Sherman v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Trevor Sherman, No. CV-20-01584-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Pending before the Court is Plaintiff Trevor Sherman’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) denial of social security 17 disability benefits based on a finding that Plaintiff is no longer disabled. (Doc. 24). The 18 Plaintiff filed his opening brief on September 23, 2021 (Doc. 24) and Defendant responded 19 (Doc. 26). Plaintiff did not file a timely reply. The Court now rules. 20 I. BACKGROUND 21 The issues presented in this appeal are whether substantial evidence supports the 22 Administrative Law Judge’s (“ALJ”) determination that Plaintiff was no longer disabled 23 as of March 1, 2015 and whether the ALJ committed legal error in his analysis. (Doc. 24 24 at 4; Doc. 19-3 at 11, 20). 25 a. Factual Overview 26 Plaintiff was 40 years old at the time of his hearing. (Doc. 24 at 6). He has 10 years 27 of education and past relevant work experience as a pizza delivery driver. (Id.) Plaintiff 28 was previously awarded social security disability benefits in March 2006 for narcolepsy 1 with an established onset date of September 3, 2004. (Id. at 6). In a prior decision, the SSA 2 found that Plaintiff was no longer disabled as of March 1, 2015, and the case was remanded 3 to the ALJ “to consider whether the claimant’s disability has ended pursuant to Social 4 Security Ruling 13-3p.” (Doc. 19-3 at 11). The ALJ found that Plaintiff’s disability ended 5 on March 1, 2015. (Id.) The SSA Appeals Council denied a request for review of that 6 decision and adopted the ALJ’s decision as the agency’s final decision. (Id. at 2). 7 b. The SSA’s Eight-Step Evaluation Process for Continuing Disability 8 In order to determine whether a claimant’s disability is continuing or has ceased, 9 and therefore, whether the claimant is still entitled to disability benefits, ALJs are required 10 to follow an eight-step process. See 20 C.F.R. § 404.1594 (f). 11 At step one, the ALJ determines whether the claimant is engaged in “substantial 12 gainful activity.” Id. § 404.1594(f)(1). Substantial gainful activity is work activity that is 13 both “substantial,” involving “significant physical or mental activities,” and “gainful,” 14 done “for pay or profit.” Id. § 404.1572(a)–(b). If the claimant has engaged in substantial 15 gainful activity, the claimant’s disability is deemed to have ceased and benefits are 16 terminated. Id. § 404.1594(f)(1). If the claimant is not engaging in substantial gainful 17 activity, the analysis proceeds to step two. Id. 18 At step two, the ALJ analyzes whether the claimant’s impairment meets or equals 19 the impairments set out in the Listing of Impairments found in 20 C.F.R. Part 404, Subpart 20 P, Appendix 1. Id. § 404.1594(f)(2). If a Listing is met, the claimant continues to be 21 disabled, and the evaluation stops. Id. If not, the analysis proceeds to step three. Id. 22 At step three, the ALJ evaluates whether medical improvement has occurred since 23 the original determination of disability. Id. § 404.1594(f)(3). If a medical improvement 24 resulted in a decrease in the medical severity of the claimant’s impairments, the analysis 25 proceeds to the next step. If no medical improvement occurred, the analysis skips to step 26 five. Id. 27 At step four, the ALJ determines whether the medical improvement is related to the 28 claimant’s ability to work. Id. § 404.1594(f)(4). Medical improvement is related to the 1 ability to work if it results in an increase in the claimant’s capacity to perform basic work 2 activities. Id. If the improvement is related, the analysis skips to step six. Id. However, if 3 the improvement is not related, the analysis proceeds to step five. Id. 4 Step five applies in one of the following situations: (1) there has been no medical 5 improvement; or (2) the improvement is unrelated to the claimant’s ability to work. Id. § 6 404.1594(f)(3)–(4). At step five, the ALJ analyzes whether any exception to medical 7 improvement exists. Id. § 404.1594(f)(5). If no exception applies to the claimant, the ALJ 8 must still find the claimant to be disabled. Id. If the first group of exceptions applies to the 9 claimant, see id. § 404.1594(d), the analysis advances to step six, id. If the second group 10 of exceptions applies to the claimant, see id. § 404.1594(e), the ALJ will find that the 11 claimant’s disability has ended, id. § 404.1594(f)(5). 