Gibson v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Kellie J. Gibson, No. CV-21-02091-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Plaintiff challenges the denial of her application for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 17), the 18 Commissioner’s answering brief (Doc. 18), and Plaintiff’s reply (Doc. 19), as well as the 19 Administrative Record (Doc. 13, “AR”), and now reverses the Administrative Law Judge’s 20 (“ALJ”) decision and remands for further proceedings. 21 I. Procedural History 22 On August 7, 2018, Plaintiff filed an application for disability and disability 23 insurance benefits, alleging disability beginning on July 1, 2018.1 (AR at 13.) The Social 24 Security Administration (“SSA”) denied Plaintiff’s application at the initial and 25 reconsideration levels of administrative review and Plaintiff requested a hearing before an 26 ALJ. (Id.) On July 14, 2021, following a telephonic hearing, the ALJ issued an [27] 1 Plaintiff’s original alleged onset date was August 9, 2017. (AR at 13.) Plaintiff’s 28 representative amended the onset date to be July 1, 2018, “reflecting the claimant’s date last worked.” (Id.) 1 unfavorable decision. (Id. at 13-28.) The Appeals Council later denied review. 2 II. The Sequential Evaluation Process And Judicial Review 3 To determine whether a claimant is disabled for purposes of the Act, the ALJ 4 follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the burden of 5 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 6 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 7 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 8 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 9 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At 10 step three, the ALJ considers whether the claimant’s impairment or combination of 11 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 12 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520 (a)(4)(iii). If so, the claimant is automatically 13 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 14 capacity (“RFC”) and determines whether the claimant is still capable of performing past 15 relevant work. 20 C.F.R. § 404.1520 (a)(4)(iv). If not, the ALJ proceeds to the fifth and 16 final step, where she determines whether the claimant can perform any other work in the 17 national economy based on the claimant’s RFC, age, education, and work experience. 20 18 C.F.R. § 404.1520 (a)(4)(v). If not, the claimant is disabled. Id. 19 An ALJ’s factual findings “shall be conclusive if supported by substantial 20 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 21 the Commissioner’s disability determination only if it is not supported by substantial 22 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 23 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 24 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 25 evidence is susceptible to more than one rational interpretation, one of which supports the 26 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 27 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 28 decision, the district court reviews only those issues raised by the party challenging the 1 decision. Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). 2 III. The ALJ’s Decision 3 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 4 since the alleged onset date and that Plaintiff had the following severe impairments: 5 “Obesity, aggravating mild degenerative disc disease of the thoracolumbar spine.” (AR at 6 15-16.) In contrast, the ALJ found that Plaintiff’s attention deficit disorder (“ADD”) and 7 post-traumatic stress disorder (“PTSD”) were non-severe. (Id. at 17-20.)2 Next, the ALJ 8 concluded that Plaintiff’s impairments did not meet or medically equal a listing. (Id. at 9 21.) Next, the ALJ calculated Plaintiff’s RFC as follows: 10 [T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except that while the claimant can [11] frequently climb ramps and stairs, she can only occasionally climb ladders, 12 ropes, and scaffolds. The claimant can no more than frequently stoop, kneel, crouch, and crawl. [13] (Id. at 21-26.) [14] As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom [15] testimony, concluding that Plaintiff’s “statements concerning the intensity, persistence and [16] limiting effects of these symptoms are not entirely consistent with the medical evidence [17] and other evidence in the record for the reasons explained in this decision.” (Id. at 22-24.) [18] The ALJ also evaluated opinion evidence from various medical sources during steps two [19] and four of the sequential analysis, concluding as follows: (1) state agency mental [21] 2 The ALJ also noted that Plaintiff “suffered from a visual impairment, further 22 alleging that she was legally blind without her eyeglasses,” but found that subsequent medical examinations showed “the claimant’s corrected visual acuity was generally intact 23 at 20/25” and is “capable of reading fine print in twelve-point standard font, with sufficient accuracy that she could independently complete medical forms,” such that her alleged 24 vision loss “does not represent a severe impairment.” (AR at 16.) As for Plaintiff’s “arthritic hand pain,” the ALJ found that “this too appears mild, with no material impact 25 on the claimant’s functional capacity” based on “notes from a further check-up at Spectrum Healthcare in January 2021 show[ing] that the claimant’s hand pain was reportedly 26 controlled with over-the-counter topical pain medication, and contemporaneous examination notes document[ing] ‘no obvious joint deformity.’” (Id.) Finally, as for 27 Plaintiff’s alleged “periodontal disease leading to missing teeth,” the ALJ concluded this impairment was non-severe in light of Plaintiff’s clear communication during the hearing 28 and the absence of evidence of “recurrent dental abscesses or dental abscesses progressing into generalized infection or sepsis.” (Id. at 16-17.) 