Sims v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Antonie Lee Sims, No. CV-20-01498-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 At issue is the denial of Plaintiff Antonie Lee Sims’s applications for disability 16 insurance and supplemental security income benefits by the Social Security Administration 17 (“SSA”) under the Social Security Act. Plaintiff filed a complaint (Doc. 1) with this Court 18 seeking judicial review of that denial, and the Court now addresses Plaintiff’s Opening 19 Brief (Doc. 27, “Pl. Br.”), Defendant SSA Commissioner’s Response Brief (Doc. 28, “Def. 20 Br.”), and Plaintiff’s Reply (Doc. 31, “Reply”). The Court has reviewed the briefs and 21 Administrative Record (Docs. 19-1 to 19-20, “R.”) and remands Plaintiff’s case for further 22 proceedings. 23 I. Background 24 Plaintiff filed his applications for benefits on April 11, 2018, and May 3, 2018, with 25 both applications alleging disability beginning on December 1, 2011. (R. 21.) Plaintiff 26 later amended his onset date to February 28, 2014. (Id.) Plaintiff’s claim was denied 27 initially on October 19, 2018, and upon reconsideration on April 12, 2019. (Id.) On 28 January 24, 2020, Plaintiff appeared before the ALJ for a hearing on his claim, and on 1 March 19, 2020, the ALJ denied Plaintiff’s claim. (Id. at 18, 21.) The Appeals Council 2 denied Plaintiff’s request for review. (Id. at 1.) 3 The Court has reviewed the medical evidence and will discuss the pertinent 4 evidence in addressing the issues raised by the parties. Upon considering the medical 5 evidence and opinions, the ALJ evaluated Plaintiff’s disability based on the following 6 severe impairments: traumatic brain injury (“TBI”), posttraumatic stress disorder 7 (“PTSD”), and a mood disorder. (Id. at 24.) 8 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 9 that Plaintiff was not disabled from May 13, 2014 through the date of the decision. (Id. at 10 36.) The ALJ found that Plaintiff “does not have an impairment or combination of 11 impairments that meets or medically equals the severity of one of the listed impairments in 12 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 13 416.920(d), 416.925 and 416.926).” (Id. at 24.) Next, the ALJ calculated Plaintiff’s 14 residual functional capacity (“RFC”), finding Plaintiff had the RFC to: 15 perform a full range of work at all exertional levels but with the following nonexertional limitations: No more than simple routine repetitive tasks, not [16] performed in a fast paced production environment, and which require no 17 more than occasional interaction with supervisors, co-workers, and the public. [18] (Id. at 29.) [19] Accordingly, although the ALJ found that Plaintiff “is unable to perform any past [20] relevant work,” the ALJ found that “there are jobs that exist in significant numbers in the [21] national economy that the claimant can perform.” (Id. at 35.) Considering testimony from [22] the vocational expert, the ALJ found that Plaintiff was capable of performing work as a [23] “janitorial worker,” “housekeeper,” or “store laborer.” (Id. at 36.) [24] II. Legal Standard [25] In determining whether to reverse an ALJ’s decision, the district court reviews only [26] those issues raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503 , 517 [27] n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability determination [28] 1 only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, [2] 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a 3 reasonable person might accept as adequate to support a conclusion considering the record 4 as a whole. Id. To determine whether substantial evidence supports a decision, the Court 5 must consider the record as a whole and may not affirm simply by isolating a “specific 6 quantum of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to 7 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 8 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 9 (citations omitted). 