Opinion
2:21-cv-00423-SB
05-31-2022
DARYL A., [1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, [2] Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN United States Magistrate Judge
Daryl A. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g), but not all parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the Court recommends that the district judge affirm the Commissioner's decision.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are “not supported by substantial evidence or based on legal error.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner's decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. Where the record as a whole can support either the grant or denial of Social Security benefits, the district court “may not substitute [its] judgment for the [Commissioner's].” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF'S APPLICATION
Plaintiff was born in April 1975, making him forty-three years old on July 25, 2018, his amended alleged disability onset date. (Tr. 32, 150.) Plaintiff graduated from high school and has past relevant work experience as a fence erector, a material handler, and a machinist. (Tr. 21, 43.) In his application, Plaintiff alleged disability due to degenerative disc disease, major depressive disorder, cognitive disorder, and chronic pain. (Tr. 180.)
The Commissioner denied Plaintiff's application initially and upon reconsideration, and on September 30, 2019, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 84, 91, 94.) Plaintiff and a vocational expert (“VE”) appeared by telephone and testified at an administrative hearing held on June 18, 2020. (Tr. 27-54.) On July 8, 2020, the ALJ issued a written decision denying Plaintiff's application. (Tr. 14-22.) On, January 27, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's written decision the final decision of the Commissioner. (Tr. 1-4.) Plaintiff now seeks judicial review of the ALJ's decision.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant can perform other work that exists in significant numbers in the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. See Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Seeid. at 954. The Commissioner bears the burden of proof at step five of the analysis, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. See Bustamante, 262 F.3d at 954.
III. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 14-23.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since July 25, 2018, his application date. (Tr. 16.) At step two, the ALJ determined that Plaintiff suffered from the following severe, medically determinable impairments: “major depressive disorder, social anxiety, and somatic dysfunction of the spine.” (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or medically equals a listed impairment. (Tr. 17.) The ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work subject to these limitations: (1) Plaintiff is limited to simple, routine tasks; (2) Plaintiff should only have occasional interaction with the public and coworkers that is both brief and superficial; (3) Plaintiff can occasionally climb ladders, ropes, and scaffolds; and (4) Plaintiff can occasionally bend. (Tr. 18.) At step four, the ALJ concluded that Plaintiff was not able to perform his past relevant work as a fence erector, material handler, or machinist. (Tr. 21.) At step five, the ALJ determined that Plaintiff was not disabled because a significant number of jobs existed in the national economy that he could perform, including work as a cleaner housekeeping, routing clerk, and marker. (Tr. 21-22.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by: (1) failing to incorporate limitations into Plaintiff's RFC; and (2) improperly discounting Plaintiff's symptom testimony. (Pl.'s Br. at 11-15.) Plaintiff also argues that he is entitled to a new hearing because the appointment of Andrew Saul-the acting Social Security Administration (“SSA”) Commissioner at the time of Plaintiff's application, hearing, and denial of benefits-was unconstitutional. (Id. at 7-11.) As explained below, the Court concludes that the Commissioner's decision is free of harmful legal error and is supported by substantial evidence in the record, and that the adjudication of Plaintiff's disability claim was not constitutionally defective. Therefore, the district judge should affirm the Commissioner's decision.
I. CONSTITUTIONAL CHALLENGE
Plaintiff argues that he is entitled to a new hearing because the SSA decided his claim during “the unconstitutional appointment and tenure of Commissioner Saul[.]” (Pl.'s Br. at 10.) The Ninth Circuit has already rejected this argument. In Kaufmann v. Kijakazi, ___ F.4th ___, 2022 WL 1233238, at *6 (9th Cir. Apr. 27, 2022), the Ninth Circuit held that Commissioner Saul's unlawful appointment has no effect on a claimant's case unless the claimant can demonstrate actual harm. Seeid. (“[W]e hold that the removal provision in 42 U.S.C. § 902(a)(3) violates separation of powers; that the provision is severable; and that, unless a claimant demonstrates actual harm, the unconstitutional provision has no effect on the claimant's case.”). Plaintiff has not demonstrated that Commissioner Saul's appointment caused him actual harm. Seeid. at *5 (“[T]he [claimant's] argument rests solely on speculation that the Commissioner theoretically might have acted differently. Claimant cannot meet her burden of showing actual harm with speculation alone.”). Accordingly, the Court finds that Plaintiff is not entitled to a new hearing.
