Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 1 of 23 Page ID #:708 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMUEL Z., ) Case No. 8:20-cv-01924-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) Defendant. ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On October 5, 2020, plaintiff Samuel Z. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a period of disability and denial of disability insurance benefits 24 (“DIB”). The parties have fully briefed the issues in dispute, and the court deems 25 the matter suitable for adjudication without oral argument. 26 Plaintiff presents five disputed issues for decision: (1) whether the 27 Administrative Law Judge (“ALJ”) properly considered plaintiff’s subjective 28 1 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 2 of 23 Page ID #:709

1 testimony; (2) whether the ALJ properly considered the opinion of Dr. Mark Jason; 2 (3) whether the ALJ properly considered the opinion of Dr. Shahryar Mousavi; (4) 3 whether the ALJ properly considered plaintiff’s upper extremity limitations in the 4 residual functional capacity (“RFC”) determination; and (5) whether the ALJ 5 properly considered third party testimony. Memorandum in Support of Plaintiff’s 6 Complaint (“P. Mem.”) at 1-23; see Defendant’s Memorandum in Support of 7 Answer (“D. Mem.”) at 2-13. 8 Having carefully studied the parties’ memoranda, the Administrative Record 9 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 10 the ALJ properly considered plaintiff’s testimony, the upper extremities 11 limitations, and the lay testimony. But the ALJ failed to properly consider the 12 medical opinions. The court therefore remands this matter to the Commissioner in 13 accordance with the principles and instructions enunciated in this Memorandum 14 Opinion and Order. 15 II. 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Plaintiff, who was 50 years old on the alleged onset of disability date, is a 18 high school graduate. AR at 83, 88. Plaintiff has past relevant work as an office 19 manager, sales clerk, and sales representative. Id. at 52. 20 On November 3, 2017, plaintiff filed an application for a period of disability 21 and DIB due to a double hip replacement, cervical spine injury, and chronic pain 22 on the left side.1 Id. at 83-84. The application was denied initially and upon 23 reconsideration, after which plaintiff filed a request for a hearing. Id. at 117-20, 24 125-31. 25 On October 23, 2019, plaintiff, represented by counsel, appeared and 26 27 1 Plaintiff previously applied for a period of disability and DIB in September 28 2012, which was denied initially. AR at 84. 2 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 3 of 23 Page ID #:710

1 testified at a hearing before the ALJ. Id. at 34-81. The ALJ also heard testimony 2 from Kathleen Doehla, a vocational expert. Id. at 47-52, 57-58, 75-79. On 3 November 15, 2019, the ALJ denied plaintiff’s claim for benefits. Id. at 17-28. 4 Applying the well-known five-step sequential evaluation process, the ALJ 5 found, at step one, that plaintiff had not engaged in substantial gainful activity 6 since the alleged onset date, August 25, 2017. Id. at 19. 7 At step two, the ALJ found plaintiff suffered from the severe impairments of 8 degenerative joint disease of the cervical and lumbar spine; degenerative joint 9 disease of the bilateral hips, status post bilateral hip replacements; degenerative 10 joint disease of the bilateral shoulders, status post surgical repairs; and rheumatoid 11 arthritis. Id. at 20. 12 At step three, the ALJ found plaintiff’s impairments, whether individually or 13 in combination, did not meet or medically equal one of the listed impairments set 14 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 22. 15 The ALJ then assessed plaintiff’s RFC,2 and determined plaintiff had the 16 RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the 17 limitations that plaintiff: could occasionally climb ramps and stairs; could never 18 climb ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, and 19 crouch; could never crawl; could occasionally reach overhead bilaterally; could 20 frequently reach in other directions from the shoulder height down; could 21 frequently handle and finger bilaterally; and had no restrictions on feeling. Id. at 22 23. The ALJ also precluded plaintiff from working in the presence of concentrated 23 24 2 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 4 of 23 Page ID #:711

1 exposure to vibration, unprotected heights, or hazardous machinery, and stated he 2 should not be required to operate a motor vehicle as part of the job duties. Id. 3 The ALJ found, at step four, that plaintiff was able to perform his past 4 relevant work as an office manager. Id. at 28. Consequently, the ALJ concluded 5 plaintiff did not suffer from a disability as defined by the Social Security Act. Id. 6 Plaintiff filed a timely request for review of the ALJ’s decision, which the 7 Appeals Council denied. Id. at 1-3. The ALJ’s decision stands as the final 8 decision of the Commissioner. 9 III. 10 STANDARD OF REVIEW 11 This court is empowered to review decisions by the Commissioner to deny 12 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 13 Administration (“SSA”) must be upheld if they are free of legal error and 14 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 15 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 16 on legal error or are not supported by substantial evidence in the record, the court 17 may reject the findings and set aside the decision to deny benefits. Aukland v. 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 19 1144, 1147 (9th Cir. 2001). 20 “Substantial evidence is more than a mere scintilla, but less than a 21 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 22 “relevant evidence which a reasonable person might accept as adequate to support 23 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 24 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 25 finding, the reviewing court must review the administrative record as a whole, 26 “weighing both the evidence that supports and the evidence that detracts from the 27 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 28 4 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 5 of 23 Page ID #:712