1 consultant Dr. M. Meier, PsyD (“generally persuasive”); (2) state agency mental consultant 2 Dr. R. Garland, PhD (“generally persuasive”); (3) consultative examiner Dr. Kenzslowe 3 (“only partially persuasive”); (4) consultative examiner Dr. Tromp (“generally 4 persuasive”); (5) Registered Nurse Dena Wampler (“unpersuasive”); (6) state agency 5 medical consultant Pravin Sampat, M.D. (“persuasive”); (7) state agency medical 6 consultant J. Hartman, M.D. (“persuasive”); (8) Richard Palmer, M.D., who performed a 7 medical consultative examination of Plaintiff (“generally persuasive”); and (9) Nurse 8 Practitioner Claudia Converse (“unpersuasive,” “poorly supported,” and “inconsistent with 9 the evidence of record”). (Id. at 18-20, 23-26.) Additionally, the ALJ evaluated a third10 party statement from Mary Wisely, Plaintiff’s mother, but made “no specific finding as to 11 the persuasiveness of this evidence.” (Id. at 26.) 12 Based on the testimony of a vocational expert, the ALJ concluded that Plaintiff was 13 capable of performing her past relevant work as a graphic designer, data entry clerk, and 14 instant print operator. (Id. at 27.) Thus, the ALJ concluded that Plaintiff is not disabled. 15 (Id. at 28.) 16 IV. Discussion 17 Plaintiff presents two issues on appeal: (1) “Did the ALJ commit materially harmful 18 error by rejecting Gibson’s symptom testimony in the absence of specific, clear, and 19 convincing reasons supported by substantial evidence in this record as a whole?” (Doc. 17 20 at 10-17); and (2) “Did the ALJ commit materially harmful error by concluding Gibson’s 21 mental impairments were not severe, which was founded on the ALJ’s improper rejection 22 of the assessment from Gibson’s treating psychiatric nurse practitioner, Dena R. Wampler, 23 PMHNP-BC, without providing sufficient explanation that included a rational 24 interpretation of this record supported by substantial evidence that also failed to explain 25 the consideration of the supportability and consistency factors under the agency’s 26 regulations for evaluation of medical source opinions?” (id. at 17-25). 27 … 28 … 1 A. Symptom Testimony 2 1. Standard Of Review 3 An ALJ must evaluate whether the claimant has presented objective medical 4 evidence of an impairment that “could reasonably be expected to produce the pain or other 5 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) 6 (citations omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based 7 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 8 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Instead, the ALJ may “reject the 9 claimant’s testimony about the severity of [the] symptoms” only by “providing specific, 10 clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487 , 48811 89 (9th Cir. 2015). This is the most demanding standard in Social Security cases. Garrison 12 v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). 13 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 14 The ALJ provided the following analysis of Plaintiff’s mental symptom testimony: 15 In her Adult Function Report, the claimant alleged deficits in her memory, reportedly severe enough that she had difficulty remembering spoken 16 instructions. In terms of the evidence, notes from a September 2018 psychological consultative examination with Dr. Angela Kenzslowe, PsyD, 17 show that the claimant performed well on exercises testing her cognitive function, scoring two out of three possible points on a delayed recall exercise, 18 and receiving full scores on immediate recall, naming, repetition, comprehension, reading, writing, and copying exercises. Shortly thereafter, 19 in February 2019, the claimant attended a further consultative examination with Dr. Shannon Tromp, PhD, receiving a perfect score on exercises testing 20 her recall and general cognition. More recently, notes from a brief January 2021 hospitalization at the Banner Behavioral Health Hospital show that the 21 claimant’s memory remained grossly intact even during a period of increased symptom severity, with coherent, goal-directed thought processes. Finally, 22 notes from a March 2021 mental status examination at the Cobre Valley Regional Medical Center show that the claimant again displayed grossly 23 intact memory and cognition, with good insight and judgment. Accordingly, the undersigned finds that the claimant remains able to function in this area 24 without limitation. . . . 25 In her Adult Function Report, the claimant alleged difficulties with concentration and task completing, stating that her ability to pay attention 26 “depends entirely on level of interest.” However, during the claimant’s initial psychological consultative examination, Dr. Kenzslowe indicated that 27 the claimant scored five out of five possible points on exercises testing attention and calculation. Likewise consultative examiner Dr. Tromp 28 indicated that the claimant had “no problems” with attention and concentration, again noting that the claimant scored five out of five possible 1 points on exercises testing attention and calculation. Despite the claimant’s episode of increased mental symptom severity in January 2021, notes from 2 an evaluation at Crisis Preparation and Recovery show that her attention remained normal, with the claimant successfully completing serial-sevens 3 calculations and spelling the word “world” both forwards and backwards. Similarly, records from the claimant’s most recent mental status examination 4 at the Cobre Valley Regional Medical Center show that her attention and concentration remained grossly intact despite her anxious mood, suggesting 5 that the claimant’s anxiety does not represent a significant barrier to her ability to maintain concentration. With this in mind, the undersigned finds 6 that the claimant is only mildly limited in this functional area. . . . 