1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 DARIANA H.,1 Case No. 23-cv-04780-TSH

7 Plaintiff,

ORDER RE: CROSS-MOTIONS FOR

8 v. SUMMARY JUDGMENT

9 MARTIN O’MALLEY, Re: Dkt. Nos. 15, 20 10 Defendant.

11 12 13 14 15 I. INTRODUCTION 16 Plaintiff Dariana H. moves for summary judgment to reverse the decision of Defendant 17 Martin O’Malley, Commissioner of Social Security, denying Plaintiff’s claim for disability 18 benefits under the Social Security Act, 42 U.S.C. § 401 et seq., and to remand this case in 19 accordance with sentence four of 42 U.S.C. § 405(g). Motion at 1, ECF No. 15. Defendant cross- 20 moves to affirm. ECF No. 20. Pursuant to Civil Local Rule 16-5, the matter is submitted without 21 oral argument. Having reviewed the parties’ positions, the Administrative Record (“AR”), and 22 relevant legal authority, the Court GRANTS Plaintiff’s motion and DENIES Defendant’s cross- 23 motion.2 24 25

26 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial 27 Conference of the United States. 1 II. PROCEDURAL HISTORY 2 On January 29, 2021, Plaintiff filed an application for Social Security Supplemental 3 Security Income benefits, stating a disability onset date of January 1, 2017. AR 175. Plaintiff 4 later amended the alleged onset date to January 29, 2021. AR 17, 299–300. The application was 5 denied initially on July 20, 2021, and again on reconsideration on November 1, 2021. AR 109, 6 118. Following denial at the initial and reconsideration levels, Plaintiff requested a hearing before 7 an Administrative Law Judge (“ALJ”). AR 124–26. An ALJ held a hearing via teleconference on 8 September 27, 2022, and issued an unfavorable decision on October 17, 2022. AR 14–26, 32–58. 9 On December 15, 2022, Plaintiff filed a request for review with the Appeals Council. AR 172–74. 10 The Appeals Council denied review on August 1, 2023. AR 1–3. Plaintiff now seeks review 11 pursuant to 42 U.S.C. § 405(g). 12 III. ISSUES FOR REVIEW 13 Plaintiff raises six issues on appeal: (1) that the ALJ erred in evaluating Plaintiff’s 14 testimony; (2) that the ALJ erred in evaluating the severity of Plaintiff’s back pain; (3) that the 15 ALJ erred in finding the medical opinion of licensed psychologist Dr. Katherine Wiebe 16 unpersuasive; (4) that the ALJ erred in finding the findings of four State agency consultants 17 persuasive; (5) that the ALJ erred in finding the opinion of licensed clinical psychologist Dr. 18 Aparna Dixit persuasive; and (6) that the ALJ erred in evaluating Plaintiff’s RFC. 19 IV. STANDARD OF REVIEW 20 42 U.S.C. § 405(g) provides this Court’s authority to review the Commissioner’s decision 21 to deny disability benefits, but “a federal court’s review of Social Security determinations is quite 22 limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Commissioner’s 23 decision will be disturbed only if it is not supported by substantial evidence or if it is based on the 24 application of improper legal standards. Id. The Court may set aside a denial of benefits only if 25 “it contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 26 995, 1009 (9th Cir. 2014) (citations omitted). Substantial means “more than a mere scintilla[,]” 27 but only “such relevant evidence as a reasonable mind might accept as adequate to support a 1 which is “not high,” the Court looks to the existing administrative record and asks “whether it 2 contains ‘sufficient evidence’ to support the agency’s factual determinations.” Id. at 102 (cleaned 3 up). 4 The Court “must consider the entire record as a whole, weighing both the evidence that 5 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 6 simply by isolating a specific quantum of supporting evidence.” Garrison, 759 F.3d at 1009 7 (citation omitted). “The ALJ is responsible for determining credibility, resolving conflicts in 8 medical testimony, and for resolving ambiguities.” Id. at 1010 (citation omitted). If “the evidence 9 can reasonably support either affirming or reversing a decision,” the Court must defer to the ALJ’s 10 decision. Id. (citation omitted). 11 Even if the ALJ commits legal error, the ALJ’s decision must be upheld if the error is 12 harmless, meaning “it is inconsequential to the ultimate nondisability determination, or that, 13 despite the legal error, the agency’s path may reasonably be discerned, even if the agency explains 14 its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 492 (cleaned up). But “[a] 15 reviewing court may not make independent findings based on the evidence before the ALJ to 16 conclude that the ALJ’s error was harmless” and is instead “constrained to review the reasons the 17 ALJ asserts.” Id. (cleaned up); see also Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) 18 (courts “cannot affirm the decision of an agency on a ground that the agency did not invoke in 19 making its decision”). 20 V. DISCUSSION 21 A. Framework for Determining Whether a Claimant Is Disabled 22 A claimant is “disabled” under the Social Security Act (1) “if he is unable to engage in any 23 substantial gainful activity by reason of any medically determinable physical or mental 24 impairment which can be expected to result in death or which has lasted or can be expected to last 25 for a continuous period of not less than twelve months” and (2) the impairment is “of such severity 26 that he is not only unable to do his previous work but cannot, considering his age, education, and 27 work experience, engage in any other kind of substantial gainful work which exists in the national 1 To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential 2 analysis. 20 C.F.R. § 404.1520(a)(1) (disability insurance benefits); id. § 416.920(a)(4) (same 3 standard for supplemental security income). The claimant bears the burden of proof at steps one 4 through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citation omitted). 