II. PLAINTIFF'S SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, “‘[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection.'” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted).
Clear and convincing reasons for rejecting a claimant's testimony “include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008)).
B. Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided objective medical evidence of underlying impairments which might reasonably produce the symptoms alleged. (See Tr. 19, the ALJ determined that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the symptoms are not entirely consistent with the medical evidence and other evidence in the record”). The ALJ was therefore required to provide clear and convincing reasons, supported by substantial evidence, for discounting Plaintiff's symptom testimony. See Ghanim, 763 F.3d at 1163. The Court concludes that the ALJ met that standard here.
1. Activities of Daily Living
An ALJ may discount a claimant's testimony based on activities that are incompatible with the claimant's testimony regarding the severity of her symptoms. See Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (“Inconsistencies between a claimant's testimony and the claimant's reported activities provide a valid reason for an adverse credibility determination.”); Ghanim, 763 F.3d at 1165 (“Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.”); Garrison, 759 F.3d at 1016 (explaining that a claimant's activities have “bearing on [his or her] credibility” if the reported “level of activity” is “inconsistent with [the claimant's] claimed limitations”).
The ALJ discounted Plaintiff's symptom testimony based on his reported activity level. (Tr. 19-20.) The ALJ noted that despite Plaintiff's “alleged physical and mental limitations and symptoms, he is independent in his activities of daily living.” (Id. at 19.) Plaintiff “is able to care for personal hygiene and grooming independently[, ] . . . is able to cook, vacuum, sweep, and do laundry[, ] [and he] shops in stores and can manage his finances independently.” (Id. at 19-20.) In addition, Plaintiff “reported that he does some manual labor jobs and odd jobs[.]” (Id. at 20.) The Court finds that the inconsistency between Plaintiff's activities and his alleged limitations was a clear and convincing reason for the ALJ to discount Plaintiff's symptom testimony and was supported by substantial evidence in the record. (See Tr. 198-99, October 21, 2018, Plaintiff reports that he has no problem with his personal care or grooming, does not need reminders to take medication, can prepare his own meals, can clean, do laundry and make small repairs, shops in stores, can handle finances independently, and “help[s] a disabled friend keep his ap[artment] clean”; Tr. 201, October 21, 2018, Plaintiff reports that his social activities include “help[ing] friends with the things they need help with . . . on the weekends”; Tr. 260, July 23, 2019, Plaintiff reported that “[h]e still does odd jobs”; Tr. 364, June 13, 2019, Plaintiff reported that “[h]e has been doing some manual labor jobs”).
Plaintiff argues that the ALJ erred by failing specifically to identify and discuss which aspects of Plaintiff's testimony were inconsistent with his activities of daily living, and that the ALJ's “rejection” of his credibility “amount[s] to little more than a recitation of medical evidence in support of the [RFC] [and is therefore] insufficient as a matter of law.” (Pl.'s Br. at 16) (citing Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015)). Plaintiff is correct that Ninth Circuit authority “requires the ALJ to specifically identify the testimony from a claimant she or he finds not to be credible and explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm'r Soc. Sec., 775 F.3d at 1090, 1102 (9th Cir. 2014) and citing Brown-Hunter, 806 F.3d at 493).
In Lambert, the Ninth Circuit held that it was not enough for the ALJ to “not[e] generically that ‘the claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the objective medical and other evidence'” because “this ‘boilerplate statement' . . . which is ‘routinely include[d]' in ALJ decisions denying benefits, did not ‘identify what parts of the claimant's testimony were not credible and why.'” Lambert, 980 F.3d at 1277 (quoting Treichler, 775 F.3d at 1103). In that case, the ALJ did not identify specific activities of daily living or point to specific medical evidence that contradicted the claimant's allegations of disabling impairments, and the Ninth Circuit found that the ALJ's “high-level reasons” to discount the claimant's testimony did “not permit meaningful review.” Lambert, 980 F.3d at 1277-78.
