1 2

3

4 5 6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8

9 10 VELVET L. J. K.,1 Case No. 5:23-cv-00054-MAR 11 Plaintiff, 12 v. MEMORANDUM AND ORDER

13 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 14 15 Defendant.

16

17 18 Plaintiff Velvet L. J. K. (“Plaintiff”) seeks review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner” or “Agency”) 20 denying her application for Title II Disability Insurance Benefits (“DIB”). The parties 21 have consented to the jurisdiction of the undersigned United States Magistrate Judge 22 pursuant to 28 U.S.C. § 636(c). 23 For the reasons stated below, the Commissioner’s decision is REVERSED, 24 and this action is REMANDED for further proceedings consistent with this Order. 25 /// 26 /// 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 I. 2 PROCEDURAL HISTORY 3 On January 22, 2020, Plaintiff protectively filed an application for DIB, alleging 4 a disability onset date of September 20, 2019. Administrative Record (“AR”) at 20, 5 233–38. Plaintiff’s application was denied initially on September 8, 2020, and upon 6 reconsideration on January 7, 2021. Id. at 20, 99–102, 117–23. She then requested a 7 hearing before an Administrative Law Judge (“ALJ”). Id. at 20, 138. 8 On September 8, 2021, Plaintiff, represented by counsel, and a vocational 9 expert (“VE”) testified telephonically2 at a hearing before the assigned ALJ. Id. at 39– 10 57. On October 6, 2021, the ALJ issued a decision denying the application. Id. at 17– 11 38. Plaintiff filed a request with the Agency’s Appeals Council to review the ALJ’s 12 decision, which the Council denied on September 6, 2022. Id. at 6–11. 13 On January 1, 2023, Plaintiff filed the instant action. ECF Docket No. 14 (“Dkt.”) 1. On April 13, 2023, Plaintiff filed a Motion for Summary Judgement (“Pl. 15 MSJ”). Dkt. 12. Defendant filed an Opposition and Cross-Motion for Summary 16 Judgement (“Def. MSJ”) on May 15, 2023. Dkt. 18. 17 II. 18 PLAINTIFF’S BACKGROUND 19 Plaintiff was forty-eight (48) years old on the alleged disability onset date and 20 fifty (50) years old at the time of the administrative hearing.3 AR at 32, 58. Plaintiff 21 has a master’s degree. Id. at 44. She has prior work history for seventeen (17) years 22 as an employment program representative for the California Employment 23 Development Department (“EDD”). Id. at 32, 44–45, 261–62. She alleges disability 24

25 2 The hearing was conducted telephonically due to the Coronavirus Disease of 2019 (“COVID-19”) pandemic. AR at 20, 41. 26 3 Accordingly, Plaintiff was considered a “younger person” on her alleged onset date, and “closely 27 approaching advanced age” at the hearing. AR at 32, 35, 59; see Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1069 (9th Cir. 2010) (explaining that social security regulations define 1 based on: (1) manic depression; (2) fibromyalgia, and; (3) rheumatoid arthritis. Id. at 2 43, 49, 254. 3 III. 4 STANDARD FOR EVALUATING DISABILITY 5 To qualify for benefits, a claimant must demonstrate a medically determinable 6 physical or mental impairment that prevents her from engaging in substantial gainful 7 activity, and that is expected to result in death or to last for a continuous period of at 8 least twelve (12) months. 42 U.S.C. § 423 (d)(1)(a); Reddick v. Chater, 157 F.3d 715, 9 721 (9th Cir. 1998). The impairment must render the claimant incapable of 10 performing the work she previously performed and incapable of performing any other 11 substantial gainful employment that exists in the national economy. 42 U.S.C. 12 § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 13 To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ 14 conducts a five-step inquiry. Ford v. Saul, 950 F.3d 1141, 1148–49 (9th Cir. 2020); 20 15 C.F.R. § 404.1520. The steps are: 16 (1) Is the claimant presently engaged in substantial gainful activity? If so, 17 the claimant is found not disabled. If not, proceed to step two. 18 (2) Is the claimant’s impairment severe? If not, the claimant is found not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant’s impairment meet or equal one of the specific 21 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? 22 If so, the claimant is found disabled. If not, proceed to step four.4 23 (4) Is the claimant capable of performing work she has done in the past? 24 If so, the claimant is found not disabled. If not, proceed to step five. 25

