1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLORIA K. THRELKELD, Case No. 2:23-cv-02199-CSK SS 12 Plaintiff, 13 v. ORDER ON PARTIES’ CROSS MOTIONS

FOR SUMMARY JUDGMENT

14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 11, 17) 15 Defendant. 16

17 18 Plaintiff Gloria Kaye Threlkeld seeks judicial review of a final decision by 19 Defendant Commissioner of Social Security denying an application for disability 20 insurance benefits.1 In her summary judgment motion, Plaintiff contends the final 21 decision of the Commissioner contains legal error and is not supported by substantial 22 evidence. Plaintiff seeks a remand for further proceedings. The Commissioner opposes 23 Plaintiff’s motion, filed a cross-motion for summary judgment, and seeks affirmance. 24 For the reasons below, Plaintiff’s motion is DENIED, the Commissioner’s cross- 25 motion is GRANTED, and the final decision of the Commissioner is AFFIRMED. 26 / / / 27 1 This action was referred to the undersigned under Local Rule 302(c)(15) and 28 proceeds on the consent of all parties. (ECF Nos. 4, 6, 7.) 1 I. SOCIAL SECURITY CASES: FRAMEWORK & FIVE-STEP ANALYSIS 2 The Social Security Act provides benefits for qualifying individuals unable to 3 “engage in any substantial gainful activity by reason of any medically determinable 4 physical or mental impairment[.]” 42 U.S.C. § 423(d)(1)(a). When an individual seeks 5 Social Security disability benefits (the “claimant”), the process for administratively 6 reviewing the request can consist of several stages, including: (1) an initial determination 7 by the Social Security Administration; (2) reconsideration; (3) a hearing before an 8 Administrative Law Judge (“ALJ”); and (4) review of the ALJ’s determination by the 9 Social Security Appeals Council. 20 C.F.R. § 404.900(a). 10 At the hearing stage, the ALJ is to hear testimony from the claimant and other 11 witnesses, accept into evidence relevant documents, and issue a written decision based 12 on a preponderance of the evidence in the record. 20 C.F.R. § 404.929. In evaluating a 13 claimant’s eligibility, the ALJ is to apply the following five-step analysis:

14 Step One: Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled. If no, proceed to step two. 15 Step Two: Does the claimant have a “severe” impairment? If no, the claimant is not disabled. If yes, proceed to step three. 16

Step Three: Does the claimant’s combination of impairments meet or 17 equal those listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1 (the “Listings”)? If yes, the claimant is disabled. If no, proceed to step four. 18 Step Four: Is the claimant capable of performing past relevant work? If 19 yes, the claimant is not disabled. If no, proceed to step five.

20 Step Five: Does the claimant have the residual functional capacity to perform any other work? If yes, the claimant is not disabled. If no, the 21 claimant is disabled.

22 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); 20 C.F.R. § 404.1520(a)(4). The 23 burden of proof rests with the claimant through step four, and with the Commissioner at 24 step five. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). If the ALJ finds a claimant 25 not disabled, and the Social Security Appeals Council declines review, the ALJ's 26 decision becomes the final decision of the Commissioner. Brewes v. Comm’r., 682 F.3d 27 1157, 1161-62 (9th Cir. 2012) (noting the Appeals Council’s denial of review is a non- 28 final agency action). At that point, the claimant may seek judicial review of the 1 Commissioner’s final decision by a federal district court. 42 U.S.C. § 405(g). 2 The district court may enter a judgment affirming, modifying, or reversing the final 3 decision of the Commissioner. Id. (“Sentence Four” of § 405(g)). In seeking judicial 4 review, the plaintiff is responsible for raising points of error, and the Ninth Circuit has 5 repeatedly admonished that the court cannot manufacture arguments for the plaintiff. 6 See Mata v. Colvin, 2014 WL 5472784, at *4 (E.D. Cal, Oct. 28, 2014) (citing Indep. 