10 To determine whether a claimant is disabled for purposes of the Act, the ALJ 11 follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the burden of 12 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 13 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 14 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 15 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 16 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At 17 step three, the ALJ considers whether the claimant’s impairment or combination of 18 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 19 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520 (a)(4)(iii). If so, the claimant is automatically 20 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 21 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 22 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where the ALJ 23 determines whether the claimant can perform any other work in the national economy 24 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 25 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 26 . . . 27 . . . 28 . . . 1 III. Analysis 2 Plaintiff’s opening brief raises three arguments. First, Plaintiff argues the ALJ erred 3 when evaluating the opinions of Dr. McGady and Dr. Geary. (Pl. Br. at 16-25.)1 Second, 4 Plaintiff argues the ALJ erred when rejecting his symptom testimony. (Id. at 26-30.) Third, 5 Plaintiff argues the ALJ erred by rejecting, or ignoring, disability findings and supporting 6 evidence from the Department of Veterans Affairs. (Id. at 30-32.) 7 A. Medical Sources 8 1. 2017 Regulations 9 In early 2017, the SSA amended the regulations for evaluating medical evidence. 10 See Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed. Reg. 5844 , 11 5844 (Jan. 18, 2017). The amended regulations apply to claims filed on or after March 27, 12 2017. Id. The parties agree that Plaintiff filed his application after the effective date. (Pl. 13 Br. at 2; Def. Br. at 8.) They disagree, however, about how the new regulations change the 14 Court’s analysis. 15 Under the old regulations, “[t]he law in the Ninth Circuit [was] that, although the 16 ALJ must consider all medical opinion evidence, there is a hierarchy among the sources of 17 medical opinions. Those who have treated a claimant are treating physicians, those who 18 examined but did not treat the claimant are examining physicians, and those who neither 19 examined nor treated the claimant are nonexamining physicians.” Latahotchee v. Comm’r 20 of Soc. Sec. Admin., 2021 WL 267909 , *4 (D. Ariz. 2021) (citation omitted). Based on this 21 hierarchy, the Ninth Circuit consistently ruled that an ALJ may only reject an examining 22 physician’s opinion by providing “specific and legitimate reasons that are supported by 23 substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 24 The 2017 regulations provide that “[w]e will not defer or give any specific 25 evidentiary weight, including controlling weight, to any medical opinion. . . . The most [26] 1 Although the body of Plaintiff’s opening brief briefly mentions the ALJ’s failure to 27 “rate the persuasiveness of Dr. Lyster’s assessment” (Pl. Br. at 20-21), Plaintiff’s “Statement Of The Issues” only challenges the ALJ’s evaluation of the opinions of Drs. 28 McGady and Geary (id. at 1). Additionally, in his Reply, Plaintiff concedes that “Dr. Lyster’s opinion is too remote to be of value in this case.” (Reply at 2 n.3.) 1 important factors we consider when we evaluate the persuasiveness of medical opinions 2 . . . are supportability . . . and consistency.” 20 C.F.R. § 404 .1520c(a). Other factors, 3 which an ALJ “may, but [is] not required to[] explain” when evaluating the persuasiveness 4 of a medical opinion, are the medical source’s “relationship with the claimant,” 5 “specialization,” “familiarity with the other evidence in the claim,” and “understanding of 6 our disability program’s policies and evidentiary requirements.” Id. § 404.1520c(b)(2), 7 (c). 8 Plaintiff acknowledges that the 2017 regulations “rescind the regulatory ‘treating 9 physician rule[]’ that previously gave deference to opinions from claimant’s treating 10 physicians.” (Pl. Br. at 17.) Plaintiff contends, however, that “the agency’s current 11 regulations do not abrogate the Ninth Circuit rule that an ALJ may only reject the opinion 12 of an examining physician based on specific and legitimate reasons based on substantial 13 evidence in a claimant’s record.” (Id. at 17-18.) 