12 At step six, the ALJ evaluates whether the claimant’s impairments are sufficiently 13 severe to limit his physical or mental abilities to do basic work activities. Id. § 14 404.1594(f)(6). If the impairments are not sufficiently severe, the claimant is no longer 15 disabled. Id. Otherwise, the analysis proceeds to step seven. Id. 16 At step seven, the ALJ assesses the claimant’s current residual functioning capacity 17 (“RFC”) to determine whether he can perform past relevant work. Id. § 404.1594(f)(7). If 18 the claimant has the capacity to perform past relevant work, the claimant is no longer 19 disabled. Id. If not, the analysis proceeds to step eight. Id. 20 Finally, at step eight, the ALJ determines whether the claimant can perform any 21 other substantial gainful activity. Id. § 404.1594(f)(8). If so, the claimant is no longer 22 disabled. Id. If not, the claimant’s disability continues. Id. 23 c. The ALJ’s Application of the Factors 24 Here, at the first step, the ALJ concluded that Plaintiff had not engaged in substantial 25 gainful activity since his comparison point decision (“CPD”), February 23, 2006, through 26 his date last insured, June 30, 2018. (Doc. 19-3 at 13). 27 At the second step, the ALJ determined that Plaintiff’s narcolepsy did not meet or 28 medically equal Section 11.03 or any other listing in the Listing of Impairments in 20 1 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 14). 2 At the third step, the ALJ determined that based on Plaintiff’s reported symptoms 3 and treatment, Plaintiff’s impairment had significantly improved and resulted in decreased 4 severity as of March 1, 2015. (Id. at 14–15). 5 At the fourth step, the ALJ determined that Plaintiff’s medical improvement was 6 related to his ability to work because Plaintiff “no longer had an impairment or combination 7 of impairments that met or medically equaled the same listing[] that was equaled at the 8 time of the CPD.” (Id. at 15). Because of the ALJ’s finding at step four, the ALJ skipped 9 step five. 10 At step six, the ALJ determined that as of March 1, 2015, Plaintiff’s impairment 11 was severe enough to impact his ability to perform basic work activities. (Id.) 12 At step seven, after evaluating Plaintiff’s current RFC, the ALJ concluded that 13 Plaintiff could “perform a full range of work at all exertional levels,” except that Plaintiff 14 “can perform unskilled work and must avoid exposure to heights and dangerous 15 machinery.” (Id.) The ALJ concluded that, as of March 1, 2015, Plaintiff has been unable 16 to perform his past relevant work. (Id. at 18). 17 At the eighth and final step, the ALJ concluded that given Plaintiff’s age, education, 18 work experience, and RFC, a significant number of jobs existed in the national economy 19 that he could have performed. (Id. at 19). Accordingly, the ALJ determined that Plaintiff 20 was not disabled. (Id. at 20). 21 II. LEGAL STANDARD 22 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 23 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 24 “Substantial evidence means … such relevant evidence as a reasonable mind might accept 25 as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 26 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). 27 On review, the Court “must consider the entire record as a whole, weighing both the 28 evidence that supports and the evidence that detracts from the [ALJ’s] conclusion, and may 1 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting 2 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). The ALJ, not this Court, draws 3 inferences, resolves conflicts in medical testimony, and determines credibility. See 4 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450 , 5 1453 (9th Cir. 1984). Thus, the Court must affirm even when “the evidence admits of more 6 than one rational interpretation.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 7 Court “review[s] only the reasons provided by the ALJ in the disability determination and 8 may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 9 1010. 10 III. DISCUSSION 11 Plaintiff raises three claims of error: (1) the ALJ erred in finding that Plaintiff’s 12 narcolepsy was not still equal to the impairment listing in Section 11.03 of 20 C.F.R. Part 13 404, Subpart P, Appendix 1; (2) the ALJ improperly determined that Plaintiff’s condition 14 had medically improved; and (3) the ALJ erred by not properly evaluating and weighing 15 the opinion of Plaintiff’s treating physician Dr. David Baratz, as required by 20 C.F.R. § 16 404.1527. The Court addresses each in turn. 17 a. Statutorily Defined Impairments 18 At step two, the ALJ determined that Plaintiff’s narcolepsy did not meet or 19 medically equal Section 11.03 (non-compulsive epilepsy) or any other listing in the Listing 20 of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 19-3 at 14). Plaintiff 21 argues that the ALJ’s decision was made in error and goes against the requirements of 22 POMS DI 24580.005 and DI 34131.013, and 20 C.F.R. §§ 416.920 (d), 404.1520(d). (Doc. 23 24 at 4). 