Opinion
CV-21-01393-PHX-SPL (JZB)
11-17-2022
Natalie Lucinda Wilmot, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Plaintiff Natalie Lucinda Wilmot seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied her disability insurance benefits and supplemental security income under sections 216(i) and 223(d) of the Social Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based on legal error, the Court will recommend that the Commissioner's decision be affirmed.
I. Background.
On July 11, 2017, Plaintiff applied for disability insurance benefits and supplemental security income, alleging disability beginning October 12, 2016. (AR 13.) On November 9, 2020, she appeared with her attorney and testified at a telephonic hearing before the ALJ. (Id.) A vocational expert also testified. (Id.) On November 20, 2020, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the Social Security Act. (Id. at 10.) The Appeals Council denied Plaintiff's request for review of the hearing decision, making the ALJ's decision the Commissioner's final decision. (Id. at 1.) Plaintiff then commenced this action for judicial review (doc. 1), and the parties briefed the issues after receipt of the certified administrative transcript. (Docs. 19, 23, 24, 25.) II. Legal Standard.
The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).
Harmless error principles apply in the Social Security Act context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate non-disability determination. Id. The claimant usually bears the burden of showing that an error is harmful. Id. at 1111.
The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
III. The ALJ's Five-Step Evaluation Process.
To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
Here, at step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2021, and that she has not engaged in substantial gainful activity since October 12, 2016. (AR 15.) At step two, the ALJ found that Plaintiff has the following severe impairments: post-traumatic stress disorder (PTSD) with dissociative features; bipolar disorder; anxiety disorder; major depressive disorder; degenerative disc disorder; cervical and lumbar spine; and fibromyalgia (20 CFR 404.1520(c)). (Id.) At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 16.) At step four, the ALJ found that Plaintiff has the RFC to perform:
light work as defined in 20 CFR 404.1567(b) except she can lift or carry up to 20 pounds occasionally; can lift or carry up to 10 pounds frequently; can stand or walk for a total of about six hours in an eight hour workday with normal breaks, can sit for a total of about six hours in an eight hour workday with normal breaks. She must work in an environment with no more than occasional exposure to hazards like dangerous moving machinery and unprotected heights. Due to her mental health, pain, medication side effects and other symptoms and limitations, she retains the ability to understand, remember, and apply information and maintain her concentration, persistence or pace regarding two to three step instructions in an environment where she only has occasional contact with the general public.(Id. at 19.)
The ALJ further found that Plaintiff is unable to perform any of her past relevant work. (Id. at 28.) At step five, the ALJ concluded that, “considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can could perform. (20 CFR 404.1569 and 404.1569(a)).” (Id. at 30.)
IV. Analysis.
Plaintiff argues the ALJ's decision is defective for two reasons: (1) the ALJ failed to properly weigh her reported symptoms, and (2) the ALJ erred in relying on the opinions from the nonexamining state agency physicians. (Doc. 23 at 1.) The Court will address each argument below.
A. The ALJ Did Not Err in Evaluating Plaintiff's Credibility.
Plaintiff contends the ALJ “committed materially harmful error by rejecting Plaintiff's symptom testimony in the absence of specific, clear, and convincing reasons supported by substantial evidence in this record as a whole.” (Doc. 23 at 12.) The Court addresses the ALJ's treatment of Plaintiff's symptom testimony below.
1. Arguments.
At the hearing, Plaintiff testified that she was the victim of an assault in 2008, which makes her anxious and fearful of seeing the perpetrator again. (AR 55-56.) She isolates herself in her home and her anxiety causes her to “fear leaving the house every day.” (Id. at 56, 61.) She testified that her daughter and boyfriend help pick up her medications, drive her to medical appointments, and do most of the things she can't do around the home. (Id. at 57.) She testified that she has pain radiating down her arm and experiences frequent migraines at a minimum of two times a week. (Id. at 57-58.) She also testified she has “chronic pain in the cervical spine area and in the lower back.” (Id. at 59.) She testified that her fibromyalgia pain “varies in intensity, but it's always there.” (Id. at 60.) Finally, she testified she can stand and sit for only 30 minutes at a time. (Id. at 60-61.)
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (Id. at 20.) However, the ALJ determined that Plaintiff's statements regarding the intensity, persistence, and limiting effects of the symptoms not credible to the extent they are inconsistent with the ALJ's residual functional capacity assessment (Id.) In other words, the ALJ found Plaintiff's statements not credible to the extent she claims she is unable to perform in a competitive work environment.
