1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Terry S., Case No.: 23-cv-0682-DEB

11 Plaintiff,

ORDER GRANTING PLAINTIFF’S

12 v. MOTION FOR SUMMARY

JUDGMENT

13 Commissioner of Social Security,

14 Defendant. [DKT. NO. 9] 15 16 I. INTRODUCTION 17 Plaintiff Terry S. seeks judicial review of the Commissioner of Social Security’s 18 denial of his application for disability benefits. Dkt. No. 1.1 Plaintiff filed a Motion for 19 Summary Judgment that Defendant opposes. Dkt. Nos. 9, 11. Plaintiff did not file a reply. 20 For the reasons discussed below, the Court GRANTS Plaintiff’s Motion for 21 Summary Judgment (Dkt. No. 9) and REMANDS this action for further proceedings 22 consistent with this Order. 23 // 24 // 25 // 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of the last 28 1 II. PROCEDURAL BACKGROUND 2 Plaintiff applied for disability insurance benefits alleging an amended disability 3 onset date of November 20, 2019. AR 16.2 The Social Security Administration denied 4 Plaintiff’s application initially and on reconsideration. Id. Plaintiff requested and received 5 an Administrative Law Judge (“ALJ”) hearing, after which the ALJ issued a written 6 decision finding Plaintiff not disabled. AR 13–26. The Appeals Council denied Plaintiff’s 7 request for review (AR 1–7), and this case followed (Dkt. No. 1). 8 III. SUMMARY OF THE ALJ’S DECISION 9 The ALJ’s decision followed the five-step sequential evaluation process. 20 C.F.R. 10 § 404.1520. 11 At step one, the ALJ found Plaintiff had “not engage[d] in substantial gainful activity 12 since November 20, 2019, the amended alleged onset date . . . .” AR 19. 13 At step two, the ALJ found Plaintiff had the following severe impairments: 14 degenerative disc disease of the lumbar spine and partial rotator cuff ligament tear, right 15 shoulder, with split tearing of right bicep long head tendon. Id. 16 At step three, the ALJ found Plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, 18 Subpart P, Appendix 1. Id. 19 Before proceeding to step four, the ALJ found Plaintiff had the residual functional 20 capacity (“RFC”) to perform medium work with the following limitations: 21 [Plaintiff can] frequently climb ramps or stairs; never climb ladders, ropes, or scaffolds; frequently balance, stoop, kneel, 22 crouch or crawl; frequently reach and push or pull with upper 23 extremities bilaterally, except only occasional overhead direction reaching or pushing and pulling with the right upper extremity. 24 25 2 “AR” refers to the Administrative Record lodged on June 16, 2023. Dkt. No. 5. The 26 Court’s citations to the AR use the page references on the original document rather than 27 the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed 28 1 Id. 2 At step four, the ALJ found Plaintiff could perform his past relevant work as a home 3 attendant/caregiver as generally performed in the national economy. AR 25. The ALJ, 4 therefore, concluded Plaintiff was not under a disability since November 20, 2019. AR 26. 5