24 Regarding Plaintiff’s narcolepsy at step two, the ALJ found: As of March 1, 2015, the claimant’s impairment did not meet [25] or medically equal listing 11.03 or any other listing. Listing 26 11.03, for non-convulsive epilepsy, requires evidence of seizure activity, including loss of consciousness or awareness, [27] occurring more than once per week in spite of at least three 28 months of prescribed treatment. As of March 1, 2015, the record shows the claimant’s narcolepsy, in spite of at least 1 three months of prescribed treatment, causes cataplexy only six times per year, well below the required frequency (Exhibit [2] 2F/1, 6F/3, 12 F/1). Additionally, there is no impartial medical 3 source opinion in the record that states or suggests the claimant’s narcolepsy medically equals the criteria of any [4] listed impairment. [5] (Doc. 19-3 at 14) (footnote omitted). [6] At step two, the ALJ must assess whether the claimant has an impairment or [7] combination of impairments that meets or medically equals an impairment listed in the [8] Appendix to the federal regulations. 20 C.F.R. Part 404, subpart P, Appendix 1. Conditions [9] set forth in the Listing of Impairments are considered so severe that “they are irrebuttably [10] presumed disabling, without any specific finding as to the claimant’s ability to perform his [11] past relevant work or any other jobs.” Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995). [12] “For a claimant to qualify for benefits by showing that his unlisted impairment, or [13] combination of impairments, is ‘equivalent’ to a listed impairment, he must present [14] medical findings equal in severity to all the criteria for the one most similar listed [15] impairment.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. [16] Zebley, 493 U.S. 521, 531 (1990) (emphasis in original); see also Burch v. Barnhart, 400 17 F.3d 676, 683 (9th Cir. 2005) (noting that the plaintiff bears the burden of proving that an [18] impairment meets or equals the criteria of a listed impairment). However, the ALJ need [19] not “state why a claimant failed to satisfy every different section of the listing of [20] impairments” so long as there was an adequate evaluation of the evidence. Gonzales v. [21] Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). [22] Section 11.03 of the Listing of Impairments requires: 23 [N]onconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, [24] including all associated phenomena; occurring more frequently 25 than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of [26] consciousness and transient postictal manifestations of 27 unconventional behavior or significant interference with activity during the day. [28] 1 See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.03 (2012).1 Although Plaintiff 2 contends that his condition medically equaled Section 11.03 due to his narcoleptic 3 symptom of “Excessive Daytime Sleepiness” (“EDS”) occurring “almost daily” (Doc. 24 4 at 8–9), he does not demonstrate, using medical evidence, that his EDS alters his 5 awareness, causes him to lose consciousness or manifest unconventional behaviors, or 6 significantly interferes with his daily activities more than once per week. See 20 C.F.R. 7 Part 404, Subpart P, Appendix 1, § 11.03 (2012). Neither the ALJ nor the Court can 8 substitute Plaintiff’s “allegations of pain or other symptoms for a missing or deficient sign 9 or laboratory finding to raise the severity of [an] impairment[] to that of a listed 10 impairment.” See 20 C.F.R. § 404.1529 (d)(3). 11 As discussed elsewhere in the ALJ’s opinion, during a March 2015 consultative 12 physical exam, Plaintiff “confirmed narcoleptic episodes were rare and did not report any 13 narcoleptic symptoms during several visits to treating providers between March 2015 and 14 September 2015.” (Doc. 19-3 at 14). The ALJ also noted that Plaintiff’s treating providers 15 noted Plaintiff’s own reports that his cataplexy episodes only occurred six times per year. 16 (Id.) The ALJ also noted the medical evidence shows that Plaintiff’s condition “is under 17 reasonable control” with medication and that Plaintiff acknowledged his ability to perform 18 “numerous activities of daily living.” (Id. at 14–16). 19 Accordingly, Plaintiff failed to meet his burden of proving that he met or equaled 20 the criteria of Section 11.03 because he failed to demonstrate that he had seizures or 21 equivalent loss of consciousness more than once per week after three continuous months 22 of taking his medication. Kennedy, 738 F.3d at 1176 ; Burch, 400 F.3d at 683; 20 C.F.R. 23 Part 404, Subpart P, Appendix 1, § 11.03 (2012). Given the noticeable absence of evidence 24 of Plaintiff’s seizure activity or other loss of consciousness or interference with daily 25 activities more than once per week while on his medication, the ALJ properly determined 26 that Plaintiff’s impairment did not meet or medically equal Section 11.03 based on [27] 1 The Court notes that Section 11.03 regarding the evaluation of non-compulsive epilepsy 28 was eliminated from the Listing of Impairments in September 2016, and thus relies on a pre-September 2016 version of the Listing of Impairments for this analysis. 