Pena v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RAQUEL P.,1 Case No.: 22cv2024-BEN-SBC 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION GRANTING IN PART AND DENYING IN PART 14 KILOLO KIJAKAZI, Commissioner of PLAINTIFF’S MOTION FOR the Social Security Administration, 15 JUDICIAL REVIEW Defendant. [16] [ECF No. 17] [17] 18 This report and recommendation is submitted to the United States District Judge 19 Roger T. Benitez pursuant to 28 U.S.C. § 636 (b)(1) and Local Civil Rule 72.1(c) of the 20 United States District Court for the Southern District of California. 21 Raquel P. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405 (g) seeking 22 judicial review of the final administrative decision of the Commissioner of the Social 23 Security Administration (“Commissioner”) regarding Plaintiff’s application for 24 supplemental security income payments. (ECF No. 1 at 2.) The Administrative Law Judge [26] 27 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405 (g) (2022)] will refer to any non-government parties by using [28] 1 (“ALJ”) found that Plaintiff is not disabled since the application date, January 16, 2020, 2 and denied Plaintiff’s claim for benefits. (AR at 60-71.) 3 Now pending before the Court is Plaintiff’s Motion for Judicial Review, filed on 4 July 12, 2023. (ECF No. 17.) For the reasons set forth below, the Court RECOMMENDS 5 that judgment be entered REVERSING the decision of the Commissioner and 6 REMANDING this matter for further administrative proceedings consistent with the 7 findings presented herein. 8 I. PROCEDURAL BACKGROUND 9 On January 16, 2020, Plaintiff applied for Supplemental Social Security Income 10 (“SSI”) under Title XVI of the Social Security Act. (AR at 60.) She alleged disability 11 beginning October 1, 2006 and stated in her Disability Report that she was prevented from 12 working due to “shoulder problems, knee problems, back problems, fibromyalgia, and 13 depression.” (AR at 60, 223.) Plaintiff’s application was denied on October 23, 2020, and 14 again on reconsideration on February 23, 2021. (AR at 60.) On reconsideration, Plaintiff 15 also stated that she suffered from achilles tendonitis and carpal tunnel syndrome. (AR at 16 37.) 17 On April 1, 2021, Plaintiff submitted a written request for a de novo hearing, which 18 was granted on April 9, 2021. (AR at 111.) On September 29, 2021, ALJ Howard Treblin 19 presided over the hearing. (AR at 3.) Plaintiff appeared via telephone, represented by her 20 attorney, Kaylin Sangimino. (Id. at 3, 60.) Plaintiff and an impartial vocational expert, Luis 21 Mas, testified at the hearing. (Id.) During the hearing, Plaintiff amended the onset date of 22 her disability from October 1, 2006 to the application date, January 16, 2020. (AR at 12.) 23 On January 28, 2022, ALJ Treblin denied Plaintiff’s claim for disability benefits, 24 finding that she was not disabled because she was capable of “lift[ing]/carry[ing] up to 50 25 pounds occasionally and lift[ing]/carry[ing] 25 pounds frequently; stand[ing]/walk[ing] for 26 6 hours in an 8-hour work day and sit[ting] for 6 hours in an 8-hour work day.” (AR at 6427 65, 71.) Plaintiff subsequently submitted a Request for Review to the Appeals Council on 28 February 1, 2022. (AR at 80, 172-74.) The Appeals Council denied review on October 19, 1 2022. (AR at 77; ECF No. 17 at 1.) Having exhausted all administrative remedies, Plaintiff 2 brought this timely civil action, seeking judicial review pursuant to 42 U.S.C. § 405 (g) 3 (2022). (See ECF No. 1.) 4 II. SUMMARY OF THE ALJ’S FINDINGS 5 In rendering his decision, ALJ Treblin followed the Commissioner’s five-step 6 sequential evaluation process. See 20 C.F.R. § 404.1520 (2022). At step one, ALJ Treblin 7 found that Plaintiff had not engaged in substantial gainful activity since January 16, 2020, 8 the application date. (AR at 62.) At step two, ALJ Treblin found that Plaintiff had the 9 following severe impairments: (1) dysfunction - major joints; (2) degenerative disc disease; 10 and (3) fibromyalgia. (Id.) The ALJ also found non-severe impairments of osteoarthritis of 11 the knees, chronic rhinosinusitis, and “major depressive disorder, bipolar[,] and related 12 disorders.” (AR at 62-63.) ALJ Treblin found the impairments as non-severe because there 13 was “insufficient evidence in the record to show the alleged impairment result[ed] in more 14 than a minimal effect on the claimant’s ability to perform work activity . . .” (AR at 63.) 15 ALJ Treblin proceeded to consider Plaintiff’s impairments at step three of the sequential 16 process. 17 At step three, ALJ Treblin found that Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled one of the impairments listed 19 in the relevant section of the Commissioner’s Listing of Impairments.2 (AR at 64.) In 20 support of this finding, ALJ Treblin stated that “[p]articular attention was given to listings 21 1.15 and 1.16 for disorders of the skeletal spine. However, the available medical evidence 22 did not demonstrate signs of nerve root irritation, or tension, consistent with nerve root 23 compromise.” (AR at 65.) After consideration of the entire record, ALJ Treblin determined [25] 26 2 If the claimant’s impairment or combination of impairments is of a severity to meet or 27 medically equal the criteria of a listing and meets the duration requirement ( 20 CFR §§ 404.1509 and 416.909), the claimant is deemed disabled. If it does not, the analysis [28] 1 that Plaintiff had the RFC to “lift/carry up to 50 pounds occasionally and lift/carry 25 2 pounds frequently; stand/walk for 6 hours in an 8-hour work day and sit for 6 hours in an 3 8-hour work day.” (Id.) In addition, ALJ Treblin included limitations of “frequent postural 4 activities; and [avoidance of] concentrated exposure to hazards such as unprotected heights 5 and moving machinery” due to Plaintiff’s neck pain and the side effects of her medication. 