IV. STANDARD OF REVIEW

6 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 7 correct legal standards and whether the decision is supported by substantial evidence. 8 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214–15 (9th Cir. 2005). 9 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting 11 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere 12 scintilla, but less than a preponderance . . . .” Garrison v. Colvin, 759 F.3d 995, 1009 (9th 13 Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The Court 14 may not impose its own reasoning to affirm the ALJ’s decision. Garrison, 759 F.3d at 15 1010. The Court “must consider the entire record as a whole and may not affirm simply by 16 isolating a ‘specific quantum of supporting evidence.’” Hill v. Astrue, 698 F.3d 1153, 1159 17 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 18 “[I]f evidence exists to support more than one rational interpretation, [the Court] must defer 19 to the [ALJ’s] decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 20 Cir. 2004). Furthermore, the Court will not reverse for harmless error. Marsh v. Colvin, 21 792 F.3d 1170, 1173 (9th Cir. 2015) (“ALJ errors in social security cases are harmless if 22 they are ‘inconsequential to the ultimate nondisability determination’ . . . .”) (quoting Stout 23 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)). 24 V. DISCUSSION 25 Plaintiff argues the ALJ’s decision failed to properly evaluate the medical opinions 26 of all examining physicians. Dkt. No. 9 at 4, 16. Relatedly, Plaintiff argues the decision 27 relied on the ALJ’s own lay opinion to formulate the RFC. Id. Plaintiff, therefore, argues 28 the RFC is not supported by substantial evidence. Id. at 4. In response, the Commissioner 1 asserts the ALJ properly considered the medical opinion evidence and did not reject all 2 medical opinions and assessments. Dkt. No. 11 at 4–10. Because the Court finds the ALJ’s 3 decision erred in its evaluation of the medical opinions supporting lifting limitations more 4 restrictive than medium work, and this error affected the non-disability determination, it 5 remands for further proceedings. 6 A. Legal Standards 7 The RFC is “the most [the plaintiff] can still do despite [his] limitations . . . [and] is 8 based on all relevant evidence in [the] case record” rather than a single medical opinion or 9 piece of evidence. 20 C.F.R. § 404.1545(a)(1); see also id. § 404.1545(a)(3). The RFC 10 must be supported by substantial evidence. Bayliss, 427 F.3d at 1217 (“We will affirm the 11 ALJ’s determination of [the] RFC if the ALJ applied the proper legal standard and his 12 decision is supported by substantial evidence.”). 13 In formulating the RFC, the ALJ must weigh medical records, medical opinions, and 14 the claimant’s symptom testimony. See 20 C.F.R. § 404.1545(a)(3). The ALJ—not a 15 medical provider—is responsible for formulating the RFC. Id. § 404.1546(c); Rounds v. 16 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible 17 for translating and incorporating clinical findings into a succinct RFC.”) (citation omitted). 18 But the ALJ “may not rely on his own unsupported interpretation of the medical evidence.” 19 Peter B. v. Comm’r, Soc. Sec. Admin., No. 1:21-cv-0437-YY, 2022 WL 3010162, at *3 (D. 20 Or. July 28, 2022) (quoting Davis v. Colvin, No. 3:15-cv-0843-SI, 2016 WL 8674265, at 21 *8 (D. Or. Aug. 12, 2016)). Rather, “[t]he ALJ must set out in the record his reasoning and 22 the evidentiary support for his interpretation of the medical evidence.” Tackett v. Apfel, 23 180 F.3d 1094, 1102 (9th Cir. 1999) (citation omitted). 24 The ALJ “need not take every medical opinion at ‘face value.’” Cross v. O’Malley, 25 89 F.4th 1211, 1213 (9th Cir. 2024) (quoting Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 26 2020)). The ALJ must, however, evaluate the persuasiveness of all medical opinions, 27 including both their supportability and consistency. See 20 C.F.R. § 404.1520c(b)(2) 28 (“[W]e will explain how we considered the supportability and consistency factors for a 1 medical source’s medical opinions or prior administrative medical findings in your 2 determination or decision.”); Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The 3 agency must ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from each 4 doctor or other source, . . . and ‘explain how [it] considered the supportability and 5 consistency factors’ in reaching these findings.”) (internal citations omitted). 6 Supportability is “the extent to which a medical source supports the medical opinion by 7 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791–92 8 (quoting 20 C.F.R. § 404.1520c(c)(1)). Consistency “means the extent to which a medical 9 opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical 10 sources in the claim.’” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). The ALJ’s 11 persuasiveness findings must be “supported by substantial evidence.” Id. 12 B. Analysis 13 The ALJ’s RFC found Plaintiff capable of performing medium work (i.e., lifting 50 14 pounds occasionally and 25 pounds frequently, 20 C.F.R. § 404.1567(c)) with additional 15 limitations. AR 19.3 16 Non-examining state agency consultant G. Spellman, M.D. is the only doctor who 17 opined Plaintiff can perform medium work.4 Other medical providers opined Plaintiff is 18 limited to sedentary or light work. Daniel Brereton, D.O. opined Plaintiff is limited to 19 3 “To determine the physical exertion requirements of a work in the national economy, we 20 classify jobs as sedentary, light, medium, heavy, and very heavy.” 20 C.F.R. § 404.1567. 21 As relevant here, medium work “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” Id. § 404.1567(c). “In 22 general, light work ‘requires . . . frequent lifting or carrying of objects weighing up to 10 23 pounds’ but ‘no more than 20 pounds at a time.’” Woods, 32 F.4th at 793 (quoting 20 C.F.R. § 404.1567(b)). Sedentary work “involves lifting no more than 10 pounds at a time 24 and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 25 C.F.R. § 404.1567(a).