14 To the extent Plaintiff argues that the Ninth Circuit’s physician hierarchy remains 15 good law, the Court disagrees for the reasons stated in its earlier decisions in Pennock v. 16 Comm’r of Soc. Sec. Admin., 2020 WL 6796768 , *3 (D. Ariz. 2020) (citing Schisler v. 17 Sullivan, 3 F.3d 563 (2d Cir. 1993)), and Toback v. Comm’r of Soc. Sec. Admin., 2022 WL 18 60548, *2 (D. Ariz. 2022) (“The new regulations eliminate the previous hierarchy of 19 medical opinions.”). Although the Ninth Circuit has not yet weighed in on this issue, many 20 other district courts have reached the same conclusion. See, e.g., Stipkovich v. Comm’r of 21 Soc. Sec. Admin., 2021 WL 467189 , *10 (N.D. Ohio 2021) (“[T]o the extent Stipkovich 22 argues . . . that the ‘treating physician rule’ still survives despite the new regulation 23 eliminating that rule, such an argument fails. . . . [T]hat argument has been rejected by 24 other courts, and the undersigned finds their reasoning persuasive.”) (citing Pennock and 25 Schisler); Jones v. Saul, 2021 WL 620475 , *6-9 (E.D. Cal. 2021) (holding that the new 26 regulations are “valid and entitled to deference,” “not contrary to the statute,” and 27 “displace[] contrary pre-existing caselaw”) (capitalization omitted). 28 Plaintiff also suggests the Ninth Circuit’s “specific and legitimate reasons” standard, 1 when detached from the hierarchy of medical opinions, is still viable as a means “to fulfill 2 the requirement that physicians’ opinions be evaluated based on consistency and 3 supportability with the record.” (Pl. Br. at 18.) The Court agrees with the crux of Plaintiff’s 4 argument, even though it is not clear that the “specific and legitimate” standard will remain. 5 Whatever verbiage the Ninth Circuit ultimately adopts, under the amended regulations, the 6 ALJ’s findings must still “continue to satisfy metrics of both articulation [i.e., specificity] 7 and validity [i.e., legitimacy] to survive review.” Shelley D. v. Kijakazi, 2021 WL 8 4443322, *7 (D. Idaho 2021). See also Kathleen G. v. Comm’r of Soc. Sec. Admin., 2020 9 WL 6581012 , *3 (W.D. Wash. 2020) (“The new regulations also do not clearly supersede 10 the ‘specific and legitimate’ standard. That standard is not an articulation of how ALJs 11 must weigh or evaluate opinions, but rather a standard by which the court evaluates whether 12 the ALJ has reasonably articulated his or her consideration of the evidence. Whatever 13 factors the Commissioner considers in evaluating a medical opinion, he must explain his 14 reasoning to allow for meaningful judicial review, and the Ninth Circuit’s ‘specific and 15 legitimate’ standard is merely a benchmark against which the Court evaluates that 16 reasoning.”). 17 In sum, regardless of the precise standard, under the 2017 regulations an ALJ must 18 “explain how [the ALJ] considered the supportability and consistency factors for a medical 19 source’s medical opinions.” 20 C.F.R. § 404 .1520c(b)(2). That explanation must still be 20 supported by substantial evidence. 42 U.S.C. § 405 (g) (“[F]indings of the Commissioner 21 of Social Security as to any fact, if supported by substantial evidence, shall be 22 conclusive.”). 23 2. The ALJ Erred When Evaluating The Opinion Of Dr. McGady 24 Dr. McGady performed a psychological evaluation of Plaintiff in September 2018. 25 (R. 2304-12.) Dr. McGady reported that Plaintiff refused to take a “mini-mental status 26 examination” but still observed that Plaintiff appeared agitated, anxious, irritated, and in 27 distress during the evaluation. (Id. at 2307.) Dr. McGady opined that Plaintiff “is not 28 likely to be able to meet the activities of daily living skills independently and is highly 1 likely to be unable to maintain employment independently without [a full-time caretaker].” 2 (Id. at 2309.) In the Psychological/Psychiatric Medical Source Statement, Dr. McGady 3 rated Plaintiff as likely to experience moderate difficulties when maintaining attention and 4 concentration and likely to experience moderate to severe difficulties when receiving 5 supervision, instruction, or criticism, engaging in socially appropriate behavior with 6 coworkers, or responding to changes in the work environment. (Id. at 2311-12.) 7 The ALJ found Dr. McGady’s opinion to be “somewhat persuasive in that it 8 supports the RFC for the claimant being able to perform simple work. However, the 9 undersigned did not agree with his finding that the claimant would have severe difficulties 10 in social interaction, accepting supervision, or in adjusting to changes in the work 11 environment. While the claimant did not cooperate in testing and seemed upset during the 12 examination, the claimant’s reactions during testing are not explained adequately in the 13 report. As a result, the report is not as persuasive as the report done by Dr. Tai.” (R. 34.) 