Keaton v. Kijakazi, No. 2:2022cv01945 - Document 22 (D. Nev. 2023)
Court Description: ORDER denying 18 Motion to Remand to Agency. Case Closed. Signed by Magistrate Judge Elayna J. Youchah on 7/25/2023. (Copies have been distributed pursuant to the NEF - CAH)
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Keaton v. Kijakazi Doc. 22 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 1 of 13 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 CLINTONIA KENDRA KEATON, 5 6 7 8 Case No. 2:22-cv-01945-EJY Plaintiff, ORDER v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. 9 10 Clintonia Kendra Keaton (“Plaintiff”) seeks judicial review of the final decision of the 11 Commissioner of the Social Security Administration (“Commissioner”) terminating the prior finding 12 that Plaintiff was entitled to disability insurance (“DIB”) under Title II of the Social Security Act 13 (the “Act”). ECF No. 18. On April 28, 2023, the Commissioner filed a Cross-Motion to Affirm and 14 Response to Plaintiff’s Motion for Reversal and/or Remand. ECF No. 20. On May 12, 2023, 15 Plaintiff filed her Reply. ECF No. 21. For the reasons stated below, the Commissioner’s decision 16 is affirmed. 17 I. BACKGROUND 18 Plaintiff originally filed an application for Supplemental Social Security Income on 19 December 23, 2009. Administrative Record (“AR”) 261. On August 16, 2010, Plaintiff was found 20 disabled. AR 33. On July 11, 2018, the Commissioner found Plaintiff was no longer disabled. AR 21 284-285. On December 26, 2018, Plaintiff submitted a formal request for reconsideration. AR 287. 22 On January 31, 2020, the Commissioner affirmed the denial of benefits. AR 301-303. Plaintiff 23 subsequently requested a hearing before an Administrative Law Judge (“ALJ”) on March 13, 2020. 24 AR 315. The ALJ held a hearing on June 2, 2021 (AR 241-260), but mainly took testimony at a 25 separate hearing on September 1, 2021 (AR 207-240). On October 8, 2021, the ALJ issued a 26 decision finding Plaintiff’s disability ended on July 1, 2018, and Plaintiff had not been disabled since 27 that date. AR 30-45. Plaintiff requested review of the ALJ’s decision (AR 382-385) that was denied 28 1 Dockets.Justia.com Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 2 of 13 1 by the Appeals Council on August 30, 2022. AR 1-6. Plaintiff now seeks judicial review of the 2 Commissioner’s decision pursuant to 42 U.S.C. § 405(g). II. 3 STANDARD OF REVIEW 4 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 5 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 6 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 7 Substantial evidence is “more than a mere scintilla.” More than a scintilla of evidence means “such 8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ford v. 9 Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Biestek v. Berryhill, -- U.S. --, 139 S.Ct. 1148, 10 1154 (2019)). In reviewing the Commissioner’s alleged errors, the Court must weigh “both the 11 evidence that supports and detracts from the [Commissioner’s] conclusion.” Martinez v. Heckler, 12 807 F.2d 771, 772 (9th Cir. 1986) (internal citations omitted). 13 “When the evidence before the ALJ is subject to more than one rational interpretation, … 14 [the court] must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 15 53 F.3d 1035, 1041 (9th Cir. 1995). However, a reviewing court “cannot affirm the decision of an 16 agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. 17 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). And, a court may not 18 reverse an ALJ’s decision based on a harmless error. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 19 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful normally falls 20 upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). III. 21 22 A. DISCUSSION Terminating Disability Under the Act. 23 An ALJ’s decision to terminate disability benefits will be upheld if it is supported by 24 substantial evidence in the record and the correct legal standards were applied. Stout, 454 F.3d at 25 1052. At the core of an ALJ’s analysis is whether there has been a medical improvement in a 26 claimant’s condition that changes the calculus of that claimant’s Residual Functional Capacity 27 (“RFC”) and, by extension, his or her ability to work. Nathan v. Colvin, 551 Fed.Appx. 404, 407 28 (9th Cir. 2014); see also Vargas v. Kijakazi, Case No. 2:20-cv-01570-JDP (SS), 2023 WL 2655811, 2 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 3 of 13 1 at *1 (E.D. Cal. Mar. 27, 2023). Once a claimant is found to be disabled, there is a multi-step 2 evaluation process used by the Commissioner to determine whether a claimant’s disability has 3 ended. 