7 As for her interaction with others, the file documents intermittent complaints of difficulty getting along with others, centered on feelings of persecution, 8 but the majority of examination notes characterize the claimant’s demeanor as generally normal. Notably, both Dr. Kenzslowe and Dr. Tromp 9 characterized the claimant’s demeanor as cooperative, with normal speech, as do notes from the claimant’s January 2021 discharge examination at the 10 Banner Behavioral Health Hospital. Indeed, as recently as March 2021, records from the Cobre Valley Regional Medical Center show that the 11 claimant remained calm, with appropriate eye contact despite an anxious mood. As such, the undersigned finds that the claimant’s limitation in these 12 functional areas remains mild. . . . [13] (AR at 17-18, internal citations omitted.) [14] Separately, the ALJ provided the following summary of Plaintiff’s physical [15] symptom testimony: [16] In her initial Adult Disability Report, the claimant alleged that she was 17 unable to work due to arthritic pain in her back, with additional limitations stemming from the nonsevere physical and mental impairments already 18 addressed earlier in this decision. In her request for reconsideration, the claimant alleged an increase in her symptom severity in Autumn 2018, 19 interfering with activities of daily living, later alleging a further increase in symptom severity in her request for a hearing. The claimant elaborated on 20 these allegations in her Adult Function Report, stating that she could walk no more than one-quarter mile at a time, further alleging unspecified 21 limitations in standing, walking, sitting, and a wide range of flexibilityrelated activities. During the hearing, the claimant testified that she 22 continued to struggle with chronic pain, interfering with physical abilities. In general, the claimant’s allegations represent a high degree of limitation 23 that would substantially interfere with the performance of work-related tasks on a regular basis. . . . [24] 25 (Id. at 22.) 26 The ALJ found that Plaintiff’s “medically determinable impairments could 27 reasonably be expected to cause the alleged symptoms.” Nevertheless, the ALJ declined 28 to fully credit this testimony because Plaintiff’s “statements concerning the intensity, 1 persistence and limiting effects of these symptoms are not entirely consistent with the 2 medical evidence and other evidence in the record for the reasons explained in this 3 decision.” (Id.) In support of this conclusion, the ALJ cited (1) medical records showing 4 that Plaintiff’s “present complaints appear to pre-date the period at issue here”; 5 (2) treatment records showing that Plaintiff “exhibited a normal gait, with full 5/5 motor 6 strength, intact sensation, and negative straight-leg raising test results” on several 7 occasions; (3) Plaintiff’s yard work and independence in her daily activities; (4) other 8 medical records noting normal objective examinations; and (5) treatment notes in which 9 Plaintiff denied debilitating symptoms like “weakness, fatigue, or disequilibrium.” (Id. at 10 22-24.) 11 3. The Parties’ Arguments 12 Plaintiff raises several challenges to the ALJ’s evaluation of her symptom 13 testimony. (Doc. 17 at 10-17.) First, Plaintiff argues that it was error for the ALJ to only 14 discuss her mental impairments at step two. (Doc. 17 at 12.) Second, Plaintiff faults the 15 ALJ for not mentioning her bipolar diagnosis. (Id.) Third, Plaintiff argues that the ALJ 16 “discounted [her] reported mental health symptoms based on mental status examinations 17 showing normal cognitive functioning, including intact memory,” which misunderstands 18 “the nature of [Plaintiff’s] mental impairments” given that cognitive assessments are not 19 the equivalent of a depressive disorder. (Id. at 12-13.) Fourth, Plaintiff argues that her 20 scores on “quick questions during a time-limited examination do[] not forecast how [she] 21 would be able to perform or sustain work over an eight-hour day, forty-hour week.” (Id. 22 at 13.) Fifth, in a related vein, Plaintiff argues that the ALJ’s reliance on treatment notes 23 describing Plaintiff as “awake, alert, fully oriented, or with a ‘generally normal’ demeanor, 24 does not show any convincing inconsistency” with Plaintiff’s reported symptoms. (Id. at 25 14.) Sixth, as for her physical pain, Plaintiff argues the ALJ mischaracterized the timeline 26 of her low back pain—specifically, by finding that “her pain complaints existed prior to 27 her onset date of disability, and had not progressed during the period at issue” despite 28 medical records showing physical therapy in 2020. (Id.) Plaintiff also contends that any 1 isolated treatment notes do not consider her pain in the context of an eight-hour workday. 2 (Id. at 15.) Finally, Plaintiff argues that the ALJ’s finding that her yard work was 3 inconsistent with her limitations was flawed given that there is no evidence that she spent 4 a “substantial part of a typical day” engaged “in activities inconsistent with disabling 5 limitations.” (Id. at 15-16, citing Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 6 2001).) 7 The Commissioner argues that substantial evidence supports the ALJ’s assessment 8 of Plaintiff’s subjective allegations. (Doc. 18 at 5.) The Commissioner contends that the 9 ALJ identified three reasons for rejecting Plaintiff’s symptom testimony: (1) the testimony 10 was inconsistent with the medical evidence in the record; (2) Plaintiff responded well to 11 treatment; and (3) Plaintiff’s activities of daily living contradicted her subjective 12 allegations. (Id. at 5-10, 13-16.) Although the ALJ did not mention Plaintiff’s bipolar 13 diagnosis, the Commissioner argues that Plaintiff’s bipolar disorder is limited to 14 “Plaintiff’s five days of treatment in January 2021” and, in any event, “the ALJ specifically 15 considered Plaintiff’s reported mental health symptoms throughout the relevant period,” 16 so any error would be harmless. (Id. at 11.) Related to Plaintiff’s physical impairments, 17 the Commissioner argues the objective medical evidence cited by the ALJ directly 18 contradicts Plaintiff’s claimed limitations. (Id. at 11-13.) 