The ALJ provided four reasons for discounting Plaintiff's testimony: (1) Plaintiff's daily activities are inconsistent with her reported symptoms (id. at 20); (2) Plaintiff failed to follow prescribed medical treatment (id. at 21); (3) Plaintiff's degenerative disc disorder medical records show improvement in neck and back pain over time and Plaintiff's fibromyalgia is “past medical history” pursuant to a July 2018 medical visit (id. at 21-23); and (4) Plaintiff's anxiety, depression, and other mental symptom testimony is contradicted by routinely stable mental status exam reports (id. at 20-21).
2. Legal Standard.
In evaluating the credibility of a claimant's testimony regarding subjective pain or other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce some degree of the pain or other symptoms alleged; and, if so with no evidence of malingering, (2) reject the claimant's testimony about the severity of the symptoms only by giving specific, clear, and convincing reasons for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (citing Moore v. Comm'r Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). The Court will discuss each issue in turn.
3. Daily Activities.
First, the ALJ discredited Plaintiff's symptom testimony based on her activities of daily living. “In evaluating the claimant's testimony.. .the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).
The ALJ provided that Claimant's daily activities were inconsistent with her symptom testimony for the following reasons:
The claimant's daily activities included socializing with friends. The claimant's progress notes indicated she was continuing with counseling but had the opportunity to have lunch with two different friends over the last few days (12F/43). The claimant also traveled to Florida for vacation with her daughter and a friend (4F/7). The claimant also was actively looking for job opportunities. The claimant was interested in finding a job (5F/10). The claimant also has applied to several job opportunities (12F/43). Further, the claimant is able to prepare her own meals, is able to manager her own finances, do household chores, go outside alone, and drive a car (10E/3-5). These daily activities are specifically inconsistent with the claimant's subjective complaints about depression and anxiety causing the claimant difficulties with interacting with others.(AR 20.)
Plaintiff argues that the ALJ erred by failing to show that a “substantial part of a typical day was spent performing activities inconsistent with disabling limitations,” by failing to “demonstrate that any particular activity was at odds with the severity of Wilmot's reported symptoms,” and by ignoring the daily assistance she received. (Doc. 23 at 17-20.) The Commissioner argues the ALJ properly considered Plaintiff's daily activities as one of the many factors establishing inconsistencies with her symptom testimony (Doc. 24 at 10-12.) Plaintiff responds that the Commissioner fails to defend the ALJ and reiterates that the ALJ erred. (Doc. 25 at 7.)
The Court finds that Plaintiff's daily activities are not a clear and convincing reason supported by substantial evidence for discrediting Plaintiff's testimony. While an ALJ may discredit a claimant's allegations if a claimant has “engaged in numerous daily activities involving skills that could be transferred to the workplace,” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), “the mere fact that a Plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001). The ALJ has not cited anything in the record indicating that a substantial part of a typical day was spent engaging in activities inconsistent with disabling limitations. (See AR 20.)
However, even though the ALJ erred in assessing Plaintiff's daily activities to discredit her symptom testimony, for reasons discussed below, that error is harmless and the ALJ's decision will still be upheld. See Molina, 674 F.3d at 1115 (An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate non-disability determination.).
4. Failure to Comply with Course of Treatment.
Second, the ALJ found Plaintiff's symptom testimony less credible based upon her failure to take her prescribed medication. Specifically, the ALJ stated:
The undersigned finds that the claimant's failure to follow prescribed treatment that might improve symptoms is inconsistent with the claimant's statements regarding the alleged intensity, persistence, and limited effects of symptoms. The claimant complained of anxiety and depression. The claimant, however, failed to comply with treatment in a manner consistent with the alleged complaints. For example, the claimant stopped psychotropic medication for three weeks in April of 2017 but went back on psychotropic medications when mental symptoms returned. This indicates that the alleged intensity and persistence of the claimant's symptoms are inconsistent with the overall evidence of record. Further, nowhere in the record does claimant offer a sufficient explanation for not complying with the prescribed treatment. Although failure to follow prescribed treatment without good reason can be the sole basis for finding that the claimant is not disabled under some circumstances, it is not the sole basis for the decision in this case.(AR 21; See also AR 525.)