1 substantial evidence in the record. See Burch, 400 F.3d at 683 (plaintiff bears the burden 2 of proving that an impairment meets or equals the criteria of a listed impairment). 3 Plaintiff’s arguments that the ALJ failed to follow Policy Operations Manual 4 System (POMS) DI 24580.005 and DI 34131.013, and 20 C.F.R. §§ 416.920 (d), 5 404.1520(d) are without merit. First, with regard to POMS DI 24580.005 and DI 6 34131.013, as pointed out by Defendant, “POMS constitutes an agency interpretation that 7 does not impose judicially enforceable duties on either this Court or the ALJ.” Lockwood 8 v. Comm’r Soc. Sec., 616 F.3d 1068 , 1073 (9th Cir. 2020) (citations omitted). Next, the 9 applicable regulation for evaluating the continuation or cessation of a disability is Section 10 404.1594, not Sections 416.920 and 404.1520. See 20 C.F.R. §§ 416.920 (a), 404.1520(a) 11 (“This section explains the five-step sequential evaluation process we use to decide 12 whether you are disabled”). Moreover, Plaintiff does not identify how the ALJ failed to 13 abide by Sections 416.920(d) and 404.1520(d) or POMS DI 24580.005 and DI 34131.013. 14 Thus, the Court does not find any error in the ALJ’s decision on this basis. 15 b. Improvement to Plaintiff’s Medical Condition 16 Plaintiff next argues that the ALJ improperly found Plaintiff’s narcolepsy had 17 medically improved against the weight of the record evidence. (Doc. 24 at 10). 18 The ALJ considered multiple pieces of medical evidence in finding that Plaintiff 19 experienced medical improvement related to Plaintiff’s condition at the CPD. (See Doc. 20 19-3 at 14–15). At the CPD, Plaintiff’s impairment was narcolepsy and found to medically 21 equal Section 11.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 13). 22 The ALJ summarized evidence in the record that reflected a decrease in the severity 23 of these medical opinions as follows: The medical evidence supports a finding that, as of March 1, [24] 2015, there has been a decrease in medical severity of the 25 impairment. At the time of the CPD, the claimant’s Epworth scale score was 21 out of 24, indicating a high probability of [26] sleep intervals (Exhibit 1F/2, 5, 31 and 32). However, the 27 record contains no evidence of Epworth tests after the CPD, and narcolepsy does not produce any objective findings on [28] imaging scans. As a result, the progress and severity of the 1 claimant’s narcolepsy must be evaluated predominantly by weighing his reported symptoms and treatment. [2] (Doc. 19-3 at 14). The ALJ opinion goes on to state: [3] At the time of the CPD, treating provider David M. Baratz, 4 M.D. found the claimant had severe daytime “hypersomnolence” based on the claimant’s reports of [5] narcoleptic episodes that occurred almost daily (Exhibit 1F/23, 6 31, 32, 34, 36). At that time, he had not found a medication that effectively treated his narcolepsy and associated symptoms [7] (Exhibit 1F/32). In comparison, by November 2014, he 8 reported prescription medications Dexedrine and Nuvigil mostly prevented narcoleptic episodes, and that he had been [9] taking these medications to treat his narcolepsy for six or seven 10 years (Exhibit 8E and 10F/3, 8). He repeatedly denied experiencing hypnagogic hallucinations after treatment with 11 medication, and reported only occasional sleep paralysis, 12 though not as frequent as before (Exhibit 1F/23, 2F/1, 4F/39, 7F/1 and 12F/1). In [] March 2015, during a consultative 13 physical examination, the claimant confirmed narcoleptic 14 episodes were rare and did not report any narcoleptic symptoms during several visits to treating providers between 15 March 2015 and September 2015 (Exhibit 6F/3 and 13F/5-33). In June 2017, based on the claimant’s reports that narcoleptic [16] episodes only occurred six times per year, treating providers 17 changed his diagnosis from “narcolepsy with cataplexy” to “narcolepsy without cataplexy” (Exhibit 14F/1). Additionally, [18] based on the medical evidence, the claimant’s condition is 19 under reasonable control with Dexedrine and [Nuvigil] (Exhibits 14F, 15F and 16F). The evidence clearly shows a [20] pattern of significant medical improvement in the claimant’s 21 narcolepsy. (Id. at 14–15). [22] At step three of a continuing disability review, an ALJ considers whether a claimant [23] has experienced medical improvement. Medical improvement is “any decrease in the [24] medical severity of [an] impairment.” 