19 In reply, Plaintiff accuses the Commissioner of not materially responding to her 20 arguments and merely repeating the ALJ’s rationale. (Doc. 19 at 4-5, 7.) Plaintiff also 21 argues that any improvement analysis offered by the Commissioner is a post hoc rationale. 22 (Id. at 5-6.) Plaintiff further contends that improvement in some symptoms does not negate 23 her “ongoing issues with paranoid thought content, concentration deficiencies, or social 24 interaction difficulties.” (Id. at 6.) Plaintiff also notes that the Commissioner does not 25 “defend the ALJ’s failure to demonstrate that [Plaintiff] spent a substantial part of a typical 26 day engaged in activities inconsistent with disabling limitations, or that a list of activities, 27 without information as to the demands, frequency, or duration of those activities, failed to 28 show any contradiction with [Plaintiff’s] reported symptoms.” (Id. at 7.) 1 4. Analysis 2 The Court finds no harmful error in the ALJ’s decision to discredit Plaintiff’s 3 symptom testimony. 4 As an initial matter, there is no merit to Plaintiff’s contention that the ALJ failed to 5 discuss her mental impairments with any specificity. In support of this contention, Plaintiff 6 cites the portion of the decision containing the ALJ’s step-four analysis. (Doc. 17 at 11.) 7 But it is error for a reviewing Court to confine its analysis to one heading. Kaufmann v. 8 Kijakazi, 32 F.4th 843 , 851 (9th Cir. 2022) (“We agree with the Commissioner and the 9 court that, in its original decision, the court clearly erred by overlooking the ALJ’s full 10 explanation.”); Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013) (an ALJ is required 11 to “discuss and evaluate the evidence that supports his or her conclusion,” but is not 12 required to do so under a specific heading). As noted above, the ALJ provided a 13 comprehensive discussion of Plaintiff’s claimed mental impairments during step two of the 14 sequential analysis. (AR at 17-19.) Then, during step four, with respect to both Plaintiff’s 15 physical and mental impairments, the ALJ found “that the claimant’s medically 16 determinable impairments could reasonably be expected to cause the alleged symptoms; 17 however, the claimant’s statements concerning the intensity, persistence and limiting 18 effects of these symptoms are not entirely consistent with the medical evidence and other 19 evidence in the record for the reasons explained in this decision.” (AR at 22.) 20 During the step-two analysis, the ALJ identified several clear and convincing 21 reasons, supported by substantial evidence, for discounting Plaintiff’s testimony related to 22 her alleged mental impairments. For example, although Plaintiff “alleged deficits in her 23 memory, reportedly severe enough that she had difficulty remembering spoken 24 instructions,” the ALJ correctly noted that Plaintiff performed “well on exercises testing 25 her cognitive function, scoring two out of three possible points on a delayed recall exercise, 26 and receiving full scores on immediate recall, naming, repetition, comprehension, reading, 27 writing, and copying exercises.” (AR at 17-18, citing id. at 440, 674.) Although Plaintiff 28 is correct that such test results do not always contradict a claimant’s allegations regarding 1 mental symptoms,3 it was rational for the ALJ to conclude they contradicted Plaintiff’s 2 specific allegations related to memory deficits. 3 Similarly, although Plaintiff asserted that her ability to pay attention “depends 4 entirely on level of interest” (AR at 440), the ALJ correctly noted that, during examinations 5 by the agency consultants, Plaintiff scored “five out of five possible points on exercises 6 testing attention and calculation.” (AR at 17-18, citing AR at 674, 680.) Other records 7 indicate that Plaintiff completed “counting backwards from 100 in increments of 7” as well 8 as certain spelling exercises. (Id. at 18, citing id. at 871.) Separately, a note from a medical 9 appointment showed that Plaintiff’s attention was “grossly intact” despite her anxious 10 mood, “suggesting that the claimant’s anxiety does not represent a significant barrier to her 11 ability to maintain concentration.” (Id. at 18, citing id. at 937.) It was rational for the ALJ 12 to conclude that these objective findings contradicted Plaintiff’s stated limitations in the 13 area of “concentrating, persisting, or maintaining pace.” 14 Although these proffered reasons for discounting Plaintiff’s symptom testimony 15 would alone be sufficient to reject Plaintiff’s first assignment of error,4 and although 16 Plaintiff clarifies that her first assignment of error “focuses on [her] mental impairments” [17] 3 See generally Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (“[T]he ALJ’s 18 reliance on Dr. McDuffee and Dr. Dees’s observations about cognitive functioning is misplaced; Ghanim primarily testified that nightmares, insomnia, social anxiety, and 19 depression—not any cognitive impairments—caused him difficulty.”); Morris v. Berryhill, 358 F. Supp. 3d 875, 882-83 (D. Ariz. 2019) (“[T]he MMSE does measure cognitive 20 function, as the ALJ indicated. But, plaintiff’s limitations flow from her schizoaffective disorder and her depressive disorder, not from any cognitive disorder. . . . Similarly, 21 observations as to plaintiff’s cognitive functioning do not contradict her reported symptoms of depression and hearing voices. The limitations that Dr. Koster assessed were not limited 22 to cognition issues, but included limitations that flowed from plaintiff’s depressive and schizoaffective disorders. The second reason the ALJ gave for rejecting Dr. Koster’s 23 opinion was not legitimate.”) (citation omitted). 24 4 See, e.g., Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[S]everal of our cases have held that an ALJ’s error was harmless where the ALJ provided one or more 25 invalid reasons for disbelieving a claimant’s testimony, but also provided valid reasons that were supported by the record.”