20 C.F.R. § 416.994(b)(5). 4 The seven steps consider: 5 Step 1. Does the claimant have an impairment or combination of impairments that meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If so, the claimant’s disability continues. If not, the analysis proceeds to step two. See 20 C.F.R. § 416.994(b)(5)(i). 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Step 2. Has there been medical improvement in the claimant’s condition? If medical improvement has occurred, the analysis moves to Step 3. If there has been no medical improvement, the analysis moves to Step 4. See 20 CFR § 416.994(b)(5)(ii). Step 3. Is the claimant’s medical improvement related to the claimant’s ability to work—that is, whether there has been an increase in the claimant’s RFC? If so, the analysis proceeds to Step 5. See 20 C.F.R. § 416.994(b)(5)(iii). Step 4. If there has been no medical improvement, does an exception to medical improvement apply? There are two groups of exceptions (20 C.F.R. §§ 416.994(b)(3) and (b)(4)). If one of the first group exceptions applies, the analysis proceeds to the next step. If one of the second group exceptions applies, the claimant’s disability ends. If none apply, the claimant’s disability continues. See 20 C.F.R. § 416.994(b)(5)(iv). Step 5. Are all the claimant’s current impairments in combination severe? If so, the analysis proceeds to the next step. If all current impairments in combination do not significantly limit the claimant’s ability to do basic work activities, the claimant is no longer disabled. See 20 C.F.R. § 416.994(b)(5)(v). Step 6. After assessing the claimant’s RFC, the ALJ must determine whether the claimant can perform past relevant work. If so, the claimant’s disability ends. If not, the analysis proceeds to the last step. See 20 C.F.R. § 416.994(b)(5)(vi). Step 7. Does other work exist in the national economy that the claimant can perform, given the claimant’s RFC and considering age, education, and past work experience? If the claimant can perform other work, she is no longer disabled. If the claimant cannot perform other work, the disability determination continues. In order to support a finding that an individual is not disabled at this step, the ALJ is responsible for providing evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can do, given the claimant’s RFC, age, education, and work experience. See 20 C.F.R. § 416.994(b)(5)(vii). 26 At step one, the ALJ found that since July 1, 2018, Plaintiff did not have an impairment or 27 combination of impairments that meets or medically equals the severity of an impairment listed in 28 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). AR 3 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 4 of 13 1 35. At step two, the ALJ found Plaintiff’s medical improvement occurred on July 1, 2018. AR 37. 2 At step three, the ALJ found Plaintiff’s medical improvement to be related to her ability to work 3 because by July 1, 2018, Plaintiff’s impairments from her initial disability determination no longer 4 met or medically equaled the same listing that was met at the time of the initial determination. AR 5 37. After bypassing step four, the ALJ found at step five that since July 1, 2018, Plaintiff has 6 continued to have a severe impairment or combination of impairments that cause more than a 7 minimal limitation in Plaintiff’s ability to perform basic work activities. AR 37. 8 In preparation for step six, the ALJ determined the following: 9 Since July 1, 2018, based on the current impairments, the claimant has had the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except she is able to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an eight hour workday; sit six or more hours in an eight hour workday; frequently climb ramps and stairs but never climb ladders, ropes and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; tolerate occasional concentrated exposure to respiratory irritants, such as dust, odors, gasses, and fumes; tolerate occasional concentrated exposure to vibration; understand, remember, and carry out simple and routine work related instructions, and concentrate for periods of two hours on work related tasks before requiring a break; perform non-production pace/nonassembly line pace jobs with occasional workplace changes introduced gradually over time, occasional decision-making, and no responsibility for the safety of others; can interact occasionally with the general public, coworkers, and supervisors; and occasionally requires the use of a cane to ambulate to and from, and move about the work space. 