6 (AR at 65, 68.) ALJ Treblin determined Plaintiff’s RFC based on “the totality of the 7 evidence in the record.” (AR at 69.) 8 ALJ Treblin determined at step four that Plaintiff did not have any past relevant work 9 because she last worked a part time job for only three months.3 (AR at 69.) ALJ Treblin 10 concluded, however, that considering Plaintiff’s age, education, work experience and RFC, 11 “there [were] jobs that existed in significant numbers in the national economy that the 12 claimant [could] perform.” (Id.) The ALJ accepted the testimony of the vocational expert, 13 who said Plaintiff could perform the requirements of hand packager (D.O.T. 920.587-018), 14 store laborer (D.O.T. 922.687-058), and dining room attendant (D.O.T. 311.677-010). (AR 15 at 70.) ALJ Treblin, therefore, concluded that Plaintiff has not been disabled since the date 16 of application, January 16, 2020. (Id.) 17 III. DISPUTED ISSUES 18 The first issue is whether ALJ Treblin properly evaluated the following conditions 19 at step two of the Commissioner’s evaluation process: (1) Osteoporosis; (2) Tendinosis of 20 the right shoulder; (3) Achilles tendonitis; (4) Carpel tunnel syndrome; and (5) Knee 21 impairment. The second issue is whether ALJ Treblin properly evaluated the medical 22 opinions of Dr. Guefen, Dr. Tran, Dr. Kalmar, and Dr. Gleason. Lastly, at issue is whether 23 Plaintiff’s RFC was properly determined. The Court considers each issue below. 24 / / / / [26] 27 3 ALJ Treblin stated that Plaintiff last worked in 1982, however other sources state her last job was in 2006. (AR at 69, 200.) The inconsistency does not change the outcome of [28] 1 IV. STANDARD OF REVIEW 2 On appeal, the Court reviews claims for SSI benefits under Title XVI of the Social 3 Security Act either for an absence of substantial evidence supporting the ALJ’s decision or 4 for legal error. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial 5 evidence is “more than a mere scintilla but less than a preponderance” and is “such relevant 6 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. 7 (citing 42 U.S.C. § 405 (g)). It is therefore the Court’s duty to review the entire record and 8 determine whether substantial evidence exists to support the ALJ’s findings. Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). However, the Court may not make independent 10 findings: it is limited to reviewing the determinations presented by the ALJ in their 11 decision. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[W]e can affirm the 12 agency's decision to deny benefits only on the grounds invoked by the agency . . . . ”). If 13 the evidence in the record reasonably supports the ALJ’s decision, the decision will be 14 upheld. Andrews, 53 F.3d at 1039 -40 (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th 15 Cir. 1989)) (“We must uphold the ALJ's decision where the evidence is susceptible to more 16 than one rational interpretation.”). Furthermore, the Court may affirm the ALJ’s decision 17 even if the ALJ committed error, so long as the error is harmless. Ford v. Saul, 950 F.3d 18 1141 (9th Cir. 2020). A harmless error is one that is inconsequential to the ultimate 19 decision, id., or that is not prejudicial to the claimant, Stout v. Comm'r, Soc. Sec. Admin., [20] 454 F.3d 1050, 1055 (9th Cir. 2006). 21 V. DISCUSSION 22 A. Whether the ALJ Erred at Step Two of the Commissioner’s Five-Step Sequential Evaluation Process [23] 24 At step two of a disability analysis, the ALJ determines whether the claimant has a 25 medically determinable impairment that is severe or a combination of impairments that is 26 severe. 20 C.F.R. § 416.920 (c) (2022). The ALJ must consider each of the claimant’s 27 impairments and their combined effect on the claimant’s ability to function, even if those 28 impairments alone would not be considered severe. Smolen v. Chater, 80 F.3d 1273 , 1290 1 (9th Cir. 1996). An impairment is severe unless it produces a slight abnormality which 2 poses “‘no more than a minimal effect on an individual[’]s ability to work.’” Id. (quoting 3 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)). Step two is used as a de minimis 4 screening device used to weed out groundless claims. (Id.) A step two determination, 5 therefore, is not meant to identify each impairment later used to determine a claimant’s 6 RFC. Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). 7 Furthermore, if an ALJ fails to discuss an impairment at step two, but discusses that 8 impairment in a later step, the ALJ has committed a harmless error. Lewis v. Astrue, 498 9 F.3d 909 , 911 (9th Cir. 2007); see also Williams v. Colvin, 24 F. Supp. 3d 901, 917 (N.D. 10 Cal. 2014 ); Miner v. Berryhill, 722 F. App’x 632 , 633 (9th Cir. 2018). Also, harmless error 11 can be found where an ALJ discusses a medically determinable impairment’s symptoms 12 without discussing the condition by name. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th 13 Cir. 2017) (stating that it is not error for an ALJ to refer to a claimant’s condition with a 14 shorthand name as long as “[t]here is no indication that the ALJ misunderstood the nature 15 of [the claimant’s] impairment[].”); see also Baldwin v. Astrue, No. ED CV 09-513-PJW, [16] 2010 WL 1946902 , at *2 (C.D. Cal. May 10, 2010) (stating that when an ALJ includes a 17 discussion of one condition, the symptoms of which necessarily include another, there is 18 no harmful error). Ultimately, the Court “will not fault the agency merely for explaining 19 its decision with ‘less than ideal clarity.’” Brown-Hunter, 806 F.3d at 492 (quoting 20 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). 