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 , 26 1162-63 (9th Cir. 2008) (“Because we conclude that two of the ALJ’s reasons supporting his adverse credibility finding are invalid, we must determine whether the ALJ’s reliance 27 on such reasons was harmless error. . . . [T]he relevant inquiry in this context is not whether the ALJ would have made a different decision absent any error, it is whether the ALJ’s 28 decision remains legally valid, despite such error. . . . Here, the ALJ’s decision finding Carmickle less than fully credible is valid, despite the errors identified above.”). 1 (Doc. 17 at 14), the Court also notes that the ALJ identified clear and convincing reasons, 2 supported by substantial evidence, for discrediting Plaintiff’s testimony related to her 3 physical impairments. For example, the ALJ noted (AR at 22) that Plaintiff’s complaints 4 of chronic back pain, which she identified in her Disability Report as one of her disabling 5 impairments (AR at 416), are reflected in medical records dating back to early 2018. (See, 6 e.g., id. at 622 [May 2018 medical record, reflecting that Plaintiff’s chief complaint was 7 “Low back pain and numbness in left leg” and that Plaintiff had been “referred by her 8 primary care[,] complains of chronic low back pain”]; id. at 599-600 [radiology records 9 from February 2018 reflecting “mild multilevel degenerative disease and fact arthropathy 10 with multiple levels of mild spondylolisthesis seen in the lower cervical spine”].) 11 However, Plaintiff proceeded before the ALJ under the theory that “the alleged onset date 12 of her disability [was] July 1, 2018, reflecting [her] last date worked.” (AR at 13.) This 13 chronology is potentially significant because it suggests that Plaintiff was able to work 14 during the first half of 2018 despite the purportedly disabling impairment. Under Ninth 15 Circuit law, such an inconsistency may serve as a permissible basis for discrediting a 16 claimant’s symptom testimony. See, e.g., Miller v. Berryhill, 732 F. App’x 526 , 528 (9th 17 Cir. 2018) (“The ALJ also reasoned that Miller’s testimony was undercut by the fact that 18 he had worked before the alleged onset date with approximately the same impairments, as 19 evidenced by medical imaging showing no change to his lumbar spine or the surgery site 20 from before the alleged onset date to afterward, as well as various range-of-motion and 21 pain tests that remained the same before and after the alleged onset date. This was 22 permissible.”); Alexander v. Comm’r of Soc. Sec., 373 F. App’x 741, 744 (9th Cir. 2010) 23 (“The ALJ did not err in disregarding Alexander’s alleged fibromyalgia as disabling. . . . 24 Dr. Emori diagnosed fibromyalgia in 1989, seven years before Alexander’s alleged onset 25 date. In the interim, Alexander was able to work.”) (citations omitted).5 It was rational for 26 5 The Court acknowledges that an adverse credibility determination may not be warranted if the preexisting condition “worsened or deteriorated in some way to distinguish 27 the period before [the] alleged onset date from after that date.” Schoonmaker v. Colvin, 2015 WL 6658669 , *6 (D. Or. 2015). However, it was rational for the ALJ to conclude 28 that no such worsening or deterioration occurred here. (AR at 23 [“Overall, while the file documents the presence of degenerative disc disease in the claimant’s thoracolumbar spine, 1 the ALJ to identify this discrepancy as one of the bases for discrediting Plaintiff’s 2 testimony. 3 Separately, although Plaintiff asserted in her Function Report that her back and knee 4 pain impair her ability to stand, walk, and squat (AR at 440), the ALJ identified numerous 5 examples of Plaintiff walking without difficulty. (Id. at 24, citing id. at 584, 596, 624, 629 , 6 664, 673, 833, 846, 850, 854, 857, 871, 881, 944.)6 Plaintiff’s citation to one physical 7 therapy session in 2020 does not undermine the ALJ’s conclusion. (Doc. 17 at 14, citing 8 AR at 836-59.) Therefore, the ALJ did not err in discrediting Plaintiff’s symptom 9 testimony. 10 B. NP Wampler’s Opinions 11 1. Standard Of Review 12 In January 2017, the SSA amended the regulations concerning the evaluation of 13 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 14 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 15 applications filed on or after March 27, 2017, they are applicable here. 16 The new regulations, which eliminate the previous hierarchy of medical opinions, 17 provide in relevant part as follows: 18 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical [19] finding(s), including those from your medical sources . . . . The most 20 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability [21] . . . and consistency . . . . [22] this impairment appears to have remained mild during the period at issue here, without 23 evidence of any significant disease progression.”].) The only purported evidence of worsening identified by Plaintiff is that she participated in physical therapy sessions in 24 May 2020 for her back pain (Doc. 17 at 3 n.3, 14), but the notes from those physical therapy sessions reflect the same general complaints that Plaintiff raised during medical 25 appointments before the alleged onset date. (Compare AR at 836 [May 2020 record: “Primary diagnosis: Low back pain”] with AR at 622 [May 2018 medical record, reflecting 26 that Plaintiff’s chief complaint was “Low back pain and numbness in left leg” and that Plaintiff had been “referred by her primary care[,] complains of chronic low back pain”].) [27] 6 The Court notes that several of the records cited by the ALJ do not appear to exist. 