Bowie v. Saul

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 J.B., Case No. 20-cv-06231-VKD 9 Plaintiff, ORDER RE CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT 11 KILOLO KIJAKAZI, Re: Dkt. Nos. 17, 20 Defendant. — 12 — — 13 — 14 Plaintiff J.B.1 appeals a final decision of the Commissioner of Social Security 15 (“Commissioner”)2 denying his application for supplemental security income under Title XVI of 16 the Social Security Act, 42 U.S.C. § 1381 , et seq. J.B. contends that the administrative law judge 17 (“ALJ”) erred in four respects. First, J.B. contends that the ALJ erred in improperly evaluating the 18 medical opinions of the state-agency consultants and his treating nurse practitioner. Second, J.B. 19 contends that the ALJ failed to provide sufficient reasons for discounting his subjective testimony. 20 Third, J.B. contends that the ALJ erred in failing to find that his impairments meet or medically 21 equal a listed impairment. Fourth, J.B. contends that the ALJ erred in assessing his residual 22 functional capacity (“RFC”). 23 The parties have filed cross-motions for summary judgment. The matter was submitted — 24 — 1 Because orders of the Court are more widely available than other filings, and this order contains — 25 — potentially sensitive medical information, this order refers to the plaintiff only by his initials. See Dkt. No. 1. This order does not alter the degree of public access to other filings in this action — 26 — provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 51(c)(5)(B)(i). — 27 — 1 without oral argument. Upon consideration of the moving and responding papers and the relevant 2 evidence of record, for the reasons set forth below, the Court grants J.B.’s motion for summary 3 judgment, denies the Commissioner’s cross-motion for summary judgment, and remands this 4 matter for further administrative proceedings consistent with this order.3 5 I. BACKGROUND 6 J.B. first filed an application for supplemental security income on September 5, 2018, 7 when he was 47 years old, alleging that he has been disabled since December 12, 2017 due to 8 diabetes, low back pain / sciatica, and neuropathy. AR4 68–69. On reconsideration, J.B. alleged 9 that the pain in his back and legs had increased, and that he had developed additional mental 10 health conditions, including depression. AR 78–79. 11 J.B. has a high school education. AR 70. He worked for twenty years as a construction 12 worker (1991 to 2011) and then for six years as a forklift driver (2011 to 2017). AR 190. 13 J.B.’s application was denied initially and on reconsideration. AR 75, 89. An ALJ held a 14 hearing on October 22, 2019 and subsequently issued an unfavorable decision on December 17, 15 2019. AR 12–25. The ALJ found that J.B. had not engaged in substantial gainful activity since 16 September 5, 2018, the date of his initial application. AR 17. She further found that J.B. has the 17 following severe impairments: “lumbar degenerative disc disease with neuropathy and low back 18 pain.” AR 17. However, the ALJ concluded that J.B. does not have an impairment or 19 combination of impairments that meets or medically equals the severity of one of the impairments 20 listed in the Commissioner’s regulations (20 C.F.R. Part 404, Subpart P, Appendix 1). AR 18. 21 The ALJ determined that J.B. has the RFC to perform light work as defined in 20 C.F.R. § 22 416.967(b) with the following exertional limitations: “[The claimant can] lift and carry 20 pounds 23 occasionally and 10 pounds frequently; stand or walk for one hour at a time for a total of six hours 24 in an eight-hour workday; sit for one hour at a time for a total of six hours in an eight-hour 25 workday, and when sitting, would need to be able to shift or stretch in his chair. The claimant — 26 — 3 All parties have expressly consented that all proceedings in this matter may be heard and finally — 27 — adjudicated by a magistrate judge. 28 U.S.C. § 636 ; Fed. R. Civ. P. 73; Dkt. Nos. 8, 9. 1 would need to be able to alternate positions after each of these activities. The claimant is able to 2 frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently 3 balance; and occasionally stoop, kneel, crouch, and crawl. The claimant should avoid 4 concentrated exposure to extreme heat and cold, wetness, and humidity.” AR 19. The ALJ found 5 that after comparing J.B.’s RFC with the physical and mental demands of his past relevant work, 6 J.B. is unable to perform past relevant work. AR 23. However, the ALJ found that J.B. is able to 7 perform other jobs existing in significant numbers in the national economy, such as cashier, ticket 8 seller, and information clerk. AR 24. Accordingly, the ALJ concluded that J.B. was not disabled, 9 as defined by the Act, from the application date of September 5, 2018 through the date of the 10 decision. AR 24. 11 The Appeals Council denied J.B.’s request for review of the ALJ’s decision. AR 1–3. J.B. 12 then filed the present action seeking judicial review of the decision denying his application for 13 supplemental security income. 