21 1. ALJ’s Evaluation of Plaintiff’s Osteoporosis 22 First, Plaintiff argues that ALJ Treblin erred at step two by failing to consider her 23 osteoporosis a medically determinable impairment.4 (ECF No. 17 at 2.) Defendant counters [26] 27 4 The Court notes that Plaintiff did not specifically allege osteoporosis as a severe impairment that prevented work. Plaintiff merely alleged, among other issues specified in [28] 1 that ALJ Treblin was not required to consider Plaintiff’s osteoporosis because a mere 2 diagnosis is not enough to establish a severe impairment. (ECF No. 19 at 2.) 3 As stated above, at step two, an ALJ is not required to identify and discuss every 4 impairment considered at step four of the RFC determination. Buck, 869 F.3d at 1048-49 . 5 As long as the ALJ makes a finding of at least one severe impairment, a claimant is not 6 prejudiced at the step two stage and thus any error is harmless. Stout, 454 F.3d at 1055 . 7 Here, ALJ Treblin made other findings of severe impairments. For this reason, the Court 8 finds Plaintiff was not prejudiced by ALJ Treblin’s failure to consider Plaintiff’s 9 osteoporosis at step two. Accordingly, the Court finds the ALJ’s omission at step two was 10 harmless error. 11 During step four of a disability determination, however, the ALJ must consider “all 12 of [the claimant’s] medically determinable impairments of which [they] are aware, 13 including [the claimant’s] medically determinable impairments that are not ‘severe.’” 20 14 C.F.R. § 416.945 (a)(2) (2022); Buck, 869 F.3d at 1049 ; see also SSR 98–6p, 1996 WL 15 374184 (July 2, 1996). A medically determinable impairment is defined as an “anatomical, 16 physiological, or psychological abnormalit[y] that can be shown by medically acceptable 17 clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521 (2022). 18 As a preliminary matter, ALJ Treblin was aware of Plaintiff’s osteoporosis 19 diagnosis. At the administrative hearing, Plaintiff’s counsel highlighted osteoporosis, and 20 that Plaintiff’s risk of bone fracture is heightened because of the condition. (AR at 16.) 21 Plaintiff’s osteoporosis is also mentioned numerous times throughout the record. (See AR.) 22 For instance, DEXA scans from 2018 and 2019 state that Plaintiff is “osteoporotic” and 23 “osteopenic,” respectively. (AR at 475, 482.) The 2019 DEXA scan results also show that 24 Plaintiff’s neck and hip are at increased risk of fracture. (AR at 477-80.) The results can be 25 classified as abnormalities shown by a medically acceptable laboratory diagnostic 26 technique. Plaintiff’s osteoporosis, therefore, could be considered a medically 27 determinable impairment. [28] 1 However, even if the Court assumed that ALJ Treblin determined Plaintiff’s 2 osteoporosis was not a medically determinable impairment, the Court does not have a basis 3 to affirm the argument because ALJ Treblin did not articulate any reasoning regarding 4 osteoporosis. The Court cannot affirm on a basis not discussed by the ALJ. Brown-Hunter, 5 806 F.3at 492. Under the circumstances, the Court is precluded from making independent 6 findings. Consequently, the Court cannot conclude that ALJ Treblin’s failure to discuss 7 osteoporosis—even to discount it as not medically determinable—was harmless error. (Id.) 8 Therefore, the Court finds that the ALJ committed harmful error by not discussing 9 Plaintiff’s osteoporosis. 10 2. ALJ’s Evaluation of Plaintiff’s Tendinosis of the Right Shoulder 11 Second, Plaintiff claims that ALJ Treblin erred at step two by failing to consider 12 tendinosis of her right shoulder a medically determinable impairment, which Plaintiff 13 alleges is medically classified as “severe.” (ECF No. 17 at 3-4.) Defendant argues that ALJ 14 Treblin considered Plaintiff’s shoulder pain later in his decision, therefore, the ALJ did not 15 commit harmful error. (ECF No. 19 at 3.) 16 Defendant correctly argues that ALJ Treblin did not specifically identify tendinosis 17 by name, but he made several references to Plaintiff’s shoulder during his step four 18 determination. (AR at 66-68.) For instance, ALJ Treblin noted that Plaintiff had been 19 diagnosed with “chronic pain in the shoulders” that was “stable”, and that Plaintiff was 20 being treated with medication. (AR at 66.) He further noted that one doctor found a loss of 21 range of motion in Plaintiff’s right shoulder, while another found generally normal range 22 of motion, which was slightly reduced in some areas. (AR at 66.) ALJ Treblin also stated 23 that at one appointment, a physician found “no deformities, erythema, warmth, swelling, 24 effusion, or tenderness in the shoulders.” (AR at 68.) ALJ Treblin further found that 25 because of the pain in her neck and shoulder, and the side effects of her medication, 26 Plaintiff’s RFC was limited to “frequent postural activities” and to “avoiding concentrated 27 exposure to hazards.” (AR at 68.) [28] 1 The Court, therefore, finds that ALJ Treblin considered Plaintiff’s shoulder pain in 2 step four of his assessment, and it was at most harmless error to omit a discussion of 3 Plaintiff’s tendinosis at step two. See Lewis, 498 F.3d 911 (9th Cir. 2007); Buck, 869 F.3d 4 at 1049 . 5 3. ALJ’s Evaluation of Plaintiff’s Achilles Tendonitis 6 Third, Plaintiff claims that ALJ Treblin erred at step two by failing to consider 7 achilles tendonitis a medically determinable impairment. (ECF No. 17 at 4.) Defendant 8 argues that ALJ Treblin was not required to discuss Plaintiff’s achilles tendonitis because 9 there was no evidence to show that it prevented Plaintiff from performing medium work. 10 (ECF No. 19 at 2.) 