1 affirmed simply by isolating a specific quantum of supporting evidence.’” 2 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 3 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 4 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 5 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 6 1992)). 7 IV. 8 DISCUSSION 9 A. The ALJ Properly Considered Plaintiff’s Testimony 10 Plaintiff contends the ALJ failed to properly evaluate his testimony. P. 11 Mem. at 1-9. Specifically, plaintiff argues the ALJ’s reasons for discounting his 12 testimony were not clear and convincing and supported by substantial evidence.3 13 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 14 evaluating plaintiff’s alleged symptoms. In adopting SSR 16-3p, the SSA sought 15 to “clarify that subjective symptom evaluation is not an examination of an 16 individual’s character.” Id. at *2. 17 [SSR 16-3p] makes clear what our precedent already required: that 18 assessments of an individual’s testimony by an ALJ are designed to 19 evaluate the intensity and persistence of symptoms after the ALJ finds 20 that the individual has a medically determinable impairment(s) that 21 could reasonably be expected to produce those symptoms, and not to 22 delve into wide-ranging scrutiny of the claimant’s character and 23 apparent truthfulness. 24 25 3 While discussing plaintiff’s credibility, the ALJ stated that she found 26 plaintiff limited to “light work.” AR at 24. Plaintiff asserts the ALJ’s entire decision is undermined by this “internal consistency.” P. Mem. at 7. Reading the 27 decision as a whole, this reference to “light work” was plainly a typographical 28 error. A typographical error does not undermine an entire decision. 5 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 6 of 23 Page ID #:713

1 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). 2 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 3 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 4 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 5 produced objective medical evidence of an underlying impairment that could 6 reasonably be expected to produce the symptoms alleged. Id. Second, if plaintiff 7 satisfies the first step, and there is no evidence of malingering, the ALJ must 8 evaluate the intensity and persistence of the claimant’s symptoms and determine 9 the extent to which they limit her ability to perform work-related activities. Id. 10 In assessing intensity and persistence, the ALJ may consider: the claimant’s 11 daily activities; the location, duration, frequency, and intensity of the symptoms; 12 precipitating and aggravating factors; the type, dosage, effectiveness, and side 13 effects of medication taken to alleviate the symptoms; other treatment received; 14 other measures used to relieve the symptoms; and other factors concerning the 15 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 16 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen v. Chater, 80 17 F.3d 1273, 1284 (9th Cir. 1996). To reject the claimant’s subjective symptom 18 statements at step two, the ALJ must provide “specific, clear, and convincing” 19 reasons, supported by substantial evidence in the record, for doing so. Id. at 1283- 20 84. 21 At the first step, the ALJ here found plaintiff’s medically determinable 22 impairments could reasonably be expected to cause the symptoms alleged. AR at 23 24. At the second step, because the ALJ did not find any evidence of malingering, 24 the ALJ was required to provide clear and convincing reasons for discounting 25 plaintiff’s testimony. The ALJ found plaintiff’s testimony to be not entirely 26 credible because: (1) he made inconsistent statements; (2) his activities exceeded 27 his alleged limitations; and (3) his alleged limitations were inconsistent with the 28 6 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 7 of 23 Page ID #:714

1 medical evidence. See id. at 19, 23-24. 2 In an Exertional Questionnaire dated November 20, 2017, plaintiff stated he 3 has had shoulder and neck pain ever since his first cervical spine surgery in 2011 4 and that any repetitive motion causes the pain. Id. at 209-10. Plaintiff stated that 5 he tried to walk two miles a day, which took about 30 minutes to complete and 6 sometimes hurt. Id. at 209. Plaintiff further stated he could lift and carry 20 7 pounds, shop for groceries, do laundry, and do light yard work. Id. at 210. 8 Plaintiff stated he needed to sit and rest every couple of hours and he could only 9 sleep four hours at a time. Id. at 211. 10 At the October 23, 2019 hearing, plaintiff testified that he has pain in his 11 neck, shoulders, arms, hands, hips, leg, feet, and joints. Id. at 59. Plaintiff 12 explained rheumatological arthritis caused the pain in his joints and scar tissue 13 from multiple cervical spine surgeries damaged his nerves, resulting in arm and 14 hand pain. Id. at 59-60. Plaintiff testified that repetitive motions or strains 15 aggravated the pain. Id. at 61. Plaintiff testified that he could lift ten pounds, 16 could only sit for 15 minutes before needing to change positions, could only stand 17 for 15 minutes in one spot, and had five to six bad days a month. Id. at 61-63. 18 Plaintiff further testified his hands hurt turning a door knob, twisting, and 19 grabbing. Id. at 65. Plaintiff stated a slower reaction time, memory loss, and 20 fatigue are side effects of his pain medications. Id. at 66. Plaintiff estimated that, 21 even with sleeping and pain medications, he only slept three hours at a time. Id. at 22 68. 23 As for his activities, plaintiff testified that he lives with his mother, takes 24 care of her, does household chores, gardens, and walks the dog. Id. at 39-40, 69, 25 72. Plaintiff testified he takes frequent 20-25 minutes walks with stops and spends 26 four to six hours a day in a reclined position. Id. at 61-62. Regarding his work, 27 plaintiff testified that he tried to do some handyman work and when he had work, 28 7 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 8 of 23 Page ID #:715