The ALJ may consider Plaintiff's “failure to seek treatment or to follow a prescribed course of treatment” in discrediting her symptom testimony. Molina, 674 F.3d at 1112 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)); Conant v. Kijakazi, 2021 WL 3422762 (9th Cir. 2021) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)) (“explaining that ‘an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment' may be a sufficient reason to discredit a claimant's symptom testimony”); Hultman v. Comm'r of Soc. Sec. Admin., 2022 WL 2045390, at *9 (D. Ariz. June 7, 2022) (“Plaintiff's failure to follow prescribed treatment” is a legitimate reason for the ALJ to discredit their symptom testimony).
However, an ALJ “will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” SSR 16-3P (S.S.A. Oct. 25, 2017). An ALJ “may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints.” Id. See also, Desiderio v. Comm'r of Soc. Sec. Admin., No. CV-17-04058-PHX-BSB, 2019 WL 549458, at *10 (D. Ariz. Feb. 12, 2019) (finding that a one-year gap in treatment was insufficient to justify an ALJ discounting a plaintiff's symptom testimony where the ALJ did not inquire about the gaps or inconsistencies at the hearing, and cited to no evidence in the record that may explain the gaps).
Here, the Court finds the ALJ's reliance on a single three-week gap in medication to be an insufficient reason for discounting the whole of Plaintiff's symptom testimony. Like the ALJ in Desiderio, who did not inquire about treatment gaps during the hearing or cite to evidence in the record that may explain the gaps, the ALJ in this matter provided no context to Plaintiff's three-week medication break. (See AR 21.) Nor did the ALJ ask Plaintiff questions about the isolated gap in treatment during the administrative hearing, as is recommended by the regulations. (See AR 40-72.) What is more, review of the source record cited by the ALJ shows that Plaintiff stopped taking her anti-anxiety medication for three weeks in April 2017 while vacationing in Florida. (See AR 525.) Upon returning home, she resumed taking her medication as a PRN. (Id.) Such an explanation for the single treatment gap identified by the ALJ after review of more than four years of treatment records is plainly reasonable.
Accordingly, the Court finds that the ALJ's second reason for discounting Plaintiff's symptom testimony is insufficient and constitutes legal error. However, for reasons discussed below in subsections 5 and 6, that error is harmless and the ALJ's decision will still be upheld. See Molina, 674 F.3d at 1115 (An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate non-disability determination.).
5. Degenerative Disc Disease and Fibromyalgia.
The ALJ's third reason for discounting Plaintiff's subjective symptom testimony is that her testimony is not consistent with the objective medical findings in the record. (AR 21.) The ALJ noted that although the Plaintiff reported neck and back pain, her “complaints of pain were controlled with medication or had subsided.” (Id. at 23.) For example, in November of 2016, the Plaintiff had a normal back exam and a normal gait. (Id. at 21, 502.) In March of 2017, claimant's neck pain was reduced. (Id. at 22, 579.) In June 2017, claimant's neck and back pain was “stable and not getting worse.” (Id. at 22, 564.) In August of 2017, Plaintiff reported low back pain. (Id. at 22, 555.) In September of 2018, Plaintiff had “normal range of motion and muscle strength.” (Id. at 22, 777.) In June of 2019, Plaintiff “treated her condition with stretching, ice, and heat and no pain medication.” (Id. at 22, 829.) In March of 2020, Plaintiff reported that she had less back and neck pain. (Id. at 23, 853.) As it pertains to fibromyalgia, in July of 2018, it was classified as “past medical history.” (Id. at 23, 781.)
Plaintiff argues that the ALJ improperly evaluated an October 2020 MRI of her cervical spine. (Doc. 23 at 16.) Specifically, in assessing the MRI, Dr. Patel indicated that Plaintiff had a “probable compression of the existing nerve root.” (AR 23, 1112.) The ALJ addressed the MRI in arguing that “[t]he claimant's clinical complaints and findings did not correlate with the compression of the existing nerve root, as discussed above, because the claimant's complaints of pain were controlled with medication or had subsided.” (Id. at 23.) The Commissioner argues the ALJ properly examined the medical evidence that showed neck and back pain had stabilized, demonstrating inconsistency with Plaintiff's symptom testimony. (Doc. 24 at 9.) Plaintiff responds that the Commissioner fails to address Plaintiff's argument that the ALJ failed to explain what evidence “only partially supported the claimant's statements” and “the ALJ relied on expertise she did not possess to interpret MRI findings.” (Doc. 25 at 5.) Plaintiff also argues it was improper for the ALJ to consider that Plaintiff “treated her condition with stretching, ice, heat and no pain medication” because “she was unable to take narcotic pain medications because of interactions with certain prescribed psychotropic medications.” (Doc. 25 at 7.)