Here, in contrast, the ALJ's explanation for discounting Plaintiff's testimony went beyond boilerplate. The ALJ first summarized Plaintiff's symptom testimony, explaining that he “reported difficulty and increased pain with postural activities [and] that he cannot remain seated or standing for prolonged periods and he must change positions frequently.” (Tr. 18.) The ALJ also recognized that Plaintiff alleged that he “experiences depression, anxiety, impaired concentration, lack of interest in most things, and feelings of worthlessness and hopelessness.” (Id.) Finally, the ALJ noted that Plaintiff claimed his impairments “cause difficulty with lifting, bending, reaching, walking, kneeling, stair climbing, and getting along with others.” (Id.) The ALJ concluded that Plaintiff's statements regarding “these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (Tr. 19.) The ALJ then identified Plaintiff's daily activities that contradicted Plaintiff's testimony about his disabling physical and mental symptoms, as summarized above. (See Tr. 19-20.)
Although the ALJ did not tie each of Plaintiff's daily activities to a specific disabling symptom (e.g., working a manual labor job is inconsistent with his alleged inability to manage chronic back pain), this Court does not interpret Lambert to require that level of granularity. See Lambert, 980 F.3d at 1277 (holding that “[o]ur cases do not require ALJs to perform a line-byline exegesis of the claimant's testimony, nor do they require ALJs to draft dissertations when denying benefits” (citing Treichler, 775 F.3d at 1103)); see also Young v. Saul, 845 Fed.Appx. 518, 519-20 (9th Cir. 2021) (“The ALJ . . . gave specific reasons why he did not credit [the claimant's] claims concerning the ‘limiting effects' of [the claimant's] symptoms, including his ‘back and knee pain.' The ALJ was not required to mention explicitly, in his ruling, each detail of [the claimant's] testimony, such as the need to take off weeks at a time from work.” (citing Lambert, 980 F.3d at 1277)); Roscioli v. Saul, No. 19-cv-03894-VKD, 2020 WL 6940937, at *8 (N.D. Cal. Nov. 25, 2020) (citing Lambert standard but holding that “the cited testimony appears to be entirely consistent with the ALJ's finding that [the claimant] was doing well and could work, despite his mental impairments”).
To be sure, the ALJ must provide sufficient detail about the inconsistencies between Plaintiff's symptom testimony and his daily activities to allow a reviewing court reasonably to discern the ALJ's path. Cf. Brown-Hunter, 806 F.3d at 494 (holding that the ALJ erred where a reviewing court could not “discern the agency's path because the ALJ made only a general credibility finding without providing any reviewable reasons why she found [the claimant's] testimony to be not credible”); see also Despinis v. Comm'r Soc. Sec. Admin., No. 2:16-cv-01373-HZ, 2017 WL 1927926, at *7 (D. Or. May 10, 2017) (finding that although “the ALJ's opinion could have more clearly stated each reason and how it served to discount Plaintiff's credibility, the Court is able to ‘reasonably discern' the ALJ's path”) (citation omitted). Here, the Court can reasonably discern from the ALJ's summary of Plaintiff's alleged physical and mental health symptoms and the summary of his reported daily activities that the ALJ concluded that Plaintiff's ability to work manual labor and odd jobs and spend the remainder of his days engaging in independent activities was inconsistent with the alleged severity of his physical and mental health symptoms. Therefore, the Court finds the ALJ did not err by concluding that Plaintiff's testimony about his pain and physical and mental impairments was inconsistent with his reported daily activities. ///
2. Objective Medical Evidence
The ALJ also discounted Plaintiff's allegations of disabling physical and mental health symptoms because they were inconsistent with the objective medical evidence. (Tr. 19-20.) This was a clear and convincing reason for discounting Plaintiff's testimony. See Flores v. Colvin, 546 Fed.Appx. 638, 640 (9th Cir. 2013) (holding that the ALJ met the clear and convincing reasons standard and noting that the ALJ discounted the claimant's testimony on the ground that it was “inconsistent with the medical evidence”).