1 he made an average of $200 a month. Id. at 45. Plaintiff stated he drove 30 2 minutes to the hearing without problems. Id. at 41. Plaintiff further testified he 3 drove to Arizona three times in the past year and went on a cruise to Catalina in 4 2018. Id. at 72-73. 5 The ALJ’s first reason for discounting plaintiff’s testimony was that plaintiff 6 made inconsistent statements. AR at 23-24; see Bunnell v. Sullivan, 947 F.2d 341, 7 346 (9th Cir. 1991) (en banc) (an ALJ “may discredit the claimant's allegations 8 based on inconsistencies”). The ALJ correctly noted plaintiff’s inconsistencies 9 about the side effects from his medications. AR at 24. Plaintiff testified at the 10 October 2019 hearing that the side effects of his medication were memory loss, 11 slower reaction time, and fatigue. Id. at 66. But plaintiff repeatedly told his pain 12 specialist throughout 2018 and 2019 that he experienced no side effects from his 13 medications. See, e.g., id. at 391, 403, 406, 470, 488, 497. Plaintiff also routinely 14 reported to his primary care physician throughout 2018 that he suffered no memory 15 loss or fatigue. See, e.g., id. at 438-39, 443, 448-49. Contrary to plaintiff’s 16 characterization, that this was not “at best a single inconsistency.” See P. Mem. at 17 6. 18 Similarly, the ALJ accurately observed that plaintiff’s statements about his 19 work were inconsistent. AR at 19-20. Plaintiff testified that after he stopped 20 working at Lowe’s, he tried to work as a handyman, but the months when he had 21 work he only averaged about $200 a month. Id. at 45. As the ALJ noted, the 22 record strongly suggests that plaintiff in fact worked with regularity. In September 23 2017, plaintiff reported working as a handyman. Id. at 304. In a January 2018 24 letter, plaintiff’s treating physician wrote that plaintiff worked as a handyman. Id. 25 at 343. In February 2018, plaintiff told a consulting physician that he was working 26 as a handyman. Id. at 348. In July 2018, plaintiff told one physician that he was a 27 handyman and another physician that it was difficult to work as a handyman 28 8 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 9 of 23 Page ID #:716

1 because it hurt to move his head. Id. at 532, 549. In December 2018, just weeks 2 before his right shoulder surgery, plaintiff reported he could only work part-time as 3 a handyman. Id. at 410. And in February 2019, during a post-op examination, 4 plaintiff stated he was “back working” and would like to delay evaluation of his 5 left shoulder surgery until the fall “when his work tends to slow down.” Id. at 512. 6 The record reflects plaintiff’s handyman work was not as sporadic or limited as his 7 testimony implied. 8 The ALJ’s second reason for discounting plaintiff’s testimony was his 9 activities were inconsistent with his claimed degree of impairment. Id. at 24; see 10 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (in making a credibility 11 determination, an ALJ may consider inconsistencies between a claimant’s 12 testimony and conduct); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 13 2008). Plaintiff alleges he can only sit for 15 minute before needing to change 14 positions. AR at 61. But plaintiff was able to drive 30 minutes to the hearing and 15 sit an hour at the hearing without problems. Id. at 41. Plaintiff was also able to 16 drive to and back from Arizona three times in the year prior to the hearing. Id. at 17 72. Plaintiff also testified he has pain in his legs and feet and could only stand in 18 one spot for 15 minutes at a time. Id. at 61-62. Yet, plaintiff testified he took 19 frequent 20-25 minute walks and stated in his Exertional Questionnaire that he 20 walked two miles in about 30 minutes.4 Id. at 62, 209. Although plaintiff’s walks 21 do not directly contradict his alleged standing limitations, the length of plaintiff’s 22 walks and the speed appears inconsistent with his alleged leg and feet pain. 23 Finally, the ALJ found plaintiff less credible because his allegations were 24 inconsistent with the objective medical evidence. Id. at 24; see Rollins v. 25 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective 26 27 4 Plaintiff also reported to his primary care physician he walked three miles a 28 day. See e.g., AR at 426, 431, 434. 9 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 10 of 23 Page ID #:717

1 medical evidence may be one factor in evaluating credibility). The record shows 2 plaintiff routinely complained of hip, neck, hand, and shoulder pain. The ALJ 3 recognized plaintiff had multiple hip, neck, and shoulder surgeries. AR at 20-21. 4 But the ALJ noted that plaintiff recovered well from the hip and shoulder surgeries. 5 Id. Plaintiff had a normal gait after the hip surgery, the right shoulder surgery was 6 a success, and presumably, the left shoulder surgery would be equally successful. 7 Id.; see Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir. 1999) (response to 8 treatment supports an adverse credibility determination). The ALJ noted the whole 9 body scan reflected mild impairments. Finally, the ALJ found that although there 10 was objective evidence supporting a carpal tunnel syndrome diagnosis in 2017, 11 there was also a normal test and negative findings. Thus, there was objective 12 evidence to support plaintiff’s allegations, but the evidence also reasonably 13 supported the ALJ’s determination that plaintiff’s symptoms were not as severe as 14 he alleges, particularly with regard to his shoulder and hip pain. As such, the court 15 may not substitute its judgment for that of the ALJ. See Aukland, 257 F.3d at 16 1035. 17 Accordingly, the ALJ properly discounted plaintiff’s subjective allegations. 18 The ALJ cited clear and convincing reasons supported by substantial evidence for 19 finding plaintiff less credible. 20 B. The ALJ Failed to Properly Consider Two Medical Opinions 21 Plaintiff argues that ALJ failed to properly consider the opinions of 22 physicians Dr. Mark Jason and Dr. Shahryar Mousavi. P. Mem. at 10-19. 23 Specifically, plaintiff asserts the ALJ improperly rejected Dr. Jason’s and Dr. 24 Mousavi’s opinions concerning upper extremity limitations and absences. Id. 25 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 26 § 404.1545(a)(1). The ALJ reaches an RFC determination by reviewing and 27 considering all of the relevant evidence, including non-severe impairments. 20 28 10 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 11 of 23 Page ID #:718