11 The Court’s analysis is substantially similar to that of Plaintiff’s osteoporosis. As 12 previously discussed, since ALJ Treblin made other findings of severe impairments, failing 13 to consider Plaintiff’s achilles tendonitis at step two was, at most, a harmless error. Stout, [14] 454 F.3d at 1055 . However, ALJ Treblin was required to consider all medically 15 determinable impairments at step four and as Plaintiff points out, ALJ Treblin did not 16 mention Plaintiff’s achilles tendonitis or even foot pain in his decision. (AR 57-71.) Thus, 17 the question before the Court is whether Plaintiff’s achilles tendonitis could be considered 18 a medically determinable impairment. 19 Plaintiff alleges that an ultrasound report of Plaintiff’s feet was sufficient to support 20 a finding of a medically determinable impairment (ECF No. 17 at 4; AR at 428), while 21 Defendant argues the ultrasound was “unremarkable” and implies the achilles tendonitis 22 diagnosis did not warrant classification as a medically determinable impairment. (ECF No. 23 19 at 2.) Whether Plaintiff’s achilles tendonitis qualifies as a medically determinable 24 impairment relies on the ultrasound and the findings described therein as “Achilles tendon 25 thickening” and “bilateral Achilles areas of disorganization.” (AR at 428.) 26 The Court, however, cannot affirm on a basis not discussed by the ALJ. Brown27 Hunter, 806 F.3at 492. Even if Defendant’s contention was taken as true and the Court 28 assumed that ALJ Treblin determined achilles tendonitis was not a medically determinable 1 impairment, the Court still has no basis to affirm this argument because ALJ Treblin did 2 not articulate any reasoning regarding achilles tendonitis. Under the circumstances, the 3 Court is precluded from making independent findings. Consequently, the Court cannot 4 conclude that ALJ Treblin’s failure to discuss achilles tendonitis—even to discount it as 5 not medically determinable—was harmless error. (Id.) Therefore, the Court finds that the 6 ALJ committed harmful error by not discussing Plaintiff’s achilles tendonitis. 7 4. ALJ’s Evaluation of Plaintiff’s Carpel Tunnel Syndrome 8 Fourth, Plaintiff claims that ALJ Treblin erred at step two by failing to consider 9 Plaintiff’s carpal tunnel syndrome. (ECF No. 17 at 5.) Defendant argues that ALJ Treblin 10 considered Plaintiff’s hand pain later in his decision, and therefore, the ALJ did not commit 11 harmful error. (ECF No. 19 at 4.) 12 Defendant correctly argues that ALJ Treblin did not mention the condition by name, 13 but he addressed Plaintiff’s wrists and hands several times in his decision. (AR at 66-68.) 14 For instance, ALJ Treblin noted two instances in which Plaintiff’s hands and wrists were 15 normal upon evaluation. (AR at 66-67.) ALJ Treblin further noted that one physician 16 diagnosed Plaintiff with chronic pain in her hands, but this condition was stable. (AR at 17 66.) ALJ Treblin also reported that another physician found Plaintiff had reduced sensation 18 in her fingers. (Id.) 19 Plaintiff, however, argues that “. . . the ALJ was required to articulate in the decision 20 what consideration and evaluation he gave to the imaging and examinations.” (ECF No. 17 21 at 10.) The Court is not persuaded by Plaintiff’s argument that ALJ Treblin must articulate 22 the consideration he gave to every scan in Plaintiff’s medical record. (ECF No. 17 at 5.) If 23 Plaintiff’s contention were taken as true, logic would require that ALJ Treblin address 24 every page in the record and thus every ALJ decision would be hundreds of pages long. 25 The Court finds that because ALJ Treblin considered Plaintiff’s wrist and hand pain 26 at step four of the assessment, under the holdings of Lewis v. Astrue and Buck v. Berryhill, 27 it was, at most, harmless error for him to have omitted a discussion of Plaintiff’s carpal 28 tunnel syndrome at step two. Lewis, 498 F.3d 911 (9th Cir. 2007); Buck, 869 F.3d at 1049 . 1 5. ALJ’s Evaluation of Plaintiff’s Knee Impairment 2 Fifth, Plaintiff claims that ALJ Treblin erred at step two in finding Plaintiff’s knee 3 impairment not severe. (ECF No. 17 at 4-6.) As a preliminary matter, the Court finds that 4 because ALJ Treblin considered Plaintiff’s knee impairment later in his decision, under the 5 holdings of Lewis v. Astrue and Buck v. Berryhill, it was at most harmless error for him to 6 have omitted a discussion of Plaintiff’s knee impairment at step two. Lewis, 498 F.3d 911 7 (9th Cir. 2007); Buck, 869 F.3d at 1049 . 8 In his decision, ALJ Treblin determined that Plaintiff’s osteoarthritis of the knees 9 was not a severe impairment because her knees were “non-tender,” had “no effusions,” and 10 her knee pain was “stable” at one appointment. (AR at 62.) In this District, if the evidence 11 is subject to more than one interpretation, the ALJ’s decision must be affirmed. Andrews, [12] 53 F.3d at 1039 -40 (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). Here, 13 Plaintiff’s medical records are subject to more than one interpretation because knee pain is 14 noted several times (AR at 444, 449, 455, 549, 1025), but there are also several normal 15 exam findings throughout the record. (See, e.g., AR 435, 436, 444, 445, 449, 455, 457, 471, 16 472, 473, 1059, 1069, 1081, 1087, 1322.) Since multiple notes in the record indicate 17 Plaintiff’s knees were normal, ALJ Treblin’s determination that Plaintiff’s knees did not 18 amount to a severe impairment must be affirmed. 