7 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (stating that the court 8 should “review only issues which are argued specifically and distinctly,” and noting a 9 party who fails to raise and explain a claim of error waives it). 10 A district court may reverse the Commissioner’s denial of benefits only if the ALJ’s 11 decision contains legal error or is unsupported by substantial evidence. Ford, 950 F.3d. 12 at 1154. Substantial evidence is “more than a mere scintilla” but “less than a 13 preponderance,” i.e., “such relevant evidence as a reasonable mind might accept as 14 adequate to support a conclusion.” Id. (citations omitted). The court reviews evidence in 15 the record that both supports and detracts from the ALJ’s conclusion, but may not affirm 16 on a ground upon which the ALJ did not rely. Luther v. Berryhill, 891 F.3d 872, 875 (9th 17 Cir. 2018). The ALJ is responsible for resolving issues of credibility, conflicts in 18 testimony, and ambiguities in the record. Ford, 950 F.3d at 1154. The ALJ’s decision 19 must be upheld where the evidence is susceptible to more than one rational 20 interpretation, or where any error is harmless. Id. 21 II. FACTUAL BACKGROUND AND ALJ’S FIVE-STEP ANALYSIS 22 On March 6, 2017, Plaintiff applied for a period of disability and disability 23 insurance benefits under Title II of the Social Security Act, alleging an inability to work 24 since February 2, 2017. Administrative Transcript (“AT”) 394-400, 414 (available at ECF 25 No. 8). Plaintiff claimed disability due to hypertension, adjustment disorder with mixed 26 anxiety and depressed mood, vitamin D deficiency, and congestive heart failure. Id. 27 Plaintiff’s application was denied initially and upon reconsideration; and she sought 28 review before an ALJ. AT 329-30. Plaintiff appeared with counsel at a July 23, 2018 1 hearing before an ALJ, where Plaintiff testified about her impairments and a vocational 2 expert testified about hypothetical available jobs in the national economy. AT 39-66. The 3 ALJ issued a decision denying Plaintiff’s claim for benefits on October 11, 2018. AT 20- 4 37. On December 7, 2018, Plaintiff requested review with the Appeals Council. AT 388- 5 93. The Appeals Council denied review, which made the ALJ’s decision the final 6 decision of the Commissioner, on September 9, 2019. AT 1-7. 7 On November 1, 2019, Plaintiff commenced a civil action in the Eastern District of 8 California. AT 1079-90. On August 28, 2020, the district court reversed the ALJ’s 9 decision and remanded for further proceedings. AT 1091-1105. The court addressed 10 whether the ALJ erred by rejecting the opinion of consultative psychiatric examiner Dr. 11 Les. P. Kalman, M.D., Psy.D. AT 1097; Threlkeld v. Saul, 2020 WL 5107626 (E.D. Cal. 12 Aug. 31, 2020). The Court found that the ALJ erred by assigning little weight to Dr. 13 Kalman’s opinion. AT 1100-01. The court found the statement that “the claimant has had 14 little mental health treatment and no professional treatment during the period at issue” 15 was inaccurate and an inappropriate reason to discount the opinion because the record 16 showed that Plaintiff sought ongoing treatment from her primary care physician, she was 17 treated with an anti-depressant, and Plaintiff cited financial concerns regarding obtaining 18 mental health treatment. Id. The court also found that the ALJ’s statement that “other 19 than being able to recall only one of three objects and only two of the past five 20 presidents during Dr. Kalman’s examination, the claimant’s mental status examination 21 was otherwise generally unremarkable” was inaccurate and ignored significant findings. 22 AT 1101. The court found that these three findings were improper reasons to invalidate 23 the entire opinion when Dr. Kalman made other findings about Plaintiff, including that her 24 mood was “‘neutral, anxious, depressed, perplexed’ with a labile affect.” Id. 25 On remand, a supplemental hearing was held on Plaintiff’s claim on February 21, 26 2021. AT 1003-36. On March 15, 2021, a different ALJ issued a decision denying 27 Plaintiff’s claim. AT 1111-27. Plaintiff requested review with the Appeals Council on 28 March 24, 2021 (AT 1232), which granted review, assumed jurisdiction, and remanded 1 Plaintiff’s claim on May 10, 2022 (AT 1135-37). On February 8, 2023, a hearing was held 2 on Plaintiff’s claim. AT 1037-53. The ALJ again denied Plaintiff’s claim. AT 972-78. 