1 C.F.R. § 404.1545(a)(1)-(2); see SSR 96-8p (“In assessing RFC, the adjudicator 2 must consider limitations and restrictions imposed by all of an individual’s 3 impairments, even those that are not ‘severe.’”). 4 Among the evidence an ALJ relies on in an RFC assessment is medical 5 evidence and opinions. 20 C.F.R. § 404.1545(a)(3). For claims filed before March 6 27, 2017, the opinion of a treating physician was given more weight then an 7 examining physician’s opinion, which was given more weight than a reviewing 8 physician’s opinion. See Holohan, 246 F.3d at 1202. Under this previous 9 hierarchy of medical opinions framework, the Ninth Circuit required an ALJ to 10 provide clear and convincing reasons supported by substantial evidence to reject an 11 uncontradicted opinion of a treating or examining physician, or specific and 12 legitimate reasons supported by substantial evidence to reject a contradicted 13 opinion of a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830- 14 31 (9th Cir. 1996) (as amended). 15 Under the revised regulations, for cases filed on or after March 27, 2017 16 such as this one, an ALJ will no longer defer or give specific evidentiary weight to 17 any medical opinions. 20 C.F.R. § 404.1520c(a). 18 For claims subject to the new regulations, the former hierarchy of 19 medical opinions – in which we assign presumptive weight based 20 on the extent of the doctor’s relationship with the claimant – no 21 longer applies. Now, an ALJ’s decision, including the decision 22 to discredit any medical opinion, must simply be supported by 23 substantial evidence. 24 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). As such, the previous 25 requirement that an ALJ provide “specific and legitimate” reasons to reject a 26 treating or examining physician’s opinion “is clearly irreconcilable” with the new 27 regulations. Id. at 790. 28 11 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 12 of 23 Page ID #:719

1 An ALJ will now consider the persuasiveness of the medical opinions and 2 findings based on five factors: (1) supportability; (2) consistency; (3) relationship 3 with the claimant; (4) specialization; and (5) other factors that tend to support or 4 contradict the medical opinion. 20 C.F.R. § 404.1520c(b)-(c). The most important 5 of these factors are supportability and consistency. 20 C.F.R. 6 § 404.1520c(b)(2). The ALJ “must ‘articulate . . . how persuasive’ [he or she] 7 finds ‘all of the medical opinions’ from each doctor or other source . . . and 8 ‘explain how [he or she] considered the supportability and consistency factors’ in 9 reaching these findings.” Woods, 32 F.4th at 792 (quoting 20 C.F.R. 10 § 404.1520c(b)(2)). The ALJ may, but is not required to, explain how she or he 11 considered the other three factors. 20 C.F.R. § 404.1520c(b)(2). But when two or 12 more medical opinions “about the same issue are both equally well-supported . . . 13 and consistent with the record . . . but are not exactly the same,” the ALJ is then 14 required to explain how “the other most persuasive factors in paragraphs (c)(3) 15 through (c)(5)” were considered. 20 C.F.R. § 404.1520c(b)(3). 16 1. Dr. Mark Jason 17 Plaintiff contends the ALJ offered insufficient reasons for rejecting Dr. 18 Jason’s opinion regarding plaintiff’s upper extremity limitations and expected 19 absences. P. Mem. at 13-16. Specifically, plaintiff argues the ALJ offered 20 conclusory, generic rationale without any actual explanation or reference to 21 evidence. Id. at 13-14. Plaintiff also argues the ALJ failed to address Dr. Jason’s 22 opinion about absences. See id. at 15-16. 23 Dr. Mark Jason, rheumatologist, treated plaintiff from August 2017 through 24 at least the date of the hearing. See AR at 537-40, 596. At the initial visit, Dr. 25 Jason noted plaintiff’s lab work was negative for antibodies and plaintiff denied 26 fatigue, myalgias, and weakness. Id. at 538. Dr. Jason observed plaintiff had 27 normal strength, reflexes, sensation, range of motion, and joints and extremities, 28 12 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 13 of 23 Page ID #:720