The Court finds that the ALJ provided clear and convincing reasons for rejecting Plaintiff's symptom testimony. In her decision, the ALJ cited numerous medical records establishing that Plaintiff's neck and back pain had improved or stabilized over time. (See AR 21-23.) At the very least, there was a rational basis for the ALJ to conclude that the MRI is alone insufficient to credit plaintiff's physical symptom testimony in light of the significant volume of other objective medical evidence contradicting her testimony.
It was also proper for the ALJ to consider that Plaintiff did not treat her physical conditions with pain medications. Although Plaintiff alleges she would have taken her pain medication if it didn't interact with her psychotropic medications, the ALJ previously established that Plaintiff was not taking her psychotropic medications consistently (AR 21, 525.) The ALJ may give less weight to Plaintiff's symptom testimony based on inconsistencies with clinical findings and objective medical evidence. Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective symptom testimony.”).
To be sure, Plaintiff identifies various reasons why a different factfinder might have been able to reconcile this evidence with her symptom testimony; however, the ALJ's finding of inconsistency was rational and, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation omitted).
6. Mental Disorders.
Fourth, the ALJ determined that the mental health evidence in the record regarding Plaintiff's PTSD with dissociative features; bipolar disorder; anxiety disorder; and major depressive disorder support discrediting Plaintiff's symptom testimony. (AR 23.) For example, in September of 2016, Plaintiff's mental status exam provided that she “had no depression, anxiety, or agitation.” (Id. at 24, 599.) In March of 2017, Plaintiff's PTSD symptoms had stabilized. (Id. at 24, 579.) In April of 2017, the Plaintiff's mental status exam found her to have “intact judgment and insight.” (Id. at 24, 576.) Although the Plaintiff complained of depression in July 2018 (Id. at 24, 781.), in September of 2018, Plaintiff's mental status exam “found no depression, anxiety, or agitation.” (Id. at 24, 777.) Although Plaintiff presented with anxiety and depression in March and July of 2020, in her July 2020 visit, Plaintiff was found to be “polite and generally cooperative.” (Id. at 24-25, 850, 951.) She was “logical and linear in her thought process” and “denied suicidal or homicidal ideation.” (Id. at 25, 951.) She also presented with “goal and future oriented thought content.” (Id.)
Plaintiff argues that “some of the ALJ's cited treatment records were for virtual visits due to COVID-19, where formal mental status examinations were not performed.” (Doc. 23 at 15.) Additionally, Plaintiff posits that the ALJ failed to explain how some positive findings outweighed negative findings in the record. (Id.) However, the only virtual visit that Plaintiff cites is the March 2020 visit, where the ALJ simply acknowledged that Plaintiff presented with anxiety and made no further determination. (AR 24-25.) Overall, the ALJ addressed numerous medical records indicating that Plaintiff presented with no or limited mental limitations in direct contrast to her symptom testimony. (Id.)
Accordingly, the Court concludes that the ALJ provided clear and convincing reasons for rejecting Plaintiff's symptom testimony. The ALJ cited numerous medical records establishing that Plaintiff's mental status exams contradicted her symptom testimony. Conversely, Plaintiff did not cite to any medical records that the ALJ did not take into consideration. (See Doc. 23 at 15.) The only record Plaintiff cites in support of her position are medical records from July 2020, wherein Plaintiff was found to exhibit “psychomotor retardation and agitation.” (Id.; AR 951.) But the ALJ acknowledged that record in her decision. (See AR 21.) Specifically, the ALJ noted that the same record found Plaintiff was “logical and linear. . . denied suicidal or homicidal ideation. . . [and] [h]er attention, concentration, and memory was grossly intact.” (AR 21, 951.) The ALJ may give less weight to Plaintiff's symptom testimony based on inconsistencies with clinical findings and objective medical evidence. Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective symptom testimony.”).