14 Plaintiff argues that the ALJ’s conclusion that “the claimant’s reactions during 15 testing are not explained adequately in the report” is “belied by the record.” (Pl. Br. at 21.) 16 Plaintiff notes that Dr. McGady observed that Plaintiff behaved erratically, refused to take 17 a mini-exam, and did not appear to be exaggerating symptoms. (Id.) Plaintiff also argues 18 that Dr. McGady’s proposed limitations were supported by a review of Plaintiff’s history 19 and consistent with proposed limitations from other medical sources. (Id.) 20 The Commissioner responds by arguing that it was proper for the ALJ to consider 21 Plaintiff’s failure to give consistent effort during testing. (Def. Br. at 17-18.)2 22 Plaintiff replies that “the Commissioner presents nothing but repetition of the ALJ 23 decision, supplemented by post hoc rationale.” (Reply at 11.) 24 The Court agrees with Plaintiff that the ALJ erred. Although it may be proper for 25 an ALJ to consider a claimant’s failure to give consistent effort during testing, the Court 26 does not find that the ALJ actually relied on that reasoning here. To reiterate, the ALJ 27 stated that “[w]hile the claimant did not cooperate in testing and seemed upset during the 28 2 Throughout this order, the Court will refrain from summarizing the Commissioner’s briefing when it simply paraphrases the ALJ’s order. 1 examination, the claimant’s reactions during testing are not explained adequately in the 2 report.” (R. 34.) The Commissioner argues that this constitutes a finding by the ALJ that 3 “Dr. McGady’s findings were not reliable as they were based on an incomplete 4 examination.” (Def. Br. at 17.) The Court disagrees. The ALJ identified Plaintiff’s 5 uncooperativeness and that he was “upset” in the same clause with no distinction between 6 the two, and the clause is introduced with the subordinating conjunction “[w]hile” rather 7 than, for instance, the explanatory conjunction “because.” 8 All of this leads the Court to conclude that the “while” clause reflects the ALJ’s 9 opinion that, despite Plaintiff’s poor mood and stubbornness, Dr. McGady did his best to 10 interact with Plaintiff during the exam. The Commissioner’s arguments for affirmance 11 thus represent impermissible post hoc reasoning—the ALJ did not discount Dr. McGady’s 12 opinions due to Plaintiff’s failure to give consistent effort during testing. Bray v. Comm’r 13 of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of 14 administrative law require [the Court] to review the ALJ’s decision based on the reasoning 15 and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 16 what the adjudicator may have been thinking.”). 17 With this understanding in mind, the Court cannot meaningfully review the rest of 18 the ALJ’s analysis, which boils down to the naked assertion that she “did not agree” with 19 Dr. McGady’s proposed limitations because Plaintiff’s “reactions during testing are not 20 explained adequately.” (R. 34.) The Court cannot affirm reasoning the ALJ does not 21 divulge. Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 2014) (“[A] ALJ errs when 22 he rejects a medical opinion or assigns it little weight while doing nothing more than . . . 23 criticizing it with boilerplate language that fails to offer a substantive basis for his 24 conclusion.”); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do 25 more than offer his conclusions. He must set forth his own interpretations and explain why 26 they, rather than the doctors’, are correct.”); Kathleen G., 2020 WL 6581012 at *3 27 (“Whatever factors the Commissioner considers in evaluating a medical opinion, he must 28 explain his reasoning to allow for meaningful judicial review.”). 1 This rule applies with particular force when, as here, the ALJ implies that she simply 2 would have prescribed a different set of limitations if she were in Dr. McGady’s position. 3 (R. 34 [“[T]he undersigned did not agree with [Dr. McGady’s] finding . . . .”].) “[I]t is 4 beyond the scope of the ALJ’s authority to insert his or her interpretation of testing results 5 in place of an examining physician.” Tate v. Acting Comm’r of Soc. Sec. Admin., 413 F. 6 Supp. 3d 1003, 1009 (D. Ariz. 2019). 