19 Lastly, the Court addresses Plaintiff’s argument that ALJ Treblin cherry picked 20 information from the record. Plaintiff contends that one instance of wellbeing was not 21 enough to warrant a finding of a non-severe impairment and likens ALJ Treblin’s decision 22 to “cherry picking.” (ECF No. 17 at 5-7.) An ALJ cherry picks when they selectively cite 23 to the record, ignoring evidence that contradicts their opinion. See D.T. v. Comm'r of Soc. 24 Sec., 538 F. Supp. 3d 952 , 958 (N.D. Cal. 2021); Hoffschneider v. Kijakazi, No. 18-15504, [25] 2022 WL 3229989 , at *1 (9th Cir. Aug. 10, 2022). If the ALJ acknowledges facts adverse 26 to their conclusion and relies on a broad set of exams, they have not cherry picked. See 27 D.T., 538 F. Supp. at 958; Wesselius v. Kijakazi, No. 20-35386, 2021 WL 4948928 , at *1 28 (9th Cir. Oct. 25, 2021). 1 Here, ALJ Treblin acknowledged facts adverse to his determination several times. 2 For instance, he acknowledged that Plaintiff suffered from osteoarthritis of the knees, that 3 she visited the hospital on at least one occasion on account of her pain, and that she was 4 diagnosed with chronic knee pain. (AR at 62, 66.) Furthermore, ALJ Treblin cites to 5 Exhibit 2F of the record, which includes medical records containing descriptions of 6 Plaintiff’s knees between 2018 and 2020, a broad period of time. (AR at 66; ECF No. 127 1.) Therefore, the Court finds that ALJ Treblin did not cherry pick or err in finding that 8 Plaintiff’s knee impairments were non-severe. [9] B. Whether the ALJ Failed to Properly Evaluate the Medical Opinion Evidence [10] Next, Plaintiff argues that ALJ Treblin erred in evaluating each medical opinion. [11] (ECF No. 17 at 8-13.) [12] Although a treating physician’s opinion was given controlling weight until recently, [13] the social security rules were updated in 2017 to reflect a modernized view on the weight [14] properly given to each medical opinion. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. [15] 2022). Now, the ALJ must evaluate the persuasiveness of medical source opinions by [16] considering prescribed enumerated factors. 20 C.F.R. §§ 404 .1520c(c)(1)-(5); [17] 416.920c(c)(1)-(5). The “most important factors” considered are consistency and [18] supportability. Id. §§ 404.1520c(b)(2); 416.920c(b)(2). The regulations describe [19] supportability as: “[t]he more relevant the objective medical evidence and supporting [20] explanations presented by a medical source are to support his or her medical opinion(s) . . [21] . the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404 .1520c(c)(1), [22] 416.920c(c)(1). Consistency is described as: “[t]he more consistent a medical opinion(s) . [23] . . is with the evidence from other medical sources and nonmedical sources in the claim, [24] the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404 .1520c(c)(2), [25] 416.920c(c)(2). [26] Factors that detract from a medical opinion’s persuasiveness include extreme [27] evaluations that do not comport with the rest of the evidence on record, opinions that [28] 1 contradict the medical source’s records, and “check off reports” that contain little or no 2 explanation of their conclusion. Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023). 3 According to the new rules, the “treating physician” factor is still relevant, but an ALJ is 4 not required to share how they considered the treating physician factors. Woods, 32 F.4th 5 at 792. 6 Here, ALJ Treblin found some of the medical opinions’ persuasive, and others not 7 persuasive. Courts equate finding a medical source “not persuasive” with rejecting a 8 medical opinion. See, e.g., Woods v. Kijakazi, 32 F.4th 785, 792-94 (9th Cir. 2022); Steven 9 R. T. v. Kijakazi, No. 20-CV-2257-KSC, 2022 WL 2303950 , at *12 (S. D. Cal. June 24, 10 2022). “An ALJ cannot reject an examining or treating doctor's opinion as unsupported or 11 inconsistent without providing an explanation supported by substantial evidence. The 12 agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each 13 doctor or other source, 20 C.F.R. § 404 .1520c(b), and “explain how [it] considered the 14 supportability and consistency factors” in reaching these findings, id. § 404.1520c(b)(2).” 15 Woods, 32 F.4th at 792. “[T]o determine the persuasiveness of a medical opinion the court 16 must evaluate whether the ALJ properly considered the factors as set forth in the amended 17 regulations.” Tanya L. L. v. Comm'r of Soc. Sec., 526 F. Supp. 3d 858 , 866 (D. Or. 2021). 18 The Court examines the ALJ’s evaluation of Dr. Guefen, Dr. Tran, Dr. Kalmar, and 19 Dr. Gleason’s medical opinions below. 20 1. Dr. Guefen 21 Dr. Guefen has been Plaintiff’s treating physician for four years. (AR at 299.) Dr. 22 Guefen opined the following regarding Plaintiff’s limitations: 23 [Plaintiff] has no ability to lift and/or carry, stand/walk for 2 hours in an 8hour work day and sit for 6 hours in an 8-hour work day, should alternate [24] between standing and sitting every 15 to 20 minutes; zero ability to climb, 25 balance, kneel, crouch, crawl, no handling and no fingering, and would be absent from work more than three times per month. (AR at 68.) [26] 27 Plaintiff argues that ALJ Treblin erred in finding Dr. Guefen’s opinion not 28 persuasive because Dr. Guefen was her treating physician, and his opinion was entitled to 1 more weight than those of Drs. Tran, Kalmar, and Gleason. (ECF No. 17 at 8.) However, 2 as discussed above, under the new social security regulations, a treating physician’s 3 opinion is entitled to no more weight than any other source. Plaintiff misconstrues the new 4 regulations, which allow for consideration of a treatment relationship, but do not require 5 that the ALJ articulate how they considered this factor. 20 C.F.R. § 404 .1520c(b)(2) 6 (2022); Woods, 32 F.4th at 792 . 