1 but plaintiff had spasm in the spine, pain in the iliac crest region, and it hurt for 2 him to move his neck. Id. at 538-39. Dr. Jason ordered a whole body scan in 3 September 2017, which showed: slightly decreased flow to the left hand of 4 uncertain significance; diffuse mild activity related to the joints of the hands which 5 is relatively symmetric; mild activity related to the left second 6 metacarphophalandgeal joint; small area of focal activity related to the anterior 7 sixth costochondral cartilage most likely post-traumatic; and the remainder of 8 joints were otherwise normal. Id. at 330. At the follow up examination two weeks 9 later, Dr. Jason reviewed the whole body scan results, noted plaintiff had an overall 10 pain level of 3.5/10, and assessed plaintiff had multiple joint pain. Id. at 339. 11 Based on these two examinations and findings, Dr. Jason diagnosed plaintiff with 12 rheumatoid arthritis of multiple degenerative joints, chronic pain, and carpal tunnel 13 syndrome and opined plaintiff was “totally disabled.” Id. at 333-34. 14 Dr. Jason examined plaintiff again on March 7 and May 3, 2018. Id. at 377- 15 81. At the March 2018 examination, plaintiff complained he had a stiff, painful 16 neck that was popping, a sore left hip, right ankle pain, and right hand pain, but 17 also reported he had no tingling or numbness; no neck, hand, and lower back pain; 18 and no swelling or stiffness in his hands. Id. at 377-78. The only objective 19 findings from the two visits were on May 2018, in which Dr. Jason observed 20 plaintiff’s neck was stuck tilting to the left and he had decreased range of motion in 21 his cervical spine. Id. at 380. 22 On May 4, 2018, Dr. Jason completed a Medical Evaluation Form. Id. at 23 382-84. Dr. Jason diagnosed plaintiff with rheumatoid arthritis, carpal tunnel 24 syndrome, osteoarthritis, and a history of cervical and hip surgeries. Id. at 382. 25 Dr. Jason checked that plaintiff’s fatigue or the side effects of his medication 26 would affect his concentration more than two-thirds of the workday. Id. Dr. Jason 27 opined that plaintiff could not work if he to had sit, stand, or alternate between 28 13 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 14 of 23 Page ID #:721

1 sitting and standing for six hours in an eight-hour workday. Id. at 383. Dr. Jason 2 further opined that plaintiff: needed to rest four to six hours in an eight-hour 3 workday; would need unscheduled breaks; could lift and carry up to ten pounds 4 frequently; could not frequently use his hands to grasp, push, pull, and for fine 5 manipulation; could not push or pull frequently with his legs; could frequently 6 kneel; should avoid unprotected heights, moving machinery, and driving 7 automobile equipment; and was likely to be absent more than three times a month. 8 Id. at 383-84. 9 Dr. Jason examined plaintiff four more times. Dr. Jason again observed 10 plaintiff had a tilted neck with reduced range of motion in July 2018, but noted that 11 he looked much better and was moving normally in October 2018. Id. at 547-50. 12 Shortly before plaintiff’s December 2018 right shoulder surgery, Dr. Jason noted 13 that plaintiff had multiple cortosine injections in his hands for trigger fingers,5 he 14 moved stiffly with his head bent, his hips were sore, and he had painful range of 15 motion in his shoulders. Id. at 410. At plaintiff’s next examination eight months 16 later, plaintiff reported having a flare up and Dr. Jason observed plaintiff had 17 diffuse synovitis in his fingers, wrists, and elbows. Id. at 541. Dr. Jason wrote a 18 letter recommending plaintiff be granted disability because he was unable to work. 19 Id. at 596. 20 As relevant, the ALJ limited plaintiff to occasional overheard reaching 21 bilaterally, frequent reaching in other directions from the shoulder height down, 22 and frequent handling and fingering bilaterally, and precluded him from 23 concentrated exposure to vibration, unprotected heights or hazardous machinery, 24 and operating a motor vehicle as part of his job duties. Id. at 23. In reaching her 25 26 5 Dr. Jason stated an orthopedic hand surgeon administered the cortisone 27 injections. AR at 410. The treatment notes documenting these injections are not 28 included in the record. 14 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 15 of 23 Page ID #:722

1 RFC determination, the ALJ rejected Dr. Jason’s opinion that plaintiff was “totally 2 disabled” and “unable to work” because those issues are reserved for the 3 Commissioner. Id. at 26. The ALJ then stated that Dr. Jason’s opined limitations 4 were “less than consistent with the recent medical evidence” and portions of 5 plaintiff’s own testimony, but to the extent they were “partially consistent with the 6 totality of evidence,” the ALJ find that plaintiff should be limited to sedentary 7 work. Id. The ALJ further stated that her preclusions adequately addressed 8 plaintiff’s concentration issues. Id. 9 Although the ALJ correctly rejected Dr. Jason’s opinion that plaintiff was 10 disabled and unable to work, the remainder of her analysis was flawed. See 20 11 C.F.R. § 404.1520b(c)(3) (disability determination is an issue reserved for the 12 Commissioner). The ALJ must articulate how persuasive the medical opinions are 13 and explain how she considered the supportability and consistency factors in 14 reaching her decision. Woods, 32 F.4th at 792. Here, the ALJ failed to articulate 15 how persuasive she found Dr. Jason’s opinion to be. Defendant argues that a 16 reviewing court may draw inferences from an opinion and an ALJ need not recite 17 “magic words.” D. Mem. at 6 n.2 (citing Magallanes v. Bowen, 881 F.2d 747, 755 18 (9th Cir. 1989). Notwithstanding the fact that the new regulations specifically 19 require the ALJ to articulate how persuasive she finds the medical opinion, here the 20 court may not even draw inferences from the ALJ’s decision because it is too 21 vague and conclusory. It is unclear what and how much the ALJ found persuasive, 22 and what she found not persuasive. 23 Moreover, the ALJ failed to explain how she considered the supportability 24 and consistency factors as well. “Supportability means the extent to which a 25 medical source supports the medical opinion by explaining the ‘relevant . . . 26 objective medical evidence’” and “[c]onsistency means the extent to which a 27 medical opinion is ‘consistent . . . with the evidence from other medical sources 28 15 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 16 of 23 Page ID #:723