7 3. The ALJ Erred When Evaluating The Opinion Of Dr. Geary 8 Dr. Geary performed a psychological examination of Plaintiff in December 2019, 9 which included psychological tests, behavioral observations, and a clinical interview. Dr. 10 Geary observed that Plaintiff “maintained a vigilant and antsy demeanor,” “was visibly 11 nervous . . . squirming and in almost constant motion,” and was “oriented to noises outside 12 of the examination room constantly.” (R. 2572-73.) Dr. Geary diagnosed PTSD, chronic 13 and moderate-to-severe major depressive disorder, and mild neurocognitive disorder due 14 to TBI. (Id. at 2578.) Dr. Geary ultimately opined that Plaintiff had mild limitations on 15 his ability to respond appropriately to supervision; moderate limitations on his ability to 16 understand, carry out, and remember instruction, respond appropriately to coworkers, and 17 perform simple tasks; moderately severe limitations on his ability to maintain sustainability 18 of work pace; and severe limitations on his ability to respond to customary work pressures. 19 (Id. at 2580-81.) 20 The ALJ found Dr. Geary’s opinion to be “not persuasive.” (Id. at 34.) The ALJ 21 stated that “Dr. Geary’s findings are discussed at length above in this decision and are 22 inconsistent with the evidence in the file and thus are not persuasive.” (Id.) 23 The Court has reviewed the full record and notes that, although the ALJ extensively 24 summarized Dr. Geary’s findings throughout the underlying decision, she only “discussed” 25 them once: when disputing Dr. Geary’s opinion that Plaintiff had a conclusive disability 26 for purposes of step three. In that portion of the decision, the ALJ stated that “Dr. Geary 27 opined that his testing showed the claimant met the criteria of sections 12.02, 12.04, and 28 12.15 of the listings of impairments. (Exhibit 21F, p. 8) This opinion is based on the 1 claimant’s allegations, not on empirical evidence within the documents reviewed by Dr. 2 Geary. The doctor does not cite to any document in the record he reviewed that shows the 3 criteria of the listings are met. He cites studies of people with PTSD and TBI, but never 4 provides information on how the claimant, other than through the claimant’s allegations, 5 demonstrates the criteria are met. The studies cited are of other individuals, not the 6 claimant. As such, the doctor’s opinion is not persuasive. His opinion is also not in keeping 7 with the opinions given by the three prior consultative examiners, all of whom found the 8 claimant able to perform simple work. (Exhibits 6F, 13F, and 16F) Dr. Geary who saw 9 the claimant only on this one visit, opined the claimant’s condition had been as he described 10 since December of 2018.” (Id. at 27-28.) 11 Plaintiff argues that much of the ALJ’s analysis of Dr. Geary is “regarding step12 three listed criteria for conclusive disability” and that “[t]here was nothing in the ALJ’s 13 prior discussion that would give cause to doubt the assessment of [Plaintiff’s] work 14 capacities. The ALJ did not cite to any evidence in the record that the ALJ thought was at 15 odds with Dr. Geary’s conclusions. The ALJ did not mention Dr. Geary’s ratings of 16 [Plaintiff’s] functional limitations. . . .” (Pl. Br. at 22.) Plaintiff also argues that Dr. 17 Geary’s assessment was in fact consistent with record evidence showing Plaintiff 18 struggling with symptoms of PTSD and depression, as observed by both treating and 19 consultative examiners. (Id. at 23-24.) 20 The Commissioner responds that the ALJ properly found Dr. Geary’s opinion not 21 persuasive because his restrictive findings were inconsistent with the overall record and 22 were not adequately supported. (Def. Br. at 18-19.) 23 Plaintiff replies that the ALJ offered no rationale to establish that Dr. Geary’s 24 assessment was not persuasive. (Reply at 12.) 25 The Court agrees with Plaintiff that the ALJ erred. As noted, under the 2017 26 regulations, an ALJ must explain how he or she “considered the supportability and 27 consistency factors for a medical source’s medical opinions.” 20 C.F.R. § 404 .1520c(b)(2). 