Substantial evidence supports the ALJ's findings related to Plaintiff's alleged physical limitations. Although the ALJ acknowledged that medical records demonstrated that Plaintiff “received some osteopathic manipulation and physical therapy in 2019 for low back pain and somatic dysfunction of the pelvic region, ” the ALJ also cited to several medical records reflecting that Plaintiff “reported improvement with treatment and indicated his strength and range of motion were improving.” (Tr. 19.) The ALJ also cited to treatment records demonstrating that Plaintiff “was negative for gait disturbance” and his “pain and overall function had improved.” (Id.) The ALJ highlighted that “[t]here is no evidence of additional treatment for [Plaintiff's] low back pain” and that during a consultative examination in January 2019, the examiner observed that Plaintiff had “no difficulties transferring between sitting and standing, ” “no pain or muscle spasm on palpation throughout his back, ” “had full strength throughout lower extremities[, ] sensation was intact” and finally, “the consultative examiner noted that the exam was relatively benign and that he would not expect [Plaintiff's] pain to be more than mild at baseline.” (Id.)
Plaintiff argues that “the objective medical evidence supports Plaintiff's allegations” and claims that the ALJ's failure to mention “Plaintiff's radiographic imaging” on May 11, 2016- which showed “disc bulging, ” “stenosis, ” and “cord flattening”-amounted to the ALJ ignoring evidence contradicting his findings. (Pl.'s Br. at 16, citing Tr. 301-02.) However, the records Plaintiff cites pre-dates the alleged disability onset date by more than two years. See Burkett v. Berryhill, 732 Fed.Appx. 547, 553 (9th Cir. 2018) (“An ALJ is not required to discuss evidence that is not significant or probative . . . and evidence relating to [a plaintiff's] symptoms and limitations outside the alleged period of disability does not qualify as significant or probative.”) (citation omitted).
Further, the ALJ cited medical evidence during the alleged period of disability demonstrating that Plaintiff's subjective symptoms were inconsistent with the objective medical evidence, his symptoms were improving, and his physical examinations were normal. (See Tr. 339, January 14, 2019, indicating that Plaintiff's “history regarding pain is somewhat vague[, t]he location is not well described” and “the exam did not corroborate the subjective symptoms”; Tr. 364, June 13, 2019, Plaintiff reports that his chronic back pain “is improving overall”; Tr. 368-69, July 29, 2019, Plaintiff reports he “is pleased with his progress and feels like he is doing well [and has] considerable less neck pain and tightness” and provider notes he “is doing very well and will continue to improve on his own with compliance to good posture and home exercise [and he] has met most of his goals”). In any event, “in interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (affirming the district court's finding that the ALJ “did not selectively analyze the evidence” because “the ALJ was not required to discuss every piece of evidence and the ALJ's decision was supported by substantial evidence”) (simplified).
Substantial evidence also supports the ALJ's finding related to Plaintiff's alleged mental health impairments. The ALJ acknowledged that while Plaintiff “does have mental impairments that are likely to result in some work-related limitations, evidence that these impairments preclude all employment is lacking.” (Tr. 19.) The ALJ noted that there was no evidence that Plaintiff had engaged in any mental health treatment since he filed his disability application, and that “despite the lack of treatment, [Plaintiff] was observed to have primarily normal findings on mental status examinations.” (Id.) The ALJ cited to evidence that “[d]uring medical appointments, [Plaintiff] was alert and oriented with normal mood, affect, and behavior.” (Id.) Further, at a psychological examination in July 2019, Plaintiff reported that he was not receiving any mental health treatment, and the examination results indicated Plaintiff “had depressed mood and mild anxiety [and h]is affect was flat, ” but his “thought content was logical and coherent and he denied hallucinations, delusions, or psychotic experiences.” (Id.) In light of the objective medical evidence reflecting no mental health treatment and primarily normal mental status examinations, substantial evidence supports the ALJ's discounting of Plaintiff's allegations of disabling mental health symptoms as inconsistent with the objective medical evidence.
The Court recognizes that the Ninth Circuit has “criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously underreported and because it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (simplified). However, Plaintiff does not raise this issue as a basis for challenging the ALJ's findings, and there is no evidence in the record that Plaintiff's failure to seek treatment or follow through with treatment recommendations was attributable to his impairments.
In summary, the Court finds that the ALJ did not err by discounting Plaintiff's allegations of disabling physical and mental health impairments in light of his daily activities and medical record evidence.