1 and nonmedical sources in the claim.’” Woods, 32 F.4th at 791-92 (quoting 20 2 C.F.R. § 404.1520c(c)(1)-(2)). The ALJ failed to cite which of Dr. Jason’s opined 3 limitations she accepted, and how those opined limitation were supported by the 4 objective medical evidence. And although the ALJ stated that Dr. Jason’s opined 5 limitations were inconsistent with the recent medical evidence and plaintiff’s own 6 testimony, she did not specify which limitations were inconsistent, what “recent 7 medical evidence” it was inconsistent with, and which portions of plaintiff’s 8 testimony conflicted with Dr. Jason’s opinion. A mere reference to “recent 9 evidence” and “testimony” is too vague to constitute sufficient evidence. 10 As such, the ALJ failed to properly evaluate Dr. Jason’s opinion.6 11 2. Dr. Shahryar Mousavi 12 Plaintiff argues the ALJ also failed to properly consider Dr. Shahryar 13 Mousavi’s opinion regarding plaintiff’s upper extremity limitations and likely 14 absences. P. Mem. at 16-19. 15 Dr. Mousavi, a pain specialist, treated plaintiff from December 2017 through 16 at least the date of the hearing. AR at 319-20. At the initial examination, plaintiff 17 reported he suffered from neck and hip pain, had failed cervical spine surgeries, 18 was recovering well from a bilateral hip replacement 50 days prior, and needed 19 medications without side effects. Id. at 319. Dr. Mousavi observed plaintiff was in 20 no distress and diagnosed plaintiff with chronic pain syndrome, other cervical disc 21 degeneration, arthropathy of cervical facet joint, failed back syndrome of the 22 23 6 Plaintiff also argues that the ALJ should have considered his specialty and 24 treatment relationship. P. Mem. at 12, 14-15. The regulations only require the ALJ to explain how he or she considered the factors of supportability and 25 consistency. 20 C.F.R. § 404.1520c(b)(2). If, on remand, the ALJ finds Dr. 26 Jason’s opinion and another physician’s opinon about the same issue are both equally well-supported and consistent with the record but are not exactly the same, 27 then she shall articulate how she considers the other factors such as relationship 28 with the claimant and speciality. 20 C.F.R. § 404.1520c(b)(3). 16 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 17 of 23 Page ID #:724

1 cervical spine,7 opiate dependence, and osteoarthritis of hip. Id. at 319-20. At 2 subsequent examinations, plaintiff routinely complained of neck pain radiating to 3 his left upper extremity, numbness of the extremities, and pain in other parts of the 4 body. See, e.g., id. at 352, 391, 398, 492, 494, 497. A May 2018 MRI of the 5 cervical spine reflected mild degenerative changes and foraminal narrowing at 6 multiple levels, but Dr. Mousavi otherwise observed primarily objective normal 7 findings in 2018. See id. at 352, 354, 392, 398, 401, 404, 406, 408. In July 2018, 8 Dr. Mousavi explained plaintiff’s symptoms and history of chronic opiate use were 9 suggestive of dependency to opiates. Id. at 404. In 2019, Dr. Mousavi observed 10 tenderness over the cervical spine, thoracic spine, lumbar spine, and trapezius 11 muscles; decreased range of motion in the cervical spine; decreased position sense 12 in the upper extremities; trigger fingers; positive compression tests; and positive 13 quadrant’s tests. See id. at 480, 485-86, 490, 494. Dr. Mousavi treated plaintiff 14 with trigger point injections in his thoracic spine and cervical facet and branch 15 blocks. See id. at 390, 396, 399. 16 Dr. Mousavi completed a Medical Evaluation Form on May 20, 2018. Id. at 17 386-88. Dr. Mousavi diagnosed plaintiff with: cervical degenerative disc disease, 18 failed cervical spine surgery, cervical radiculopathy, and chronic pain syndrome. 19 Id. at 386. Dr. Mousavi opined plaintiff’s fatigue or medication side effects would 20 frequently interfere with his ability to concentrate up to two-thirds of an eight-hour 21 workday and his condition would interfere with his ability to keep his neck in a 22 constant position. Id. at 386-87. Dr. Mousavi opined plaintiff: would not be able 23 to sit only, stand only, or sit and stand six hours out of an eight-hour workday; 24 25 7 Failed back syndrome is defined as “[lumbar] spinal pain of unknown origin 26 either persisting despite surgical intervention or appearing after surgical intervention for spinal pain originally in the same topographical location” by the 27 International Association for the Study of Pain. See 28 https://www.ncbi.nlm.nih.gov/books/NBK539777/. 17 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 18 of 23 Page ID #:725