5 At step one, the ALJ must determine if the claimant is presently engaged in a “substantial 6 gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), defined as “work done for pay or profit that 7 involves significant mental or physical activities[.]” Ford, 950 F.3d at 1148 (cleaned up). Here, 8 the ALJ determined Plaintiff had not performed substantial gainful activity since January 29, 9 2021, the revised alleged onset date. AR 19. 10 At step two, the ALJ decides whether the claimant’s impairment or combination of 11 impairments is “severe,” 20 C.F.R. § 404.1520(a)(4)(ii), “meaning that it significantly limits the 12 claimant’s ‘physical or mental ability to do basic work activities[.]’” Ford, 950 F.3d at 1148 13 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant is not disabled. 14 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the following severe 15 impairments: cyclic vomiting syndrome; depressive disorder; anxiety disorder; panic disorder; 16 adjustment disorder; obsessive compulsive disorder (“OCD”); post-traumatic stress disorder 17 (“PTSD”); learning disorder; and cannabis use disorder. AR 19. 18 At step three, the ALJ evaluates whether the claimant has an impairment or combination of 19 impairments that meets or equals an impairment in the “Listing of Impairments” (referred to as the 20 “listings”). See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings 21 describe impairments that are considered “to be severe enough to prevent an individual from doing 22 any gainful activity[.]” 20 C.F.R. § 404.1525(a). Each impairment is described in terms of “the 23 objective medical and other findings needed to satisfy the criteria of that listing.” Id. § 24 404.1525(c)(3). “For a claimant to show that his impairment matches a listing, it must meet all of 25 the specified medical criteria. An impairment that manifests only some of those criteria, no matter 26 how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote omitted). 27 If a claimant’s impairment either meets the listed criteria for the diagnosis or is medically 1 considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ 2 determined Plaintiff did not have an impairment or combination of impairments that meets the 3 listings. AR 20–21. 4 If the claimant does not meet or equal a listing, the ALJ proceeds to step four and assesses 5 the claimant’s residual functional capacity (“RFC”), defined as the most the claimant can still do 6 despite their limitations (20 C.F.R. § 404.1545(a)(1)), and determines whether they are able to 7 perform past relevant work, defined as “work that [the claimant has] done within the past five 8 years that was substantial gainful activity and that lasted long enough for [the claimant] to learn to 9 do it.” 20 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant 10 can perform past relevant work, the claimant is not disabled. Id. § 404.1520(f). Here, the ALJ 11 determined Plaintiff has the RFC “to perform light work as defined in 20 CFR 416.967(b) except 12 she can stoop, crouch and crawl frequently.” AR 21. The ALJ found Plaintiff “is able to perform 13 simple, routine and repetitive tasks, involving simple work-related decisions, but not at production 14 rate (e.g., assembly line work). She is able to interact with the public, co-workers and supervisors 15 frequently.” AR 21; see AR 21–24. However, the ALJ determined Plaintiff has no past relevant 16 work. AR 24. 17 At step five, the burden shifts to the agency to prove that “‘the claimant can perform a 18 significant number of other jobs in the national economy.’” Ford, 950 F.3d at 1149 (quoting 19 Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002)). To meet this burden, the ALJ may rely 20 on the Medical-Vocational Guidelines (commonly known as “the grids”), 20 C.F.R. Pt. 404 Subpt. 21 P, App. 2,3 or on the testimony of a vocational expert. Ford, 950 F.3d at 1149 (citation omitted). 22 “[A] vocational expert or specialist may offer expert opinion testimony in response to a 23 hypothetical question about whether a person with the physical and mental limitations imposed by 24 3 The grids “present, in table form, a short-hand method for determining the availability and 25 numbers of suitable jobs for a claimant.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999)). They consist of three tables, 26 for sedentary work, light work, and medium work, and a claimant’s place on the applicable table depends on a matrix of four factors: a claimant’s age, education, previous work experience, and 27 physical ability. Id. “For each combination of these factors, [the grids] direct a finding of either 1 the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, 2 either as the claimant actually performed it or as generally performed in the national economy.” 3 20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources such as the Dictionary of 4 Occupational Titles (“DOT”).4 Id. Here, the ALJ determined that, considering Plaintiff’s age, 5 education, work experience, and RFC, “there are jobs that exist in significant numbers in the 6 national economy that [Plaintiff] can perform.” AR 24. The ALJ determined that given Plaintiff’s 7 limitations Plaintiff could work as a cleaner in housekeeping, an inspector, or a garment sorter. 8 AR 25. 9 B. Plaintiff’s Subjective Symptom Allegations 10 Plaintiff argues that the ALJ erred in assessing her subjective symptoms. Pl.’s Mot. at 11– 11 13. 12 1. Legal Standard 13 “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 14 must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Leon v. 15 Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2018) (as amended); Diedrich v. Berryhill, 874 F.3d 634, 16 638 (9th Cir. 2017); Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (as amended); 17 Garrison, 759 F.3d at 1014; Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). Under the 18 first step, “the ALJ must determine whether the claimant has presented objective medical evidence 19 of an underlying impairment which could reasonably be expected to produce the pain or other 20 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). If this test is 21 satisfied and there is no evidence of malingering, “the ALJ can reject the claimant’s testimony 22 about the severity of her symptoms only by offering specific, clear and convincing reasons for 23 doing so.” Id. at 1036. 