III. MEDICAL OPINION EVIDENCE
A. Applicable Law
Plaintiff filed his application in July 2018. (Tr. 147.) “For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how an ALJ must evaluate medical opinion evidence.” Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020 WL 6363839, at *6 (D. Or. Oct. 28, 2020) (citation omitted); see also Linda F. v. Saul, No. 20-cv-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020) (“Because [the] plaintiff filed her applications after March 27, 2017, new regulations apply to the ALJ's evaluation of medical opinion evidence.”).
Under the new regulations, the Commissioner will “no longer give any specific evidentiary weight, ” let alone controlling weight, “to any medical opinion.” See Allen O. v. Comm'r of Soc. Sec., No. 3:19-cv-02080-BR, 2020 WL 6505308, at *5 (D. Or. Nov. 5, 2020), aff'd 2021 WL 5906142 (9th Cir. Dec. 14, 2021) (simplified). “Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Woods v. Kijakazi, ___ F.4th ___, 2022 WL 1195334, at *1 (9th Cir. Apr. 22, 2022). “[T]here is not an inherent persuasiveness to evidence from government consultants over a claimant's own medical source(s), or vice versa.” id. at *6 (simplified). “‘The most important factors that the agency considers when evaluating the persuasiveness of medical opinions are ‘supportability' and ‘consistency.'” id. (citing 20 C.F.R. § 404.1520c(a)).
“An ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant's records.” id. (citation omitted). The ALJ does not need to make specific findings regarding these factors. id. However, an ALJ must articulate how persuasive she finds medical opinions from each doctor or other source and explain how she considered the supportability and consistency factors in reaching these findings. id.
B. Analysis
Plaintiff argues that the ALJ erred by failing to provide legally sufficient reasons for declining to adopt portions of the opinions of non-examining state agency consultant Dr. Sergiy Barsukov and consultative examiner Dr. Michelle Whitehead and by failing to incorporate those limitations into Plaintiff's RFC.
1. Dr. Barsukov
In January 2019, Dr. Barsukov opined, as relevant here, that Plaintiff had moderate limitations in the following categories: (1) ability to carry out detailed instructions; (2), ability to maintain attention and concentration for extended periods; (3) ability to complete normal workday and workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and (4) ability to interact appropriately with the general public. (Tr. 75-76.) The ALJ found Dr. Barsukov's opinion “persuasive.” (Tr. 20.)
The ALJ did not assign “great weight” to Dr. Barsukov's opinion, as Plaintiff alleges. (See Pl.'s Br. at 13-14.)
Plaintiff characterizes the ALJ as “rejecting” Dr Barsukov's opinion that Plaintiff had moderate limitations in his ability to complete a normal workday and workweek without interruption from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. (Pl.'s Br. at 13.) The Commissioner responds that, “[c]ontrary to [Plaintiff's] contentions, the ALJ reasonably accounted for Dr. Barsukov's assessed limitations in the [RFC].” (Def.'s Br. at 18.) The Court agrees.
The ALJ summarized Dr. Barsukov's findings related to Plaintiff's limitations, and noted that Dr. Barsukov's “opinion is consistent with the observations of normal mood, affect, and behavior and the lack of mental health treatment.” (Tr. 20.) The ALJ found that Dr. Barsukov's opinion is “consistent with [Plaintiff's] ability to recall three out of three items and the evidence of the claimant's independence in performing his activities of daily living.” (Id.) The ALJ addressed Dr. Barsukov's conclusion regarding Plaintiff's sustained concentration and persistence limitations, and found that although Plaintiff is “unable to carry out complicated or unfamiliar detailed instructions for extended periods consistently . . . [Plaintiff] can consistently maintain [concentration, persistence, and pace] for simple and well-learned detailed tasks for normal two-hour work periods [and] can plan and follow workplace routines and schedules and maintain adequate attendance.” (Id.) Despite not expressly adopting every aspect of Dr. Barsukov's opinion, the ALJ properly accounted for the limitations Dr. Barsukov identified. See Beckett v. Comm'r of Soc. Sec., No. 3:20-cv-01147, 2022 WL 827803, at *6 (M.D. Pa. Mar. 18, 2022) (“The ALJ is not obligated to accept an entire medical opinion verbatim[, r]ather, he may afford significant weight to the portions he deems consistent without adopting the others.”); Rahfeez J. H. v. Comm'r of Soc. Sec., No. 1:20-cv-448-JJM, 2021 WL 4260439, at *2 (W.D.N.Y. Sept. 20, 2021) (“[A]n RFC determination need not perfectly correspond with any of the opinions of medical sources cited in his decision . . . an ALJ is entitled to weigh all of the evidence available to make an RFC finding that [is] consistent with the record as a whole.”) (citation and quotation omitted).