3 On May 12, 2023, the ALJ issued a decision finding Plaintiff was not disabled. AT 4 982-95. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since April 2, 2016. AT 985. At step two, the ALJ determined Plaintiff had the 6 following severe impairments: non-obstructive coronary artery disease, congestive heart 7 failure, polysubstance abuse disorder, adjustment disorder with mixed anxiety and 8 depressed mood. Id. At step three, the ALJ found Plaintiff’s combination of impairments 9 did not meet or medically equal any Listing. Id. (citing 20 C.F.R Part 404, Subpart P, 10 Appendix 1). Relevant here, the ALJ considered Listings 12.04 (depression) and 12.06 11 (anxiety) for Plaintiff’s mental impairments, examining the “Paragraph B” and “Paragraph 12 C” criteria for the mental impairments.2 The ALJ found Plaintiff moderately limited in 13 interacting with others and concentrating, persisting or maintaining pace; she also found 14 Plaintiff mildly limited in understanding, remembering or applying information and 15 adapting or managing oneself. AT 986-87. The ALJ considered the “Paragraph C” 16 criteria, and found no indication that Plaintiff has marginal adjustment. AT 987. 17 The ALJ then found Plaintiff had the residual functional capacity to perform light 18 work (20 C.F.R. §§ 404.1567(b)), except that Plaintiff is able to: 19 [L]ift and/or carry 20 pounds occasionally and 10 pounds frequently; sit for six hours in an eight-hour workday; is 20 capable of understanding, remembering, and carrying out simple tasks; is capable of interacting appropriately with 21 supervisors and coworkers in a non-public setting; is able to make simple, work-related decisions; is able to adhere to 22

23 2 “Paragraph B” lists four categories for evaluating how a claimant’s mental disorders limit their functioning: understanding, remembering, or applying information; interacting 24 with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. To be found disabled under the Paragraph B categories, the mental disorder 25 must result in an “extreme” limitation of one, or “marked” limitation of two, of the four 26 areas of mental functioning. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00 Mental Disorders, sub. A.2.b. “Paragraph C” of listings including 12.04 and 12.06, provides 27 criteria used to evaluate “serious and persistent mental disorders.” To be “serious and persistent” there must be a medically documented history of the existence of the mental 28 disorder over a period of at least 2 years. Id., sub. A.2.c. 1 basic safety rules; and adjust to changes in a routine work setting. 2 3 AT 987. The ALJ considered Plaintiff’s symptoms and opinion evidence. AT 988-89. The 4 ALJ considered the opinion evidence of State agency medical consultant L. Huynh, MD; 5 State agency medical consultant Y. Ruo, MD; State agency medical consultant D. 6 Funkenstein, MD; State agency medical consultant N. Haroun, MD; consultative 7 examiner Dr. Kalman; and Plaintiff’s husband. AT 991-93. 8 Based on the residual functional capacity, the ALJ determined at step four that 9 Plaintiff was incapable of performing past relevant work. AT 993. However, at step five, 10 the ALJ found Plaintiff capable of performing other jobs in the national economy, 11 including: (1) routing clerk; (2) cleaner, housekeeping; and (3) as a collator operator. AT 12 994. 13 On June 5, 2023, the Appeals Council rejected Plaintiff’s appeal. AT 972-78. 14 Plaintiff filed this action requesting judicial review of the Commissioner’s final decision, 15 and the parties filed cross-motions for summary judgment. (ECF Nos. 1, 11, 18.) 16 III. ISSUES PRESENTED FOR REVIEW 17 Plaintiff presents only one issue for review—that the ALJ erred by failing to 18 provide specific and legitimate reasons for rejecting the examining medical opinion of Dr. 19 Kalman. This is the only issue raised in Plaintiff’s brief, therefore this is the only issue the 20 Court will consider. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). Plaintiff 21 seeks a remand for further proceedings. (ECF No. 11.) The Commissioner argues that 22 substantial evidence supported the ALJ’s evaluation of Dr. Kalman’s opinion. (ECF No. 23 17.) Thus, the Commissioner contends the decision should be affirmed. (Id.) 24 IV. DISCUSSION 25 A. Relevant Medical Evidence 26 1. Objective Medical Evidence 27 Plaintiff first presented to her primary care physician for mental health treatment 28 on April 15, 2016 with concerns about her mood being down after moving from Arkansas 1 to California. AT 587. The claimant scored a 22, indicating severe depression, on a 2 PHQ-9 scale. AT 590. Plaintiff was prescribed Fluoxetine (Prozac). Id. On April 28, 2016, 3 Plaintiff saw Ashley Gunter Hill, Psy.D., a psychologist. AT 584. She reported that 4 Plaintiff expressed symptoms of depression, anxiety, and uncontrolled crying. AT 585. 5 Plaintiff stated that she was unable to find a job due to only finding temp positions and 6 having a limited skill set. Id. Plaintiff described cutting her hair as a form of “self- 7 sabotage” and described herself as “thin-skinned and sensitive,” and bullied by her 8 husband and mother. Id. She smoked marijuana three times a month despite knowing it 9 could worsen her mental health symptoms. Id. Plaintiff reported a history of panic 10 attacks. Id. Her responses to a PHQ-9 depression questionnaire correlated with 11 moderately severe depression. Id. She was provided an order for a follow up 12 appointment with mental health, but Dr. Hill noted that finances were a concern for 13 plaintiff. Id. Plaintiff continued to take medication during the relevant period, but the 14 associated treatment notes were for treatment of physical impairments (e.g. AT 515, 15 569, 611, 858). 16 2. Non-Examining Source Opinions 17 On August 23, 2017, Dr. Funkenstein, a State agency medical consultant, 18 reviewed Plaintiff’s records, and opined that she had moderate limitations in interactions 19 with others, adaption, and concentration, persistence or pace. AT 285-87. Dr. 20 Funkenstein opined that Plaintiff had moderate limitations on her abilities to maintain 21 regular attendance, complete a normal workday, sustain an ordinary routine without 22 special supervision, interact with others, and accept instructions. AT 290. Dr. 23 Funkenstein concluded that despite these limitations, Plaintiff retained the residual 24 functional capacity to perform simple tasks at an acceptable pace, interact with others, 25 make simple work-related decisions, and adjust to changes in routine in a typical non- 26 public workplace setting. AT 291. Dr. Funkenstein's opinion was given great weight by 27 the ALJ. AT 992. The ALJ found that Dr. Funkenstein’s opinion was consistent with Dr. 28 Kalman’s examination. Id. 1 On October 3, 2017, Dr. N. Haroun, a State agency medical consultant, reviewed 2 the evidence in Plaintiff’s file, and assigned no limitations in understanding, 3 remembering, or applying information, mild limitations interacting with others, and no 4 limitations in concentrating, persisting, or maintaining pace, or adapting or managing 5 oneself. AT 301-02. Dr. Haroun assigned no severe mental impairment. Id. The ALJ 6 gave this opinion less weight based on contradictory findings by the consultative 7 examiner Dr. Kalman. AT 992. 8 3. Dr. Kalman’s Examining Opinion 9 On August 18, 2017, Plaintiff presented to Dr. Kalman, a consultative examiner 10 and a psychiatrist, for a psychiatric evaluation as part of her application for benefits. AT 11 659. Dr. Kalman did not review any records as part of his examination,3 and instead, Dr. 12 Kalman relied on plaintiff and found plaintiff to be a “fair historian.” Id. Plaintiff reported 13 being shaky, crying a lot, that her "skin is too thin" and she feels depressed, blue, down, 14 hopeless, helpless, and worthless, along with mood swings with occasional elevated 15 mood and racing thoughts. Id. During the examination, Plaintiff was cooperative, spoke 16 normally, and made good eye contact. AT 660. Plaintiff was properly oriented; could do 17 serial 3s with no errors; could perform simple math; exhibited average intelligence; could 18 understand abstractions; and exhibited fair insight. Id. She appeared anxious and 19 depressed; denied suicidal or homicidal thoughts; had a logical thought process, and 20 had normal thought content. AT 661. 