10 11 12 13 14 15 16 17 AR 37-38. 18 Relying upon the testimony of the Vocational Expert (“VE”), the ALJ concluded that since 19 July 1, 2018, Plaintiff has been unable to perform her past relevant work as a cashier/stocker or a 20 school bus driver. AR 43. At step seven, in reliance on Plaintiff’s age, education level, work 21 experience, and the VE’s testimony, the ALJ found Plaintiff capable of making a successful 22 adjustment to work that exist in significant numbers in the national economy as an addressor, taper, 23 or final assembler. AR 44-45. Therefore, the ALJ determined Plaintiff’s disability ended on July 1, 24 2018, and Plaintiff has not become disabled again since that date. AR 45. 25 B. Plaintiff’s Arguments. 26 Plaintiff first contends the ALJ failed to properly evaluate the opinion of Kristy Muir, a nurse 27 practitioner in psychiatry. ECF No. 18 at 7. In a one-page November 25, 2019 letter, Nurse Muir 28 stated Plaintiff has the following diagnoses: major depression, general anxiety disorder, and panic 4 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 5 of 13 1 disorder. Id. citing AR 753. Nurse Muir also concluded that since these were chronic disorders, 2 Plaintiff was unable to work. Id. citing id. In progress notes Nurse Muir indicated that because 3 Plaintiff had poor cognition, coping skills, and concentration, Plaintiff could not function well 4 enough to maintain employment. Id. citing AR 787, 789, 791. 5 Plaintiff argues the ALJ committed legal error because he applied the wrong set of 6 regulations when analyzing Nurse Muir’s opinion. Id. at 7-8. Plaintiff asserts since this case was 7 filed before March 27, 2017, the ALJ should have conducted his analysis under 20 C.F.R. § 416.927 8 (the “pre-March 2017 regulations”) and not 20 C.F.R. § 416.920c (the “post March 2017 9 regulations”). Id. at 8. Because the pre-March 2017 regulations were controlling, Plaintiff says the 10 ALJ could not summarily disregard a medical opinion where the medical source attested to a 11 patient’s disability or inability to work. Id. Plaintiff also argues that even if the post March 2017 12 regulations were applied, the ALJ failed to address the conflict between his findings that Plaintiff 13 had moderate limitations in various aspects of her mental health and Nurse Muir’s opinion that 14 Plaintiff had poor cognition, coping, and concentration skills. Id. at 9-10 citing AR 791. 15 Plaintiff next argues that in addition to failing to apply the correct legal standards to Nurse 16 Muir’s opinion, the ALJ applied the wrong regulations to other medical opinions in the record. Id. 17 at 10. Plaintiff contends the ALJ did not evaluate the medical opinions under the pre-March 2017 18 hierarchical system, but instead evaluated them on the bases of consistency and supportability. Id. 19 at 11-12. Finally, Plaintiff argues the ALJ should have considered whether Nurse Muir’s opinion, 20 which attests directly to Plaintiff’s disability, is entitled to the greatest weight among all opinion 21 evidence considering her longstanding relationship with Plaintiff. Id. at 12. 22 C. The Commissioner’s Response. 23 The Commissioner states the ALJ reasonably considered the statement made by Nurse Muir 24 as well as all other opinions in the medical record. ECF No. 20 at 3. The Commissioner argues that 25 even if Plaintiff is correct in her assertion that the ALJ applied the wrong set of Social Security 26 regulations in his analysis, Plaintiff cannot show the error resulted in any harm. 27 Commissioner argues the applicable regulations to direct statements concerning disability used prior 28 to March 2017 required that such statements not be given “any special significance.” Id. citing 20 5 Id. The Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 6 of 13 1 C.F.R. § 416.920b(c)(3). Therefore, according to the Commissioner, regardless of which legal 2 standard the ALJ employed, the final result that Nurse Muir’s opinion did not factor into his analysis 3 of Plaintiff’s case was not impacted. Id. Because Nurse Muir did not explain what limitations 4 flowed from her findings of Plaintiff’s mental impairments, the Commissioner says the ALJ was 5 correct in not devoting significant time to discussing Muir’s medical conclusions. Id. at 4. 6 Regarding the analysis of other medical opinions in the record, the Commissioner accuses 7 Plaintiff of not carrying her burden by failing to explain how the ALJ’s decision would have been 8 different in any substantive way had the ALJ applied the former regulations versus the current one. 9 Id. Because supportability and consistency were among the factors used to evaluate pre-March 2017 10 medical opinions, the ALJ argues he was within his legal authority to include them in his analysis 11 here. Id. citing 20 C.F.R. § 416.920c(3)-(4). 