Plaintiff also argues that the RFC's limitation to “simple routine tasks” does not address a moderate limitation in concentration, persistence, and pace, and does not account for moderate limitations in “the ability to complete a normal workday/workweek[.]” (Pl.'s Br. at 14.) However, Ninth Circuit law is clear that “an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)).
In Stubbs-Danielson, the plaintiff claimed that an RFC limiting her to “simple, routine, repetitive sedentary work, requiring no interaction with the public” failed to capture moderate deficiencies in her ability to “to perform at a consistent pace without an unreasonable number and length of rest periods.” id. at 1173. The Ninth Circuit held that the “ALJ translated [the claimant's] condition, including the pace and mental limitations, into the only concrete restrictions available to him . . . [a] restriction to simple tasks” and doing so did not “constitute a rejection of [the psychologist's] opinion.” id. at 1174.
Plaintiff nevertheless argues that here “[a] limitation to ‘simple, routine tasks' does not adequately reflect moderate deficiencies in concentration, persistence, and pace.” (Pl.'s Br. at 12) (relying on Erik F.N. v. Comm'r, Soc. Sec. Admin., No. 1:19-cv-00778-HZ, 2020 WL 4207080, at *2 (D. Or. July 22, 2020)). Plaintiff's reliance on Erik F.N. is misplaced. In Erik F.N., the district court held that an RFC limiting the plaintiff to “simple routine tasks” did not “sufficiently translate” the ALJ's findings of moderate limitations in concentration, persistence, or pace into functional limitations. Erik F.N., 2020 WL 4207080, at *2. However, the district court explained the distinction between that case and the circumstances present in Stubbs-Danielson, by explaining that an “ALJ's assessment that a plaintiff can perform ‘simple tasks' may ‘adequately capture[ ] restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony.'” id. (citing Stubbs-Danielson, 539 F.3d at 1174) (emphasis added). The court noted, “[i]n Stubbs-Danielson, for example, the ALJ relied on medical testimony that the plaintiff retained the ability to perform simple tasks, notwithstanding some evidence that the plaintiff had deficiencies in pace.... Stubbs-Danielson does not apply, however, to cases where the medical evidence establishes that the plaintiff has restrictions in concentration, persistence, or pace that are not captured in the RFC.” id. (citing Stubbs-Danielson, 539 F.3d at 1173-74 and Brink v. Comm'r Soc. Sec. Admin., 343 Fed.Appx. 211, 212 (9th Cir. 2009)).
Here, similar to Stubbs-Danielson, the ALJ went beyond finding that Plaintiff had a moderate limitation in consistency, persistence, and pace, and identified medical record evidence in support of the RFC. Specifically, the ALJ cited Dr. Barsukov's conclusions that despite Plaintiff's moderate limitations in concentration and persistence, he can “consistently maintain [concentration, persistence, and pace] for simple and well-learned detailed tasks for normal [two] hour work periods.” (Tr. 20.) Thus, the RFC's limitation to “simple, routine tasks” adequately captures Dr. Barsukov's opinion on consistency, persistence, and pace, and is supported by the medical evidence. See Stubbs-Danielson, 539 F.3d at 1174 (citing Howard, 255 F.3d at 582); see also Howard, 255 F.3d at 582 (affirming district court's finding that the ALJ did not err because an RFC limiting the plaintiff to “simple, routine, repetitive tasks” adequately captured the state agency consultant's opinion that the plaintiff could “sustain sufficient concentration and attention to perform at least simple, repetitive, and routine cognitive activity without severe restriction of function”). For these reasons, the ALJ did not err in evaluating Dr. Barsukov's opinion.