21 Plaintiff reported that she could shop, cook, housekeep, manage her own 22 transportation, perform self-care, and pay her own bills, but she also reported being 23 estranged from family and having no friends. Id. Plaintiff described a typical day as 24 3 In the ALJ’s opinion, she states that Dr. Kalman did not “examine any evidence after 25 August 2017.” AT 993. This seems to indicate that the ALJ found that Dr. Kalman 26 reviewed Plaintiff’s medical records before examining Plaintiff. However, the record does not indicate that Dr. Kalman reviewed Plaintiff’s medical records before examining 27 Plaintiff, and the prior district court found that Dr. Kalman did not review any records as part of his exam. AT 1098; see AT 659 (listing the source of information for the report as 28 “the patient who was a fair historian,” and not identifying that he reviewed any records). 1 talking to her cat, and keeping distracted with the internet, reading, and looking at 2 pictures. Id. Plaintiff was tearful. Id. Based on Plaintiff’s mood swings and her reports 3 that she had difficulty maintaining employment or getting along with others, Dr. Kalman 4 opined that Plaintiff could “perform simple written and oral instructions,” but had 5 decreased ability to maintain regular attendance, work without special supervision, 6 complete a normal workday, accept instruction from supervisors, interact with others and 7 deal with stress in the workplace. AT 661-62. Dr. Kalman diagnosed plaintiff with Bipolar 8 Disorder, depressed. AT 662. 9 The ALJ assigned Dr. Kalman's opinion little weight. AT 993. Though this ALJ 10 decision also gave Dr. Kalman’s opinion little weight, it is significant to note that the 11 ALJ’s analysis of Dr. Kalman’s opinion here differs significantly from the first ALJ’s 12 analysis that was rejected by the district court. Here, the ALJ provided four reasons. 13 First, Dr. Kalman only examined Plaintiff on one occasion and did not treat Plaintiff or 14 “examine any evidence after 2017.” Id. Second, Dr. Kalman’s opinion is “vague and not 15 worded in vocationally relevant terms.” Id. Third, Dr. Kalman’s “narrative opinion is not 16 consistent with his examination report of the [Plaintiff], in which he noted some anxiety 17 and lability but then went on to note relatively normal mental status findings.” Id. Lastly, 18 “this opinion is not consistent with the [Plaintiff’s] lack of mental health treatment, aside 19 from medications prescribed by her primary care physician.” Id. 20 B. Legal Standards for Medical Opinion Evidence 21 For cases filed before March 27, 2017 like this one, the ALJ is required to 22 consider a number of factors in deciding the weight given to any medical opinion. These 23 include the examining relationship, the length of the treatment relationship and 24 frequency of examination, the amount of support detailed in the opinion, the consistency 25 of the opinion with the record, specialization of the medical professional, and any other 26 factors deemed relevant. 20 C.F.R. § 404.1527(c)(1)-(6). Additionally, in the Ninth 27 Circuit, the weight afforded a medical opinion depends on whether it was proffered by a 28 treating, examining, or non-examining professional. Holohan v. Massanari, 246 F.3d 1 1195, 1201-02 (9th Cir. 2001); Lester, 81 F.3d at 830. This also depends on whether the 2 opinion was offered from an acceptable or non-acceptable medical source. Molina v. 3 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 4 For acceptable medical sources in pre-March 27, 2017 cases, a treating 5 physician’s opinion carries more weight than an examining physician’s opinion, and an 6 examining physician’s opinion carries more weight than a non-examining physician’s 7 opinion. Holohan, 246 F.3d at 1202. An ALJ may only reject a treating or examining 8 physician’s uncontradicted medical opinion based on clear and convincing reasons. 