26 4 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s 27 [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222–23 (9th Cir. 2009) (citing 20 C.F.R. 1 (5) Is the claimant able to do any other work? If not, the claimant is found 2 disabled. If so, the claimant is found not disabled. 3 See Tackett, 180 F.3d at 1098–99; see also 20 C.F.R. § 404.1520(b)–(g)(1); Bustamante 4 v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001). 5 The claimant has the burden of proof at steps one through four, and the 6 Commissioner has the burden of proof at step five. Ford, 950 F.3d at 1148; 7 Bustamante, 262 F.3d at 953–54. Additionally, the ALJ has an affirmative duty to 8 assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, 9 at step four, the claimant meets her burden of establishing an inability to perform past 10 work, the Commissioner must show that the claimant can perform some other work 11 that exists in “significant numbers” in the national economy, taking into account the 12 claimant’s residual functional capacity (“RFC”), age, education, and work experience. 13 20 C.F.R. § 404.1520(g)(1); Tackett, 180 F.3d at 1098–99, 1100; Reddick, 157 F.3d at 14 721. 15 IV. 16 THE ALJ’S DECISION 17 A. STEP ONE 18 At step one, the ALJ found that Plaintiff had not “engaged in substantial 19 gainful activity since September 20, 2019, the alleged onset date[.]” AR at 22. 20 B. STEP TWO 21 At step two, the ALJ found that Plaintiff had “the following severe 22 impairments: bilateral shoulder impingement syndrome; bilateral carpel tunnel 23 syndrome; degenerative disc disease of the lumbar spine with stenosis and 24 radiculopathy; fibromyalgia; chronic pain syndrome; obesity; myofascial pain 25 syndrome; cervical spine degenerative disc disease; cervical facet syndrome; mood 26 disorder; generalized anxiety disorder; major depressive disorder; panic disorder; and 27 Covid-19[.]” AR at 22–23. 1 C. STEP THREE 2 At step three, the ALJ found that Plaintiff did not “have an impairment or 3 combination of impairments that meets or medically equal[s] the severity of one of 4 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” AR at 23–25. 5 D. RFC DETERMINATION 6 The ALJ found that Plaintiff had the RFC to perform light work,5 except: 7 [S]he must be allowed to stand up to 5 minutes after every 30 minutes of sitting, and to sit down up to 5 minutes after every 30 minutes of standing, 8 while remaining on task. She can frequently operate hand controls, reach, 9 push, pull, handle, finger, and feel with both upper extremities. She can occasionally push or pull or operate foot controls with both lower 10 extremities. She can occasionally kneel, crouch, stoop, balance, and crawl, 11 as defined in the SCO, and can occasionally climb stairs and ramps. She can never climb ladders, ropes, and scaffolds, and can never be exposed 12 to unprotected heights and moving mechanical parts. She can tolerate 13 occasional exposure to vibration. In addition, [Plaintiff] is able to understand, carry-out, and remember simple instructions, and make 14 simple work-related decisions. She can occasionally deal with supervisors 15 and co-workers, and can never deal with the public. She can occasionally deal with changed in a routine work setting. 16 AR at 25–31. 17