24 Under this standard, “the ALJ must identify what testimony is not credible and what 25 4 The DOT classifies jobs by their exertional and skill requirements. 20 C.F.R. § 404.1566(d)(1); 26 Wischmann v. Kijakazi, 68 F.4th 498, 502 (9th Cir. 2023) (“Although criticized as having many outdated job descriptions, the DOT is typically the starting point for VEs to identify the 27 occupations relevant for each claimant’s residual functional capacities.”) (cleaned up); Pinto v. 1 evidence undermines the claimant’s complaints.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2 2010) (internal quotation marks and citation omitted). “In other words, to reject the specific 3 portions of the claimant’s testimony that the ALJ has found not to be credible, we require that the 4 ALJ provide clear and convincing reasons relevant to that portion.” (internal citations omitted). 5 Smith v. Kijakazi, 14 F.4th 1108, 1113 (9th Cir. 2021). See also Lambert v. Saul, 980 F.3d 1266, 6 1268 (9th Cir. 2020) (“the ALJ must identify the specific testimony that he discredited and explain 7 the evidence undermining it.”). However, “the ALJ is not required to believe every allegation of 8 [symptoms], or else disability benefits would be available for the asking, a result plainly contrary 9 to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (citation and internal quotations omitted). 10 Likewise, “an individual’s statements of symptoms alone are not enough to establish the existence 11 of a physical or mental impairment or disability.” SSR 16-3P (S.S.A. 2016). 12 In determining whether an individual’s symptoms will reduce her capabilities to perform 13 work-related activities or abilities to function, “the ALJ may consider inconsistencies either in the 14 claimant’s testimony or between the testimony and the claimant’s conduct; unexplained or 15 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and 16 whether the claimant engages in daily activities inconsistent with the alleged symptoms.” Molina, 17 674 F.3d at 1112 (citations and internal quotations omitted); see also Rounds v. Commissioner of 18 Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended) (to assess credibility the ALJ 19 “may consider, among other factors, ‘ordinary techniques of credibility evaluation,’ ‘inadequately 20 explained failure to seek treatment or to follow a prescribed course of treatment,’ and ‘the 21 claimant’s daily activities’”). 22 2. Analysis 23 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 24 expected to cause the alleged symptoms; however, the claimant’s statements concerning the 25 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 26 medical evidence and other evidence in the record[.]” AR 22. 27 Plaintiff alleged disability due to several impairments including back, pelvic, and 1 pre-hearing brief). Plaintiff claimed she was “constantly” vomiting and experienced “very bad 2 nausea and abdominal pain,” “leaking diarrhea,” and acid reflux, and was working with 3 gastroenterologists on her gastrointestinal problems. AR 211; see also AR 900 (notes from 4 August 2022 telemedicine gastroenterology visit). Plaintiff also reported problems with her 5 memory and concentration. AR 216. During the September 27, 2022 hearing before the ALJ, 6 Plaintiff testified her average level of pain was “excruciating” and that “[i]t’s horrible and I have 7 to just sit down or grab onto something while it passes.” AR 48. 8 The ALJ did not make any findings that Plaintiff was malingering. See AR 17–26. Thus, 9 to find Plaintiff’s testimony not credible, the ALJ was required to “mak[e] specific findings as to 10 credibility and stat[e] clear and convincing reasons for each.” Robbins v. Social Sec. Admin., 466 11 F.3d 880, 883 (9th Cir.2006). Here, the ALJ failed to engage with Plaintiff’s testimony and 12 symptom allegations in any meaningful way. Instead, the ALJ’s decision forces the Court to guess 13 which aspects of Plaintiff’s testimony he found to be not credible or inconsistent with the record 14 evidence. See Lambert, 980 F.3d at 1268. See also Berry, 622 F.3d at 1234 (requiring the ALJ to 15 “identify what testimony is not credible”); Smith, 14 F.4th at 1113 (requiring the ALJ to provide 16 clear and convincing reasons for “reject[ing] the specific portions of the claimant’s testimony that 17 the ALJ has found not to be credible[.]”). The ALJ’s decision not only fails to reject any specific 18 portion of Plaintiff’s testimony, it does not include a single citation to the September 2022 hearing 19 transcript. See AR 17 – 27 (October 2022 ALJ decision). 20 The Commissioner contends that Plaintiff’s self-reported activities and limitations 21 undermine some of her subjective symptom allegations. Def.’s Cross-Mot. at 3. However, the 22 ALJ failed to “identify the specific testimony” or other allegations he discredited on this basis and 23 cited no record evidence undermining those allegations. Lambert, 980 F.3d at 1268. In its cross- 24 motion, the Commissioner cites specific self-reported activities and limitations from the record 25 that Defendant claims undercut Plaintiff’s testimony regarding her symptoms. Def.’s Cross-Mot. 26 at 3. However, the question on appeal is not whether evidence exists in the record to discount 27 Plaintiff’s subjective symptom testimony, but whether the ALJ provided clear and convincing 1 finds the ALJ did not. The ALJ’s broad and citation-free conclusion that Plaintiff is “able to 2 perform extensive activities of daily living, except for possible fatigue from vomiting,” AR 24, 3 provides no such clarity. 4 Defendant’s cross-motion highlights the decision’s lack of clarity. First, the ALJ noted 5 that Plaintiff’s “chronic high dose marijuana use could be contributing with cannabinoid 6 hyperemesis syndrome,” but that Plaintiff was unwilling to cut back or stop using marijuana 7 unless hospitalized. AR 22. The Commissioner argues that the ALJ thus “reasonably rejected 8 Plaintiff’s allegations of debilitating mental symptoms given such reports of noncompliance.” 