20 C.F.R. § 404.1594 (b)(1). This determination [25] involves a comparison between the claimant’s condition at the CPD and the claimant’s [26] present condition using “symptoms, signs, and/or laboratory findings associated with [the] [27] impairment(s).” Id. On appeal, the Court is “not deprived of [its] faculties for drawing [28] specific and legitimate inferences from the ALJ’s opinion [and may] draw inferences ... if 1 those inferences are there to be drawn.” Magallanes, 881 F.2d at 755. Thus, the Court looks 2 to the entirety of the ALJ’s decision in determining whether substantial evidence existed 3 for the ALJ’s conclusion. 4 Specifically, Plaintiff argues that the ALJ makes five errors in his evaluation of the 5 evidence, including: (1) an incorrect finding that “the record contains no evidence of 6 Epworth tests after the CPD;” (2) an erroneous summary of Plaintiff’s report on the 7 frequency of narcoleptic attacks; (3) unsupported statements about Plaintiff’s treating 8 physicians’ findings; (4) a false statement regarding Plaintiff’s changed diagnosis; and (5) 9 an improper substitution of the ALJ’s own opinion for that of the medical experts. (Id. at 10 10–11). 11 First, the Court agrees with Plaintiff that the ALJ incorrectly stated that “the record 12 contains no evidence of Epworth tests after the CPD.” Instead, in two notes from Dr. Baratz 13 from Plaintiff’s follow up office visits, dated March 6, 2019 (Doc. 19-3 at 20) and July 29, 14 2019 (Doc. 19-10 at 55), Dr. Baratz noted that Plaintiff had an Epworth sleep score of 18 15 and 22, respectively. However, as pointed out by Defendant, the relevant period for a 16 disability determination here is between the CPD, February 23, 2006, and Plaintiff’s date 17 last insured, June 30, 2018. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) (“To 18 be entitled to disability benefits, [claimant] must establish that her disability existed on or 19 before her date last insured.”). Although “a claimant may offer retrospective diagnoses that 20 relate back to the insured period to show disability,” contemporaneous evidence is 21 preferred. Petty v. Astrue, 550 F.Supp.2d 1089, 1097 (D. Ariz. 2008). So, while Plaintiff’s 22 post-date last insured Epworth scores are relevant, the ALJ reasonably relied on other 23 substantial evidence in the record, as discussed above, that predates Plaintiff’s date last 24 insured and supports his finding. Thus, the ALJ’s decision to exclude the post-date last 25 insured Epworth scores from consideration was not made in error, and even assuming that 26 it was, the Court concludes that any error was harmless. See Marsh v. Colvin, 792 F.3d 27 1170, 1172 (9th Cir. 2015) (“ALJ errors in social security cases are harmless if they are 28 inconsequential to the ultimate nondisability determination.”) (quotations omitted). 1 Next, Plaintiff argues that the ALJ incorrectly stated that by November 2014 2 Plaintiff’s medications mostly prevented his narcoleptic episodes because the ALJ cites to 3 Plaintiff’s Seizure Questionnaire where Plaintiff reported that he has narcoleptic attacks 04 5 times per day, averaging once every other day with medications. (Doc. 24 at 10). 5 However, the form in question is ambiguous as to whether Plaintiff’s narcolepsy symptoms 6 are controlled with medication. (Doc. 19-8 at 45–46). On the first page, Plaintiff reports 7 that his “sleep episodes…can happen anywhere from 5 times a day to 0” and “on average 8 once every other day,” but on the last page, in response to a question on whether his 9 medication prevents his symptoms, Plaintiff responded “mostly.” (Id.) The ALJ is 10 responsible for resolving ambiguities in the record evidence and the Court does not find 11 error in the ALJ’s finding that Plaintiff’s statement that the medication mostly controls his 12 narcolepsy is consistent with the record regardless of Plaintiff’s other symptom statements 13 listed on the same form. Andrews, 53 F.3d at 1039–40. 14 Next, Plaintiff argues that the ALJ incorrectly stated Plaintiff did not report any 15 narcoleptic symptoms to treatment providers between March 2015 and September 2015 16 while erroneously citing to records that did not come from his treating providers. (Doc. 24 17 at 10). Upon review of the cited records, the Court does not find any harmful error in the 18 ALJ’s findings. Cited Exhibit 13F contains 2015 treatment records for Plaintiff’s back and 19 knee pain. (Doc. 19-10 at 2–34). Although these treating records are unrelated to Plaintiff’s 20 narcolepsy, the treating provider noted Plaintiff’s past medical history of narcolepsy and 21 listed his narcolepsy medication as currently prescribed. (Id. at 6, 9, 10). The ALJ 22 reasonably determined that the absence of Plaintiff’s reports on his narcolepsy symptoms 23 during those provider visits infers an absence of Plaintiff’s narcolepsy symptoms. Allen, [24] 749 F.2d at 579 (holding that a court must affirm an ALJ’s decision even if “the evidence 25 admits of more than one rational interpretation.”). 