E. STEP FOUR

18 At step four, the ALJ found that Plaintiff was “unable to perform any past 19 relevant work[.]” AR at 32. 20 /// 21 /// 22 23 5 “Light work” is defined as: 24 [L]ifting no more than 20 pounds at a time with frequent lifting or carrying of objects 25 weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves 26 sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must 27 have the ability to do substantially all of these activities. 1 F. STEP FIVE 2 At step five, the ALJ found that, “considering [Plaintiff’s] age, education, work 3 experience, and [RFC], there are jobs that exist in significant numbers in the national 4 economy that [Plaintiff] can perform.” AR at 32. With the assistance of the VE’s 5 testimony, the ALJ found that Plaintiff would be able to perform occupations such as 6 routing clerk, assembler, and price marker. Id. at 32–33. Accordingly, the ALJ 7 concluded that Plaintiff “has not been under a disability, as defined in the Social 8 Security Act, From September 20, 2019. Through the date of [the ALJ] decision[.]” 9 Id. at 33. 10 V. 11 PLAINTIFF’S CLAIMS 12 Plaintiff presents two (2) disputed issues: (1) whether the ALJ’s evaluation 13 of Plaintiff’s subjective symptoms was legally sufficient; and (2) whether the ALJ’s 14 evaluation of the medical evidence was legally sufficient.6 Pl. MSJ at 4. 15 VI. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner’s 18 decision to deny benefits. The ALJ’s findings and decision should be upheld if they 19 are free of legal error and supported by substantial evidence based on the record as a 20 whole. Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 21 746 (9th Cir. 2007). 22 “Substantial evidence” is evidence that a reasonable person might accept as 23 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 24 Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). It 25 is more than a scintilla but less than a preponderance. Id. To determine whether 26 27 6 The Court finds the second issue dispositive of this matter and thus declines to address the remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the 1 substantial evidence supports a finding, the reviewing court “must review the 2 administrative record as a whole, weighing both the evidence that supports and the 3 evidence that detracts from the Commissioner’s conclusion.” Reddick, 157 F.3d at 4 720; see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (“[A] reviewing court 5 . . . may not affirm simply by isolating a ‘specific quantum of supporting evidence’”) 6 (quoting Robbins, 466 F.3d at 882). “If the evidence can reasonably support either 7 affirming or reversing,” the reviewing court “may not substitute its judgment” for that 8 of the Commissioner. Reddick, 157 F.3d at 720–21; see also Molina v. Astrue, 674 9 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than 10 one rational interpretation, we must uphold the ALJ’s findings if they are supported 11 by inferences reasonably drawn from the record.”), superseded by regulation on other 12 grounds as stated in Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). 13 The reviewing court may review only the reasons stated by the ALJ in the 14 decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 15 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 16 considered harmless if it is “clear from the record” that the error was “inconsequential 17 to the ultimate nondisability determination.” Robbins, 466 F.3d at 885 (citation 18 omitted). 19 VII. 20 DISCUSSION 21 A. THE ALJ ERRED BY FAILING TO CONSIDER ALL OF THE 22 MEDICAL OPINION EVIDENCE 23 1. Relevant facts and decision 24 a. Medical opinions 25 Plaintiff contends that the ALJ either wholly failed to consider or improperly 26 rejected the following medical opinions simply because they saw Plaintiff in the 27 context of a worker’s compensation claim. Pl. MSJ at 8–10. 1 (1) Dr. Tabibian 2 Dr. Tabibian saw Plaintiff for follow-up evaluations at least six (6) times from 3 September 2018 to October 2019. 7 AR at 1460–1508; 1942–66. On October 21, 4 2019—his most recent visit with Plaintiff in the record—Dr. Tabibian noted, among 5 other things, impressions of unspecified sprains of both wrists and ligaments of the 6 lumbar spine, carpal tunnel syndrome on both sides, and generalized anxiety disorder. 7 Id. at 1944. Dr. Tabibian requested home care assistance to help with Plaintiff’s 8 personal hygiene, for two hours per day for six months; Dr. Tabibian found this care 9 was justified because Plaintiff’s need for assistance from her family was “further 10 diminishing her sense of self-esteem.”8 Id. at 1945. Dr. Tabibian concluded that 11 Plaintiff was temporarily totally disabled, and could later return to modified duty with 12 the following restrictions: (1) no heavy pushing, pulling, lifting, or carrying over ten 13 pounds; (2) avoid bending, stooping, twisting, turning, squatting and crouching 14 frequently; (3) ability to sit or stand as needed to mitigate pain; (4) restricted from 15 repetitive gripping, grasping, squeezing, pinching, holding, and torquing using both 16 arms; (5) avoid repetitive/frequent hand motions; (6) should type only for ten minutes 17 per hour, followed by fifty minutes of non-typing or writing work duty; (7) limited 18 driving to twenty minutes one way twice a day; and (8) allowed to work remotely from 19 home. Id. at 1945–46. He noted that these are considered to be permanent work 20 restrictions. Id. at 1946. 21 /// 22 /// 23