1 needed to rest three to five hours in an eight-hour workday; could frequently lift 2 and carry up to 20 pounds; could not frequently use his hands for grasping, pulling, 3 pushing, or fine manipulation; could frequently push or pull with his legs; could 4 frequently bend or squat; should avoid moving machinery and driving automotive 5 equipment; and would likely miss more than three days of work in a month. Id. at 6 387-88. 7 In reaching her RFC determination, the ALJ stated Dr. Mousavi’s opined 8 limitations were neither consistent with nor supported by his concurrent or 9 subsequent treatment notes, which typically reflected no objective physical 10 limitations. Id. at 27. The ALJ noted that plaintiff demonstrated limited neck 11 mobility and no significant postural limitations during a February 2018 orthopedic 12 consultative examination. Id. The ALJ stated the restriction to sedentary work 13 addressed Dr. Mousavi’s foot controls limitation. Id. The ALJ concluded that she 14 otherwise found Dr. Mousavi’s opinion partially consistent with and supported by 15 the medical evidence to the extent reflected by the assessed RFC. Id. 16 The ALJ’s discussion of Dr. Mousavi’s opinion suffers from the same 17 fundamental error as with Dr. Jason’s opinion – the ALJ failed to articulate how 18 persuasive she found the opinion. Although the ALJ provided slightly more 19 explanation of her supportability and consistency analysis, it still suffers from 20 vagueness, as well as other error. For instance, the ALJ cited a lack of objective 21 physical limitations in the treatment notes to support her lack of supportability 22 finding. The ALJ appears to imply that a treatment note must include physical 23 limitations in order to support a medical opinion, but that is not the case. Instead, 24 objective findings in treatment notes are a basis to support medical opinions. See 25 Ramirez v. Berryhill, 739 Fed. Appx. 428, 430 (9th Cir. 2018) (because the 26 treatment notes contained objective findings, the ALJ erred in rejecting the medical 27 opinion on the basis that it only contained subjective complaints); Kager v. Astrue, 28 18 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 19 of 23 Page ID #:726

1 256 Fed. Appx. 919, 921-22 (9th Cir. 2007) (physician’s treatment notes contained 2 objective findings that supported her opinion). Here, Dr. Mousavi’s treatment 3 notes contained objective findings which may support the opined limitations. The 4 ALJ also presumably cited the consultative examiner’s findings that plaintiff had 5 limited neck mobility and no significant postural limitations to discuss consistency, 6 but it is unclear whether the ALJ was arguing those findings were consistent or 7 inconsistent with Dr. Mousavi’s opinion. 8 Accordingly, the ALJ failed to properly consider Dr. Jason’s and Dr. 9 Mousavi’s opinions. The ALJ failed to articulate the persuasiveness of the 10 opinions and explain with more specificity the supportability and consistency 11 factors. 12 C. The ALJ Properly Considered Plaintiff’s Upper Extremity Limitations 13 Plaintiff contends the determined RFC’s upper extremity limitations were 14 not supported by substantial evidence. P. Mem. at 19-21. Specifically, plaintiff 15 asserts that in addition to improperly dismissing Dr. Jason’s and Dr. Mousavi’s 16 opined upper extremity limitations, the ALJ failed to properly consider the medical 17 evidence which supported greater upper extremity limitations than found by the 18 ALJ. Id. Plaintiff argues the evidence of chronic neck pain, shoulder pain, and 19 carpal tunnel syndrome, as well as the treatment he received, demonstrates he has 20 greater upper extremity limitations than the ALJ determined. Id. at 21. 21 As discussed above, the ALJ reaches an RFC determination by reviewing 22 and considering all of the relevant evidence. 20 C.F.R. § 404.1545(a)(1)-(2). 23 Here, the ALJ discussed the medical evidence affecting plaintiff’s upper 24 extremities that plaintiff raises in his memorandum, and concluded plaintiff could 25 occasionally reach overhead bilaterally, frequently reach in other directions from 26 the shoulder height down, could frequently handle and finger bilaterally, and had 27 no restrictions on feeling. AR at 23. 28 19 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 20 of 23 Page ID #:727

1 Regarding plaintiff’s shoulders, the ALJ did not mention the exact findings 2 plaintiff cites – decreased range of motion, positive impingement tests, and 3 decreased strength – but discussed the MRIs. AR at 20-21. The ALJ then noted 4 plaintiff underwent a successful right shoulder surgery and had a left shoulder 5 surgery the month prior to the hearing. Id.; see id. at 509, 512. The evidence 6 concerning the shoulder impairments reasonably supported no greater limitations 7 than the ALJ assessed. 8 As for plaintiff’s carpal tunnel syndrome, the ALJ recognized that the results 9 of an April 2017 nerve conduction study were consistent with carpal tunnel 10 syndrome and that plaintiff had a positive Tinel’s sign in October 2017. Id. at 22; 11 see id. at 272-74, 323. But the ALJ correctly noted that the electromyogram results 12 were normal and the record did not contain more recent objective findings to 13 corroborate the earlier findings. See id. at 22, 276. While the ALJ’s conclusion 14 that the condition may have “spontaneously resolved” is purely speculative, it was 15 reasonable for her to conclude the assessed limitations were sufficient. 16 Similarly, the ALJ considered the medical evidence concerning plaintiff’s 17 chronic neck pain in assessing her functional limitations. The fact that the ALJ 18 reached a different conclusion than plaintiff does not mean she failed to evaluate 19 the evidence or erred. 20 Plaintiff also asserts that the ALJ failed to explain how she reached her RFC 21 determination. P. Mem. at 21. As discussed above, the ALJ evaluated the medical 22 evidence. But to the extent that plaintiff is arguing the ALJ failed to specify the 23 persuasiveness of the medical opinions, he is correct. The ALJ must articulate the 24 persuasiveness of the medical evidence, as well as the supportability and 25 consistency factors of each medical opinion. 26 In short, the upper extremity limitations were supported by the medical 27 evidence. Nonetheless, because the ALJ must reconsider two of the medical 28 20 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 21 of 23 Page ID #:728