28 (Compare AR at 24 [citing “12F/9, 13, 17, 20”] with AR at 687-88 [Exhibit 12F is a twopage document].) [1] 20 C.F.R. § 416 .920c(a).7 Regarding the “supportability” factor, the new regulations 2 explain that the “more relevant the objective medical evidence and supporting explanations 3 presented by a medical source are to support his or her medical opinion(s), . . the more 4 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 5 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 6 from other medical sources and nonmedical sources in the claim, the more persuasive the 7 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 8 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 9 Administration’s regulations displace our longstanding case law requiring an ALJ to 10 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 11 Woods v. Kijakazi, 32 F.4th 785 , 787 (9th Cir. 2022). Thus, “the former hierarchy of 12 medical opinions—in which we assign presumptive weight based on the extent of the 13 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 14 including the decision to discredit any medical opinion, must simply be supported by 15 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 16 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 17 providing an explanation supported by substantial evidence. The agency must articulate 18 how persuasive it finds all of the medical opinions from each doctor or other source and 19 explain how it considered the supportability and consistency factors in reaching these 20 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 21 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 22 of examinations that the medical source has performed or ordered from specialists, and 23 whether the medical source has examined the claimant or merely reviewed the claimant’s 24 records . . . the ALJ no longer needs to make specific findings regarding these relationship 25 factors . . . .” Id. [26] 27 7 In addition to supportability and consistency, other factors that may be considered by the ALJ include the provider’s relationship with the claimant, the length of the treatment 28 relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416 .920c(c). 1 2. NP Wampler’s Opinions 2 NP Wampler, a consultive medical examiner, examined Plaintiff and then filled out 3 an undated form entitled “Medical Assessment of Claimant’s Ability to Perform Work 4 Related Activities (Mental).” (AR at 687-88.) The form contained several questions with 5 accompanying rating scales. (Id.) NP Wampler indicated that Plaintiff had a “moderate” 6 impairment in her ability to relate to other people; a “mild” restriction in her daily activities; 7 a “moderate” deterioration in personal habits; and a “moderately severe” constriction of 8 interests. (Id. at 687.) Based on these findings, NP Wampler indicated that Plaintiff had 9 “moderate” limitations in her ability to respond appropriately to supervision or co-workers 10 and a “moderately severe” limitation in her ability to respond to customary work pressures. 11 (Id.) On the second page of the form, NP Wampler indicated that Plaintiff’s limitations 12 would be expected to last more than 12 months and would moderately8 affect Plaintiff’s 13 sustainability of work pace. (Id. at 688.) In making these determinations, NP Wampler 14 indicated that she reviewed her own “treatment notes” but “no other documents.” (Id.) 15 3. The ALJ’s Evaluation Of NP Wampler’s Opinions 16 The ALJ concluded that NP Wampler’s opinions were “unpersuasive.” (AR at 20.) 17 The ALJ’s complete rationale was as follows: 18 [T]he opinions of registered nurse Dena Wampler are unpersuasive. In an undated medical source statement, Ms. Wampler opined that the claimant [19] was subject to “moderately severe” constriction of interests and ability to 20 respond to customary work pressures, with “moderate” limitations in her ability to respond appropriately to supervisors and coworkers, as well as [21] moderate deterioration in personal habits and moderate impairment in her 22 ability to relate to other people. However, Ms. Wampler presented her opinions in a mere check box form, with no references to supporting evidence 23 or even a basic articulation of her rationale for these proposed limitations. 24 Aside from this issue of supportability, examination notes appearing elsewhere in the file point to a considerably more mild set of mental 25 symptoms than Ms. Wampler’s opinions would suggest. Most notably, the 26 claimant exhibited a generally normal mental status during both of her psychological consultative examinations, and while she experienced a brief [27] 28 8 As defined in the form, moderate means off task between “11-15% of an 8-hour work day.” (AR at 688.) 1 episode of mental symptom exacerbation in January 2021 after discontinuing prescribed medications, her mental status stabilized rapidly upon resumption [2] of treatment. Since then, new examination notes from as recently as March 3 2021 show that the claimant remained calm despite a reportedly anxious mood, with no deficits in memory, cognition, attention, concentration, [4] insight, or judgment. In view of the claimant’s generally normal mental 5 status upon examination, the undersigned finds Ms. Wampler’s opinions overly restrictive relative to the totality of the evidence, and sets these [6] opinions aside as unpersuasive. [7] (Id.) [8] 4. The Parties’ Arguments [9] Plaintiff argues that the ALJ “committed materially harmful error” when [10] discrediting the opinions of NP Wampler. (Doc. 17 at 17-25.) More specifically, Plaintiff [11] argues that the ALJ’s rejection of NP Wampler’s assessment was without “sufficient [12] explanation” and did not include “consideration of the supportability and consistency [13] factors.” (Id. at 17.) According to Plaintiff, the ALJ relied on “unrelated normal cognitive [14] findings to support a perceived inconsistency between the medical evidence and [15] [Plaintiff’s] reported mental symptoms” even though the record shows “consistent mental [16] health treatment . . . and a psychiatric hospitalization after a suicide attempt.” (Id.) [17] Plaintiff argues that NP Wampler’s assessment should be upheld, even under the new [18] regulations, given NP Wampler’s treatment relationship with Plaintiff. (Id. at 21.) Plaintiff [19] also contends that NP Wampler’s treatment