24 7 While October 2019 was the date of the last report in the record from Dr. Tabibian, the record 25 suggests that there were further visits. Dr. Ganjianpour and Dr. Lee note that their May 2020 report was made at the request of Dr. Tabibian, and they defer to him for formal work recommendations. 26 AR at 2588. Dr. Greils also refers to a December 2, 2019 report from Dr. Tabibian. Id. at 2542. 27 8 Dr. Tabibian found that this care was justified, in part, “as per AME, Dr. Greils, report dated 2/14/19;” in his report, in addition to recommending homecare, Dr. Greils references a 2016 report 1 (2) Dr. Ganjianpour9 2 At the request of Dr. Tabibian, on May 11, 2020, Dr. Ganjianpour and Dr. Lee 3 saw Plaintiff for an “Orthopedic Examination.” AR at 2587–89. Due to the 4 COVID-19 pandemic, the visit was conducted via telemedicine conference—they 5 performed a physical examination by instructing Plaintiff to perform certain tasks and 6 evaluate her function. Id. at 2587–88. They deferred to Dr. Tabibian as the treating 7 physician for formal work recommendations, but recommended that Plaintiff avoid 8 repetitive at or above shoulder level work and lifting over ten (10) pounds on the right 9 side. Id. at 2588. 10 (3) Dr. Greils 11 On February 28, 2020 Dr. Greils submitted a supplemental psychiatric report 12 regarding Plaintiff’s worker’s compensation claim. AR at 2539–50. Previously, he 13 submitted an initial report in March 2018, a re-evaluation in February 2019, and a 14 supplemental record review in December 2019. Id. at 2351–84. Dr. Greils reviewed 15 and summarized Plaintiff’s records dating back to at least 2008. Id. at 2540–48. In 16 his most recent report, Dr. Greils provided a “final percentage of permanent disability 17 ratings” using the AMA Guides, fifth edition. Id. at 2540, 2548. 18 (4) Dr. Levine 19 On August 8, 2018, Dr. Levine saw Plaintiff for a “Medical Evaluation in 20 Rheumatology.” AR at 1291. Dr. Levine’s report is based on a two-hour physical 21 examination of Plaintiff, and a review of Plaintiff’s medical records dating back to 22 2009. Id. at 1291–1328. Dr. Levine confirmed her previous diagnosis of 23 fibromyalgia. Id. at 1329–30. In a discussion of his findings, Dr. Levine provided a 24 “total whole person impairment” percentage based on the AMA Guides, fifth edition, 25

26 9 This report is signed by both Dr. Ganjianpour and Dr. Lee, and notes that, while Dr. Lee assisted 27 in evaluation and report preparation as designated by Dr. Ganjianpour, “all decisions related to surgery and medications are reviewed, recommended, and prescribed by Dr. Mark Ganjianpour, 1 and concluded that Plaintiff has a permanent disability limiting her to semi-sedentary 2 work, which would allow her to sit and stand at will. Id. at 1330–42. He stated that 3 he “did not pick disability resulting in limitation to light work as this contemplates 4 that [Plaintiff] can do work in a standing or walking position with a minimum of 5 demands for physical effort. This could be construed a[s] requiring a patient like this 6 to stand or walk for an entire day. She is not capable of such physical exertion.” Id. 7 at 1336. Additionally, Dr. Levine concluded that Plaintiff would need help with 8 heavier household chores, such as getting down on her hands and knees to clean 9 bathrooms, doing heavier vacuuming or sweeping, and cleaning windows. Id. at 1340. 10 b. ALJ’s decision 11 In the ALJ’s discussion of the medical opinion evidence, he summarized and 12 discussed the opinions of: (1) state medical consultant, Dr. A. Khan; (2) state medical 13 consultant, Dr. E. Steinsapir; (3) state psychological consultant, Dr. Anna M. Franco; 14 (4) state psychological consultant, Dr. Pamela Hawkins; (5) Plaintiff’s treating 15 physician, Dr. B. Sam Tabibian; (6) Plaintiff’s treating physician, Dr. Gennady 16 Musher; (7) Plaintiff’s treating physician, Dr. Mark Ganjianpour; and (8) psychological 17 consultative examiner, Dr. Margaret Donohue. AR at 28–31. Regarding the opinions 18 of Dr. Tabibian, Dr. Musher, and Dr. Ganjianpour, the ALJ explained that he 19 considered them to be of limited persuasiveness because they were “created in the 20 context of [Plaintiff’s] worker’s compensation case and the disability ratings were 21 made as a part of a separate program, using unknown criteria.” Id. at 30–31. The 22 ALJ did not mention Dr. Greils and Dr. Levine’s opinions. 23 2. Applicable law 24 For claims filed on or after March 27, 2017, new regulations apply that change 25 the framework for how an ALJ must evaluate medical opinion evidence. Revisions to 26 Rules Regarding Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 27 5844–01 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The new regulations provide the ALJ 1 any medical opinion(s) or prior administrative medical finding(s), including those 2 from [a claimant’s] medical sources.” Revisions to Rules, 2017 WL 168819, 82 Fed. 3 Reg. 5844-01, at 5867–68; see also 20 C.F.R. § 404.1520c(a). 4 Instead, an ALJ must consider and evaluate the persuasiveness of all medical 5 opinions or prior administrative medical findings. 20 C.F.R. § 404.1520c(b). Medical 6 opinion evidence10 is defined as “a statement from a medical source about what 7 [Plaintiff] can still do despite [her] impairment[s] and whether [she] ha[s] one or more 8 impairment-related limitations or restrictions in the following abilities: . . . 9 perform[ing] physical demands of work activities, such as sitting, standing, walking, 10 lifting, carrying, pushing, pulling, or other physical functions (including manipulative 11 or postural functions, such as reaching, handling, stooping, or crouching)[.]”11 20 12 C.F.R § 1513(a)(2). The factors for evaluating the persuasiveness of medical opinions 13 and prior administrative medical findings include: supportability, consistency, 14 relationship with claimant (including length of the treatment, frequency of 15 examinations, purpose of the treatment, extent of the treatment relationship, and 16 examining relationship), specialization, and “other factors that tend to support or 17 contradict a medical opinion or prior administrative medical finding” (including, but 18 not limited to, “evidence showing a medical source has familiarity with the other 19 evidence in the claim or an understanding of [the Agency’s] disability program’s 20 policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 21 22