9 Def.’s Cross-Mot. at 4. But the ALJ did not indicate in any way that this information was meant 10 to discount Plaintiff’s mental symptom allegations. Moreover, although an ALJ may discount a 11 claimant’s testimony based on their “failure to seek or follow prescribed treatment,” Rounds, 807 12 F.3d at 1006 (citing Molina, 674 F.3d at 1112–14), the ALJ did not purport to reject any of 13 Plaintiff’s allegations on that basis. See AR 22–24. Second, the Commissioner contends the ALJ 14 “reasonably found Plaintiff’s alleged symptoms unreliable given the reports of effective 15 treatment,” citing the ALJ’s notation that Plaintiff “had some benefit from Lorazepam.” Def.’s 16 Cross-Mot. at 4; AR 23. But the ALJ similarly did not identify Plaintiff’s testimony regarding 17 anxiety as inconsistent with the record evidence, and the Court declines to divine as much from his 18 decision. The ALJ also noted in his decision that a biopsy of Plaintiff’s esophagus was normal, 19 with no evidence of fungal organisms and no significant histologic abnormality. AR 22. The 20 Commissioner contends this medical evidence is inconsistent with “Plaintiff[’s] alleged constant 21 vomiting, incontinence, and abdominal pain,” and concludes that the ALJ thus “reasonably 22 rejected Plaintiff’s allegations.” Def.’s Cross-Mot. at 4, citing AR 320. However, the ALJ’s 23 decision did not identify the allegations the Commissioner points to as inconsistent with this 24 record evidence. 25 Accordingly, the Court finds the ALJ failed to provide clear and convincing reasons for 26 discounting Plaintiff’s statements about her alleged symptoms and limitations. Because the ALJ’s 27 assessment of this evidence informed his RFC determination, this error warrants remand. 1 C. ALJ’s Evaluation of the Severity of Plaintiff’s Back Pain 2 In a June 2020 telemedicine consultation with Bay Area Community Health, Plaintiff 3 reported that she has struggled with chronic back pain following a fall on her tailbone when she 4 was young. AR 418–19. Plaintiff had an MRI of her spine performed in November 2021, which 5 indicated evidence of degenerative disc disease at L4-5. AR 844–45. Additionally, Plaintiff had a 6 telehealth consultation with the Highland Hospital Pain Management Clinic in February 2022, 7 where she discussed attempts to treat her lower back pain and additional treatment plans such as 8 physical therapy or chiropractic sessions. AR 843. During the September 2022 hearing before the 9 ALJ, Plaintiff testified that “the older [she] get[s], the worse [her] back pain is getting.” AR 48. 10 Plaintiff contends she proffered objective medical evidence, treatment testimony and 11 personal testimony sufficient to require a finding of a severe impairment, and the ALJ improperly 12 ignored this evidence when classifying Plaintiff’s back pain as non-severe. Pl.’s Mot. at 4–5, ECF 13 No. 15. 14 1. Legal Standard 15 At step two of a Social Security disability inquiry, an impairment or combination of 16 impairments may be found not medically severe “only if the evidence establishes a slight 17 abnormality that has no more than minimal effect on an individual’s ability to work.” Social 18 Security Act, § 223(d)(1)(A), 42 U.S.C.A. § 423(d)(1)(A); 20 C.F.R. § 404.1520(a)(4)(ii); Webb v. 19 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th 20 Cir. 1996)); see Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). This evaluation at step two 21 is a de minimis test intended to “to dispose of groundless claims.” Smolen, 80 F.3d at 1290. 22 Under this standard, an ALJ may find that a claimant lacks a medically severe impairment or 23 combination of impairments only if his conclusion is “clearly established by medical evidence.” 24 Webb, 433 F.3d at 687 (quoting Titles II & XVI: Med. Impairments That Are Not Severe, SSR 85- 25 28 (S.S.A. 1985)) (emphasis added). A claimant’s “symptoms, such as pain, fatigue, shortness of 26 breath, weakness, or nervousness, are considered in making a determination as to whether [the 27 claimant’s] impairment or combination of impairment(s) is severe.” 20 C.F.R. § 404.1529(d)(1). 1 F.3d 599, 601 (9th Cir. 1999); see Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 2 2. Analysis 3 The Court finds that the ALJ erred at step two in evaluating the severity of Plaintiff’s back 4 condition. The ALJ’s determination that Plaintiff’s degenerative disc disease and back pain are 5 not severe is not clearly established by medical evidence in the record. 6 In determining whether an impairment is severe, an ALJ must engage in “a careful 7 evaluation of the medical findings which describe the impairment(s) and an informed judgment 8 about its (their) limiting effects on the individual’s physical and mental ability(ies) to perform 9 basic work activities[.]” SSR 85-28 (S.S.A. 1985). A medically determinable impairment “must 10 be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 11 404.1522(a). Basic work activities are defined as the abilities and aptitudes necessary to do most 12 jobs, such as: (1) walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or 13 handling; (2) seeing, hearing, and speaking; (3) understanding, carrying out, and remembering 14 simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers 15 and usual work situations; and (6) adapting to changes in a routine work setting. See 20 C.F.R. §§ 16 404.1522, 416.922. 17 Here, the ALJ noted that the results of the magnetic resonance imaging (MRI) study dated 18 February 10, 2022 showed mild degenerative disc disease from L4-5, with no significant central 19 canal stenosis or neural foraminal narrowing at any level of the lumbar spine. AR 19 (referring to 20 AR 845). The medical record also indicated no fractures or subluxations and normal results for 21 the conus medullaris. AR 845. Defendant argues that these findings are inherently at odds with a 22 finding of a severe impairment. Def.’s Cross-Mot. at 6, ECF No. 20. But an impairment “may be 23 found not severe only if the evidence establishes a slight abnormality that has no more than a 24 minimal effect on [a claimant’s] ability to work.” Webb, 433 F.3d at 686 (quotations omitted). 