9 Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). However, if a treating 10 professional’s opinion is contradicted by an examining professional’s opinion with 11 support in the record, the ALJ is to resolve the conflict. Andrews v. Shalala, 53 F.3d 12 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 13 1989)). The opinion of a non-examining professional, by itself, is insufficient to reject the 14 opinion of a treating or examining professional. Lester, 81 F.3d at 831; but see 15 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (“Although the contrary 16 opinion of a non-examining medical expert does not alone constitute a specific, 17 legitimate reason for rejecting a treating or examining physician’s opinion, it may 18 constitute substantial evidence when it is consistent with other independent evidence in 19 the record.”). 20 In order to evaluate whether an ALJ properly rejected a contradicted opinion from 21 an acceptable medical source, the court considers whether other contradictory opinions 22 are in the record and whether clinical findings support the opinions. Lester, 81 F.3d at 23 831. Under the pre-March 27, 2017 framework, an ALJ must provide “specific and 24 legitimate” reasons to reject the contradicted opinion of a treating or examining doctor. 25 Id. at 830-31. An ALJ provides specific and legitimate reasons by “setting out a detailed 26 and thorough summary of the facts and conflicting clinical evidence, stating [an] 27 interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751. However, the 28 ALJ is not required to give a medical opinion any weight if it is conclusory or supported 1 by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). 2 The ALJ is not required to give any special significance to a medical source’s 3 statement that a claimant is “disabled” or “unable to work,” as this is an issue reserved to 4 the Commissioner. 20 C.F.R. § 404.1527(d)(1); see also Boardman v. Astrue, 286 F. 5 App’x 397, 399 (9th Cir. 2008) (physician’s opinion that a claimant is “disabled” is 6 “irrelevant at best” and “not entitled to special significance”). 7 C. The ALJ Did Not Err in Assessing Dr. Kalman’s Opinion 8 Plaintiff argues that the ALJ did not articulate specific and legitimate reasons for 9 rejecting Dr. Kalman’s examining opinion. Both parties correctly apply the specific and 10 legitimate standard for contradicted medical opinions. See Pl. MSJ at 7; Def. MSJ at 4; 11 Lester, 81 F.3d at 830-31. 12 1. One Time Examination 13 The first reason the ALJ provides for giving Dr. Kalman’s opinion little weight is 14 that Dr. Kalman only examined Plaintiff on one occasion and did not treat Plaintiff or 15 examine any evidence after August 2017. These are not proper reasons to discount Dr. 16 Kalman’s opinion. Opinions of examining medical sources tend to be based on only one 17 examination. See Hartje v. Astrue, 2010 WL 3220615, at *13 (W.D. Wash. Aug. 13, 18 2010); Sorrell v. Colvin, 2015 WL 1152781, at *7 (N.D. Cal. Mar. 13, 2015). Additionally, 19 the ALJ states that Dr. Kalman did not examine any evidence after August 2017. AT 20 993. However, Dr. Funkenstein’s report is also from August 2017, and Dr. Haroun’s 21 report is from October 2017. AT 992; see AT 286-87, 301-02. While both Dr. 22 Funkenstein and Dr. Haroun also examined Dr. Kalman’s report (AT 280-82, 297-300), 23 there is no evidence that either had access to records after October 2017. The fact that 24 Dr. Kalman did not examine records after August 2017 is not a valid reason to reject his 25 opinion, especially because the two doctors who the ALJ weighted more heavily also 26 only reviewed records up to that time or a similar time. See Raynoldson v. Commissioner 27 of Social Security, 649 F. Supp. 3d 1114, 1122 (W.D. Wash. 2023) (finding the ALJ erred 28 in rejecting examining doctor’s opinion because he did not review the entire record when 1 the two other doctors the ALJ found persuasive also did not review the entire record). 