2. Dr. Whitehead
In July 2019, Dr. Whitehead (a mental health nurse practitioner and Ph.D.) conducted a “Comprehensive Psychodiagnostics Exam” for the purpose of providing an objective evaluation of Plaintiff's mental impairments to Disability Determination Services to assist the determination of whether to award Plaintiff disability benefits. (Tr. 359.) The report detailed Dr. Whitehead's review of Plaintiff's medical records, observations, exam results, and diagnoses. (Id.) Dr. Whitehead noted that Plaintiff's mood was “depressed with mild anxiety” and his “affect was flat.” (Id.) Dr. Whitehead also opined that based on Plaintiff's “clinical presentation, education, and occupational history, his intellectual and cognitive abilities were estimated to be in the low average to borderline range.” (Tr. 361.) Dr. Whitehead noted that during the examination, Plaintiff's “concentration and focus were intermittent [and h]e had adequate persistence and pace.” (Id.) Dr. Whitehead also noted that Plaintiff's “clinical presentation was consistent with a history of depressed mood with anxiety [and that he] is awkward in social situations and has struggled with relationships throughout his adult life.” (Id.) Dr. Whitehead diagnosed Plaintiff with persistent depressive disorder with anxious distress, social anxiety disorder, alcohol use disorder (in full remission), and chronic pain. (Id.)
The ALJ addressed Dr. Whitehead's report in connection with the evaluation of Plaintiff's mental impairments under the “paragraph B” criteria to determine if Plaintiff's mental impairments met or medically equaled a listed impairment at step three. (Tr. 17.) In that section, the ALJ summarized Dr. Whitehead's report:
During the consultative examination, the claimant's concentration and focus were intermittent, but he had adequate persistence and pace. His thought content was logical and coherent and he denied hallucinations, delusions, or psychotic experiences. Additionally, the claimant was alert and oriented during medical appointments. The claimant indicated that he follows written and spoken instructions pretty well and he is able to shop in stores and manage his finances.(Id.) The ALJ did not assign any particular weight to Dr. Whitehead's opinion. (See Tr. 17-18.) Plaintiff argues that the ALJ erred by failing to discuss and assign weight to Dr. Whitehead's opinion at step four, and by “rejecting” Dr. Whitehead's finding that Plaintiff had “intermittent concentration and focus” and “borderline intelligence.” (Pl.'s Br. at 13-15.) The Commissioner responds that under the new regulations, “Dr. Whitehead's opinion does not qualify as a medical opinion that the ALJ was required to evaluate” and “the ALJ appropriately discussed Dr. Whitehead's findings to evaluate the ‘paragraph B' criteria at step three.” (Def.'s Br. at 19.) The Commissioner also argues that even if Dr. Whitehead's report is considered a medical opinion, any error in the ALJ's failure to discuss Dr. Whitehead's report is harmless because Dr. Whitehead “assessed no greater limitations than Dr. Barsukov[.]” (Def.'s Br. at 20.) The Court agrees.
Under the new regulations, a medical opinion is defined as a “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). “[T]he regulations do not expressly require the ALJ to evaluate ‘objective medical evidence' or ‘other medical evidence' under the persuasiveness factors in 20 C.F.R. § 416.920c.” Nancy May J. v. Kijakazi, No. 2:20-cv-00486-CWD, 2022 WL 684372, at *4 (D. Idaho Mar. 8, 2022). “[J]udgments about ‘the nature and severity of [a claimant's] impairments, [ ] medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis' are all considered ‘other medical evidence' under the regulations, not medical opinions because they do not provide perspectives about the claimant's functional limitations and abilities.” id. (citing 20 C.F.R. § 416.913(a)(3)).