25 Normal findings regarding other aspects of Plaintiff’s lumbar spine do not themselves undercut 26 allegations of back pain that would limit Plaintiff’s ability to work, nor does “mild degenerative 27 disc disease” necessarily translate to mild pain or to an impairment with no more than a minimal 1 WL 6750288, at *1 (C.D. Cal. Dec. 1, 2014) (finding severe impairments including “mild 2 degenerative disc disease of the lumbar spine” and “mild degenerative disc disease of the cervical 3 spine”); Misty F. v. Commissioner of Soc. Sec., No. 21-cv-5383-SKV, 2022 WL 101887, at *1 4 (W.D. Wash. Jan. 10, 2022) (listing ALJ’s step-two findings of severe impairments including 5 “mild degenerative disc disease”); Figueroa v. Berryhill, No. 17-cv-0026-KS, 2018 WL 2176386, 6 at *1 (C.D. Cal. May 10, 2018) (severe impairments included “mild degenerative disc disease of 7 the cervical spine”). 8 Regarding her functional limitations, Plaintiff reported difficulties in lifting, squatting, 9 bending, using stairs, and sitting, walking or standing for prolonged periods. AR 216, 711. 10 Although Plaintiff’s reported symptoms of pain are relevant to the severity analysis as per 20 11 C.F.R. § 404.1529(d)(1), her testimony regarding “excruciating” pain that “sometimes . . . lasts a 12 long, long time” was made in response to a general inquiry about her average level of pain, rather 13 than about her back pain specifically. AR 48. Still, Plaintiff has provided objective medical 14 evidence that at least some of these self-reported limitations were attributable to her back pain. 15 See AR 711–12 (May 2021 progress notes from doctor’s visit for coccyx (tailbone) pain noting 16 “[s]till with significant low back pain and difficulty sitting/standing for long periods of time” and 17 listing “difficulty sitting or standing for long periods of time” under assessment and plan for 18 coccydynia); 859 (records from visit to pain medicine clinic noting that pain started in her lower 19 back and is worse with prolonged standing or sitting on hard surfaces.) See also AR 844–45 (MRI 20 findings from November 2021 regarding degenerative disc disease of lumbar spine and assessment 21 of “[c]hronic bilateral low back pain without sciatica” and prescription of pain medication 22 (Lyrica)). 23 Accordingly, Plaintiff has satisfied her burden of demonstrating that her back pain has 24 more than a minimal effect on her ability to work, and thus has satisfied the de minimis test to 25 proceed with step two of the sequential analysis. Because the ALJ’s assessment of Plaintiff’s 26 medically determinable impairments informed the ALJ’s RFC determinations, this error warrants 27 remand. 1 D. Medical Opinions 2 Plaintiff argues 1) the ALJ erred in finding the medical opinion of representative-referred 3 psychological consultant Dr. Katherine Wiebe unpersuasive, 2) the ALJ erred in finding the 4 opinions of four State agency medical consultants persuasive, and 3) the ALJ erred in finding the 5 medical opinion of independent psychological consultant Dr. Aparna Dixit unpersuasive. Pl.’s 6 Mot. at 8–11. 7 1. Legal Standard 8 For Social Security claims filed after March 27, 2017, the ALJ is required to assess the 9 persuasiveness of medical opinions using the regulations outlined in 20 C.F.R. §§ 404.1520c and 10 416.920c. See Woods v. Kijakazi, 32 F.4th 785, 791–93 (9th Cir. 2022) (embracing the new 11 regulatory framework for evaluating medical opinions). Under these new regulations, the ALJ is 12 asked to consider five factors: (1) supportability, (2) consistency, (3) relationship with the 13 claimant, (4) specialization, and (5) other facts including but not limited to a medical source’s 14 familiarity with the other evidence in the claim or an understanding of the disability program's 15 policies and evidentiary requirements. See 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). 16 Of these five, the ALJ must address supportability and consistency in each assessment and may, 17 but is not required to, explain how they considered the remaining three factors. See 20 C.F.R. 18 §§ 404.1520c(a)(2), 416.920c(a)(2). 19 “Supportability means the extent to which a medical source supports the medical opinion 20 by explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791–92; see also 21 20 C.F.R. 404.1520c(c)(1), 416.920c(c)(1) (“The more relevant the objective medical evidence 22 and supporting explanations presented by a medical source are to support his or her medical 23 opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or 24 prior administrative medical finding(s) will be.”). “Consistency means the extent to which a 25 medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical 26 sources in the claim.’” Woods, 32 F.4th at 792 (9th Cir. 2022); see also 20 C.F.R. §§ 27 404.1520c(c)(2), 416.920c(c)(2) (“The more consistent a medical opinion(s) or prior 1 sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 2 finding(s) will be”). 3 The new regulations replace the former hierarchy of medical opinions and no longer 4 require the ALJ to give greater weight to the medical opinions of treating physicians. See Woods, 5 32 F.4th at 787; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (“We will not defer or give any 6 specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior 7 administrative medical finding(s), including those from your medical sources”). Now, the ALJ is 8 free to consider the medical opinions equally and may find an opinion more persuasive than others 9 provided that substantial evidence supports such a finding. Substantial evidence will be found 10 when there is “such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). When rejecting a medical opinion as 12 unsupported or inconsistent, the ALJ is required to provide an explanation supported by 13 substantial evidence. Woods, 32 F.4th at 792. If the ALJ does so, then a court may not overturn 14 the