2 Thus, this is not a specific and legitimate reason to reject Dr. Kalman’s opinion. 3 2. Vague and Not Worded in Vocationally Relevant Terms 4 The second reason the ALJ provides for giving Dr. Kalman’s opinion little weight 5 is that his opinion is “vague and not worded in vocationally relevant terms.” Plaintiff 6 argues that while the phrase “decreased ability” may be considered vague, this is not a 7 valid reason to reject Dr. Kalman’s opinion because it is supported by his examination. 8 Pl. MSJ 11. Plaintiff also argues that the Court in 2020 directed the ALJ to take action 9 consistent with the order of remand, “which undoubtedly included clarification of the term 10 ‘decreased ability.’” Id. Finally, Plaintiff argues that the ALJ has a duty to develop the 11 record when there is ambiguous evidence. Id. Defendant argues that Dr. Kalman did not 12 present an opinion with concrete functional limitations and that the ALJ was not required 13 to recontact Dr. Kalman or further develop the record. Def. MSJ at 6. 14 The ALJ properly discounted Dr. Kalman’s opinion on this ground. An ALJ does 15 not need to accept an opinion that is vague and that does not specify limitations in a 16 meaningful fashion. See Clarinda G. v. Kijakazi, 2022 WL 17227842, at *4 (E.D. Wash. 17 Sept. 27, 2022) (citing Ford, 950 F.3d at 1156). Dr. Kalman’s opinion refers repeatedly to 18 Plaintiff’s “decreased ability” to do things such as maintain regular attendance in the 19 workplace and consistently perform work activities, perform work activities without 20 special or additional supervision, and complete a normal work day or work week with 21 interruption. AT 661-61. But it is unclear what “decreased ability” actually means 22 because Dr. Kalman does not specify limitations in a meaningful way. See Clarinda G., 23 2022 WL 17227842 at *4; Hunt v. Colvin, 954 F. Supp. 2d 1181, 1188 (W.D. Wash. 24 2013). 25 Though the ALJ did find Dr. Kalman’s opinion to be vague, the ALJ was not 26 required to further develop the record because the record and evidence were adequate 27 to allow the ALJ to properly evaluate it. See Mayes v. Massanari, 276 F.3d 453, 459-60 28 (9th Cir. 2001) (holding that the “ALJ's duty to develop the record further is triggered only 1 when there is ambiguous evidence or when the record is inadequate to allow for proper 2 evaluation of the evidence”); Hunt, 954 F. Supp. 2d at 1188. Further, Plaintiff’s argument 3 regarding the district court’s 2020 decision fails because the district court did not address 4 the need to clarify Dr. Kalman’s use of the phrase “decreased ability” or whether Dr. 5 Kalman’s use of the phrase “decreased ability” rendered his opinion vague. See AT 6 1100-01. The district court addressed the first ALJ’s characterization of Dr. Kalman’s 7 opinion, not the language Dr. Kalman himself used. See id. Thus, this is a specific and 8 legitimate reason to reject Dr. Kalman’s opinion. 9 3. Opinion Is Inconsistent with Report 10 The third reason that the ALJ provides for giving Dr. Kalman’s opinion little weight 11 is that his “narrative opinion is not consistent with his examination report of [Plaintiff], in 12 which he noted some anxiety and lability but then went on to note relatively normal 13 mental status findings.” AT 993. Plaintiff argues that this reason was rejected by the 14 Court in 2020, and that the ALJ here is relying on some unremarkable findings while 15 ignoring other that support a different conclusion. Pl. MSJ at 10. Defendant argues that 16 the objective medical evidence did not corroborate Dr. Kalman’s conclusions about 17 Plaintiff’s mental limitations and that the ALJ acknowledged significant mood and affect 18 findings. Def. MSJ 5. 