7 Plaintiff also argues that ALJ Treblin erred in finding Dr. Guefen’s opinion not 8 persuasive because it is consistent with other medical evidence in the record such as a 9 DEXA scan showing osteoporosis, scans showing severe tendinosis of the right shoulder, 10 achilles tendonitis, carpal tunnel syndrome, and bilateral knee osteoarthritis. (ECF No. 17 11 at 13.) Defendant counters that Dr. Guefen’s opinion is inconsistent with the record, and 12 even if Plaintiff has a different interpretation of the record, the Court must affirm as long 13 as there is substantial evidence supporting the ALJ’s decision. (ECF No. 19, at 5-6; 14 Andrews, 53 F.3d at 1039-40 .) 15 In reaching his decision, ALJ Treblin concluded that Dr. Guefen’s opinion was not 16 persuasive because it was “overly restrictive” and thus inconsistent with other medical 17 evidence in the record. (Id.) In support of this finding, ALJ Treblin discussed the opinions 18 of Drs. Tran, Lin, and a relevant MRI scan, which noted normal extremity strength, grip 19 strength, and gait, as well as normal range of motion in the lumbar spine and flexion and 20 abduction of the right shoulder. (Id.) ALJ Treblin further described Plaintiff’s range of 21 motion and extension of the cervical spine, and reduced range of motion of the right 22 shoulder. (Id.) As Defendant points out, many of Plaintiff’s medical assessments showed a 23 normal or close to normal range of motion, while Dr. Guefen’s assessment concluded that 24 Plaintiff was essentially unable to physically exert herself, which is not consistent with the 25 bulk of the record. (ECF No. 19 at 5, 6.) For this reason, the Court finds that there is 26 substantial evidence for finding Dr. Guefen’s opinion not persuasive under the consistency 27 factor. [28] 1 However, ALJs are required to articulate the supportability and consistency factors 2 of a medical source when determining its persuasiveness. Tanya L. L., 526 F. Supp. at 866; 3 see also Woods, 32 F.4th at 792 . Although ALJ Treblin discussed how Dr. Guefen’s 4 opinion was inconsistent with other medical evidence in the record, he failed to evaluate 5 the supportability factor that affected his analysis of Dr. Guefen’s opinion. (AR at 67-68.) 6 ALJ Treblin only identified Dr. Guefen’s findings and presented other medical evidence 7 that was inconsistent with Dr. Guefen’s opinion. (AR at 67-68.) He did not explain whether 8 Dr. Guefen’s opinion was supported by relevant medical evidence. Tanya L. L., 526 F. 9 Supp. at 866. Therefore, the Court finds that ALJ Treblin erred by failing to articulate the 10 supportability factor in finding Dr. Guefen’s opinion not persuasive. (Id.) 11 2. Dr. Tran 12 On September 23, 2020, Dr. Tran performed an independent medical examination 13 on Plaintiff. (AR at 66.) Dr. Tran stated that Plaintiff had the following capabilities: 14 [Plaintiff can] lift up to 50 pounds occasionally and no more than 25 pounds frequently; stand/walk for 6 hours in an 8-hour work day and sit for 6 hours [15] in an 8-hour work day; and [was] able to frequently perform postural 16 activities.” (AR at 67.) 17 ALJ Treblin found Dr. Tran’s opinion generally persuasive because she directly 18 examined Plaintiff and her opinion was consistent with the bulk of the record, including 19 notes from other treating physicians. (AR at 67-68.) Plaintiff, however, alleges that Dr. 20 Tran’s medical opinion was not a persuasive because “Dr. Tran’s opinions are not well21 supported by her own clinical findings.” (ECF No. 17 at 9.) 22 Plaintiff cites two studies in an attempt to disqualify Dr. Tran’s findings, stating that 23 these studies prove Plaintiff’s exertional limitations do not align with the amount of weight 24 Dr. Tran opined Plaintiff could carry. (ECF No. 17 at 9-10.) However, if represented by 25 counsel, Plaintiffs must raise all evidentiary issues at their ALJ hearing to preserve these 26 issues for appeal. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as amended (June 27 22, 1999). Although Plaintiff’s attorney described Dr. Tran’s findings as “not well 28 supported” during the hearing, she did not introduce the evidence Plaintiff is seeking to 1 rely on in her argument. (AR at 16.) Because the ALJ is in the optimal position to resolve 2 conflicts of evidence, the Court will not determine evidentiary issues that have not been 3 raised at hearing. Id.; see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). If 4 Plaintiff wanted this evidence addressed, she should have presented it to the ALJ at her 5 hearing. 6 Plaintiff also argues that because Dr. Tran did not review Plaintiff’s medical records, 7 her opinion cannot be persuasive. (ECF No. 17 at 10.) However, authority suggests that 8 Consultative Examiners (“CE”) such as Dr. Tran are not required to review medical records 9 because a CE’s opinion rests on their own examinations. Bozicevic v. Comm'r of Soc. Sec. 10 Admin., No. CV-20-00984-PHX-JJT, 2021 WL 5231669 , at *5 (D. Ariz. Nov. 10, 2021) 11 (citing Castaneda v. Astrue, 344 Fed. App’x 396, 398 (9th Cir. 2009)). As such, the Court 12 finds this argument unpersuasive. 13 Lastly, Plaintiff argues that Dr. Tran’s opinion was only found persuasive because 14 of ALJ Treblin’s impermissible cherry picking. (ECF No. 17 at 9-10.) In his decision, ALJ 15 Treblin stated that he found Dr. Tran’s opinion generally persuasive because it was 16 “consistent with the bulk of the evidence in the record.” (AR at 67.) He acknowledged Dr. 17 Tran’s findings of mild reduction in range of motion in Plaintiff’s cervical spine, and mild 18 reduction in range of extension, while noting several instances in which Plaintiff presented 19 normally upon exam. (AR at 66-68.) For example, ALJ Treblin noted that at one visit, 20 Plaintiff had “no deformities, erythema, warmth, swelling, effusion, or tenderness in the 21 shoulders, elbows, wrists, hands, fingers.” (AR at 68.) At another appointment, Plaintiff 22 had 5/5 strength in all extremities. (Id.) Plaintiff further “ambulated without assistance.” 