ALJ’s decision “unless it is either not supported by substantial evidence or is based upon legal 15 error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 16 2. Analysis 17 a. Opinion of Dr. Wiebe 18 Dr. Katherine Wiebe, Ph.D., is a licensed psychologist who conducted an assessment of 19 Plaintiff in 2022 following a referral by Plaintiff’s counsel. AR 609. Dr. Wiebe’s written report 20 was based on a 2.25 hour assessment with Plaintiff and her review of Plaintiff’s psychiatry records 21 from 2021 and of a disability evaluation by Dr. Aparna Dixit dated October 2020. AR 610. Dr. 22 Wiebe also administered several batteries, inventories and checklists, including a Barona estimate; 23 Montreal Cognitive Assessment (MCA); selected items from the Repeatable Battery for the 24 Assessment of Neuropsychological Status (RBANS) to test memory, language, semantic fluency 25 and attention; Beck Depression Inventory (BDI-II); Beck Anxiety Inventory; Posttraumatic 26 Checklist for DSM-5; a mental status/psychiatric symptoms sheet, and the Million Clinical 27 Multiaxial Inventory-IV (MCMI-IV). AR 613–14. Due to the COVID-19 pandemic, the 1 Dr. Wiebe found Plaintiff’s overall intellectual functioning was moderately impaired, with 2 moderate impairment in sensory/motor abilities, moderate to severe impairment in language, and 3 severe impairments in attention/concentration/persistence, executive functioning, and memory. 4 AR 614–15. Dr. Wiebe noted that Plaintiff’s depression and anxiety inventory scores indicated 5 severe depression and severe anxiety. AR 615. Dr. Wiebe found that Plaintiff “expressed passive 6 suicidal ideation” and noted a history of attempted suicide and continuing self-harm. AR 613; see 7 also AR 616. Dr. Wiebe noted that Plaintiff “evinces cognitive functioning deficits as well as 8 psychiatric disorder symptoms that would affect her ability to attend to, remember, and follow 9 through with directions and tasks especially with the demands of an employment situation.” AR 10 622. Dr. Wiebe opined that Plaintiff “is vulnerable to decompensation from task and interpersonal 11 stressors including in a work environment. She is socially isolated and alienated and would have 12 difficulty communicating and relating effectively with others, including co-workers, the public, 13 and supervisors in a workplace” and opined that Plaintiff “is likely unable to maintain a regular 14 job.” AR 622. 15 The ALJ found Dr. Wiebe’s opinion “not persuasive” because: 1) the limitations Dr. 16 Wiebe found were “far too restrictive and not supported by the mental health treatment notes, 17 which showed some waxing and waning of anxiety and depression symptoms, but not to the extent 18 that would justify the extreme limitations suggested by Dr. Wiebe”; 2) Dr. Wiebe did not examine 19 Plaintiff in person and “appeared to have relied heavily on [Plaintiff’s] self-report”; and 3) “Dr. 20 Wiebe was retained by the claimant’s representative for the primary purpose of obtaining 21 disability benefits” and “her report and opinion must be viewed with that in mind.” AR 24. These 22 three reasons map well onto three relevant factors under the regulations: supportability, 23 consistency, and relationship with claimant. 20 C.F.R. § 416.920c(c)(1)-(3). However, the Court 24 finds that these reasons are not supported by substantial evidence and are insufficient to find Dr. 25 Wiebe’s opinion unpersuasive. 26 First, the ALJ found that the limitations Dr. Wiebe found were “not supported by the 27 mental health treatment notes” regarding Plaintiff’s anxiety and depression symptoms. AR 24. 1 Wiebe’s assessed limitations were not based entirely on her evaluation of Plaintiff’s anxiety and 2 depression. Rather, Dr. Wiebe’s assessed limitations were supported by other parts of her 3 examination, including 1) Dr. Wiebe’s observations that Plaintiff showed “frequent lapses in 4 attention” and “had trouble with focus[,]” 2) Plaintiff’s inability on the MoCA to repeat three 5 digits in backwards order or to count backwards by seven; 3) Plaintiff’s score “in the extremely 6 low, <0.1 percentile range” on the RBANS Immediate Memory index, including not being able to 7 recall any of five words without cueing after a short delay; 4) Plaintiff’s score of 0/1 on an 8 Attention task on the MoCA and score in the 5th percentile on the RBANS digit span Attention 9 task; 5) Plaintiff’s score “in the extremely low, 0.1 percentile range” on the RBANS semantic 10 fluency task. AR 614. 11 Second, the ALJ found that Dr. Wiebe’s opinion was less persuasive because her 12 assessment of Plaintiff was conducted telephonically and because Dr. Wiebe “appeared to have 13 relied heavily” on Plaintiff’s self-reporting. AR 24. Much like the ALJ’s September 2022 hearing 14 in this matter, Dr. Wiebe’s assessment was conducted telephonically due to the COVID-19 15 pandemic. AR 17, 610. The Commissioner cites no legal authority for the proposition that a 16 medical opinion is less persuasive simply because it included information gleaned telephonically, 17 and the Court has found none. The ALJ did not apply this reasoning to other medical opinions in 18 the record; for example, the opinions on which the ALJ “relie[d] for the most part” in determining 19 the Plaintiff’s physical RFC appear to be based on State agency consultants’ evaluation of 20 Plaintiff’s medical record alone. See AR 23, 73–75, 94–96; see also Def.’s Cross-Mot. at 9. 21 Moreover, as discussed above, Dr. Wiebe’s evaluation and report was not limited to Plaintiff’s 22 self-reported symptoms but also incorporated several objective assessment tools and tests. The 23 ALJ did not point to any portion of Dr. Wiebe’s report and opinion demonstrating “heav[y]” 24 reliance on Plaintiff’s self-reporting. See AR 24. In its cross-motion, the Commissioner argues 25 that Dr. Wiebe’s “opinion was given in a check-box form, with no explanations or supporting 26 examination findings given for each checked limitation.” Id. at 8. This argument does not appear 27 in the ALJ’s decision and is undermined by the record; at 17 pages, Dr. Wiebe’s is by far the 1 report and opinion concludes with a two-page table of assessed limitations. AR 625–26. 