19 The ALJ did not rely on certain findings and ignore other findings as Plaintiff 20 contends. The ALJ described Dr. Kalman’s report in detail (AT 660), and also described 21 his medical source statement (AT 661). “The ALJ need not accept the opinion of any 22 physician, including a treating physician, if that opinion is brief, conclusory, and 23 inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th 24 Cir. 2002). Here, the ALJ found that Dr. Kalman’s narrative opinion was not consistent 25 with his examination report. AT 993. This is a valid reason to give Dr. Kalman’s opinion 26 little weight. See Hunt, 954 F. Supp. 2d at 1188 (finding a valid reason to discount an 27 opinion when a doctor’s treatment notes do not support the severe limitations included in 28 his opinion). Therefore, this is a specific and legitimate reason to reject Dr. Kalman’s 1 opinion. 2 4. Lack of Mental Health Treatment 3 The last reason the ALJ provides to award Dr. Kalman’s opinion little weight is 4 that his “opinion is not consistent with [Plaintiff’s] lack of mental health treatment, aside 5 from medications prescribed by her primary care physician.” AT 993. Defendant 6 concedes that this does not constitute substantial evidence to discount Dr. Kalman’s 7 opinion. Def. MSJ at 6. Accordingly, the Court will not address this issue, and finds that 8 this is not a specific and legitimate reason to reject Dr. Kalman’s opinion. 9 The Court finds that two of the reasons the ALJ provided to reject Dr. Kalman’s 10 opinion are invalid. However, because the ALJ presented other valid reasons that are 11 specific and legitimate to give Dr. Kalman’s opinion little weight, any error is harmless. 12 See Grammer v. Berryhill, 706 F. App’x 383, 384 (9th Cir. 2017); see also Molina, 674 13 F.3d at 1115. 14 5. Harmless Error 15 Even if the ALJ did err when analyzing Dr. Kalman’s opinion, this error was 16 harmless. A court may not reverse an ALJ decision due to a harmless error. Molina, 674 17 F.3d at 1111. An error is harmless where it is inconsequential to the ALJ’s ultimate 18 nondisability determination. Id.; Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 19 2008). The party appealing the ALJ’s decision bears the burden of establishing harm. 20 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 21 Even if the ALJ had given Dr. Kalman’s opinion more weight, based on the record, 22 it likely would not have changed the ALJ’s opinion. See Stout v. Comm’r, Social Sec. 23 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Both Dr. Funkenstein and Dr. Haroun 24 reviewed Dr. Kalman’s opinion when making their own opinions, and both found that 25 Plaintiff had mental status examination within normal limits. See AT 286, 301. The ALJ 26 thoroughly described and referred to Dr. Kalman’s report in her opinion. See AT 986-87, 27 990, 992. Critically, Dr. Kalman does not opine that Plaintiff is severely impaired. He 28 opined that “[b]ased on today’s evaluation, [Plaintiff] is able to understand, remember 1 | and perform simple written and oral instructions,” and had decreased ability in various 2 | areas. AT 661. This is consistent with the ALJ’s findings that Plaintiff was mildly limited in 3 | understanding, remembering or applying information and adapting or managing oneself; 4 | and moderately limited in interacting with others and concentrating, persisting or 5 || maintaining pace. AT 986-87. Plaintiff fails to identify how giving Dr. Kalman’s report 6 || more weight would have changed the ALJ’s determination, failing to meet Plaintiff's 7 | burden to establish harm. See Shinseki, 556 U.S. at 409-10. 8 | V. CONCLUSION 9 Having addressed all of the points of error raised by Plaintiff, the Court finds the 10 || ALJ’s decision is otherwise supported by substantial evidence in the record and free 11 | from legal error. See Ford, 950 F.3d at 1148 (noting that a district court may reverse only 12 | if the ALJ’s decision “contains legal error or is not supported by substantial evidence”). 13 ORDER 14 Accordingly, the Court ORDERS: 15 1. Plaintiffs motion for summary judgment (ECF No. 11) is DENIED; 16 2. The Commissioner’s cross-motion (ECF No. 17) is GRANTED; 17 3. The final decision of the Commissioner is AFFIRMED; and 18 4. The Clerk of the Court is directed to CLOSE this case. 19 20 | Dated: February 27, 2025 CO i S \U a1 CHI SOO KIM 99 UNITED STATES MAGISTRATE JUDGE 23 || 5, thre.2199.23.Ss 24 25 26 27 28 15