23 (Id.) ALJ Treblin concluded that, overall, Dr. Tran’s findings failed to show Plaintiff had 24 disabling limitations. (AR at 66.) In discussing these specific instances in which the 25 Plaintiff exhibited normal functions, ALJ Treblin also acknowledged Dr. Tran’s findings 26 of “some impairments” and “some limitations.” (Id.) Therefore, the Court finds that ALJ 27 Treblin did not impermissibly cherry-pick. [28] 1 However, ALJs are required to articulate their findings on the supportability and 2 consistency of a medical source. Tanya L. L., 526 F. Supp. at 866; see also Woods, 32 F.4th 3 at 792 . Although ALJ Treblin discussed how Dr. Tran’s opinion was consistent with other 4 medical evidence in the record, he failed to evaluate the supportability factor that affected 5 his analysis of Dr. Tran’s opinion. (AR at 67-68.) ALJ Treblin did not identify any specific 6 evidence that led him to believe that Dr. Tran’s opinion was supportable. (Id.) ALJ Treblin 7 simply identified Dr. Tran’s findings and presented other medical evidence that was 8 consistent with Dr. Tran’s opinion. (AR at 67-68.) Therefore, the Court finds that ALJ 9 Treblin erred by failing to articulate the supportability factor in his evaluation of Dr. Tran’s 10 opinion. 11 3. Dr. Kalmar 12 Dr. Kalmar is a disability determination services (“DDS”) medical consultant who 13 was hired to review Plaintiff’s medical records. (AR at 68; ECF No. 17 at 16-17.) Dr. 14 Kalmar found that Plaintiff was not disabled because she could perform medium work, 15 based on the following capabilities. (AR at 32-34.) 16 [Plaintiff can] lift up to 50 pounds occasionally and no more than 25 pounds frequently; stand/walk for 6 hours in an 8-hour work day and sit for 6 hours [17] in an 8-hour work day. (AR at 68.) [18] ALJ Treblin found Dr. Kalmar’s opinion generally persuasive “. . . because the [19] conclusions are supported by, and consistent with, the objective medical evidence in the [20] record.” (AR at 68.) However, Plaintiff argues that ALJ erred in finding Dr. Kalmar’s [21] opinion persuasive because Dr. Kalmar did not review all medical records available. (ECF [22] No. 17 at 11.) [23] Plaintiff cites to Maliha K. v. Saul in support of her argument, but she fails to note [24] that within the same paragraph of the text she relies on, the opinion states “the fact that a [25] non-examining state agency physician fails to review the entire record does not, by itself, [26] mean that his or her opinion cannot serve as substantial evidence.” Maliha K. v. Saul, No. [27] 8:19-CV-00877-MAA, 2020 WL 2113671 , at *6 (C.D. Cal. May 4, 2020) (citing Owen v. [28] 1 Saul, 808 F. App’x 421 , 424 (9th Cir. 2020)). If, however, the non-examining physician 2 does not have the opportunity to review later evidence that undermines their opinion, the 3 opinion cannot be persuasive. Patricia C., 2020 WL 4596757 , at *20. This occurs when 4 evidence post-dating the non-examining physician’s opinion is not consistent with the 5 opinion. Maliha K., 2020 WL 2113671 , at *6. 6 The issue then turns on whether the evidence arising after Dr. Kalmar’s opinion 7 contradicts his opinion and whether Dr. Kalmar’s opinion is supportable and consistent. 8 Based on Dr. Tran’s opinion in September 2020, showing mostly normal findings and Dr. 9 Gleason’s affirmation of Dr. Kalmar’s opinion in February 2021, the Court concludes that 10 there were no further contradictory opinions. (See AR at 68.) Therefore, the ALJ did not 11 err by finding Dr. Kalmar’s opinion persuasive even though Plaintiff’s medical records 12 were not fully reviewed. 13 However, ALJs are required to articulate their findings on the supportability and 14 consistency of a medical source. Tanya L. L., 526 F. Supp. at 866; see also Woods, 32 F.4th 15 at 792 . ALJ Treblin outlined several consistency factors, including extensive cites to Dr. 16 Tran’s opinion and notes from Dr. Harry Ellison, which “revealed no neurological deficits 17 upon exam and that the claimant was able to ambulate without assistance.” (AR at 66, 68.) 18 However, ALJ Treblin failed to outline any evidence establishing supportability in his 19 decision. (AR at 68.) He included a general statement that the opinions of “the DDS 20 medical consultants are generally persuasive” because their conclusions are “supported” 21 by medical evidence in the record, but he did not mention any specific evidence that led 22 him to believe Dr. Kalmar’s opinion was supported by the medical record. For this reason, 23 the Court finds that ALJ Treblin erred by failing to articulate the supportability factor in 24 his evaluation of Dr. Kalmar’s opinion. 25 4. Dr. Gleason 26 Dr. Gleason is a DDS medical consultant who was hired to review Plaintiff’s medical 27 records on reconsideration, and who affirmed Dr. Kalmar’s initial finding that Plaintiff 28 could perform medium work. (AR at 45-52, 68.) ALJ Treblin found Dr. Gleason’s opinion 1 generally persuasive “. . . because the conclusions are supported by, and consistent with, 2 the objective medical evidence in the record.” (AR at 68.) 3 Plaintiff argues that ALJ Treblin erred by finding Dr. Gleason’s opinion persuasive 4 because substantial evidence does not support his decision. (ECF No. 17 at 12.) 