2 However, Dr. Wiebe supported those limitations with examination findings and lengthy written 3 explanations. AR 614–15 (discussing cognitive functioning), 615–21 (discussing emotional 4 functioning), 624 (quantitative summary of examinations, scores, and percentiles where 5 applicable). Thus, substantial evidence does not support the ALJ’s finding that Dr. Wiebe’s 6 opinion was less persuasive because it was conducted telephonically or “relied heavily” on 7 Plaintiff’s self-reporting. 8 Third, the ALJ found Dr. Wiebe’s opinion less persuasive because Plaintiff was referred to 9 Dr. Wiebe by her attorney to generate evidence for Plaintiff’s claim. AR 24. This fact does not 10 constitute substantial evidence to find Dr. Wiebe’s opinion unpersuasive, absent some other 11 evidence of bias on Dr. Wiebe’s part, which the ALJ did not find. See Reddick v. Chater, 157 12 F.3d 715, 726 (9th Cir. 1998) (“[T]he mere fact that a medical report is provided at the request of 13 counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis 14 for evaluating the reliability of the report.”); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 15 1996) (“[T]he fact that the examination was conducted at the request of an attorney is relevant 16 where the opinion itself provides grounds for suspicion as to its legitimacy. We have held the 17 source of a referral to be relevant where there is no objective medical basis for the opinion[.]”) 18 (emphases added); T.N. v. Kijakazi, No. 20-CV-04946-TSH, 2021 WL 4553581, at *8 (N.D. Cal. 19 Oct. 5, 2021) (“it appears the ALJ was implicitly finding that Dr. Franklin was biased, and the 20 Court finds this conclusion contrary to Ninth Circuit caselaw and not supported by substantial 21 evidence.”) 22 In sum, none of the reasons the ALJ cited for finding Dr. Wiebe’s report unpersuasive are 23 supported by substantial evidence. Remand is therefore warranted. 24 b. Opinions of State Agency Consultants 25 State agency medical consultants Dr. H. Samplay and Dr. K. Rudito each conducted a 26 review of Plaintiff’s medical record and determined that Plaintiff had no more than “light 27 limitations.” AR 73–75, 94–97. State agency psychiatric consultants Dr. D. Lucila and Dr. M. 1 Plaintiff was moderately limited in: her ability to maintain attention and concentration for 2 extended periods; “to perform activities within a schedule, maintain regular attendance, and be 3 punctual within customary tolerances”; “[t]he ability to complete a normal workday and 4 workweek without interruptions from psychologically based symptoms and to perform at a 5 consistent pace without an unreasonable number and length of rest periods” and in her ability to 6 respond appropriately to changes in the work setting. AR 76–78, 97–101. Dr. Morando also 7 found Plaintiff was moderately limited in her “ability to set realistic goals or make plans 8 independently of others.” AR 100. Drs. Lucila and Morando both determined Plaintiff did not 9 experience any other significant limitations relevant to her mental RFC. AR 76–78, 97–101. 10 The ALJ stated that he primarily relied on the assessments of Drs. Samplay and Rudito for 11 Plaintiff’s physical RFC determination. AR 23. Although the ALJ found the opinions of Drs. 12 Lucila and Morando to be “persuasive,” he did not state the extent to which he relied on either of 13 their opinions. AR 24. 14 The ALJ stated that the medical opinions of Dr. Samplay and Dr. Rudito were persuasive 15 because “they are generally consistent with the preponderance of the longitudinal medical 16 evidence of [the] record as a whole.” AR 23. However, the ALJ’s decision includes no discussion 17 of any of the objective medical evidence that informed Dr. Samplay’s or Dr. Rudito’s opinions. 18 See Woods, 32 F.4th at 791–92; see also 20 C.F.R. 404.1520c(c)(1), 416.920c(c)(1). The Court 19 thus finds the ALJ did not sufficiently address the supportability of Dr. Samplay’s or Dr. Rudito’s 20 opinions. 21 As to State agency psychiatric consultants Dr. Lucila and Dr. Morando, the ALJ stated that 22 he “f[ound] the opinions of Dr. Lucila and Dr. Morando persuasive,” and separately describes 23 their opinions as “well-reasoned.” AR 24. The ALJ offered no other evidence of either opinion’s 24 supportability or consistency with the record as a whole. The Commissioner argues that the ALJ’s 25 use of the word “well-reasoned” to describe the opinions of Dr. Lucila and Dr. Morando goes to 26 supportability, citing Dr. Samplay’s discussion of evidence related to Plaintiff’s mental health 27 treatment history and reported daily activities, and Dr. Rudito’s consideration of prior mental 1 Lucila and Dr. Morando as “well-reasoned.” Meanwhile, the evidence the Commissioner cites as 2 evidence of supportability pertains to statements made by other State agency consultants. AR 75, 3 96–97. More importantly, the ALJ’s decision does not actually mention the record evidence the 4 Commissioner cites. See Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th 5 Cir. 2009) (“The Court “review[s] the ALJ’s decision based on the reasoning and factual findings 6 offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may 7 have been thinking.”). Here, the ALJ failed to conduct a supportability analysis regarding the 8 opinions of any of the state agency consultants, and the Court declines to contrive one simply 9 because he described the opinions of two of the consultants as “well-reasoned.” 10 As to consistency, the Commissioner contends the ALJ explained that the opinions of Drs. 11 Lucila and Morando were consistent with the opinion of Dr. Dixit. However, the ALJ provides no 12 evidence of consistent findings across these opinions and instead points out ways in which Dr. 13 Dixit’s opinion diverges from that of Drs. Lucila and Morando. AR 24. 