14 II. LEGAL STANDARD 15 Pursuant to 42 U.S.C. § 405 (g), this Court has the authority to review the Commissioner’s 16 decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not 17 supported by substantial evidence or if it is based upon the application of improper legal 18 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citation omitted); Morgan v. 19 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citation omitted). In this context, 20 the term “substantial evidence” means “more than a mere scintilla” but “less than preponderance” 21 and is “such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 23 and Molina v. Astrue, 674 F.3d 1104 , 1110–11 (9th Cir. 2012), superseded by regulation on other 24 grounds; internal quotation marks omitted); see also Morgan, 169 F.3d at 599 (citation omitted). 25 When determining whether substantial evidence exists to support the Commissioner’s decision, 26 the Court examines the administrative record as a whole, considering adverse as well as 27 supporting evidence. Ahearn, 988 F.3d at 1115 (citation omitted); Hammock v. Bowen, 879 F.2d 1 the Court must defer to the decision of the Commissioner. Ahearn, 988 F.3d at 1115-16 (citation 2 omitted); Morgan, 169 F.3d at 599 (citation omitted). 3 III. DISCUSSION 4 J.B. raises four challenges to the ALJ’s decision. First, J.B. contends that the ALJ erred in 5 evaluating the persuasiveness of the medical opinions of the state-agency consultants and his 6 treating nurse practitioner. Second, J.B. argues that the ALJ erred in concluding that his testimony 7 about his limitations was not consistent with the medical evidence. Third, J.B. argues that the ALJ 8 erred in finding that his impairments do not meet or equal a listed impairment. Fourth, J.B. argues 9 that the ALJ erred in assessing his RFC, contrary to the medical evidence in the record. The Court 10 agrees that that the ALJ erred in her assessment of the medical opinion evidence and in her 11 determination that J.B.’s statements about his limitations were inconsistent with the medical 12 evidence. Because the Court finds the ALJ erred in these respects, the Court also finds that the 13 RFC is not supported by substantial evidence and that the ALJ erred in finding that J.B.’s 14 impairments do not meet or equal a listed impairment. 15 A. Medical Opinion Evidence 16 J.B. argues that the ALJ’s assessment of the state agency consultants’ medical opinions 17 and nurse practitioner Sharonne Rogers’s opinion as both “somewhat persuasive” is inconsistent 18 with the record and so not supported by substantial evidence. The Court agrees in part. 19 Under the regulations that apply to J.B.’s application,5 ALJs are required to evaluate the 20 “persuasiveness” of all medical opinions in the record based on: (1) supportability; (2) 21 consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, such as 22 “evidence showing a medical source has familiarity with the other evidence in the claim or an 23 understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R. § 24 5 On January 18, 2017 the Commissioner promulgated new regulations concerning the evaluation — 25 — of medical opinions. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 , 5844 (Jan. 18, 2017). These new regulations apply to all applications for benefits filed — 26 — after March 27, 2017. Id.; 20 C.F.R. § 416 .920c. Since J.B.’s application was filed after March 27, 2017, these new regulations apply to his case. See AR 68. In light of these new regulations, — 27 — the parties dispute the extent to which Ninth Circuit caselaw decided under the prior regulations 1 416.920c. The first two factors are considered the most important, and the ALJ is required to 2 explicitly address them in his or her decision. Id. § 416.920c(b)(2). The ALJ “may, but [is] not 3 required to,” explain how he or she considered the remaining three factors listed in the regulations. 4 Id. “Although the regulations eliminate the ‘physician hierarchy,’ deference to specific medical 5 opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still ‘articulate how [the ALJ] 6 considered the medical opinions’ and ‘how persuasive [the ALJ] find[s] all of the medical 7 opinions.’” V.W. v. Commissioner of Social Security, No. 18-cv-07297-JCS, 2020 WL 1505716 , 8 at *14 (N.D. Cal. Mar. 30, 2020) (citations omitted); 20 C.F.R. §§ 416 .920c(a) and (b). As with 9 all other determinations made by the ALJ, the ALJ’s persuasiveness explanation must be 10 supported by substantial evidence. See Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 11 1812233, at *4 (W.D. Wash. Apr. 9, 2020) (finding that, under the new regulations, “[t]he Court 12 must . . . continue to consider whether the ALJ’s analysis has the support of substantial 13 evidence.”); see 42 U.S.C. § 405 (g) (“The findings of the Commissioner of Social Security as to 14 any fact, if supported by substantial evidence, shall be conclusive”) (emphasis added). 15 Here, in connection with J.B.’s initial application, Joan Bradus, M.D., a state agency 16 consultant, reviewed the medical evidence in J.B.’s file through September 2018. In her 17 November 20, 2018 writeup of objective findings, which relied on physical exams from March 18 2017 and September 2018, she wrote: “clmt’s [claimant’s] dm [diabetes mellitus] is under better 19 control and clmt’s insulin dose is being lowered. Clmt ‘feels much bet[t]er.’ … Clmt also has 20 back pain, again, improved significantly with baclofen. Clmt has also been prescribed PT. No 21 imaging in file; no gait or neuro exams even though clmt is reported to have +SLR [positive 22 straight-leg raise] bilaterally. At FO, there were no observed problems with sitting, standing or 23 walking. As evidence does not suggest that clmt has listing level impairments from neuropathy or 24 radiculopathy, we do not need further development—despite the lack of complete exams of 25 imaging.” AR 71. 26 Dr. Bradus also assessed J.B.’s residual functional capacity. AR 73–74. In her assessment 27 of J.B.’s exertional limitations, she wrote that J.B. could lift and/or carry (including upward 1 hours in an 8-hour workday, J.B. could stand and/or walk (with normal breaks); he could also sit 2 (with normal breaks) for the same amount of time. Id. She also wrote that J.B. had an “unlimited” 3 ability to push and/or pull (including operation of hand and/or foot controls). Id. As for J.B.’s 4 postural limitations, she wrote that J.B. could “frequently” climb ramps/stairs, balance, kneel, 5 crouch, and crawl. AR 73–74. She also wrote that J.B. could “occasionally” climb 6 ladders/ropes/scaffolds and stoop (i.e., bend at the waist). AR 73. Finally, she wrote that J.B. did 7 not have manipulative, visual, communicative, or environmental limitations. AR 74. As a result, 8 she determined that J.B. was “not disabled.” AR 75. 9 On reconsideration, I. Herman, M.D., reviewed the medical evidence in J.B.’s file and 10 assessed his residual functional capacity, determining that J.B. was “not disabled.” AR 87, 89, 91. 11 In Dr. Herman’s findings of fact and analysis of evidence, Dr. Herman cited a treatment record 12 from December 18, 2018 which recorded that J.B.’s “[pain] is more intense and radiating to upper 13 back and neck at times and feet are hyperneuropathic pain … when shower water touches them. 14 Shower water feels like pebbles or rocks thrown at them.” AR 83. Dr. Herman also cited a 15 lumbar spine x-ray taken on that same date, which recorded “[n]o lumbar spine fractures or 16 malalignment.” AR 84. Although the findings included the statement that “PE on 12/2018 shows 17 pain b/l 60 degrees SLR, ROM: pain radiates to post knee b/l,” Dr. Herman’s final writeup on 18 February 7, 2019, was brief, noting that J.B.’s lumbar spine x-ray was “w/o significant degent 19 changes” and affirming Dr. Bradus’s assessment. AR 84. Dr. Herman’s assessment of J.B.’s 20 residual functional capacity was identical to Dr. Bradus’s. AR 86–87. 21 The ALJ found these opinions “only somewhat persuasive” because the opinions were 22 “somewhat consistent with and supported by the record.” AR 21. Specifically, the ALJ wrote that 23 although the opinions “accurately reflect the claimant’s frequent-to-occasional postural limitations 24 in relation to the severity of his lumbar degenerative disc disease,” the opinions “ultimately 25 overstate the claimant’s exertional capabilities by giving insufficient weight to the effect of the 26 claimant’s environmental limitations, and also overstate the severity of his diabetes mellitus.” AR 27 21–22. The ALJ also noted that “these opinions predate at least part of the relevant period, 1 generally to J.B.’s treatment records from the time periods of January 17, 2018 to September 20, 2 2018, and September 28, 2018 to August 23, 2019. AR 21–22. 3 The Court finds that the ALJ’s explanation of the “somewhat” persuasiveness of the state 4 agency medical consultants’ opinions is narrowly supported by substantial evidence. First, the 5 ALJ correctly noted that these opinions, written in November 2018 and February 2019, “predate at 6 least part of the relevant period.” AR 22. Critically, these opinions predate a May 2019 lumbar 7 spine MRI that revealed “severe facet arthropathy” and “severe central stenosis,” AR 396, 404, as 8 well as a June 2019 lumbar spine examination by Jorge Kim, M.D., that revealed J.B.’s “[a]ntalgic 9 gait, stiff with walking” and a “[p]ositive right sided straight leg raise.” AR 404. At that June 10 2019 examination, Dr. Kim diagnosed J.B. with “[l]umbar stenosis with neurogenic claudication” 11 and “lumbar facet arthropathy.” AR 405. Second, the ALJ correctly observed that the opinions 12 “ultimately overstate the claimant’s exertional capabilities by giving insufficient weight to the 13 effect of the claimant’s environmental limitations.” AR 21–22. Although the ALJ did not 14 describe what these “environmental” limitations were, the record reflects that at the June 2019 15 exam, Dr. Kim recorded that J.B.’s “[w]orsening activit[i]es are lifting > 15 lbs. Helpful activities 16 are lying supine, and walking.” AR 403. 