26 4 T. Do, M.D. found no severe impairment, but the ALJ found that opinion “not persuasive 27 as the record documents sufficient clinical signs and symptoms to establish the above- discussed severe impairments.” AR 22. 28 1 lifting up to 10 pounds. AR 24, 865. Walter Dugger, M.D. opined Plaintiff could lift up to 2 10 pounds occasionally. AR 24, 448. Nowelle Gaid, PA-C reached the same conclusion as 3 Dr. Dugger. AR 24, 891.5 Norman Kane, M.D. opined Plaintiff is limited to lifting and 4 carrying only 10 pounds occasionally and less than 10 pounds frequently. AR 24, 1194. 5 Consultative examiner Juliane Tran, M.D. opined Plaintiff is limited to lifting 20 pounds 6 occasionally and 10 pounds frequently. AR 23, 1087. 7 The ALJ’s decision found Dr. Spellman’s medium work limitation persuasive and 8 the other medical providers’ more restrictive sedentary and light limitations not persuasive. 9 AR 22–24.6 In reaching this decision, the ALJ placed great weight on: (1) Plaintiff’s return 10 to part-time work; and (2) Plaintiff’s activities of daily living. The Court finds the 11 decision’s reliance on both is misplaced and erroneous. 12 1. Return to Part-Time Work 13 The ALJ’s decision found the sedentary or light work restrictions supported by Drs. 14 Kane, Gaid, Dugger, and Brereton unpersuasive, in part, because they are inconsistent with 15 Plaintiff’s return to part-time work as a caregiver. AR 23–24. The ALJ’s decision 16 characterized this as the “most important[]” fact in rejecting their opinions. AR 24 (“Most 17 importantly, the claimant has been able to work on a part-time basis as a caregiver, which 18 is consistent with a much greater lifting and carrying capacity.”). 19 Although the ALJ’s decision correctly noted Plaintiff’s return to part-time work, it 20 either overlooked or misconstrued the work performed. At the ALJ hearing, Plaintiff 21 testified he only completed “two transfers per day and that’s with electronic assistance, you 22

23 5 Although the ALJ’s decision identifies Nowelle Gaid as a medical doctor, the record identifies her as a certified physician’s assistant. Compare AR 24 with AR 489. The Court 24 refers to Ms. Gaid as Dr. Gaid in line with the ALJ’s decision. 25 6 With respect to Drs. Brereton, Dugger, and Gaid, the ALJ’s decision noted their opinions 26 were rendered in a worker’s compensation case and, therefore, do not constitute medical 27 opinions under the Social Security Administration’s (“SSA”) regulations. AR 24. The decision, however, also evaluated these doctors’ opinions under the SSA’s regulations and 28 1 know, with the lifting chair and the various apparatus that they have within private 2 residences to get the loved one from the chair to the wheelchair.” AR 58; see also id. (“I 3 don’t really have to do much, just kind of have to guide and nothing like before when I was 4 working 16 hours a day and doing many transfers throughout the day.”). Thus, as described 5 by Plaintiff, his return to part-time work involved little or no lifting. 6 Plaintiff’s return to part-time work neither establishes Plaintiff can lift 25 pounds 7 frequently and 50 pounds occasionally (as Dr. Spellman opined and the ALJ found), nor is 8 it inconsistent with the 10-pound lifting restrictions (opined by Drs. Kane, Gaid, Dugger, 9 and Brereton). The ALJ’s decision also neither acknowledges nor attempts to reconcile this 10 discrepancy. This is error. See David C. v. Comm’r of Soc. Sec., No. 23-cv-0655-WQH- 11 MMP, 2024 WL 3596856, at *11 (S.D. Cal. July 31, 2024), report and recommendation 12 adopted, No. 23-cv-0655-WQH-MMP, 2024 WL 4184086 (S.D. Cal. Aug. 16, 2024) 13 (finding harmful error where the ALJ did not accurately characterize the plaintiff’s 14 activities and, “even assuming the ALJ’s characterization of Plaintiff’s activities was 15 accurate, the ALJ did not explain how the identified activities were inconsistent with [the 16 doctor’s] opined . . . limitation . . . .”). 17 2. Activities of Daily Living 18 In rejecting sedentary and light work restrictions and finding Plaintiff capable of 19 medium work, the ALJ’s decision also placed great weight on Plaintiff’s activities of daily 20 living (“ADLs”). AR 23 (“The claimant’s activities of daily living, as discussed above, are 21 also consistent with medium level work.”); AR 24 (Dr. Kane’s “opinion that the claimant 22 can only lift less than 10 pounds frequently and 10 pounds occasionally, however, is over- 23 restrictive and not persuasive given . . . the claimant’s activities of daily living . . . .”); id. 24 (“The claimant’s activities of daily living, which include light household chores, driving, 25 and meal preparation demonstrate greater exertional capacity [than the 10-pound lifting 26 restriction].”); id. (“The claimant’s independent activities of daily living . . . demonstrate 27 the ability to perform work with the above [medium work] residual functional capacity.”). 28 1 The specific ADLs the ALJ relied upon in finding Plaintiff capable of medium work 2 are Plaintiff’s ability to dress, bathe, shower, do laundry, prepare meals, wash dishes, drive, 3 and grocery shop. AR 21 (“The claimant’s allegations of significant limitations are not 4 borne out in his description of his personal activities. He is able to perform personal 5 hygiene, including dressing his upper body, bath[ing], shower[ing]. He is able to do 6 laundry, prepare meals, wash dishes. He can drive and go grocery shop.”); AR 24 (“The 7 claimant’s activities of daily living, which include light household chores, driving, and 8 meal preparation demonstrate greater exertional capacity [than the 10-pound lifting 9 restriction].”). 10 The ALJ’s decision, however, does not explain how these ADLs establish Plaintiff 11 can perform medium work (i.e., lifting 25 pounds frequently and 50 pounds occasionally) 12 or are inconsistent with sedentary and light work. As normally performed, none require 13 lifting 25 to 50 pounds, even occasionally. The cited ADLs, therefore, do not constitute 14 substantial evidence establishing Plaintiff is capable of medium work, and the decision’s 15 failure to explain how the ADLs establish Plaintiff can perform medium work (and are 16 inconsistent with light and/or sedentary work restrictions) is error. See Woods, 32 F.4th at 17 792 (“Even under the new regulations, an ALJ cannot reject an examining or treating 18 doctor’s opinion as unsupported or inconsistent without providing an explanation 19 supported by substantial evidence.”); Cline v. Comm’r of Soc. Sec. Admin., No. CV-23- 20 00236-PHX-DLR, 2024 WL 4262782, at *3 (D. Ariz. Sept. 23, 2024) (finding error where 21 “[t]he ALJ did not properly articulate his reasoning when partially rejecting [the doctor’s] 22 opinion because of [the plaintiff’s] acknowledged activity level”). 23 3. Harmless Error 24 Having found error, the Court next considers whether it is harmless. “[The Court] 25 may not reverse an ALJ’s decision on account of an error that is harmless.” Molina v. 26 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). An error is harmless if it is “inconsequential 27 to the ultimate nondisability determination” and if the Court “can confidently conclude that 28 1 no reasonable ALJ, when [not making the same error], could have reached a different 2 disability determination.” Stout, 454 F.3d at 1055–56. 3 The ALJ’s error in evaluating the medical opinion evidence affected the RFC. Had 4 the ALJ considered the probative value of Plaintiff’s ADLs and return to part-time work 5 when evaluating the medical opinions, the ALJ may have included additional limitations 6 in Plaintiff’s RFC, including limiting Plaintiff to sedentary work. Yet the hypotheticals the 7 ALJ posed to the vocational expert (“VE”) posed only medium and light work restrictions. 8 See AR 72 (“I want to assume this person would be capable of medium exertion work 9 . . . .”); AR 73 (“If I brought the whole profile down to light [work]. . . .”). Considering this 10 error, the RFC and “the resulting hypotheticals proposed to the VE were necessarily 11 incomplete, and therefore invalid.” Kimberly K. v. Commissioner, Social Security 12 Administration, No. 6:23-cv-0408-HL, 2024 WL 4224860, at *14 (D. Or. Sept. 18, 2024) 13 (citing Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988)); see also Hill, 698 F.3d at 14 1161 (finding the ALJ’s RFC determination incomplete where “the ALJ improperly 15 ignored or discounted significant and probative evidence in the record favorable to [the 16 plaintiff’s] position—including [a medical] opinion . . .”). On this record, therefore, the 17 Court cannot find the ALJ’s errors are harmless.7 18 4. Remanding for Further Proceedings 19 Plaintiff moves to remand for further proceedings. Dkt. No. 9 at 22. “The decision 20 whether to remand a case for additional evidence, or simply to award benefits[,] is within 21