14 Accordingly, the Court finds the ALJ failed to address the factors of supportability and 15 consistency in evaluating the persuasiveness of the medical opinions of State agency consultants 16 Dr. Samplay, Dr. Rudito, Dr. Lucila and Dr. Morando. This error warrants remand. 17 c. Opinion of Dr. Dixit 18 Dr. Aparna Dixit, PsyD, is a licensed clinical psychologist who conducted an assessment 19 of Plaintiff in October 2020 following a referral by the California Department of Social Services. 20 AR 438, 441. Dr. Dixit’s written report was based on a clinical interview including history and 21 mental status examination and her review of available records. AR 438. Dr. Dixit also conducted 22 the Wechsler Adult Intelligence Scale-IV (WAIS-IV), Wechsler Memory Scale-IV (WMS-IV), 23 and Trail Making Test A and B (TMT). AR 438. 24 On the WAIS-IV, Dr. Dixit found that Plaintiff’s Verbal Comprehension Index, Perceptual 25 Reasoning Index, Working Memory Index, and Processing Speed Index each fell within the low 26 average range. AR 441. Dr. Dixit found that Plaintiff’s WMS-IV scores indicated “mildly 27 compromised auditory and intact visual working memory functioning” and that Plaintiff’s “TMT 1 revealed “[n]o significant cognitive deficits[.]” AR 441. Dr. Dixit stated that Plaintiff showed 2 “some symptoms and signs” of depression and anxiety. AR 441. Dr. Dixit found that Plaintiff 3 “may have mild difficulty dealing with the public[,]” but that she “should have no difficulty 4 interacting and relating to co-workers and supervisors.” AR 441. Dr. Dixit found Plaintiff 5 experienced no impairment in her ability “to maintain pace and persistence over 2 hour 6 increments[,]” to “perform tasks requiring mental flexibility[,]” or “to remember and carry out 7 detailed and complex tasks[.]” AR 441. 8 The ALJ states that he relied primarily on the assessments of Dr. Dixit in reaching the 9 mental RFC determination. AR 24. Plaintiff asserts that the ALJ erred in finding the opinion of 10 Dr. Dixit persuasive. Pl.’s Mot. at 14–15. The Commissioner cites statements from the record – 11 only one of which is clearly attributable to Dr. Lucila or Dr. Morando – as evidence of consistency 12 between these opinions. Def.’s Cross-Mot. at 11; AR 71, 91. But this Court is “constrained to 13 review the reasons the ALJ asserts[,]” not post-hoc arguments raised by the Commissioner. 14 Brown-Hunter, 806 F.3d at 492 (simplified); Bray, 554 F.3d at 1225 (citation omitted). The ALJ 15 did not mention this record evidence, nor did the ALJ point to any other consistencies across these 16 opinions. AR 24. Rather, the ALJ concluded that Dr. Dixit’s finding that Plaintiff was not limited 17 “in [her] ability to perform any level of work tasks” was persuasive based on its supposed 18 consistency “with the well-reasoned assessments of State agency medical consultants Dr. Lucila 19 and Dr. Morando.” AR 24. The ALJ then immediately undercut this statement by listing ways in 20 which these opinions diverged from Dr. Dixit’s assessment: 21 Dr. Lucila and Dr. Morando found moderate limitation in the claimant’s ability to maintain attention and concentration for 22 extended periods, to perform activities within a schedule, maintain regular attendance and be punctual with customary tolerances, and to 23 complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent 24 pace without an unreasonable number and length of rest periods. 25 AR 24. 26 Accordingly, the Court finds the ALJ failed to properly evaluate the persuasiveness of Dr. 27 Dixit’s medical opinion. This error warrants remand. 1 E. Plaintiff’s RFC 2 Plaintiff argues that the ALJ erred in evaluating Plaintiff’s RFC. Pl.’s Mot. at 13–14. 3 Plaintiff’s argument on this point, however, relies heavily on her argument that the ALJ failed to 4 properly classify Plaintiff’s severe impairments. Because the Court finds that the ALJ erred in 5 evaluating the severity of her back pain and in assessing the medical opinions in this case, and 6 because the ALJ’s RFC determinations were necessarily predicated on the ALJ’s assessment of 7 Plaintiff’s medically determinable impairments, the Court remands on this issue as well. On 8 remand, the ALJ must evaluate Plaintiff’s RFC based on assessment of the medical opinions and 9 on all of Plaintiff’s medically determinable impairments. 10 F. Remedy 11 The remaining question is whether to remand for further administrative proceedings or for 12 the immediate payment of benefits. The Social Security Act permits courts to affirm, modify, or 13 reverse the Commissioner’s decision “with or without remanding the cause for a rehearing.” 42 14 U.S.C. § 405(g); see also Garrison, 759 F.3d at 1019. “[W]here the record has been developed 15 fully and further administrative proceedings would serve no useful purpose, the district court 16 should remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th 17 Cir. 2004). However, “[r]emand for further proceedings is appropriate where there are 18 outstanding issues that must be resolved before a disability determination can be made, and it is 19 not clear from the record that the ALJ would be required to find the claimant disabled if all the 20 evidence were properly evaluated.” Luther v. Berryhill, 891 F.3d 872, 877–78 (9th Cir. 2018) 21 (citations omitted). It is only “rare circumstances that result in a direct award of benefits” and 22 “only when the record clearly contradicted an ALJ’s conclusory findings and no substantial 23 evidence within the record supported the reasons provided by the ALJ for denial of benefits.” 24 Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). Here, it is not clear that the ALJ would be 25 required to find Plaintiff disabled. Accordingly, remand for further proceedings is appropriate. 26 VI. CONCLUSION 27 For the reasons stated above, the Court GRANTS Plaintiff’s motion and DENIES 1 consistent with this order. The Court shall enter a separate judgment, after which the Clerk of 2 || Court shall terminate the case. 3 IT IS SO ORDERED. 4 5 Dated: September 10, 2024 TAA. ly 7 THOMAS S. HIXSON United States Magistrate Judge 8 9 10 11 12

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