17 On October 10, 2019, Sharonne Rogers, N.P., completed a form titled “Medical Opinion 18 Re: Ability to Do Work-Related Activities (Physical).” AR 419–21. The form included 19 checkboxes and checklists for Ms. Rogers to complete, as well as space for Ms. Rogers to explain 20 what medical findings supported her assessment of J.B.’s limitations. Id. Ms. Rogers opined that 21 J.B. had a maximum ability to lift and carry 20 pounds on an occasional basis (up to 1/3 of an 822 hour workday), as well as a maximum ability to lift and carry 25 pounds on a frequent basis (1/3 23 to 2/3 of an 8-hour workday). AR 419. She also opined that during an 8-hour workday with 24 normal breaks, J.B. had a maximum ability to stand and walk less than two hours, and a maximum 25 ability to sit about two hours. Id. She further opined that J.B. would need to shift at will from 26 sitting to standing/walking, and, at unpredictable intervals during a work shift, to lie down. Id. As 27 support for these limitations, she cited the May 22, 2019 MRI of J.B.’s lumbar spine. AR 420. 1 “never” perform stooping, kneeling, crouching, or crawling; only “occasionally” could he climb 2 stairs/ladders. AR 420. Ms. Rogers also opined, citing “imaging studies,” that on occasion J.B.’s 3 ability to push/pull would be affected by his impairments. AR 420. With respect to J.B.’s 4 environmental restrictions, Ms. Rogers opined, citing J.B.’s MRI, that J.B. should “avoid all 5 exposure” to extreme cold, extreme heat, wetness, and humidity. AR 420. She further wrote that 6 J.B. would “need to stand [and] avoid prolong[ed] sitting.” AR 421. She anticipated that J.B.’s 7 impairments or treatment would cause him to be absent from work more than three times a month, 8 and would interfere for 50% of the day with his concentration or pace of work. AR 421. 9 The ALJ found this opinion only “somewhat persuasive” because it was “somewhat 10 consistent with and supported by the record.” AR 22. Namely, the ALJ reasoned that the opinion 11 was consistent with the record because it accounted for J.B.’s ability to “only [] sit for one hour at 12 a time due to his need to alternate positions,” as well as J.B.’s postural limitations related to 13 climbing and overall environmental limitations, “especially in light of the positive findings from 14 his May 2019 lumbar spine MRI and given that poor weather aggravates his pain.” AR 22. 15 However, the ALJ reasoned that the opinion (1) “contradicts itself by stating that the claimant is 16 able to lift and carry 20 pounds occasionally, but lift and carry even more weight frequently”; (2) 17 “overstates the claimant’s need for unscheduled breaks”; (3) “assigns him excessive postural 18 limitations compared to what is seen in his sparse treatment records”; (4) “fails to justify why he 19 would be limited to pushing and pulling on occasional basis when he has not demonstrated any 20 weakness or impaired functioning of his upper extremities”; and (5) “[fails to justify] why he 21 would be absent from work more than three days a month.” AR 22. 22 The Court finds that overall, these reasons for partially discounting Ms. Rogers’s opinion 23 are not supported by substantial evidence. As an initial matter, J.B.’s treatment records are not 24 “sparse.” On September 6, 2018, J.B. was diagnosed with sciatica (a form of low back pain) by 25 Ms. Rogers, who recommended “no lying, sitting, or standing for extended times” and to “not sit 26 longer than 20 minutes if back pain is severe.” AR 300–301. Ms. Rogers also recommended that 27 J.B. “not sit longer than 50 minutes without getting up and walking around 5 to 10 minutes.” AR 1 At J.B.’s follow-up visit on September 20, 2018, Ms. Rogers added further instructions to her 2 assessment of J.B.’s “[l]ow back pain,” writing: “No lifting or pulling.” AR 294. 3 On October 2, 2018, J.B. saw a physical therapist who recorded that J.B. “presents with 4 excruciating low back pain” and that he was “off work now for recovery.” AR 371. At its worst, 5 the pain was “8/10” and “radiating,” “aching,” “dull,” “throbbing,” and “[s]harp, shooting.” AR 6 371. He was “[u]nable to lift anything at all without pain” and “[u]nable to do ADL’s like house 7 chores, reaching up, shower without pain.” AR 372. Even “[l]ying down on [his] back” 8 aggravated the pain. AR 371. 9 At J.B.’s next visit with Ms. Rogers on December 18, 2018, Ms. Rogers recorded that 10 J.B.’s “[b]ack pain [was] worsening” and that he required “more Gabapentin and also [an] increase 11 in Tramadol.” AR 343. J.B.’s pain was “more intense and radiating to upper back and neck at 12 times.” AR 343. At this time, an x-ray was taken of J.B.’s lumbar spine. AR 350, 380. Although 13 the x-ray showed normal alignment, no fractures, and no significant degenerative changes, Ms. 14 Rogers also ordered that an MRI of J.B.’s lumbar spine be taken prior to J.B.’s next appointment. 15 AR 348. A few months later, at a visit with Dr. Kim, he diagnosed J.B. with “[l]ow back pain” 16 and “[l]umbar radiculopathy” and recorded that J.B.’s “[w]orsening activit[i]es are lifting > 15 lbs. 17 Helpful activities are lying supine, and walking.” AR 390, 392. 