The Court finds that Dr. Whitehead's report does not qualify as a medical “opinion” under the new regulations, and therefore the ALJ was not required to evaluate the report under the new regulations' persuasiveness factors. Although Dr. Whitehead's report includes a heading titled “Concentration, Persistence, and Pace, ” the report does not offer any opinion regarding Plaintiff's functional limitations related to work activities. Rather, Dr. Whitehead merely observed that during the examination, Plaintiff's “concentration and focus were intermittent [and h]e had adequate persistence and pace.” (Tr. 361.) Although Dr. Whitehead made medical observations in support of her diagnosis, she did not assign any specific functional limitations or opinions on Plaintiff's ability to work. See Nancy May J., 2022 WL 684372, at *5 (finding a psychologist's report that the claimant had, inter alia, “relative weakness on processing speed, ” “[m]easures of attention span and impulse control fell into the impaired range, ” and “low processing speed, difficulty concentrating or making decisions, paranoid ideation, reality testing impairments, mildly disorganized language and inability to bind anxiety when alone” did not qualify as a “medical opinion” under the new regulations but rather were observations in support of a diagnosis because the report did not describe functional limitations or “address or assign any specific functional limitations or opine regarding [the claimant's] ability to work”); see also Sylvia C. v. Kijakazi, No. CV 21-08-M-KLD, 2022 WL 795808, at *7 (D. Mont. Mar. 16, 2022) (rejecting a plaintiff's arguments that the ALJ failed properly to address treatment notes reflecting her diagnoses because the treatment notes “d[id] not contain any opinions regarding [p]laintiff's functional limitations [and] offer no opinion about the severity of [p]laintiff's impairments and do not identify any associated functional limitations, [therefore] they are not medical opinions that the ALJ was required to address in her disability determination”); Eric J.G. v. Saul, No. CV 20-91-M-KLD, 2021 WL 1186972, at *7 (D. Mont. Mar. 30, 2021) (finding an ALJ did not err in failing to consider a provider's treatment notes because “[t]reatment notes must include opinions regarding [p]laintiff's limitations or ability to work to be considered a medical opinion”).
In any event, even if Dr. Whitehead's report qualifies as a medical opinion under the new regulations, any failure by the ALJ to discuss the report in more detail at step four was harmless error. An ALJ's error is harmless if it “was clear from the record that an ALJ's error was inconsequential to the ultimate nondisability determination.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1169 (9th Cir. 2008) (quotations omitted); see also Molina, 674 F.3d at 1115 (holding that courts looks to “the record as a whole to determine whether the error alters the outcome of the case” and that as a general principle, an ALJ's error may be deemed harmless where it is “inconsequential to the ultimate nondisability determination”).
Here, the only limitations in Dr. Whitehead's report that Plaintiff argues the ALJ should have included in the RFC-that Plaintiff had intermittent concentration and focus and “low average to borderline” intelligence-are no more severe than those observed by Dr. Barsukov. The ALJ noted Plaintiff's intermittent concentration and focus when she determined that Plaintiff had moderate limitations in concentration, persistence, and pace. (See Tr. 17.) As explained above, these limitations were adequately captured in the ALJ's RFC. Further, Dr. Whitehead's opinion that Plaintiff had “low average to borderline” intelligence was also adequately addressed by the RFC's limitation to simple and routine tasks. See Howard, 255 F.3d at 582 (“We find that describing [the plaintiff] as capable of doing simple work adequately accounts for the finding of borderline intellectual functioning.”); see also Vasquez v. Astrue, No. CV 08-5305-OP, 2009 WL 3672519, at *2 (C.D. Cal. Oct. 30, 2009) (“[A]n ALJ is permitted to translate a conclusion that plaintiff has borderline intellectual functioning into the ‘concrete restrictions' set out by the examining psychologist, such as a restriction to only simple work.”) (citing Stubbs-Danielson, 539 F.3d at 1174); Isaac v. Astrue, No. CIV S-07-0442 GGH, 2008 WL 2875879, at *4 (E.D. Cal. July 24, 2008) (“In regard to the ALJ's failure to include plaintiff's borderline IQ in the hypothetical [posed to the VE], by limiting plaintiff to simple unskilled work in his hypothetical to the expert, the ALJ “captured the practical consequences of [the plaintiff's] low average to borderline intellectual functioning.”).
In summary, the Court finds that the ALJ did not err in evaluating the medical evidence, and translated into the RFC all of Plaintiff's limitations that were supported by substantial evidence. See Diane M. v. Comm'r of Soc. Sec., No. 3:17-cv-01971-BR, 2018 WL 6440889, at *8 (D. Or. Dec. 6, 2018) (“[T]he Court concludes the ALJ did not err when he assessed Plaintiff's RFC and he accounted for all credible limitations in his assessment.”).
CONCLUSION
Based on these reasons, the Court recommends that the district judge AFFIRM the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence in the record.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.