26 Additionally, while the cited Exhibit 6F is a Physical Residual Functional Capacity 27 Assessment from March 2, 2015, and not a statement from a treating provider, the ALJ 28 correctly noted that Plaintiff did not report any narcolepsy symptoms during that 1 assessment. Instead, Plaintiff informed the consultative examiner that his narcoleptic 2 episodes are rare under his prescribed treatment, occurring mostly in quiet environments. 3 (Doc. 19-9 at 119). The Court does not find harmful error in the ALJ’s decision to rely on 4 Plaintiff’s own symptom reports during the March 2, 2015 assessment, even though the 5 ALJ erroneously referred to the consultative examiner as a treating provider. Marsh, 792 6 F.3d at 1172. ALJs are permitted to rely on opinions and examination notes from non7 treating medical sources. See 20 C.F.R. § 404.1527 . 8 Plaintiff next argues that the ALJ knowingly made the false statement “[i]n June 9 2017, based on the claimant’s reports that narcoleptic episodes only occurred six times per 10 year, treating providers changed his diagnosis from “narcolepsy with cataplexy” to 11 “narcolepsy without cataplexy.” (Doc. 24 at 11). Plaintiff disputes that his diagnosis 12 changed, “let alone for that reason.” (Id.). In making his statement regarding Plaintiff’s 13 changed diagnosis, the ALJ cites to Exhibit 14F (Doc 19-3 at 14), containing treatment 14 notes from Dr. Baratz and Nurse Practitioner Stacey Gourdoux dated November 1, 2013, 15 March 9, 2016, and June 23, 2017 (Doc. 19-10 at 35–49). At the beginning of each 16 treatment note, narcolepsy without cataplexy appears at the top under “Active Problems,” 17 but under “History of Present Illness,” it states “[h]e has cataplexy with laughing or fear 18 and will sleep from short moment[s] to hours, this occurs about 6x/year.” (Doc. 19-10 at 19 35, 38, 41). The Court agrees that the ALJ erroneously determined that Plaintiff’s diagnosis 20 had changed from narcolepsy with cataplexy to narcolepsy without cataplexy but finds that 21 the ALJ’s error was harmless because his finding that Plaintiff’s symptoms improved was 22 otherwise supported by substantial evidence in the record. 23 The ALJ correctly noted that Plaintiff’s original diagnosis was “narcolepsy with 24 daytime hypersomnolence” in Dr. Baratz’s treatment notes in 2004 and 2005. (Doc. 19-9 25 at 32–35, 37). However, in notes from his follow up visits in November 2013, March 2016 26 and June 2017, Plaintiff’s diagnosis is listed as “narcolepsy without cataplexy,” even 27 though the treating providers also noted that Plaintiff “has cataplexy with heavy laughing 28 or fear and will sleep from short moment to hours, this occurs about 6x/year.” (Doc. 19-9 1 at 38, Doc. 19-10 at 35–40). In contrast, treatment notes from February 2018 and March 2 2019 indicate that Plaintiff’s diagnosis changed to narcolepsy with cataplexy, and 3 Gourdoux submitted a medical opinion dated February 2018 noting the same. (Doc. 19-10 4 at 51–57). In both Gourdoux’s February 2018 opinion letter and Dr. Baratz’s March 2019 5 treatment notes, however, Plaintiff’s cataplexy and other narcolepsy symptoms are referred 6 to as “improved,” although his sleepiness and daily nap requirements remained. (Id. at 51, 7 55). 8 However, as discussed above, the ALJ cited multiple reasons for his finding that 9 Plaintiff’s condition had medically improved, relying on notes from Plaintiff’s treating 10 providers and his own subjective statements that his symptoms have been improving and 11 are controlled with his prescribed medications. (Doc. 19-3 at 14–15). Even though the ALJ 12 erroneously referred to Plaintiff’s changed diagnosis incorrectly, the ALJ still reviewed 13 and weighed the credibility of the evidence in the record to come to a reasoned decision 14 and provided additional justification for his decision that is supported by substantial 15 evidence in the record. For example, the ALJ noted that Plaintiff’s medical condition 16 appeared to have improved since his CPD because in March 2015 he reported that his 17 narcoleptic episodes were “rare” (Doc. 19-9 at 114), and Dr. Baratz’s March 2019 18 treatment notes indicate that “[w]hen he takes this combination of medication his 19 narcolepsy and cataplexy are controlled” (Doc. 19-10 at 55). Later in his opinion, the ALJ 20 also notes that Plaintiff’s allegations of worsening narcolepsy symptoms are inconsistent 21 with evidence that he performs normal daily activities, including taking care of his children, 22 driving his children to school, and hiking. (Doc. 19-3 at 16–17). The Court finds that the 23 ALJ’s erroneous statement regarding Plaintiff’s changed diagnosis would not have 24 changed the outcome of whether Plaintiff’s condition medically improved in view of the 25 record as a whole. See Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“ALJ errors 26 in social security cases are harmless if they are inconsequential to the ultimate nondisability 27 determination.”) (quotations omitted). 