12 D. Summary of the ALJ’s Decision. 13 The ALJ identified Plaintiff’s depression, PTSD, anxiety, bipolar disorder, asthma, obesity, 14 and degenerative disc disease as medically determinable impairments. AR 35. However, the ALJ 15 found none of these impairments, singularly or in combination, met or equaled the severity of one 16 of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Id. The ALJ found Plaintiff’s 17 mental impairments did not satisfy the criteria set forth in the Social Security regulations governing 18 mental impairments and whether they are to be deemed severe. AR 36-37. The ALJ found that by 19 July 1, 2018, there was medical improvement in Plaintiff’s psychological impairments with only 20 moderate limitations and most examinations revealing normal memory, good judgment and insight, 21 the ability to complete serial threes, good grooming, and normal moods and affects. AR 37 citing 22 AR 698-699, 719, 793, 797-798, 807-808. The ALJ concluded Plaintiff’s medical improvement 23 meant that the impairments Plaintiff had when originally determined to be disabled no longer met 24 or medically equaled the same listing. Id. After crafting Plaintiff’s RFC, the ALJ discussed the 25 severity of the symptoms of Plaintiff’s medical impairments and how the ALJ evaluated Plaintiff’s 26 testimony. AR 37-40. 27 The ALJ next discussed the medical opinions and prior administrative medical filings in the 28 record. AR 40. The ALJ first discussed the findings of non-examining state agency consultant Ana 6 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 7 of 13 1 Olivares who opined that Plaintiff had moderate limitations in interacting with others, concentrating, 2 maintaining pace, and managing herself. Id. citing AR 744, 748-751. Dr. Olivares concluded 3 Plaintiff could frequently interact with supervisors, occasionally interact with coworkers and the 4 public, could adapt and adjust to standard workplace changes of an unskilled work environment, and 5 could avoid common hazards. Id. citing AR 748-751. The ALJ found this portion of Dr. Olivares’ 6 opinion persuasive as it was consistent with and supported by other evidence in the record 7 (specifically records from Nurse Muir), but further concluded additional restrictions were necessary 8 given Plaintiff’s testimony about the severity of her symptoms. Id. However, the ALJ found 9 unpersuasive the portion of Dr. Olivares’ opinion that Plaintiff had no to mild limitations in 10 understanding, remembering, and applying information. Id. citing AR 748-749. 11 The ALJ next reviewed the findings of non-examining state agency consultant Adrianne 12 Gallucci who opined that Plaintiff had only mild limitations in understanding, remembering, 13 applying information, interacting with others, concentrating, persisting, maintaining pace, and 14 adapting or managing herself. AR 41 citing AR 270. The ALJ found Dr. Gallucci’s opinions to be 15 unpersuasive because her proposed limitations were inconsistent with Plaintiff’s self-report and 16 objective evidence in the record indicating poor recognition, coping, and concentration. Id. citing 17 AR 454, 787, 789, 791. 18 Next, the ALJ discussed the opinion of consultative examiner Mark Short. Id. Dr. Short 19 opined that Plaintiff had moderate limitations in interacting and adaptation but no to mild limitations 20 in understanding and concentration. Id. citing AR 702-703. The ALJ found the portion of Dr. 21 Short’s opinion assigning moderate limitations to Plaintiff’s ability to interact and adapt to be 22 persuasive as such limitations were consistent with and supported by evidence in the record, 23 Plaintiff’s self-reporting, and the opinion of Dr. Olivares. Id. citing AR 454-455, 744, 787, 789, 24 791. However, the ALJ did not find Dr. Short’s opinion that Plaintiff had no to mild limitations in 25 understanding and concentration because these limitations were not consistent with or supported by 26 record evidence or Plaintiff’s self-report. Id. citing 454, 787, 789, 791. 