1 opinions on remand, she should reconsider the upper extremity limitations in light 2 of those opinions as well. 3 D. The ALJ Properly Discounted the Lay Testimony 4 Plaintiff argues the ALJ failed to properly consider the letter submitted by 5 his daughter, Janet Z. P. Mem. at 21-23. 6 “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 7 ability to work is competent evidence and therefore cannot be disregarded without 8 comment.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 9 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 10 also 20 C.F.R.§ 404.1513(d)(3) (the Commissioner will consider evidence from 11 other sources, including social welfare agency personnel). The ALJ may only 12 discount the testimony of lay witnesses if he provides specific “reasons that are 13 germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 14 see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to a 15 claimant’s symptoms is competent evidence that an ALJ must take into account, 16 unless he or she expressly determines to disregard such testimony and give reasons 17 germane to each witness for doing so.”). 18 Plaintiff’s daughter submitted a letter, dated October 16, 2019, in support of 19 plaintiff’s application. AR at 252. In the letter, Janet Z. stated that plaintiff 20 suffered from debilitating chronic pain. Id. She stated that plaintiff’s pain requires 21 him to “rest multiple times throughout the day” in order to ice his neck, back, and 22 shoulders, as well as stretch. Id. She further stated that plaintiff has difficulty 23 sleeping. Id. Janet Z. explained plaintiff has taken every measure to lessen his 24 pain, including surgeries, physical therapy, massage, dietary changes, and 25 chiropractic care. Id. 26 The ALJ discounted the letter because it offered few details regarding 27 plaintiff’s functional limitations. AR at 27. This was a germane reason for 28 21 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 22 of 23 Page ID #:729

1 rejecting the letter. An ALJ must consider lay testimony concerning a claimant’s 2 symptoms, but here, the letter does not provide sufficient detail. At most, Janet Z. 3 states plaintiff must rest multiple times a day due to pain. But Janet Z. does not 4 describe the frequency or length of plaintiff’s rests. And even if it was error for the 5 ALJ not to consider Janet Z.’s letter, the error was harmless because the letter cited 6 the same rest requirement as plaintiff stated in the Exertional Questionnaire, which 7 the ALJ discounted. See Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (if 8 a court gave clear and convincing reasons for discounting claimant’s testimony and 9 the lay testimony is similar, then the ALJ’s reasons apply equally to the lay 10 testimony); see AR at 211. 11 Accordingly, the ALJ properly considered the lay testimony. 12 V. 13 REMAND IS APPROPRIATE 14 The decision whether to remand for further proceedings or reverse and 15 award benefits is within the discretion of the district court. McAllister v. Sullivan, 16 888 F.2d 599, 603 (9th Cir. 1989). Typically, in accordance with the “ordinary 17 remand rule,” the reviewing court will remand to the Commissioner for additional 18 investigation or explanation upon finding error by the ALJ. Treichler v. Comm’r, 19 775 F.3d 1090, 1099 (9th Cir. 2014). Nonetheless, it is appropriate for the court to 20 exercise this discretion to direct an immediate award of benefits where: “(1) the 21 record has been fully developed and further administrative proceedings would 22 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 23 for rejecting evidence, whether claimant testimony or medical opinions; and (3) if 24 the improperly discredited evidence were credited as true, the ALJ would be 25 required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 26 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for 27 remanding with instructions to calculate and award benefits). But where there are 28 22 Case 8:20-cv-01924-SP Document 24 Filed 09/30/22 Page 23 of 23 Page ID #:730

1 || outstanding issues that must be resolved before a determination can be made, or it 2 || is not clear from the record that the ALJ would be required to find a plaintiff 3 || disabled if all the evidence were properly evaluated, remand for further 4 || proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th 5 || Cir. 2004); Harman vy. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, 6 || the court must “remand for further proceedings when, even though all conditions 7 || of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates 8 || serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 9 Here, remand is required to allow the ALJ to reconsider the opinions of Dr. 10 | Jason and Dr. Shahryar. On remand, the ALJ shall articulate how persuasive she 11 || finds these medical opinions, as well as the other medical opinions, and explain 12 || how she considered the supportability and consistency factors in reaching her 13 || findings. The ALJ shall then reassess plaintiff's RFC, and proceed through steps 14 || four and five to determine what work, if any, plaintiff was capable of performing. 15 VI. 16 CONCLUSION 17 IT IS THEREFORE ORDERED that Judgment shall be entered 18 || REVERSING the decision of the Commissioner denying benefits, and 19 | REMANDING the matter to the Commissioner for further administrative action 20 || consistent with this decision. 21 22 | DATED: September 30, 2022 CRP 23 24 Cinited States Magistrate Judge 25 26 27 28 23