28 The ALJ’s statement that Dr. Geary’s report “is also not in keeping with the opinions given 1 by the three prior consultative examiners” plausibly satisfies the “consistency” factor 2 explanation. However, contrary to the Commissioner’s argument, the ALJ did not find 3 “Dr. Geary’s opinion not persuasive because . . . Dr. Geary’s conclusions were not 4 adequately supported.” (Def. Br. at 19.) To the extent the ALJ made any statements that 5 could be construed as touching upon supportability, those statements only referred to 6 whether Dr. Geary’s opinions regarding the applicability of “sections 12.02, 12.04, and 7 12.15 of the listings of impairments” were supported by medical evidence in the record. 8 There was no independent analysis of whether Dr. Geary’s opinions regarding Plaintiff’s 9 functional abilities were supported by medical evidence in the record. This omission 10 requires reversal—the Court can only guess, on this record, whether the ALJ considered 11 the supportability factor when evaluating Dr. Geary’s opinions concerning Plaintiff’s 12 functional limitations. 13 B. The ALJ Did Not Err When Rejecting Plaintiff’s Symptom Testimony 14 Plaintiff testified to a variety of physical (e.g., seizures and vertigo) and mental (e.g., 15 PTSD and depression) symptoms that are thoroughly summarized throughout the ALJ’s 16 decision. (R. 29-34.) The ALJ rejected Plaintiff’s symptom testimony for two reasons: 17 first, because the alleged symptoms were inconsistent with medical evidence (id. at 30); 18 and second, because Plaintiff made a variety of inconsistent statements (id. at 34). 19 Plaintiff argues, first, that the ALJ applied an erroneous and unduly demanding 20 standard when analyzing his symptom testimony. (Pl. Br. at 26-28.) Second, Plaintiff 21 asserts that “the ALJ’s alleged inconsistencies are artificial” and explains why his 22 testimony is not internally inconsistent. (Id. at 27-30.) 23 The Commissioner responds, first, that the ALJ properly noted that three 24 consultative examiners opined Plaintiff could perform simple work and ruled that the 25 objective medical evidence did not corroborate Plaintiff’s claims. (Def. Br. at 21.) Second, 26 the Commissioner argues that the ALJ identified several episodes of inconsistency and 27 properly discounted Plaintiff’s symptom testimony on that basis. (Id. at 22-23.) 28 Plaintiff replies that the Commissioner fails to respond to his arguments. (Reply at 1 13-14.) 2 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 3 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 4 ALJ evaluates whether the claimant has presented objective medical evidence of an 5 impairment “which could reasonably be expected to produce the pain or other symptoms 6 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell 7 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). If the claimant presents such 8 evidence, then “the ALJ can reject the claimant’s testimony about the severity of her 9 symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, [10] 759 F.3d at 1014 -15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). This 11 is the most demanding standard in Social Security cases. Id. at 1015. 12 Applying these standards, the Court finds no error. The ALJ explicitly connected 13 Plaintiff’s testimony to evidence that could be rationally construed as contradicting that 14 testimony. (R. 30-34.) For example, Plaintiff testified that his seizures prevent him from 15 driving and his driver’s license had been “taken” by the State of California because the 16 Marine Corps “sent out a statewide thing to . . . anyplace I ever had a driver’s license and 17 they all sent me something back saying I can’t drive.” (Id. at 56-57.) Elsewhere, he 18 clarified: “I don’t have a license.” (Id. at 54.)3 Plaintiff asserted his license was revoked 19 “a long time ago.” (Id. at 57.) Plaintiff also told Dr. Montijo-Tai that he did not have a 20 valid driver’s license and “made it very clear” that he took a cab service to the appointment. 21 (Id. at 2331.) The ALJ noted, however, that Plaintiff “presented an Arizona Driver License 22 as personal proof” to Dr. Geary in December 2019. (Id. at 33.) Plaintiff’s assertion that 23 “Dr. Geary’s report could have misidentified a license instead of a state identification card” 24 (Pl. Br. at 29) is purely speculative. 