27 The ALJ then reviewed the findings of non-examining state agency consultants Jon Arnow 28 and Navdeep Dhaliwal. AR 41-42. Each doctor opined that Plaintiff would require several physical 7 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 8 of 13 1 restrictions in the workplace. Id. citing AR 272-275, 724-731. Because most of the physical 2 restrictions were supported by medical evidence in the record, the ALJ concluded these findings 3 were mostly persuasive although he determined several additional restrictions were necessary to be 4 added to Plaintiff’s RFC. Id. The ALJ also reviewed the findings of consultative examiner David 5 Mumford who observed Plaintiff and identified several forms of physical restrictions Plaintiff would 6 require in the workplace. AR 42 citing AR 710-711. Because the majority of Dr. Mumford’s 7 proposed restrictions were not supported by the medical record or consistent with the opinions of 8 Drs. Arnow and Dhaliwal, the ALJ found Dr. Mumford’s opinion mostly unpersuasive. Id. 9 The ALJ discussed the findings of medical evaluator Roman Castillo who assigned certain 10 physical restrictions to Plaintiff. Id. citing AR 752. The ALJ deemed a portion of Dr. Castillo’s 11 findings persuasive (Plaintiff’s need for limited interaction) but not others (Plaintiff’s ability to 12 perform light work with limited interaction). AR 42-43. The ALJ found the unpersuasive portion 13 of Dr. Castillo’s opinion not supported by the record and inconsistent with Drs. Arnow and 14 Dhaliwal’s findings. Id. 15 The ALJ reviewed the report of Nurse Muir who concluded that Plaintiff was unable to work 16 and could not function well. AR 43 citing 753, 787, 789, 791. The ALJ found these opinions 17 reserved to the Commissioner, thus rendering them neither persuasive nor valuable. Id. However, 18 the ALJ found persuasive Muir’s opinion, supported by objective evidence in the record, 19 demonstrating poor concentration, memory, and cognitive skills. AR 40-41 citing AR 787, 789, 20 791. 21 The ALJ disregarded the testimony of Plaintiff’s mother, a third party, as neither inherently 22 persuasive nor valuable. Id. The ALJ found the medical opinions from before the relevant time 23 period as unpersuasive because they were not supported by evidence during the period at issue. Id. 24 citing AR 534-573. 25 The VE testified that after considering Plaintiff’s age, education, work experience, and RFC 26 assigned by the ALJ, it was his opinion that Plaintiff could not perform her past work as a 27 cashier/stocker or school bus driver. Id. Thus, the ALJ concluded Plaintiff was unable to perform 28 her past relevant work since July 1, 2018. Id. However, the ALJ found, relying on the VE’s 8 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 9 of 13 1 testimony, that since July 1, 2018, Plaintiff was capable of making a successful adjustment to work 2 that existed in significant numbers in the national economy thus rendering her no longer disabled. 3 AR 44-45. 4 E. Analysis. 5 1. 6 Case law holds it is the original date that the claimant filed for disability benefits that 7 determines which regulations the ALJ must use to analyze medical opinions in a DIB applicant’s 8 record. Rooker v. Kijakazi, Case No. 21-cv-00554-AGT, 2023 WL 3565067, at *1 (N.D. Cal. Mar. 9 31, 2023) (“Because … [the claimant] filed her application for benefits on March 6, 2017, the ALJ 10 should have applied 20 C.F.R. § 404.1527 (not 20 C.F.R. § 404.1520c), which incorporates the 11 ‘treating physician rule,’ requiring that the ALJ give the opinions of treating physicians the greatest 12 weight.”), citing Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022); Martinez v. Kijakazi, Case 13 No. 2:20-cv-02068 WBS CKD (SS), 2022 WL 2193378, at *4 (E.D. Cal. Jun. 17, 2022) (“For all 14 applications filed before March 27, 2017, an ALJ must apply 20 C.F.R. § 404.1527, which 15 underpinned the older medical opinion standard outlined above.”) (internal citations omitted). The ALJ Erred by Applying the Post-March 2017 Regulations to Plaintiff’ Case. 16 Plaintiff filed her application for disability benefits on December 23, 2009. AR 261. 17 Therefore, the Court finds the ALJ erred when he applied the regulations in 20 C.F.R. § 404.1520c 18 in conducting his analysis of the various medical opinions in the record. AR 40-43. The question 19 before the Court is whether the error by the ALJ in applying the post-March 27, 2017 regulations is 20 harmless or worthy of remand. 21 2. 22 In accordance with the Social Security regulations in effect before March 27, 2017, the courts 23 “developed standards that guide … [their] analysis of an ALJ’s weighing of medical evidence.” 24 Ryan v. Commissioner of Social Sec., 528 F.3d 1194, 1998 (9th Cir. 2008). For claims filed before 25 March 27, 2017, courts “distinguish among the opinions of three types of physicians: (1) those who 26 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 27 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 28 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). For cases falling under this rubric, The ALJ’s Error Was Harmless, and His Decision Should Not be Disturbed. 