23 10 Other categories of medical evidence are: (1) objective medical evidence: “medical signs, laboratory findings, or both,” and (2) other medical evidence: “evidence from a medical source that 24 is not objective medical evidence or a medical opinion, including judgements about the nature and severity of [Plaintiff’s] impairments, [] medical history, clinical findings, diagnosis, treatment 25 prescribed with response, or prognosis.” 20 C.F.R § 404.1513(a)(1), (3)–(4). 26 11 Physical demands are most relevant in this case, but the following are also listed: (1) “ability to perform mental demands of work activities, such as understanding; remembering; maintaining 27 concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;” (2) “ability to perform other demands 1 Supportability and consistency are the most important factors, and therefore, 2 the ALJ is required to explain how both factors were considered. 20 C.F.R. 3 § 404.1520c(b)(2). Supportability and consistency are explained in the regulations as 4 follows:

5 (1) Supportability. The more relevant the objective medical evidence 6 and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical 7 finding(s), the more persuasive the medical opinions or prior 8 administrative medical finding(s) will be.

9 (2) Consistency. The more consistent a medical opinion(s) or prior 10 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the 11 medical opinion(s) or prior administrative finding(s) will be. 12 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain 13 how “the factors in paragraphs (c)(3) through (c)(5),” i.e. “[r]elationship with the 14 claimant,” “[s]pecialization,” and “other factors that tend to support or contradict a 15 medical opinion or prior administrative medical finding,” were considered. 20 C.F.R. 16 § 404.1520c(b)(2). However, when two (2) or more medical opinions or prior 17 administrative findings “about the same issue are both equally well-supported . . . and 18 consistent with the record . . . but are not exactly the same,” the ALJ is required to 19 explain how “the other most persuasive factors” were considered. 20 C.F.R. 20 § 404.1520c(b)(3). 21 Finally, in fashioning a claimant’s RFC, an ALJ must consider all relevant 22 evidence in the record, including medical records, lay evidence, and “the effects of 23 symptoms, including pain, that are reasonably attributable to the medical condition.” 24 Robbins, 466 F.3d at 883 (citation omitted). An ALJ is not obligated to discuss 25 “every piece of evidence” when interpreting the evidence and developing the record, 26 see Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation 27 1 assessed by the doctor, see Fox v. Berryhill, 2017 WL 3197215, at *5 (C.D. Cal. July 2 27, 2017); Howard, 341 F.3d at 1012. However, an ALJ must discuss significant and 3 probative evidence that is contrary to the ALJ’s findings and explain why it has been 4 rejected. See Robbins, 466 F.3d at 883; Vincent v. Heckler, 739 F.2d 1393, 1395 (9th 5 Cir. 1984) (“[the ALJ] must explain why “significant probative evidence has been 6 rejected””) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)). 7 3. Analysis 8 Plaintiff contends that the ALJ erred by: (1) rejecting the opinions of Dr. 9 Ganjianpour and Dr. Tabibian simply because they saw Plaintiff in the context of a 10 worker’s compensation claim, and (2) wholly failing to consider the opinions of Dr. 11 Levine and Dr. Greils, which the doctors made just prior to Plaintiff’s alleged onset 12 date. Pl. MSJ at 8–10. 13 The Court largely agrees, with one minor caveat as to Dr. Greils’s report. 14 a. Dr. Greils’s report is not medical opinion evidence 15 The Court notes that, in his reports, Dr. Greils summarizes Plaintiff’s past 16 medical records and provides a disability rating for worker’s compensation, but he 17 does not discuss any restrictions or what Plaintiff can still do regarding work-related 18 activities. AR at 2539–84. Medical opinion evidence must discuss Plaintiff’s 19 restrictions in things like her ability to perform physical or mental demands of work 20 activities. 20 C.F.R § 1513(a)(2). Accordingly, Dr. Greils’s report does not constitute 21 medical opinion evidence. 