Again, although Plaintiff identifies various reasons why a different factfinder might have been able to reconcile this evidence with her symptom testimony, the ALJ's finding of inconsistency was rational and, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas, 278 F.3d at 954.
B. The ALJ did not err in granting the opinions of Dr. Kocina and Dr. Fowler persuasive weight.
Next, Plaintiff argues that the ALJ improperly granted persuasive weight to the medical opinions of nonexamining state agency physicians, Drs. Fowler and Kocina. These physicians found “the claimant can perform light work, and needs to avoid even moderate exposure to hazards.” (AR 25, 80-81, 95-96.) The Court will address the ALJ's treatment of each opinion below.
1. Legal Standard.
Because Plaintiff applied for disability benefits after March 27, 2017, the new set of SSA regulations for evaluating evidence from medical providers applies to this case. See 20 C.F.R. § 416.902c. These regulations, which eliminate the previous hierarchy of medical opinions, provide in relevant part as follows:
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources... The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.20 C.F.R. § 416.920c.
Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security Administration's regulations displace our longstanding case law requiring an ALJ to provide ‘specific and legitimate' reasons for rejecting an examining doctor's opinion.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of medical opinions-in which we assign presumptive weight based on the extent of the doctor's relationship with the claimant-no longer applies. Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must articulate . . . how persuasive it finds all of the medical opinions from each doctor or other source and explain how it considered the supportability and consistency factors in reaching these findings.” Id. at 792 (cleaned up).
2. Crediting Non-Examining Physicians.
Plaintiff argues that the ALJ committed legal error by according Dr. Fowler and Dr. Kocina's opinions persuasive weight because they are non-examining physicians. (Doc. 23 at 20-21.) Plaintiff's argument is without merit.
The record does not indicate that the ALJ relied on the opinions of Drs. Fowler and Kocina in determining to discount Plaintiff's symptom testimony. But even if she had, Plaintiff acknowledges that those medical opinions “stand alone as the medical evaluation of the evidence.” (Doc. 23 at 21.) Plaintiff's only argument against the ALJ's purported reliance on the state agency reviewers' opinions is that those opinions “were given in October 2017 and July 2018, over two years before the November 2020 hearing,” and “there is no justification to use those opinions to discount the limitations in Wilmot's symptom testimony and to allow the reviewers' opinions to drive the outcome of this case.” (Id.) But the record does not support Plaintiff's suggestion that the ALJ relied on the state agency reviewers' opinions as the sole, or even primary reason for discounting Plaintiff's symptom testimony. (See AR 25-27.)
Indeed, Plaintiff acknowledges this fact in her brief, conceding that “[t]he ALJ did not explicitly rely upon the opinions of the state agency reviewers as a basis to discount Wilmot's symptom testimony[.]” (Doc. 23 at 20.)
What is more, temporal distance from the administrative hearing is not a sufficient reason to discount “prior administrative medical findings,” such as the state agency reviewers' opinions here, under the new regulations. See Woods, 32 F.4th at 787 (“Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.”). See also 20 C.F.R. § 404.1520c(b)(2) (“The factors of supportability . . . and consistency . . . are the most important factors we consider when we determine how persuasive we find a medical source's medical opinions or prior administrative medical findings to be.”). Here, the ALJ properly found that the state agency reviewers' opinions were persuasive based on the agency's “most important factors” of supportability and consistency. (See AR at 25-28 (noting that the prior administrative medical findings were “supported by the extensive review of the medical evidence, references to specific findings in the record, and well-supported explanations[;]” and explaining that those findings were consistent with evidence from the remaining portions of the medical record.).)
And to the extent Plaintiff contends that absence of treating physician opinion evidence means that it is improper to give the nonexamining state physicians' opinions any weight (see doc. 23 at 20-21.), Plaintiff cites no authority in support of her argument. Therefore, Plaintiff's argument must be rejected.
Because the opinions of Drs. Fowler and Kocina are supported by independent clinical findings in the medical record (see AR 25-27), and are consistent with other evidence in the medical record, their opinions constitute substantial evidence. Thomas, 278 F.3d at 957 (“The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record.”) (citation omitted). Accordingly, the Court concludes that to the extent the ALJ credited the opinions of Dr. Fowler and Dr. Kocina in her decision, the ALJ did not commit legal error. (Id.)
Accordingly, IT IS RECOMMENDED that the final decision of the Commissioner of Social Security be affirmed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.