25 The ALJ identified other examples of inconsistency. For example, Plaintiff claimed 26 to have “no friends” because he “can’t trust people” (R. 72) but also claimed to have met [27] 3 Plaintiff asserts that he “testified his California driver’s license was taken away” 28 (Pl. Br. at 29), but the ALJ could have rationally interpreted his testimony to mean that he did not have any driver’s license. 1 his fiancée within “[t]he last three years” through “mutual friends.” (Id. at 52.) The record 2 also reflects that Plaintiff was actively abusing cannabis in 2018 (id. at 2160), and in 2019 3 asserted that he had used cannabis “four months ago.” (Id. at 2576). During his testimony, 4 however, Plaintiff stated that those records of drug use were simply “wrong.” (Id. at 59.) 5 Such inconsistency is a valid reason for an ALJ to discount symptom testimony, 6 Smolen, 80 F.3d at 1284 , and the statements cited by the ALJ are substantial evidence to 7 support his reasoning. Although Plaintiff identifies various reasons why a different 8 factfinder might have been able to reconcile this evidence with his symptom testimony, the 9 ALJ’s finding of inconsistency was rational and, “[w]here the evidence is susceptible to 10 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 11 conclusion must be upheld.” Thomas, 278 F.3d at 954 . 12 Given these conclusions, it is unnecessary to resolve whether the ALJ’s additional 13 proffered reasons for discounting Plaintiff’s symptom testimony were specific, clear and 14 convincing, and supported by substantial evidence. Even if not, substantial evidence 15 supports the ALJ’s ultimate conclusion. Carmickle v. Comm’r of Soc. Sec. Admin., 533 16 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there remains substantial evidence supporting 17 the ALJ’s conclusions on . . . credibility and the error does not negate the validity of the 18 ALJ’s ultimate [credibility] conclusion, such is deemed harmless and does not warrant 19 reversal.”) (alterations in original) (internal quotation marks omitted); see also Magnotti v. 20 Comm’r of Soc. Sec. Admin., 2021 WL 4025959 , *4 (D. Ariz. 2021) (same). 21 C. Decisions By Other Governmental Agencies 22 1. 2017 Regulations 23 As noted, the SSA amended its regulations in early 2017, and those new regulations 24 apply to Plaintiff’s claim.4 Under the old regulations, the law in the Ninth Circuit was that 25 an ALJ must consider a VA rating determination and provide “persuasive, specific, valid [26] 4 Plaintiff disputes that the Ninth Circuit’s approach to the evaluation of treating 27 physicians has changed after the 2017 regulations (Pl. Br. at 17-19) but seems to accept that the Ninth Circuit’s older case law no longer applies as to VA rating determinations. 28 Thus, the Court will not analyze whether an ALJ in the Ninth Circuit is still required to provide “persuasive, specific, valid reasons” for rejecting a VA rating. 1 reasons” for rejecting it, given the “marked similarity” between the two disability 2 programs. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). 3 Under the new regulations, “a decision by any other governmental agency . . . about 4 whether you are disabled . . . is not binding on [the SSA] and is not our decision about 5 whether you are disabled . . . . Therefore, . . . we will not provide any analysis in our 6 determination or decision about a decision made by any other governmental agency . . . 7 about whether you are disabled . . . . However, we will consider all of the supporting 8 evidence underlying the other governmental agency or nongovernmental entity’s decision 9 that we receive as evidence in your claim in accordance with § 404.1513(a)(1) through 10 (4).” 20 C.F.R. §404.1504 . The SSA also clarified the distinction between an agency 11 decision and supporting evidence in its final rules commentary: “Although we are not 12 requiring adjudicators to provide written analysis about how they consider the decisions 13 from other governmental agencies and nongovernmental entities, we do agree with the 14 commenters that underlying evidence that other governmental agencies and 15 nongovernmental entities use to support their decisions may be probative of whether an 16 individual is disabled or blind under the Act.” Revisions to Rules Regarding Evaluation 17 of Medical Evidence, 82 Fed. Reg. 5844 , 5848 (Jan. 18, 2017). 