22 The Ninth Circuit has held that an ALJ is required to consider all medical 23 opinions in the record and has construed this rule to include opinions that predate the 24 alleged onset date. 20 C.F.R. § 404.1520c(b); Tommasetti v. Astrue, 533 F.3d 1035, 25 1041 (9th Cir. 2008) (“The ALJ must consider all medical opinion evidence.”); see 26 also Williams v. Astrue, 493 Fed. Appx. 866, 868 (9th Cir. 2012) (ALJ erred by silently 27 disregarding medical opinions that predated alleged disability onset date). “Thus, 1 opinion more or less weight, a medical opinion is not insignificant or not probative 2 merely because it is rendered prior to an alleged onset date, particularly in cases where 3 the claimant suffers from an ongoing impairment.” Henderson v. Comm’r, SSA, No. 4 6:17-cv-00481-HZ, 2018 WL 2102401, at *9 (D. Or. May 4, 2018). However, the 5 Ninth Circuit and other courts have indicated ALJ is not necessarily required to 6 consider non-opinion medical evidence that predates the alleged onset date. 7 Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1164–65 (9th Cir. 2008) 8 (indicating that evidence from “well before” the alleged onset date is not probative); 9 Davis v. Colvin, Case No. 6:14-cv-06373 (MAT), 2016 WL 368009, at *2 (W.D. N.Y. 10 Feb. 1, 2016) (citing Brogan-Dawley v. Astrue, 484 F. App’x 632, 633 (2d Cir. 2012)) 11 (concluding that the ALJ was not required to, but may consider evidence predating 12 the relevant time period if that evidence clearly relates to Plaintiff’s condition during 13 the relevant period); Vargas v. Kijakazi, Case No. 20-cv-5927, 2022 WL 3099768, at 14 *7 (E.D. Pa. Aug. 4, 2022) (holding that the ALJ is not obligated to consider medical 15 records dating back to a time when disability would not have been paid, but must 16 consider all medical opinions on the record). Accordingly, given that Dr. Greils’s 17 report predated the alleged onset date and is not medical opinion evidence, it is 18 unclear whether the ALJ was necessarily required to consider it. 19 Still, as discussed below, the ALJ clearly erred by failing to consider Dr. 20 Levine’s opinion and by improperly rejecting Dr. Tabibian’s and Dr. Ganjianpour’s 21 opinions. 22 b. Dr. Levine’s opinion is medical opinion evidence and the 23 ALJ erred by failing to consider it 24 In contrast to Dr. Greils’s report, Dr. Levine’s report explicitly restricts 25 Plaintiff to semi-sedentary work where she may sit and stand at will. AR at 1336. Dr. 26 Levine notes that he did not choose light work because that might involve the person 27 standing or walking for an entire eight (8) hour day, and Plaintiff is not capable of that 1 Levine’s fifty (50) page report which discusses Plaintiff’s “subjective factors of 2 disability” for worker’s compensation, and states that this page “does not contain any 3 medical opinion as defined in 20 C.F.R. § 404.1513(a)(2)[.]” Def. MSJ at 3 n.1. 4 However, given the above restriction discussed in his report, the Court disagrees with 5 the Commissioner—Dr. Levine’s report is clearly medical opinion evidence. 6 As noted above, even after the regulatory changes, an ALJ may not completely 7 ignore a medical opinion, even if it predates the alleged onset date. See 20 C.F.R. § 8 404.1520c(b) (“We will articulate in our determination or decision how persuasive we 9 find all of the medical opinions . . . in [the] case record.” (emphasis added)); 10 Tommasetti, 533 F.3d at 1041; Williams, 493 Fed. at 868; see also Kevin H. v. 11 Kijakazi, Case No. 2:20-CV-00238 (FVS), 2021 WL 4221612, *6 (E.D. Wash. Sept. 12 15, 2021) (“[I]t is still incumbent upon the ALJ to consider all of the medical opinion 13 evidence properly under the new regulations.”). Accordingly, regardless of whether 14 the ALJ erred by failing to consider Dr. Greils’s report, the ALJ erred by wholly 15 failing to consider the medical opinion evidence contained in Dr. Levine’s report. 