22 7 On remand, the ALJ must evaluate all medical opinions in line with the regulations, 23 including those in the record (e.g., Drs. Khatchatrian and Lane) but not discussed in the ALJ’s decision. See 20 C.F.R. § 404.1520c(b) (An ALJ must “evaluate every medical 24 opinion” received.); 20 C.F.R. § 404.1513(a)(2) (A medical opinion is “a statement from a 25 medical source about what [Plaintiff] can still do despite [Plaintiff’s] impairment(s) and whether [Plaintiff has] one or more impairment-related limitations or restrictions . . .”); 26 Woods, 32 F.4th at 792 (alterations in original) (citations omitted) (“The agency must 27 ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source and ‘explain how [it] considered the supportability and consistency factors’ 28 | || the discretion of the court.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting 2 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (alteration in original)). Because a 3 properly formulated RFC might support a conclusion that Plaintiff was not disabled, a 4 || remand for further proceedings is appropriate here. See Bunnell v. Barnhart, 336 F.3d 1112, > 1115-16 (9th Cir. 2003) (remanding for further administrative proceedings where several 6 “outstanding issues” remained to be resolved, so it was “not clear from the record that an 7 [ALJ] would be required to find the claimant disabled and award disability benefits’). 8 VI. CONCLUSION ? For the foregoing reasons, the Court GRANTS Plaintiff's Motion for Summary 10 Judgment (Dkt. No. 9). The Clerk of Court shall enter judgment accordingly. The Court REMANDS to the Commissioner for further consideration and 12 development of the record in accordance with this Order. 13 IT IS SO ORDERED. 14 || Dated: September 30, 2024 — 15 odoinn 16 Honorable Daniel E. Butcher United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28