less than persuasive. Because the ALJ properly discounted the opinions, she was not required to incorporate any limitations assessed in those opinions into the RFC beyond those that she found credible and supported by substantial evidence in the record.
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567.
For example, the ALJ rejected Dr. Marks' opinion that, based on Plaintiff's selfreport, he would likely need a high level of structure with limited variations in routines in order to remember what he needs to do. Although the ALJ found this opinion inconsistent with Dr. Marks' own statements that Plaintiff evidenced no difficulties with learning or significant cognitive problems during the evaluation, the ALJ's RFC assessment still accounted for Plaintiff's limitations in understanding, remembering, or applying information by limiting Plaintiff to work requiring simple job instructions only. The ALJ made this finding based on the record documenting MMSE scores ranging from 24 to 29 out of 30, Plaintiff's subjective allegations, and sources' opinions that Plaintiff's cognitive deficits should be taken with caution due to performance validity indicators. (AR 27-28). Similarly, while the ALJ rejected Dr. Coull's opinion that Plaintiff would be markedly limited in adapting in the workplace, the RFC is consistent with Dr. Coull's opinion that Plaintiff had moderate limitations in understanding, remembering, and applying information-the same limitation that the ALJ assessed under the paragraph B criteria. (AR 19, 1056).
Further, while Plaintiff's appeal specifically challenges the ALJ's assessment of opinions by Drs. Goodman, Coull, Rothbaum, and Marks, the ALJ's RFC assessment is also consistent with the opinions that Plaintiff does not challenge. For example, Dr. Burridge opined that Plaintiff demonstrated skills and abilities required to perform work-related tasks from a vocational standpoint: he understood, remembered, and carried out basic and multistep job instructions effectively; transitioned without difficulty between work-related tasks; maintained motivation; and had the ability to make simple judgments and basic work-related decisions in skilled or unskilled work settings. (AR 507). Dr. Ashish concluded that, despite invalid performance, Plaintiff's intellectual and cognitive functioning and verbal memory were all largely within normal limits; further, other test results were likely an underestimation of his true cognitive abilities due to suboptimal engagement. (AR 1360-61). While Dr. Ashish's recommendation that-due to Plaintiff's reported difficulty with daily functioning-Plaintiff do one thing at a time, reduce background distractions, and write down information, appears to be a general recommendation and not specific to work settings, it is not inconsistent with the RFC limitation to simple job instructions. (AR 1361); See Dschaak, 2015 WL 181803 at *3 (court distinguished between an examination finding versus an actual functional limitation and found no error in ALJ's conclusion that RFC limiting claimant to simple work was consistent with doctor's exam noting claimant could follow one and most two-step commands and had some difficulty with multi-step instructions). Similarly, Dr. Menchola stated that while her ability to draw conclusions about Plaintiff's cognitive functioning was significantly limited due to performance indicators suggesting invalid results, many of his cognitive domains remained at least within normal limits, and she observed that Plaintiff had no difficulties with expressive or receptive language during testing. (AR 982, 984). The ALJ's finding that Plaintiff was limited to work involving simple job instructions only is thus consistent with these opinions documenting Plaintiff's largely normal intellectual and cognitive functioning.
Finally, testimony by the VE demonstrates that even if the ALJ had incorporated additional limitations consistent with some of the restrictions identified in medical sources' opinions of Plaintiff's physical functioning, Plaintiff could still do other work. For example, the VE testified that if Plaintiff were limited to medium work with simple job instructions only and frequent reaching and handling, he could still perform the job of laundry laborer and there would be other jobs available. (AR 90). If Plaintiff were limited to light work but could only stand for 2-4 hours and could only occasionallyuse the left upper extremity for handling and fingering, Plaintiff could still perform his previous job of network control operator. (AR 92). The VE explained that the job only required occasional handling and primarily involved sitting at a desk or workstation; while the job required frequent fingering, Plaintiff could still do the work with some adjustment or accommodation because much of the work would be controlled with a mouse in Plaintiff's dominant right hand. (AR 92-93). If the weakness and decreased ability to use the left arm meant Plaintiff would be off-task five minutes every hour, which was less than 10%, that would fall within the natural ebb and flow of work such as when computers were rebooting, and people in the industry already had that down time/time off-task. (AR 93-94).
“Frequent” means occurring from one-third to two-thirds of the time. SSR 83-10, 1983 WL 31251, *6.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567.
“Occasionally” means occurring from very little up to one-third of the time. SSR 8310, 1983 WL 31251 at *5.
This is consistent with Dr. Rothbaum's opinion that Plaintiff could occasionally lift/carry up to 20 pounds and frequently lift/carry 10 pounds, stand/walk at least 2-4 hours per day, had no sitting limitations, and no limitations on reaching, handling, fingering, or feeling. (AR 828-29). It is also consistent with Dr. Goodman's opinion that Plaintiff could frequently lift/carry 10 pounds and occasionally lift/carry 20 pounds. (AR 1050). Dr. Coull opined that Plaintiff could use the left hand/arm 5% of the workday for fine manipulation and 10% for grasping, turning, and twisting objects. (AR 1053). The regulations do not define “occasional”" in terms of percentages, but 5 or 10% is not necessarily inconsistent with occurring “very little” of the time.
The undersigned further notes that the ALJ's original decision limited Plaintiff to light work with occasionally lifting/carrying up to 20 pounds and frequently lifting/carrying 10 pounds (consistent with Drs. Rothbaum and Goodman), and frequent fine feeling with the left upper extremity. (AR 201). Based on testimony by the VE at the original hearing, the ALJ found that Plaintiff could perform other jobs such as office helper, information clerk, and mail room clerk. (AR 207).
In sum, while Plaintiff argues for a more favorable interpretation of the medical evidence, the undersigned finds that the ALJ's RFC assessment contains the limitations that the ALJ found credible and supported by substantial evidence and is consistent with the ALJ's assessment of the medical opinions as analyzed above. Accordingly, the undersigned finds no error on this point.
Finally, while the RFC determination is based on all relevant evidence of record, including statements by the claimant, here Plaintiff presents no specific challenge to the ALJ's assessment of his subjective symptom testimony and any argument that the RFC fails to account for his subjective complaints is therefore waived. See supra n.5.
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690. “[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).
Here, the undersigned finds that the ALJ's decision is supported by substantial evidence and is free from legal error. “The medical evidence presented perhaps would permit a reasonable mind to make a finding of disability. It also would permit a finding of no disability. When there is evidence sufficient to support either outcome, we must affirm the decision actually made.” Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985); see also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (claimant argued ALJ could have come to a different conclusion, but court must affirm ALJ's findings of fact if they are supported by substantial evidence and decision is free from legal error; where court could not “say that the ALJ's interpretation of the available evidence was not rational, the ALJ's conclusions were supported by substantial evidence”); Burch, 400 F.3d at 680-81 (“[W]e must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.”); Batson, 359 F.3d at 1196 (“When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ.”); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ”).
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, affirm the decision of the Commissioner of Social Security.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).