9 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 10 of 13 1 “greater weight [should be given] to a treating physician’s opinion because ‘he is employed to cure 2 and has a greater opportunity to know and observe the patient as an individual.’” Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989), citing Sprague v. Brown, 812 F.2d 1226, 1230 (9th Cir. 4 1987). “While the opinion of a treating physician is thus entitled to greater weight than that of an 5 examining physician, the opinion of an examining physician is entitled to greater weight than that 6 of a nonexamining physician.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal 7 citation omitted); see also 20 C.F.R. §§ 404.1527, 416.927. If the treating physician’s opinion on 8 the nature and severity of the claimant’s impairment is well-supported by medically acceptable 9 clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence 10 in the case record, it will be given controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); 11 Social Security Ruling (“SSR”) 96-2p (same). 12 To satisfy the “substantial evidence” requirement of the specific and legitimate reasons 13 standard, the ALJ should set forth a “detailed and thorough summary of the facts and conflicting 14 clinical evidence, stat[e] his interpretations thereof, and mak[e] findings.” Garrison, 759 F.3d at 15 1012 citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “The ALJ must do more than 16 state conclusions. He must set forth his own interpretations and explain why they, rather than the 17 doctors’, are correct.” Id. (internal citation and quotation marks omitted). The ALJ can never 18 arbitrarily substitute his own judgment over the opinion of competent medical professionals. Tackett 19 v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999). 20 The ALJ complied with the pre-March 2017 regulations applicable to conclusions by medical 21 professionals when evaluating Nurse Muir’s opinion directly addressing whether Plaintiff could 22 work. Klein v. Berryhill, Case No. 2:16-cv-02673-RFB-CWH, 2017 WL 5175593, at *6 (D. Nev. 23 Nov. 8, 2017) (“Whether a claimant is disabled is an administrative determination reserved to the 24 Commissioner, not one to be provided by a claimant, her doctor, or any lay witness. See 20 C.F.R. 25 §§ 404.1527(d)(1)-(3), 416.927(d)(1)-(3) (such opinions on issues reserved to the Commissioner are 26 not medical opinions and the ALJ “will not give any special significance” to such a conclusion)”); 27 Carroll v. Saul, Case No. 2:17-cv-02237-MMD-CLB, 2019 WL 7496556, at *5 (D. Nev. Dec. 23, 28 2019), citing McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“The law reserves the disability 10 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 11 of 13 1 determination to the Commissioner”); Debra H. v. Saul, Case No: 1:18-cv-03172-FVS, 2019 WL 2 7815764, at *5 (E.D. Wa. Sept. 26, 2019) (same). 3 The ALJ was within his authority to not consider the disability conclusions made by Nurse 4 Muir that Plaintiff could not function well or find a job and that she was not a candidate for work. 5 AR 787, 789, 791. The ALJ was entitled to and did in fact find those statements unpersuasive in 6 formulating Plaintiff’s RFC and his eventual finding that Plaintiff’s disability had ended on July 1, 7 2018. AR 43. 8 As for Nurse Muir’s observations that Plaintiff had poor coping skills, concentration, and 9 focus, the ALJ’s analysis is replete with his use of Nurse Muir’s clinical observations to discount 10 other providers’ opinions that Plaintiff had only no to mild limitations in understanding and 11 concentration. AR 40-41. Therefore, it is clear the ALJ assigned value to Nurse Muir’s opinions 12 and incorporated them into his RFC finding while discounting the portion of her opinion issuing a 13 finding reserved to the Commissioner. Regarding the weight given to Nurse Muir’ findings, Plaintiff 14 cites no authority, and the Court found none, standing for the proposition that if a medical opinion, 15 even a treating source, opines that a claimant has “poor cognition” or “poor concentration” the ALJ 16 must find more than a moderate limitation in the claimant’s ability to understand, remember, apply 17 information, concentrate, persist, maintain pace, or adapt oneself. AR 9-10. The ALJ acknowledged 18 Nurse Muir’s opinions regarding Plaintiff’s concentration and cognition but pointed to several exams 19 in the record from several providers, including Nurse Muir, that Plaintiff had normal memory and 20 good judgment and insight. AR 36 citing AR 698-699, 719, 793, 799-800, 807-808. The Court 21 finds the ALJ explained with specific reasons his assignment of moderate limitations, and Plaintiff’s 22 argument that the ALJ failed to evaluate Nurse Muir’s opinion fails. 