16 c. The ALJ erred by failing to discuss significant and probative 17 evidence contained in Dr. Levine’s, Dr. Ganjianpour’s, and 18 Dr. Tabibian’s opinions 19 The Commissioner argues that the ALJ correctly declined to consider Dr. 20 Tabibian’s and Dr. Ganjianpour’s opinions because they made conclusions in the 21 workers’ compensation context. Def. MSJ at 9 (“Social Security adjudicators ‘will not 22 provide any analysis in our determination or decision about a decision made by any 23 other governmental agency or a nongovernmental entity about whether you are 24 disabled, blind, employable, or entitled to any benefits’”) (quoting 20 C.F.R. § 25 404.1504); (“Even under the prior version of the regulations (that do not apply here), 26 worker’s compensation terms ‘are not conclusive in a social security case’”) (quoting 27 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996)). However, Plaintiff is not arguing 1 is disabled; Plaintiff simply argues that the ALJ was required to consider the medical 2 opinion evidence contained in the doctors’ determinations. 3 In fact, directly following the sentence the Commissioner cites, the Code of 4 Federal Regulations states, “[h]owever, we will consider all of the supporting evidence 5 underlying the other governmental agency or nongovernmental entity’s decision that 6 we receive as evidence in your claim[.]” 20 C.F.R. 404.1504. Indeed, courts in this 7 district have held that “an ALJ may not disregard a medical opinion simply because it 8 was generated for a workers’ compensation case, or it used workers’ compensation 9 terminology. Instead, an ALJ must evaluate any objective medical findings in such 10 opinions ‘just as he or she would [for] any other medical opinion.’” Cohen v. 11 Berryhill, Case No. CV 17-7984 (JC), 2019 WL 483321, at *6 (C.D. Cal. Feb. 6, 2019) 12 (quoting Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002)) (citation 13 omitted). Accordingly, the fact that these opinions were formed in the worker’s 14 compensation context did not relieve the ALJ of their duty to consider them. 15 Indeed, regardless of the fact that the opinions were made in the worker’s 16 compensation context, the findings in Dr. Levine, Dr. Ganjianpour, and Dr. 17 Tabibian’s opinions were significant and probative, and, in part, conflicted with the 18 ALJ’s findings. For example, as detailed above, Dr. Levine limited Plaintiff to semi- 19 sedentary work where she may sit and stand at will, and Dr. Tabibian noted that she 20 should sit and stand as needed to mitigate pain; both of these conclusions conflict 21 with the ALJ’s formulation of light-work RFC and the ALJ’s finding that Plaintiff 22 could work if she were allowed to stand up for five (5) minutes for every thirty (30) 23 minutes of sitting, and sit down for five (5) minutes for every thirty (30) minutes for 24 standing. AR at 25, 1336, 1946. Dr. Tabibian also restricted Plaintiff from repetitive 25 gripping, grasping, squeezing, pinching, holding, and torquing using both arms, and 26 noted that she should avoid repetitive/frequent hand motions, which conflicts with 27 the ALJ’s RFC determination that Plaintiff can “frequently operate hand controls, 1 1946. The Commissioner attempts to downplay the probative value of Dr. Tabibian’s 2 assessments, by arguing that they were, by their own terms, temporary, and did not 3 bear on Plaintiff’s long-term RFC finding. Def. MSJ at 9. However, Dr. Tabibian 4 explicitly noted that the restrictions he listed “are considered to be permanent work 5 restrictions.” AR at 1946. 6 The ALJ was not required to accept these opinions. However, the ALJ failed 7 to even mention Dr. Levine’s opinion, and rejected Dr. Ganjianpour’s and Dr. 8 Tabibian’s opinions outright, solely because they were made in the workers’ 9 compensation context—as discussed above, without more, this was not a proper basis 10 to refuse to consider the opinion evidence. Accordingly, by failing to explain why 11 they rejected the significant and probative evidence in Dr. Ganjianpour or Dr. 12 Tabibian’s opinion that conflicted with their findings—and by failing to even mention 13 Dr. Levine’s opinion—the ALJ clearly erred. See Robbins, 466 F.3d at 883; Flores v. 14 Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995) (as amended) (“We have made it . . . clear 15 that, in reaching her decision, the Secretary may not reject ‘significant probative 16 evidence’ without explanation.” (citing Vincent, 739 F.2d at 1395)); Jeremy P. M. v. 17 Comm’r of Soc. Sec., Case No. 3:20-cv-01042 (BR), 2021 WL 3099921, at *3 (D. Or. 18 July 22, 2021) (“[T]he Commissioner must consider all medical opinions and ‘evaluate 19 their persuasiveness’ based on ‘supportability’ and ‘consistency’ using the factors 20 specified in the regulations.” (citation omitted)). 