18 It is clear to the Court that, under the new regulations, although an ALJ need not 19 explain why she dismissed a disability determination by the VA, she must still “consider 20 all the evidence underlying the VA’s decision—at least, all the evidence that was presented 21 to the VA and is also presented to the Social Security Administration, and . . . provide 22 analysis of any significant, probative evidence contained in the VA records.” Gerald B. v. 23 Comm’r of Soc. Sec. Admin., 2021 WL 568030 , *3 (W.D. Wash. 2021). See also Michelle 24 H. v. Kijakazi, 2021 WL 4342313 , *9-10 (D. Idaho 2021) (finding that the ALJ did not err 25 by failing to analyze a disability finding made under another agency’s standard but did err 26 by failing to address that doctor’s findings when relevant to RFC assessment). 27 … 28 … 1 2. The ALJ Erred By Failing To Consider Supporting Evidence 2 Underlying The VA’s Decision 3 In January 2018, Plaintiff underwent a VA disability rating review by Dr. 4 Greenberg. Dr. Greenberg performed a mental status exam and made a DSM-5 diagnosis, 5 leading to a rating of 70% service-connected disability for posttraumatic disorder. (R. 6 1500-1503.) 7 The ALJ mentioned that Dr. Greenberg had evaluated Plaintiff and diagnosed him 8 with PTSD and severe impairments. (Id. at 27.) The ALJ also set forth Dr. Greenberg’s 9 findings at length. (Id. at 31.) The ALJ then summarily dismissed Dr. Greenberg’s report 10 by citing 20 C.F.R. §404.1504 . (Id. at 31-32.) 11 Plaintiff argues the ALJ erred because she “did nothing to address the specifics of 12 Dr. Greenberg’s report.” (Pl. Br. at 31.) 13 The Commissioner responds that decisions by other governmental agencies 14 (including the VA) are not considered inherently valuable or persuasive under the 2017 15 regulations and that the ALJ was not required to analyze the VA’s determination. (Def. 16 Br. at 20.) 17 Plaintiff replies that “the problem is not the service-connected rating of disability 18 itself, but the failure to consider the underlying findings of the VA decision.” (Reply at 19 14.) 20 The Court agrees with Plaintiff that the ALJ erred. Although the ALJ was not 21 obligated to explain why she was rejecting Dr. Greenberg’s disability rating, she was 22 obligated to explain her interpretation of the findings underlying that decision. If the ALJ 23 did more than summarize Dr. Greenberg’s findings, the Court does not see it and the 24 Commissioner does not identify it. 25 … 26 … 27 … 28 … 1 D. The Appropriate Remedy Is To Remand Plaintiff's Case For Further 2 Proceedings 3 The credit-as-true rule determines whether a case should be remanded for benefits. 4|| The rule, if applied here, would result in remand of Plaintiff's case for a calculation and 5 || payment of benefits. Garrison, 759 F.3d at 1020 . It applies if each part of a three-part test || is satisfied. /d. First, the record must have been fully developed and further administrative || proceedings would serve no useful purpose. Jd. Next, the ALJ must have failed to provide 8 || sufficient reasons for rejecting the claimant’s testimony or medical opinions. /d. Finally, 9|| if the improperly discredited evidence were credited as true, then the ALJ would be 10 || required to find the claimant disabled. Jd. Even if all elements of the credit-as-true rule 11 || are met, the Court maintains “flexibility to remand for further proceedings when the record 12 || asa whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” /d. at 1021. 14 The Court finds that further administrative proceedings will serve a useful purpose. || The ALJ exhaustively detailed the medical evidence of record but failed to clearly link her || ultimate conclusions to the record in the format required by current regulations. 17 || Additionally, the Court’s independent review of the record both prompts serious doubt as 18 || to whether Plaintiff is, in fact, disabled, and inspires confidence that the ALJ developed, || but simply failed to enunciate, a satisfactory level of evidentiary support for her decision. 20 IT IS THEREFORE ORDERED remanding this matter to the Social Security □□ Administration for further proceedings consistent with the Order. 22 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly 23 || and close this case. 24 Dated this 17th day of March, 2022. [25] 26 fm ee” 27 f CC —— Dominic W. Lanza 28 United States District Judge -16-