23 When considering the opinions of Drs. Olivares, Gallucci, Short, Arnow, Dhaliwal, 24 Mumford, and Castillo, the ALJ focused on the support for each in the overall record as well as on 25 consistency with fellow physicians’ opinions. As discussed supra, this is the wrong standard to 26 apply as this case was filed in 2009 before the new regulations took effect on March 27, 2017. 27 However, the Court finds this error is harmless because the supportability and consistency of medical 28 opinions are two of five factors used to analyze medical opinions in the pre-March 2017 hierarchical 11 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 12 of 13 1 system. Anita W. v. Berryhill, Case No. 2:17-cv-08338-GJS, 2019 WL 316630, at *4 (C.D. Cal. Jan. 2 24, 2019), citing 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3), 1 20 C.F.R. §§ 404.1527(c)(4), 3 416.927(c)(4). 2 The Court finds no defect in the ALJ’s analysis of any medical opinion as the ALJ 4 described in detail the seven doctors’ findings and his analysis of each. AR 40-43. In addition, 5 Plaintiff does not make any substantive argument regarding any opinion other than Nurse Muir’s 6 and instead asserts a nebulous contention that a hierarchical consideration of all medical opinions 7 was required. AR 10-12. The Court will not address arguments made by Plaintiff as to the medical 8 opinions of Drs. Olivares, Gallucci, Short, Arnow, Dhaliwal, Mumford, and Castillo as Plaintiff 9 offers no specificity attacking these opinions. Rondan v. Berryhill, Case No. EDCV 17-1454 JC, 10 2018 WL 1569828, at *4 (C.D. Cal. Mar. 29, 2018), citing Carmickle v. Commissioner of Social 11 Security Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address challenge to ALJ’s 12 finding where claimant “failed to argue th[e] issue with any specificity in [ ] briefing”) (citation 13 omitted), Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (stating court 14 “will not consider any claims that were not actually argued in appellant’s opening brief” and will 15 only “review ... issues which are argued specifically and distinctly in a party’s opening brief.”). 16 The Ninth Circuit holds a harmless error occurs “where the mistake was nonprejudicial to 17 the claimant or irrelevant to the ALJ’s ultimate disability conclusion.” Stout, 454 F.3d at 1055. An 18 error is construed to be harmless “if the agency’s path may reasonably be discerned,” even if the 19 agency “explains its decisions with less than ideal clarity.” Alaska Department of Environmental 20 Conserv. v. EPA, 540 U.S. 461 (2004). Here, the ALJ’s error in applying the wrong set of Social 21 Security regulations to his analysis of the medical opinions in the record was harmless because the 22 ALJ’s disability conclusion was sound. 23 Plaintiff is not entitled to remand because she is displeased with the ALJ’s conclusions. See 24 Jackson v. Saul, Case No. EDCV 19-01576-JEM, 2020 WL 2768682, at *5 (C.D. Cal. May 27, 25 2020) (“Plaintiff simply disagrees with the ALJ’s evaluation of the evidence, but it is the ALJ’s 26 27 28 “Supportability. The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion.” 2 “Consistency. Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.” 1 12 Case 2:22-cv-01945-EJY Document 22 Filed 07/25/23 Page 13 of 13 1 responsibility to resolve conflicts in the medical evidence and ambiguities in the record.”) (citation 2 omitted). The Court’s role is not to second guess the ALJ’s determination even if there is more than 3 one interpretation of the evidence that could have been made. Todd v. Saul, 822 Fed.Appx. 613, 4 615-616 (9th Cir. 2020). This standard does not yield the result Plaintiff seeks. 5 The Court affirms the Commissioner’s decision and denies Plaintiff’s Motion for Reversal 6 and Remand on the contention that the ALJ’s analysis of the medical opinions in the record was 7 fatally flawed. 8 IV. 9 10 11 12 13 ORDER IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal and Remand (ECF No. 18) is DENIED. IT IS FURTHER ORDERED that the Clerk of Court must enter judgment in favor of Defendant and close this case. DATED this 25th day of July, 2023. 14 15 16 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13
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