28 Finally, Plaintiff argues that the ALJ improperly substituted his own opinion for that 1 of Plaintiff’s medical experts because the ALJ found that Plaintiff’s narcolepsy “is under 2 reasonable control with Dexedrine and Nuvigil,” contrary to evidence in the record. (Doc. 3 24 at 11). In particular, Plaintiff cites to Exhibit 15F, a February 27, 2018 letter from Nurse 4 Practitioner Stacey Gourdoux opining that Plaintiff “continues to have severe daytime 5 sleepiness and requires high doses of stimulants to maintain wakefulness. Despite 6 stimulants he continues to need at least 2 naps during the day.” (Doc. 19-10 at 51). 7 However, Gourdoux’s opinion also states that Plaintiff’s “history of cataplexy has 8 improved through avoidance behaviors.” (Id.) Moreover, the ALJ also cited to Exhibits 9 14F and 16F for the same finding regarding Plaintiff’s improved symptoms (Doc. 19-3 at 10 14–15), which include Dr. Baratz’s and Gourdoux’s treatment notes with observations that 11 Plaintiff’s medication has been “very effective” at controlling his narcolepsy (Doc. 19-10 12 at 55) and that Plaintiff was “tired but improved taking Dexedrine” (Doc. 19-10 at 41). The 13 ALJ summarized the above-referenced objective medical evidence in finding that Plaintiff 14 experienced medical improvement in relation to his condition at the CPD. (Doc. 19-3 at 15 14–15). Thus, the Court does not agree that the “ALJ substitut[ed] his own opinion for 16 those of the medical experts.” (See Doc. 24 at 11). This Court declines Plaintiff’s request 17 to second guess the ALJ’s reasonable determination that objective evidence supports a 18 finding of medical improvement, even if such evidence could give rise to inferences more 19 favorable to Plaintiff. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 20 Accordingly, the Court finds that the ALJ evaluated the evidence in the record and 21 provided specific and legitimate reasons for his decision regarding Plaintiff’s medical 22 improvement. See Andrews, 53 F.3d at 1039–40 (“The ALJ is responsible for determining 23 credibility, resolving conflicts in medical testimony, and for resolving ambiguities. We 24 must uphold the ALJ's decision where the evidence is susceptible to more than one rational 25 interpretation.”) (citations omitted). 26 c. Treating Physician Testimony 27 Plaintiff argues that the ALJ improperly gave only “some weight” to treating 28 physician Dr. David Baratz’s opinion without sufficient justification for rejecting it. (Doc. 1 24 at 12). Dr. Baratz treated Plaintiff at the time of his CPD and has continued to treat him 2 since. (Doc. 19-3 at 14; Doc. 24 at 12). The ALJ noted that Dr. Baratz diagnosed Plaintiff 3 with “severe daytime ‘hypersomnolence’” based on Plaintiff’s reports of his narcoleptic 4 episodes happening “almost daily,” but that Dr. Baratz noted he was unable to find an 5 effective medication for Plaintiff at that time. (Doc. 19-3 at 14). The ALJ further noted that 6 by November 2014, Dr. Baratz and Plaintiff both reported that his narcolepsy symptoms 7 where under control with his prescription medications. (Id.) 8 Dr. Baratz also submitted a medical statement dated March 6, 2019 which concludes 9 that Plaintiff has “medical reasons for his inability to work.” (Id. at 17, quoting Doc. 1910 10 at 57). In that same statement, under “History of Present Illness,” Dr. Baratz notes: [Plaintiff] has severe cataplexy that limits his ability to [11] function. He will develop muscle loss, and will go to sleep at 12 unexpected times. He will sleep from short moment to hours. This is brought out by laughter, strong emotion, changes to his [13] level of attention, if he is frightened or scared. This symptom 14 occurs every 2 to 3 days or sometimes more often. They are significantly less when on medication. He denies [15] hallucinations with medication. No anxiety or other AE with 16 meds. He does need to take 2 naps a day despite use of medications and he is still able to fall asleep easily. He [17] continues to be affected daily by narcolepsy symptoms. He 18 continues to have sleep paralysis and somnambulism. His cataplexy is brought out by emotions and laughter. He 19 develops episodes of cataplexy almost daily. 