5 Specifically, Plaintiff argues that Dr. Gleason erred in finding that Plaintiff had full range 6 of motion in her spine and extremities, Plaintiff was “neuro intact,” and osteoporosis should 7 not be included in Plaintiff’s RFC because she did not allege it prevented work. (Id.) 8 Although Dr. Gleason did determine Plaintiff had a wider range of motion than other 9 sources, ALJ Treblin did not err in relying on Dr. Gleason’s opinion simply because Dr. 10 Gleason came to a different conclusion in this regard. Furthermore, ALJ Treblin did not 11 follow this portion of Dr. Gleason’s opinion, since ALJ Treblin acknowledged several 12 times that Plaintiff had a reduced range of motion in extension of the right shoulder, and 13 reduced range of motion in the cervical spine. (AR at 68.) The same analysis applies to Dr. 14 Gleason’s statement that Plaintiff was “neuro intact.” ALJ Treblin noted instances in which 15 Plaintiff was found “grossly” neurologically intact, “did not display neurological deficits 16 upon exam,” and reported decreased sensation, but had no neurological deficits otherwise. 17 (AR at 67.) Therefore, these instances in which ALJ Treblin found Plaintiff had more 18 limitations than Dr. Gleason’s conservative physical limitations were not prejudicial to 19 Plaintiff and were, if anything, harmless error. Moreover, Defendant states—and the Court 20 agrees—that Plaintiff did not properly allege osteoporosis as disabling, but Dr. Gleason 21 nevertheless considered the records pertaining to Plaintiff’s osteoporosis. (ECF No. 19 at 22 8; AR at 43, 45.) For the reasons set forth above, ALJ Treblin did not err in finding Dr. 23 Gleason’s opinion persuasive. 24 However, ALJs are required to articulate their findings on the supportability and 25 consistency of a medical source. Tanya L. L., 526 F. Supp. at 866; see also Woods, 32 F.4th 26 at 792. ALJ Treblin failed to outline any evidence establishing supportability in his 27 decision. (AR at 68.) As stated above, he included a general statement that the opinions of 28 “the DDS medical consultants are generally persuasive” because their conclusions are 1 “supported” by medical evidence in the record, but he did not identify any evidence that 2 led him to believe Dr. Gleason’s opinion was supported by the medical evidence. For this 3 reason, the Court finds that ALJ Treblin erred by failing to articulate the supportability 4 factor in his evaluation of Dr. Gleason’s opinion. 5 C. Whether the ALJ Properly Determined Plaintiff’s RFC 6 Lastly, Plaintiff claims that ALJ Treblin erred in determining her RFC based on the 7 earlier errors at step two and when assigning weight to the opinions of Dr. Guefen, Dr. 8 Tran, Dr. Kalmar, and Dr. Gleason. (ECF No. 17 at 13.) However, this is merely a 9 recharacterization of Plaintiff’s first five arguments. Because the Court discussed the issues 10 at length above, they do not warrant further review at this stage. See Stubbs-Danielson v. 11 Astrue, 539 F.3d 1169 (9th Cir. 2008); Kitchen v. Kijakazi, 82 F.4th 732, 742 (9th Cir. 12 2023) (deciding that restated arguments need not be reviewed if already discussed). 13 VI. CONCLUSION AND RECOMMENDATION 14 The only remaining question for the Court is whether to remand for further 15 administrative proceedings or for the payment of benefits. “The decision of whether to 16 remand a case for additional evidence, or simply to award benefits[,] is within the 17 discretion of the court.” Trevizo, 871 F.3d at 682 (quoting Sprague v. Bowen, 812 F.2d 18 1226, 1232 (9th Cir. 1987)). “Remand for further administrative proceedings is appropriate 19 if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587 , 593 20 (9th Cir. 2004). A remand for an immediate award of benefits is appropriate only in rare 21 circumstances. Leon v. Berryhill, 874 F.3d 1130 (9th Cir. 2017). The Court concludes that 22 “[t]he rare circumstances that result in a direct award of benefits are not present in this 23 case.” (Id.) 24 Instead, the Court finds further administrative proceedings would serve a meaningful 25 purpose. On remand, ALJ Treblin must: (1) expressly evaluate Plaintiff’s osteoporosis and 26 achilles tendonitis, and (2) evaluate and explain the supportability factor in discussing each 27 medical opinion. Specifically, ALJ Treblin must establish whether Plaintiff’s osteoporosis 28 and achilles tendonitis are medically determinable impairments and if so, determine 1 |} Plaintiff's RFC with consideration to the impairments. Furthermore, ALJ Treblin must 2 || discuss the supportability factor in finding the medical opinions of Dr. Guefen, Dr. Tran, 3 ||Dr. Kalmar, and Dr. Gleason, persuasive or not persuasive. All reasons set forth by ALJ 4 ||Treblin’s decision must be clearly articulated so that any subsequent reviewer can assess 5 ||how the ALJ evaluated the claimant’s symptoms and the record. Stout, 454 F.3d at 1054 ; 6 || Brown-Hunter, 806 F.3d at 492 . 7 Based on the foregoing, the Court. RECOMMENDS that the District Court 8 || VACATE the ALJ’s decision and REMAND this case for further administrative 9 || proceedings consistent with the findings presented herein. 10 IT IS HEREBY ORDERED that any written objection to this report must be filed 11 || with the Court and served on all parties no later than December 29, 2023. The document 12 ||should be captioned “Objections to Report and Recommendation.” 13 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 14 || the Court and served on all parties no later than January 12, 2024. The parties are advised 15 || that failure to file objections within the specified time may waive the right to raise those 16 || objections on appeal of the Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 || Dated: December 14, 2023 [19] BF. 22 United States Magistrate Judge