notes, which were included in the record, [20] provide an adequate rationale for her check-box-form assessments. (Id. at 21-22.) Next, [21] Plaintiff argues that the ALJ “conflated the supportability and consistency factors” and that [22] the ALJ did not “articulate and explain” her rationale for valuing the consultative medical [23] examiner’s opinions over those of NP Wampler. (Id. at 23.) Finally, Plaintiff contends [24] that her January 2021 hospitalization (admittedly due to stopping medication) is not [25] inconsistent with her mental disorder symptoms. (Id at 23-24.) [26] The Commissioner defends the sufficiency of the ALJ’s rationale for discrediting [27] the opinions of NP Wampler. (Doc. 18 at 17-24.) According to the Commissioner, the [28] ALJ permissibly found that NP Wampler’s opinions could be discredited under both the 1 “consistency” and “supportability” factors. (Id. at 20-23.) The Commissioner emphasizes 2 that the “check box” nature of NP Wampler’s assessment is unpersuasive because of the 3 lack of explanation and notes that an ALJ may permissibly discredit a medical source’s 4 opinions on this basis under the new regulations and recent Ninth Circuit case law. (Id. at 5 20-21.) As for Plaintiff’s arguments regarding the clear-and-convincing-reasons standard 6 and NP Wampler’s status as a treating source, the Commissioner contends these arguments 7 are premised on outdated regulations. (Id. at 21.) The Commissioner also contends that 8 an examination of NP Wampler’s underlying treatment notes does not “contradict the 9 ALJ’s supportability analysis.” (Id. at 21-22.) Finally, as for the ALJ’s consistency 10 analysis, the Commissioner argues that ALJ provided a substantial explanation in various 11 portions of the order and Plaintiff’s “remaining arguments improperly ask this Court to 12 reconsider the evidence that the ALJ already properly evaluated.” (Id. at 23-24.) 13 In reply, Plaintiff acknowledges that the specific-and-legitimate-reasons standard is 14 no longer applicable in light of Woods. (Doc. 19 at 10.) Nevertheless, Plaintiff argues that 15 the ALJ’s evaluation of NP Wampler’s opinions remains erroneous because (1) “this record 16 demonstrated that her mental symptoms and limitations caused more than a minimal effect 17 on her ability to sustain work” and (2) “[t]he Commissioner’s response again stressed 18 improper post hoc rationale related to improvement as a perceived inconsistency between 19 the medical evidence and [Plaintiff’s] reported mental symptoms.” (Id. at 9-10.) 20 5. Analysis 21 The Court understands Plaintiff’s argument to be that (1) the ALJ erred when 22 discrediting NP Wampler’s opinions and (2) the error was harmful because it caused 23 Plaintiff’s mental impairments to be designated as non-severe. (Doc. 17 at 17 [“The ALJ 24 committed materially harmful error by concluding Gibson’s mental impairments were not 25 severe, which was founded on the ALJ’s improper rejection of NP Wampler’s assessment 26 without providing sufficient explanation that included a rational interpretation of this 27 record supported by substantial evidence that also failed to explain the consideration of the 28 supportability and consistency factors under the agency’s regulations for evaluation of 1 medical source opinions.”].) 2 On the one hand, Plaintiff’s focus on how Plaintiff’s mental impairments were 3 characterized at step two of the sequential analysis is misplaced. To proceed beyond step 4 two, the claimant must have a severe impairment, or a combination of severe impairments, 5 that “significantly limits [her] physical or mental ability to do basic work activities.” 20 6 C.F.R. § 404.1520 (c). “An impairment is not severe if it is merely ‘a slight abnormality 7 (or combination of slight abnormalities) that has no more than a minimal effect on the 8 ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 9 (citations omitted). Notably, “[s]tep two is merely a threshold determination meant to 10 screen out weak claims.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citation 11 omitted). Because the ALJ must evaluate the functional impact of both severe and non12 severe impairments during later steps, “[t]he RFC . . . should be exactly the same regardless 13 of whether certain impairments are considered ‘severe’ or not.” Id. at 1049 (emphasis 14 omitted). 15 Given these principles, to the extent Plaintiff’s argument is that the ALJ erred by 16 failing to categorize her mental impairments as severe for step-two purposes (Doc. 17 at 17 17-19), reversal is not warranted. “As this Court has observed in earlier cases, Ninth 18 Circuit law is not a model of clarity concerning how to evaluate claims of step-two error. 19 Some cases suggest that, although it is error for an ALJ to fail to characterize a particular 20 impairment as ‘severe’ during step two, the error can be disregarded as harmless if the ALJ 21 properly addresses the impairment during later steps. Other decisions suggest that a 22 claimant can’t complain about an ALJ’s failure to identify a particular impairment as 23 ‘severe’ during step two so long as the ALJ determined the claimant also had other 24 impairments that so qualify. At any rate, the dispositive issue is whether the ALJ properly 25 evaluated the evidence and testimony concerning that condition during later steps and 26 factored that condition into the RFC.” Harvey v. Comm’r of Soc. Sec. Admin., 2021 WL 27 5822641, *2 (D. Ariz. 2021) (cleaned up). Accordingly, the dispositive issue here is 28 whether Plaintiff has established the existence of harmful error with respect to the ALJ’s 1 consideration of her mental impairments during later steps. The dispute over the step-two 2 severity characterization is a red herring. Buck, 869 F.3d at 1049 (“[S]tep two was decided 3 in Buck’s favor . . . . He could not possibly have been prejudiced. Any alleged error is 4 therefore harmless and cannot be the basis for a remand.”). 