20 (Doc. 19-10 at 55) (emphasis added). Dr. Baratz further notes Plaintiff’s current 21 prescription for Dexedrine and Nuvigil and concludes that “[w]hen [Plaintiff] takes this 22 combination of medication his narcolepsy and cataplexy are controlled.” (Id.) 23 In evaluating Plaintiff’s RFC, the ALJ addressed Dr. Baratz’s March 6, 2019 24 statement regarding Plaintiff’s ability to work as follows: 25 Although Dr. Baratz has a longitudinal knowledge of the claimant’s medical history, this is an issue reserved to the 26 Commissioner and as such, this opinion can never be entitled to controlling weight and must be carefully considered to [27] determine the extent to which it is supported by the record as a 28 while or contradicted by persuasive evidence (20 C.F.R. 1 404.1527 (e)(1)). Accordingly, the undersigned affords this opinion some weight. [2] (Id.) [3] Plaintiff argues that the ALJ should have given Dr. Baratz’s opinion greater weight [4] and deference as a treating physician’s medical opinion. (Doc. 24 at 12). Specifically, [5] Plaintiff argues that the ALJ “gave no sensible reasoning” for his decision to only afford [6] Dr. Baratz’s opinion some weight. (Id.) [7] For claims filed prior to March 27, 2017, the weight that a particular opinion is [8] afforded is based on who is giving that opinion. Ghanim v. Colvin, 763 F.3d 1154 , 1160 [9] (9th Cir. 2014). “Generally, the opinion of a treating physician must be given more weight [10] than the opinion of an examining physician, and the opinion of an examining physician [11] must be afforded more weight than the opinion of a reviewing physician.” Id.; see 20 C.F.R. [12] § 404.1527(c)(1)–(2). But a treating physician’s opinion is not necessarily conclusive. [13] Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). If a treating physician’s opinion is [14] contradicted by another physician’s opinion or other evidence in the record, an ALJ may [15] reject it “by providing specific and legitimate reasons that are supported by substantial [16] evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). [17] Additionally, Section 404.1527(d) outlines how the SSA treats medical opinions [18] that opine on issues reserved to the Commissioner for claims filed before March 27, 2017. [19] 20 C.F.R. § 404.1527 (d). Issues reserved to the Commissioner “are administrative findings [20] that are dispositive of a case,” such as an opinion that a claimant is “disabled or unable to [21] work.” Id. § 404.1527(d)(1) (internal quotations omitted). It is the SSA’s responsibility, [22] not Plaintiff’s doctors, to determine whether Plaintiff meets the statutory definition of [23] disability, so the SSA “will not give any special significance to the source of an opinion” [24] on such issues. Id. §§ 404.1527(d)(1), 404.1527(d)(3). [25] Here, the ALJ gave a specific and legitimate reason to discount Dr. Baratz’s opinion [26] that Plaintiff “has medical reasons for his inability to work” and rely on other evidence in [27] the record. The Court agrees that the “Assessment” portion of Dr. Baratz’s March 6, 2019 [28] 1 || medical statement could be construed as opining on an issue reserved to the Commissioner, || namely, whether Plaintiff is capable of working. See 20 C.F.R. § 404.1527 (d). However, || the Court disagrees with Plaintiff that the ALJ entirely rejected Dr. Baratz’s opinion or 4|| otherwise did not give it adequate weight. Instead, the ALJ relies on Dr. Baratz’s opinion 5 || throughout his decision, noting twice that Dr. Baratz’s finding that Plaintiff's narcolepsy 1s controlled with medication is consistent with the overall record. (Doc. 19-3 at 14-15, 16, || citing Doc. 19-10 at 55-57). While it is generally true that a treating physician’s opinion is 8 || entitled to controlling weight, the Court does not find any legal error in the ALJ’s decision 9|| rely on only the portions of Dr. Baratz’s opinion that were consistent with and supported 10 || by other evidence in the record and to disregard the portion opining on Plaintiff's ability to || work. See Castro v. Comm’r Soc. Sec., No. CV-20-00995-PHX-DLR, 2021 WL 1085392 , at *5 (D. Ariz. Mar. 22, 2021) (‘[A]ccording to Social Security Ruling 96-5p, 13} administrative findings, such as opinions about whether an individual is disabled or unable to work, are reserved to the Commissioner.”). 15 IV. CONCLUSION 16 For the foregoing reasons, 17 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 18 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment || accordingly. 20 Dated this 23rd day of November, 2021. 21 a [22] 3 _ James A. Teil Org Senior United States District Judge [28] -17-