18 On May 22, 2019, an MRI was taken of J.B.’s lumbar spine. AR 396. The reviewing 19 doctor, Dr. Chung Hoon Lee, found that “[s]evere bilateral facet arthritis is demonstrated at L3-4 20 and L4-5. … Severe central spinal stenosis and bilateral lateral recess stenoses are noted at L3-4 21 and L4-5.” AR 396. At a follow-up appointment on June 3, 2019, Dr. Kim diagnosed J.B. with 22 “[l]umbar stenosis with neurogenic claudication” and “[l]umbar facet arthropathy.” The last 23 treatment notes in the record, dated August 23, 2019 and recorded by Ms. Rogers, describe pain 24 rated “9/10” on the numeric pain intensity scale, in J.B.’s “back and both legs.” AR 412–13. 25 Accordingly, the Court finds that the ALJ’s persuasiveness explanation of Ms. Rogers’s 26 October 10, 2019 opinion is not supported by substantial evidence. As demonstrated by the 27 Court’s review of J.B.’s treatment records, Ms. Rogers did not overstate the claimant’s need for 1 Rogers did not write lengthy explanations of the medical findings supporting J.B.’s limitations, 2 J.B.’s limitation to occasional pushing/pulling is consistent with Ms. Rogers’s earlier direction to 3 J.B. on September 20, 2018 (“No lifting or pulling”), as well as her notes on December 18, 2018 4 that J.B.’s pain radiated to his upper back and neck at times. AR 294, 343. Ms. Rogers’s 5 assessment that J.B. would be absent from work more than three times a month due to his 6 “impairments or treatment,” AR 421, is equally consistent with her direction to J.B. not to engage 7 in “lying, sitting, or standing for extended times” and “not sit longer than 20 minutes if back pain 8 is severe,” AR 300–301, as well as with the “excruciating” and “intense” back pain recorded, AR 9 343, 371. Finally, the Court acknowledges that Ms. Rogers’s opinion contradicts itself with 10 respect to J.B.’s ability to lift and carry 20 pounds occasionally but 25 pounds frequently. See AR 11 419. However, aside from this one internal inconsistency, the remainder of Ms. Rogers’s opinion 12 is internally consistent and consistent with other evidence in the record. The ALJ did not properly 13 account for the consistency of Ms. Rogers’s opinion with the medical evidence in the record. See — 14 — 20 C.F.R. § 416 .920c(c)(2) (“The more consistent a medical opinion(s) or prior administrative 15 medical finding(s) is with the evidence from other medical sources and nonmedical sources in the 16 claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will 17 be.”) (emphasis added). 18 Thus, although the ALJ’s conclusion that the opinions of the state agency medical 19 consultants are only “somewhat” persuasive is supported by substantial evidence, her conclusion 20 that Ms. Rogers’s opinion is only “somewhat” persuasive is not. Most of the reasons given by the 21 ALJ for finding Ms. Rogers’s opinion only “somewhat” persuasive overlook the medical evidence 22 that is consistent with her opinion. The ALJ therefore erred in making this finding, and this error 23 warrants remand. 24 B. J.B.’s Testimony Concerning His Limitations 25 J.B. also argues that the ALJ erred in determining that J.B.’s statements about his 26 limitations are not consistent with the medical evidence. In assessing a claimant’s subjective 27 testimony, an ALJ conducts a two-step analysis. First, “the claimant ‘must produce objective 1 to produce some degree of symptom.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 2 (quoting Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996)). If the claimant does so, and 3 there is no affirmative evidence of malingering, then the ALJ can reject the claimant’s testimony 4 as to the severity of the symptoms “‘only by offering specific, clear and convincing reasons for 5 doing so.’” Id. (quoting Smolen, 80 F.3d at 1281 ); see also Burrell v. Colvin, 775 F.3d 1133 , 1137 6 (9th Cir. 2014) (“We therefore review the ALJ’s discrediting of Claimant’s testimony for specific, 7 clear, and convincing reasons.”). 8 Here, the ALJ found that “the claimant’s medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms” without pointing to any affirmative 10 evidence of malingering. AR 20. Thus, the ALJ needed to provide “specific, clear and convincing 11 reasons” for rejecting J.B.’s testimony concerning the intensity, persistence, and limiting effects of 12 his symptoms. Tommasetti v. Astrue, 533 F.3d at 1039 . 13 At the hearing before the ALJ, J.B. testified that on a daily basis he experiences “back pain 14 down to the legs.” AR 41. He explained, “it’s just a constant pain with my legs to where if I was 15 taking a shower it hurt so bad because the water coming down it feels like rocks being dropped on 16 your feet.” AR 42. He continued that recently, the pain in his back was “[d]efinitely worse and 17 I’m noticing when it’s cold it’s even worser.” AR 42. He said that when he took medication, “the 18 pain is still there but it’s more tolerable.” AR 43. The “pain pills” also made him “definitely 19 drowsy” to a point where he was unable to perform tasks around the house without help. AR 43. 20 He would not trust himself to take care of his kids while on this medication. AR 50–51. When 21 the ALJ asked if J.B. could possibly work a job less physically strenuous than construction if he 22 took a less potent medication, J.B. said, “I don’t see me being able to work on a job and take 23 medication that would help the pain.” AR 56. 