5 On the other hand, Plaintiff has established that the ALJ committed harmful error 6 when evaluating NP Wampler’s opinions. Although the ALJ followed the correct 7 procedure under the new regulations when conducting that evaluation (i.e., considering the 8 supportability and consistency factors), the resulting conclusions are not supported by 9 substantial evidence. The ALJ concluded that NP Wampler’s opinions could be discredited 10 under the supportability factor because the opinions were presented in a “mere check box 11 form, with no references to supporting evidence or even a basic articulation of her rationale 12 for these proposed limitations.” (AR at 20, emphasis added.) The italicized portion of this 13 passage is factually inaccurate—the form indicates that NP Wampler reviewed her “own 14 treatment notes” in making her assessments. (AR at 688.) Indeed, Plaintiff identifies nine 15 treatment notes by NP Wampler that are included in the record. (Doc. 17 at 3-6, citing AR 16 at 650 [5/30/18], 654-56 [8/22/18], 797-98 [12/3/18], 799 [3/1/19], 800 [4/11/19], 801 17 [5/10/19], 802 [8/15/19], 804 [1/15/2020], 805 [4/22/20].) Several relate to the substance 18 of Plaintiff’s testimony. (See, e.g., AR at 650 [“She left work d/t a couple of women 19 targeting her at work, examples were when one yelled at her in front of guests, the other 20 has been lying to pt and other co-workers. She decided she would not be able to go back 21 to work until she is back on her meds. She will become upset and ‘not be able to pull 22 myself together.’”].) There is no indication the ALJ was aware of these notes, let alone 23 considered them as part of the supportability analysis. This was error. And although the 24 Commissioner attempts to provide reasons why the ALJ could have found that NP 25 Wampler’s opinions were not supported by NP Wampler’s treatment notes, this is the sort 26 of post hoc rationale that is impermissible in the Social Security context. Burrell v. Colvin, [27] 775 F.3d 1133, 1138 (9th Cir. 2014) (“We are constrained to review the reasons the ALJ 28 asserts.”). 1 The Court acknowledges that the ALJ also found that NP Wampler’s opinions could 2 be discredited under the consistency factor. This determination, when viewed in isolation, 3 was arguably supported by substantial evidence—although Plaintiff argues that the “ALJ 4 did not cite to any specific notes from other providers that painted a ‘more mild set of 5 mental limitations’” (Doc. 17 at 22), this accusation overlooks that the ALJ provided a 6 thorough analysis of both Dr. Kenslowe’s and Dr. Tromp’s evaluations during the step-two 7 analysis. (AR at 17-20.)9 Nevertheless, the Court cannot conclude (at least under the 8 somewhat unusual circumstances of this case) that the ALJ’s permissible finding as to the 9 consistency factor renders harmless the ALJ’s error as to the supportability factor. Perhaps 10 the ALJ will conclude on remand that NP Wampler’s opinions are not supported by her 11 treatment notes or that NP Wampler’s opinions are unworthy of credence (despite their 12 supportability) due to their inconsistency with other medical records and the opinions of 13 other medical sources. But these are determinations the ALJ should make in the first 14 instance. 15 C. Remedy 16 Plaintiff asks that the Court apply the “credit-as-true” rule, which would result in 17 the remand of Plaintiff’s case for calculation of benefits rather than for further proceedings. 18 (Doc. 17 at 25.) 19 The credit-as-true rule only applies in “rare circumstances.” Treichler v. Comm’r 20 of Soc. Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014). Such rare circumstances 21 arise when three elements are present. First, the ALJ must have failed to provide legally 22 sufficient reasons for rejecting medical evidence or claimant testimony. Id. at 1100 . 23 Second, the record must be fully developed, there must be no outstanding issues that must 24 be resolved before a determination of disability can be made, and the Court must find that 25 further administrative proceedings would not be useful. Id. at 1101 . Further proceedings 26 are considered useful when there are conflicts and ambiguities that must be resolved. Id. [27] 9 Plaintiff also argues that the ALJ did not evaluate Plaintiff’s bipolar disorder under 28 both issue headings. (Doc. 17 at 18, 24.) However, Plaintiff did not seek a disability determination on the basis of bipolar disorder. (AR at 416.) || Third, the Court must “find[] the relevant testimony credible as a matter of law □ □ . and 2|| then determine . . . the record, taken as a whole, leaves ‘not the slightest uncertainty as to || the outcome of [the] proceeding.’” Jd. (citations omitted). Also, even if all elements of 4|| the credit-as-true rule are met, the Court maintains “flexibility to remand for further 5 || proceedings when the record as a whole creates serious doubt as to whether the claimant || is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021 . 8 The credit-as-true rule is inapplicable here. Although the ALJ failed to provide 9|| legally sufficient reasons for rejecting the opinions of NP Wampler, outstanding issues 10 || must be resolved before a determination of disability can be made (e.g., whether to credit NP Wampler’s opinions in light of the existence of NP Wampler’s treatment notes). 12 || Further administrative proceedings would be useful for the same reason. Cf Harvey v. 13 || Kijakazi, 2023 WL 21462 , *1 (9th Cir. 2023) (affirming that the credit-as-true rule was inapplicable where the ALJ mistakenly overlooked certain evidence: “remanding for 15 || further proceedings is appropriate to allow the ALJ to properly consider the evidence in the first instance”). 17 Accordingly, 18 IT IS ORDERED that the decision of the ALJ is reversed and this case is 19|| remanded for further proceedings. The Clerk shall enter judgment accordingly and 20 || terminate this action. 21 Dated this 20th day of March, 2023. [22] 23 Lm ee” 24 f t _o———— Dominic W. Lanza 25 United States District Judge [28] -20 -