21 4. Harmlessness 22 The ALJ’s error is not harmless. A decision of the ALJ will not be reversed for 23 errors that are harmless. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 24 (9th Cir. 2006) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 25 However, a reviewing court cannot consider an error harmless “unless it can 26 confidently conclude that no reasonable ALJ . . . could have reached a different 27 disability determination.” Id. at 1056. In other words, legal errors are harmless only if 1 Here, the ALJ’s conclusion that Plaintiff could perform light work and was 2 therefore not disabled, as well as the ALJ’s rejection of Plaintiff’s symptom testimony, 3 were based on an incomplete record due to the ALJ’s failure to consider multiple 4 medical opinions. The Court cannot confidently conclude that this failure was 5 inconsequential to the ultimate disability determination. See Cohen, 2019 WL 6 483321, at *8. Accordingly, the ALJ’s error was not harmless. 7 VIII. 8 RELIEF 9 A. APPLICABLE LAW 10 “When an ALJ’s denial of benefits is not supported by the record, ‘the proper 11 course, except in rare circumstances, is to remand to the agency for additional 12 investigation or explanation.’” Hill, 698 F.3d at 1162 (citation omitted). “We may 13 exercise our discretion and direct an award of benefits ‘where no useful purpose 14 would be served by further administrative proceedings and the record has been 15 thoroughly developed.’” Id. (citation omitted). “Remand for further proceedings is 16 appropriate where there are outstanding issues that must be resolved before a 17 determination can be made, and it is not clear from the record that the ALJ would be 18 required to find the claimant disabled if all the evidence were properly evaluated.” Id.; 19 see also Reddick, 157 F.3d at 729 (“We do not remand this case for further 20 proceedings because it is clear from the administrative record that Claimant is entitled 21 to benefits.”). 22 B. ANALYSIS 23 Here, the Court concludes remand for further proceedings is warranted. As 24 noted, the ALJ’s assessment of the medical opinion evidence is intertwined with other 25 issues raised in the Motion for Summary Judgement, including his consideration of 26 Plaintiff’s testimony. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 27 (“Because we remand the case to the ALJ for the reasons stated, we decline to reach 1 | F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (““[The] Court need not address the other 2 | claims plaintiff raises, none of which would provide plaintiff with any further relief 3 | than granted, and all of which can be addressed on remand.”); Vaughn v. Berryhill, 4 | 242 F. Supp. 3d 998, 1010 (E.D. Cal. 2017) (dispensing of exhaustive analysis of 5 | plaintiff's remaining issues because the AL]’s evaluation of medial opinion evidence 6 | and claimant’s testimony were “‘inescapably linked”). Because it is unclear, 7 | considering these issues, whether Plaintiff is in fact disabled, the Court REMANDS 8 | on an “open record.” See Brown-Hunter, 806 F.3d at 495; Bunnell v. Barnhart, 336 9 | P.3d 1112, 1115-16 9th Cir. 2003). The parties may freely take up all issues raised in 10 | the Motion for Summary Judgement, and any other issues relevant to resolving 11 | Plaintiffs claim of disability, before the AL]. 12 IX. 13 CONCLUSION 14 Por the foregoing reasons, IT IS ORDERED that judgment be entered 15 | REVERSING the decision of the Commissioner and REMANDING this action 16 | for further proceedings consistent with this Order. IT IS FURTHER ORDERED 17 | that the Clerk of the Court serve copies of this Order and the Judgment on counsel 18 | for both parties.

20 | Dated: August 4, 2023

FIONORABLE MARGO A. ROGCONT

United States Magistrate Judge 22 23 24 25 26 27 28