24 Upon examination by the ALJ, J.B. testified that he was unable to bend over and could 25 pick up “[a]bout 15, 20 pounds.” AR 44. He continued that although he could “walk a mile,” he 26 would have to rest periodically, “tak[ing] a rest every block” or every “[f]ive minutes.” AR 47. 27 He added that he used a cane. AR 48. If he sat for an hour, he “would be in pain for sure.” AR 1 could stand for 20 to 30 minutes without needing to sit or lie down. AR 51. 2 The ALJ found that J.B.’s statements concerning the nature and limiting effects of his 3 symptoms are “not entirely consistent with the medical evidence and other evidence in the record” 4 because “the objective medical findings in the record revealed largely unremarkable findings and 5 symptoms that improved or were otherwise reasonably controlled with conservative treatment 6 modalities.” AR 20. Specifically, after summarizing J.B.’s treatment records through December 7 2018 and the May 2019 MRI scan of J.B.’s lumbar spine, the ALJ pointed to several facets of 8 J.B.’s treatment records: (1) treatment notes from September 2018 indicated that J.B.’s back pain 9 was relieved with the medication Baclofen; (2) the December 2018 x-ray of J.B.’s lumbar spine 10 revealed negative findings; (3) J.B. exhibited negative findings for tenderness to palpation and full 11 motor strength at a physical exam in March 2019; (4) J.B. presented with a pain level of “0/10” in 12 May 2019; and (5) J.B. declined steroid injections after he was recommended them. AR 21. 13 The Court does not find the ALJ’s reasons for rejecting J.B.’s testimony to be clear and 14 convincing. First, the ALJ’s discussion of J.B.’s treatment records from 2018 does not accurately 15 describe the limitations reflected in those records. Ms. Rogers’s treatment notes for J.B.’s 16 September 20, 2018 appointment state that “Baclofen really relaxes back for him,” but the notes 17 also include Ms. Rogers’s patient plan for J.B., which instructed: “No lifting or pulling” and “no 18 lying, sittin[g], or standing for extended times.” AR 294. At J.B.’s next appointment on 19 December 18, 2018, Ms. Rogers recorded that J.B.’s “[b]ack pain [was] worsening,” “requir[ing] 20 more Gabapentin and also increase in Tramadol.” AR 343. The pain was “more intense and 21 radiating to upper back and neck at times.” AR 343. The findings from the December 2018 x-ray 22 of J.B.’s lumbar spine made no mention of J.B.’s pain levels or limitations; the physician who read 23 the x-ray reported only that no fractures had been seen and that his spine appeared normal, without 24 significant degenerative changes. AR 380. 25 Second, the ALJ appears to have selectively relied upon excerpts of J.B’s 2019 treatment 26 records. While the ALJ correctly observed that J.B. presented full motor strength and negative 27 tenderness to palpation at his physical exam on March 6, 2019, she did not acknowledge that at 1 right sided straight leg raise” and “[p]ositive pain with bilateral lumbar facet extension loading.” 2 AR 391. At this appointment, he also presented with a pain level of “7/10.” AR 394. Further, 3 although J.B. had a pain level of “0/10” at his May 13, 2019 appointment with Ms. Rogers, one 4 week later, a May 22, 2019 MRI of his lumbar spine revealed “[s]evere bilateral facet arthritis” 5 and “[s]evere central spinal stenosis.” AR 396. Finally, to the extent the ALJ relied on J.B.’s 6 “refusal” of steroid treatment to find his testimony inconsistent with the medical evidence, the 7 ALJ’s characterization of J.B.’s declination of steroid treatment does not adequately account for 8 Dr. Kim’s notes, which state: “Pt does not desire to try injections given the inherent risks.” AR 9 405. J.B.’s declination of a treatment with “inherent risks” is not substantial evidence of an 10 inconsistency between his testimony and the medical evidence of record. 11 In sum, the ALJ’s reasons are not clear and convincing. As the Ninth Circuit has 12 emphasized, “it is error to reject a claimant’s testimony merely because symptoms wax and wane 13 in the course of treatment. Cycles of improvement and debilitating symptoms are a common 14 occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of 15 improvement over a period of months or years and to treat them as a basis for concluding a 16 claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). The 17 records cited by the ALJ do not provide substantial evidence for her conclusion that J.B.’s 18 description of his limitations was not entirely consistent with the record. The ALJ’s discussion of 19 the evidence ignores other evidence in the record that contradicts the ALJ’s conclusions. See 20 Ahearn, 988 F.3d at 1115 (“To determine whether substantial evidence supports the ALJ’s 21 determination, we must assess the entire record, weighing the evidence both supporting and 22 detracting from the agency’s conclusion.”) (citation omitted); see also Williams v. Colvin, No. ED 23 CV 14-2146-PLA, 2015 WL 4507174 , at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry24 pick evidence to support the conclusion that a claimant is not disabled, but must consider the 25 evidence as a whole in making a reasoned disability determination.”) (citing Holohan v. 26 Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001)). 27 C. Meeting or Medically Equaling a Listed Impairment 1 a listed impairment, because the ALJ did not provide any explanation for this finding and did not 2 schedule a medical expert to provide testimony at the hearing regarding whether J.B. met or 3 equaled Listing 1.04. Dkt. No. 17 at 5–6. The Court agrees in part. 4 In determining whether a claimant is disabled, the ALJ is required to consider whether the 5 claimant’s impairments meet or medically equal an impairment listed in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1. 20 C.F.R. § 416.920 (a)(4)(iii). If the ALJ finds the claimant’s 7 impairments meet or medically equal a listed impairment, the claimant is conclusively presumed 8 disabled without consideration of the claimant’s age, education, or work experience. Id. § 9 416.920(d). An impairment “meets the requirement of a listing when it satisfies all of the criteria 10 of that listing, including any relevant criteria in the introduction, and meets the duration 11 requirement.” 20 C.F.R. § 416.925 (c)(3) (emphasis in original). If an impairment does not meet 12 the criteria of a listing, it can “medically equal the criteria of a listing.” 20 C.F.R. § 416.925 (c)(5) 13 (emphasis in original); see also 20 C.F.R. § 416.926 (“Medical equivalence for adults and 14 children”). Under the guidance provided by the Social Security Administration’s Hearings, 15 Appeals, and Litigation Law Manual (HALLEX), an ALJ must obtain a medical expert opinion in 16 three situations: (1) “when the Appeals Council or Federal court ordered an ME opinion”; (2) 17 “[t]here is a question about the accuracy of medical test result reported”; and (3) “[t]he ALJ is 18 considering finding that the claimant’s impairment(s) medically equals a listing.” Social Security 19 Administration, HALLEX I-2-5-34 (“When to Obtain a Medical Expert Opinion”) (last updated 20 Jan. 21, 2020). 21 Here, the ALJ found that J.B. does not have an impairment or combination of impairments 22 that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. AR 18. The ALJ’s explanation was brief: “No treating or examining 24 physician has recorded findings equivalent in severity to the criteria of any listed impairment, not 25 does the evidence show medical findings that are the same or equivalent to those of any listed 26 impairment.” Because none of the three mandatory situations requiring a medical expert opinion 27 applied, the ALJ was not required by agency policy to obtain a medical expert opinion. See Social 1 explanation of her listings finding inadequate for two reasons. 2 First, Ninth Circuit law is clear that “in determining whether a claimant equals a listing 3 under step three of the Secretary’s disability evaluation process, the ALJ must explain adequately 4 his evaluation of alternative tests and the combined effects of the impairments.” Marcia v. 5 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990); see also Lewis v. Apfel, 263 F.3d 503, 512 (9th Cir. 6 2001) (“A boilerplate finding is insufficient to support a conclusion that a claimant’s impairment 7 does not [meet or equal a listed impairment].”). This precedent is perhaps in conflict with the 8 Commissioner’s 2017 policy interpretation of regulations 20 C.F.R. § 404.1526 and 20 C.F.R. § 9 416.926, which states that “[g]enerally, [the adjudicator’s] statement that the individual’s 10 impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for 11 this finding.” Social Security Ruling (SSR) 17-2p: Titles II and XVI: Evidence Needed by 12 Adjudicators at the Hearings and Appeals Council Levels of the Administrative Review Process to 13 Make Findings About Medical Equivalence, 82 Fed. Reg. 15265 (Mar. 27, 2017). But the Court 14 must still apply the standard of “substantial evidence” in reviewing the rationale for the ALJ’s 15 decision. See 42 U.S.C. § 405 (g) (“Judicial review”) (findings of the Commissioner as to any fact 16 shall be conclusive “if supported by substantial evidence”); see also Zuniga v. Barr, 946 F.3d 464 , 17 470 (9th Cir. 2019) (a court “need not accept an agency’s interpretation of its own regulations if 18 that interpretation is inconsistent with the statute under which the regulations were promulgated”) 19 (citing Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 878 F.3d 725, 733 (9th Cir. 20 2017)). Accordingly, the Court finds that the ALJ’s cursory explanation was not supported by 21 substantial evidence. 22 Second, the ALJ’s explanation contradicts the medical evidence in the record. Listing 23 1.04(C), as defined when the ALJ issued her decision,6 requires “[l]umbar spinal stenosis resulting 24 in pseudoclaudication, established by findings on appropriate medically acceptable imaging, 25 manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate — 26 — 6 See Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85 Fed. Reg. 78164 — 27 — (Dec. 3, 2020) (“We expect that Federal courts will review our final decisions using the rules that 1 effectively, as defined in 1.00 B2b.” Social Security Administration, DI 34121.013 2 Musculoskeletal Listings from 09/29/16 to 04/01/21, Program Operations Manual System 3 (POMS). Here, J.B.’s May 2019 MRI of his lumbar spine revealed “severe central spinal 4 stenosis” and “bilateral lateral recess stenoses.” AR 396. Dr. Kim diagnosed J.B. with “lumbar 5 stenosis and neurogenic claudication”7 on June 3, 2019, and Ms. Rogers provided the same 6 assessment on August 23, 2019. AR 405, 409. Further, J.B. testified at his hearing that he used a 7 cane and would have to rest periodically while walking, “tak[ing] a rest every block” or every 8 “[f]ive minutes.” AR 47, 48. 9 Accordingly, the Court finds that the ALJ’s determination that J.B.’s impairment(s) do not 10 meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 is not 11 supported by substantial evidence. On remand, the ALJ must reconsider whether J.B. meets a 12 listed impairment. 13 D. J.B.’s Residual Functional Capacity 14 J.B.’s final argument is that the ALJ erred in assessing his RFC because the ALJ, by giving 15 no medical opinion controlling weight, “substituted her own judgment for that of the medical 16 professionals qualified to assess Mr. Bowie’s impairments.” Dkt. No. 17 at 6–8. Although the 17 Court does not agree with J.B.’s argument, because the Commissioner “will not defer or give any 18 specific evidentiary weight, including controlling weight, to any medical opinion(s),” 20 C.F.R. § 19 416.920c(a), the Court agrees that the ALJ must reevaluate J.B.’s RFC. 20 As part of the disability evaluation process, the ALJ must assess the claimant’s RFC. 20 21 C.F.R. § 416.920 (a)(4)(iv). The RFC measures the most the claimant can still do despite his or 22 her limitations. 20 C.F.R. § 416.945 (a)(1). The RFC must incorporate all of the limitations 23 supported by the evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (in 24 assessing a claimant’s ability to work, the ALJ “is not free to disregard properly supported — 25 — 7 Neurogenic claudication is a synonym for pseudoclaudication. See Timothy Deer, M.D., et al., A — 26 — Review of Lumbar Spinal Stenosis with Intermittent Neurogenic Claudication: Disease and Diagnosis, 20 Pain Medicine S32, S34 (2019) (“Intermittent neurogenic claudication (INC), also — 27 — referred to as pseudoclaudication, is the most common clinical presentation of LSS [lumbar spinal 1 limitations”). 2 Here, the ALJ did not fully incorporate Ms. Rogers’s assessment of numerous limitations 3 and restrictions into J.B.’s RFC, because the ALJ found those assessments only “somewhat 4 persuasive.” AR 22. Further, the ALJ did not incorporate J.B.’s testimony about his limitations 5 into his RFC, because she found his testimony “not entirely consistent” with the record. AR 20. 6 Since neither the ALJ’s persuasiveness determination nor her rejection of J.B.’s testimony was 7 supported by substantial evidence, the ALJ’s decision to exclude the assessed limitations into the 8 RFC also lacks the support of substantial evidence. On remand, after properly assessing the 9 persuasiveness of Ms. Rogers’s opinion and considering J.B.’s testimony, the ALJ must reevaluate 10 J.B.’s RFC. 11 IV. DISPOSITION 12 J.B. asks the Court to remand for payment of benefits under the credit-as-true doctrine. 13 Dkt. No. 17 at 10–11. “An automatic award of benefits in a disability benefits case is a rare and 14 prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 15 1041, 1044 (9th Cir. 2017) (citation omitted). The Court may remand for an immediate award of 16 benefits only where (1) the ALJ has failed to provide legally sufficient reasons for rejecting 17 evidence, whether claimant testimony or medical evidence; (2) there are no outstanding issues that 18 must be resolved before a determination of disability can be made; and (3) it is clear from the 19 record that the ALJ would be required to find the claimant disabled were such evidence credited. 20 Id. at 1045 (citations omitted). Even when all three conditions are satisfied and the evidence in 21 question is credited as true, it is within the district court’s discretion whether to make a direct 22 award of benefits or to remand for further proceedings when the record as a whole creates serious 23 doubt as to disability. Id. (citations omitted). 24 The credit-as-true standard is not satisfied here. There are further issues that must be 25 resolved before a final determination can be made. As discussed above, on remand the ALJ must 26 reconsider: (1) the persuasiveness of Ms. Rogers’s opinions; (2) J.B.’s testimony about his 27 limitations; (3) whether J.B. meets a listed impairment; and (4) J.B.’s RFC. V. CONCLUSION Based on the foregoing, J.B.’s motion for summary judgment is granted, the — 2 — Commissioner’s motion for summary judgment is denied, and this matter is remanded for further — 3 — proceedings consistent with this order. The Clerk shall enter judgment accordingly and close this — 4 — file. — 5 — IT IS SO ORDERED. — 6 — Dated: January 31, 2022 — 7 — 8 ee 2028 □ ? VIRORIA K. DEMARCHI 10 United States Magistrate Judge — 11 — a 12 — 15 — — 16 — it 4 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —