1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID PETRINO, Case No. 1:20-cv-01111-HBK 12 Plaintiff, OPINION AND ORDER AFFIRMING THE

COMMISSIONER 2

13 v. (Doc. Nos. 17, 18) 14 KILOLO KIJAKAZI,

COMMISSIONER OF SOCIAL

15 SECURITY,1 16 Defendant. 17 18 David Petrino (“Plaintiff”), seeks judicial review of a final decision of the Commissioner 19 of Social Security (“Commissioner” or “Defendant”) denying his application for disability 20 insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently before the 21 Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 17, 18). 22 For the reasons stated, the Court affirms the Commissioner’s decision. 23 I. JURISDICTION 24 Plaintiff protectively filed for supplemental security income on December 5, 2017, 25 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social 26 Security. (See Doc. 1 at 1). The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of Social Security, as the defendant. See Fed. R. Civ. P. 25(d). 27 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 19). 1 alleging an onset date of April 1, 2017. (AR 165-68). Benefits were denied initially (AR 100-04) 2 and upon reconsideration (AR 108-12). Plaintiff appeared for a hearing before an administrative 3 law judge (“ALJ”) on May 28, 2019. (AR 37-71). Plaintiff testified at the hearing and was 4 represented by counsel. (Id.). The ALJ denied benefits (AR 12-36) and the Appeals Council 5 denied review (AR 1). The matter is now before this court pursuant to 42 U.S.C. § 1383(c)(3). 6 II. BACKGROUND 7 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 8 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 9 summarized here. 10 Plaintiff was 43 years old at the time of the hearing. (See AR 180). He graduated from 11 high school and a culinary academy. (AR 185). Plaintiff lived with a roommate. (AR 63). He 12 has a work history as a bank teller, pastry cook, inventory clerk, general office clerk, and medical 13 insurance or billing clerk. (AR 43-53, 65-66). Plaintiff testified that he can no longer work 14 because of fatigue, pain, weakness, and lack of coordination. He reported that doing “anything 15 for more than 20 minutes” requires him to lay down, and his right leg has been completely numb 16 for two years. (AR 54). Plaintiff testified that he regained “quite a bit” of use of his right arm 17 after physical therapy, but still struggles with dexterity and has to do things slowly. (AR 60-61). 18 He has trouble focusing, feels overwhelmed, gets easily frustrated, and does not want to see 19 anybody. (AR 61-64). 20 III. STANDARD OF REVIEW 21 A district court’s review of a final decision of the Commissioner of Social Security is 22 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 23 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 24 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 25 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 26 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 27 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 28 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 1 consider the entire record as a whole rather than searching for supporting evidence in isolation. 2 Id. 3 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 4 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 5 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 6 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 7 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 8 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 9 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 10 U.S. 396, 409-10 (2009). 11 IV. SEQUENTIAL EVALUATION PROCESS 12 The Commissioner has established a multi-step sequential evaluation process for 13 determining whether a person's disability has ended. 20 C.F.R. §§ 404.1594(f), 416.994(b)(5). 14 This multi-step continuing disability review process is similar to the five-step sequential 15 evaluation process used to evaluate initial claims, with additional attention as to whether there has 16 been medical improvement. Compare 20 C.F.R. § 404.1520 and 416.920 with § 404.1594(f) and 17 416.994(b)(5), respectively. A claimant is disabled only if his impairment is “of such severity 18 that he is not only unable to do his previous work[,] but cannot, considering his age, education, 19 and work experience, engage in any other kind of substantial gainful work which exists in the 20 national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 21 Determination of whether a person's eligibility has ended for disability benefits involves 22 an eight-step process under Title II and a seven-step process under Title XVI. 20 C.F.R. § 23 404.1594(f). The Title XVI process is identical to the Title II process, except for the 24 consideration of substantial gainful activity at the beginning of the disability insurance process 25 and not during the Title XVI process. These otherwise identical steps are broadly summarized as 26 follows. 27 The first step addresses whether the claimant is engaging in substantial gainful activity. 28 20 C.F.R. §§ 404.1594(f)(1). If not, step two determines whether the claimant has an impairment 1 or combination of impairments that meet or equal the severity of listed impairments set forth at 20 2 C.F.R. pt. 404, subpt. P, app. 1. 20 C.F.R. § 404.1594(f)(2). If the impairment does not equal a 3 listed impairment, the third step addresses whether there has been medical improvement in the 4 claimant's condition. 20 C.F.R. § 404.1594(f)(3). Medical improvement is “any decrease in the 5 medical severity” of the impairment that was present at the time the individual was disabled or 6 continued to be disabled. 20 C.F.R. § 404.1594(b)(1). If there has been medical improvement, at 7 step four, a determination is made whether such improvement is related to the claimant's ability to 8 perform work—that is, whether there has been an increase in the individual's residual functional 9 capacity. 20 C.F.R. § 404.1594(f)(4). If the answer to step four is yes, the Commissioner skips to 10 step six and inquires whether all of the claimant's current impairments in combination are severe. 11 If there has been no medical improvement or medical improvement is not related to the 12 claimant's ability to work, the evaluation proceeds to step five. At step five, consideration is 13 given to whether the case meets any of the special exceptions to medical improvement for 14 determining that disability has ceased. 20 C.F.R. § 404.1594(f)(5). At step six, if medical 15 improvement is shown to be related to the claimant's ability to work, a determination will be 16 made to assess whether the claimant's current impairments in combination are severe—that is, 17 whether they impose more than a minimal limitation on his physical or mental ability to perform 18 basic work activities. 20 C.F.R. § 404.1594(f)(6). If the answer to that inquiry is yes, at step 19 seven the ALJ must determine whether the claimant can perform past relevant work. 20 C.F.R. § 20 404.1594(f)(7); see also SSR 82-61, available at 1982 WL 31387. 21 Finally, at step eight, if the claimant cannot perform past relevant work, a limited burden 22 of production shifts to the Commissioner to prove there is alternative work in the national 23 economy that the claimant can perform given his age, education, work experience, and residual 24 functional capacity. 20 C.F.R. § 404.1594(f)(8). If the claimant cannot perform a significant 25 number of other jobs, he remains disabled despite medical improvement; if, however, he can 26 perform a significant number of other jobs, disability ceases. Id. 27 Prior to the final step, the burden to prove disability and continuing entitlement to 28 disability benefits is on the claimant. 20 C.F.R. § 416.994; cf. Bowen v. Yuckert, 482 U.S. 137, 1 146 n. 5 (1987). The Commissioner must consider all evidence without regard to prior findings 2 and there must be substantial evidence that medical improvement has occurred. 42 U.S.C. §§ 3 423(f)(1), 1382c(a)(4). The Commissioner views the evidence in a continuing disability review 4 from a neutral perspective, without any initial inference as to the existence of disability being 5 drawn from a prior finding of disability. 42 U.S.C. §§ 423(f)(1), 1382c(a)(4). If the analysis 6 proceeds to step seven, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant numbers in the 8 national economy.” Cf. Bowen v. Yuckert, 482 U.S. at 146 n. 5; and Beltran v. Astrue, 700 F.3d 9 386, 389 (9th Cir. 2012) (applying the same burden at the initial disability determination). 10 V. ALJ’S FINDINGS 11 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 12 since the alleged onset date. (AR 19). Next, the ALJ found that prior to August 11, 2017, the 13 date Plaintiff became disabled, he had the following medically determinable impairments: abscess 14 and human immunodeficiency virus (HIV). (AR 20). The ALJ found Plaintiff did not have any 15 severe impairment or combination of impairments during this time period. (AR 20). However, 16 the ALJ then found that from August 11, 2017 through August 18, 2018, Plaintiff had the severe 17 impairment of hypertension and status-post a series of ischemic strokes in August 2017, resulting 18 in right-sided hemiplegia; and further, during that same time period, the severity of Plaintiff’s 19 impairments met the criteria of Listing 11.04(B). (AR 22). Thus, Plaintiff was under a disability, 20 as defined by the Social Security Act, from August 11, 2017 through August 18, 2018. 21 At step two, the ALJ found that beginning August 19, 2018, Plaintiff has not had an 22 impairment or combination of impairments that meets or medically equals the severity of one of 23 the listed impairments in 20 C.F.R. Part 404, Subpt. P, App’x 1. (AR 26). At step three, the ALJ 24 found medical improvement occurred as of August 19, 2018. (AR 27). At step four, the ALJ 25 found Plaintiff’s medical improvement was related to his ability to work. (AR 27). Thus, the 26 ALJ skipped to step six and found that Plaintiff has not developed any new impairments or 27 impairments since the date Plaintiff’s disability ended; thus, Plaintiff’s severe impairments are the 28 same as those present from August 11, 2017 through August 18, 2018. (AR 24). At step seven, 1 the ALJ found that, beginning on August 19, 2018, Plaintiff has had the residual functional 2 capacity (RFC) to 3 perform light work as defined in 20 CFR 404.1567(b), except his standing and/or walking are limited to no more than 2 hours, 4 cumulatively, during the workday; his sitting is unlimited. He is limited to occasional climbing of ramps and stairs; he cannot climb 5 ropes, ladders, or scaffolds. [Plaintiff] is limited to occasional balancing, stooping, kneeling, crouching, and crawling. His walking 6 is limited to even terrain; and, he requires the use of a cane for ambulation over 50 yards. [Plaintiff] must be protected from 7 workplace hazards, such as unprotected heights and dangerous moving mechanical parts. 8 9 (AR 28). The ALJ then determined that beginning August 19, 2018, Plaintiff has been capable of 10 performing past relevant work as a medical billing clerk. (AR 31). On that basis, the ALJ 11 concluded that Plaintiff’s disability ended on August 19, 2018, and Plaintiff has not become 12 disabled again since that date. (AR 32). 13 VI. ISSUES 14 Plaintiff seeks judicial review of the Commissioner’s final decision denying his disability 15 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 16 following issue for this Court’s review: whether the ALJ properly weighed the medical opinion 17 evidence. (Doc. No. 17 at 3-5). 18 VII. DISCUSSION 19 For claims filed on or after March 27, 2017, new regulations apply that change the 20 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 21 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 22 2017); 20 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ will no 23 longer “give any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 24 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 25 Instead, an ALJ must consider and evaluate the persuasiveness of all medical opinions or prior 26 administrative medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 27 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical opinions and prior 28 administrative medical findings include supportability, consistency, relationship with the claimant 1 (including length of the treatment, frequency of examinations, purpose of the treatment, extent of 2 the treatment, and the existence of an examination), specialization, and “other factors that tend to 3 support or contradict a medical opinion or prior administrative medical finding” (including, but 4 not limited to, “evidence showing a medical source has familiarity with the other evidence in the 5 claim or an understanding of our disability program’s policies and evidentiary requirements”). 20 6 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). 7 Supportability and consistency are the most important factors, and therefore the ALJ is 8 required to explain how both factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 9 416.920c(b)(2). Supportability and consistency are explained in the regulations: 10 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 11 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 12 administrative medical finding(s) will be. 13 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 14 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 15 finding(s) will be. 16 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not required to, 17 explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 18 However, when two or more medical opinions or prior administrative findings “about the same 19 issue are both equally well-supported ... and consistent with the record ... but are not exactly the 20 same,” the ALJ is required to explain how “the other most persuasive factors in paragraphs (c)(3) 21 through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 22 Here, state agency reviewing doctors Dr. Scott Spoor and Dr. Shabnam Rehman, M.D. 23 reviewed Plaintiff’s medical records at the April 2018 initial level review, and the August 2018 24 reconsideration review, respectively, of his application for disability insurance benefits. (AR 81- 25 82, 95-96). The ALJ jointly considered the opinions as they assessed the exact same limitations. 26 (AR 29). Dr. Spoor and Dr. Rehman opined that Plaintiff could lift and/or carry 25 pounds 27 occasionally and 10 pounds frequently. He could stand and/or walk two hours in a workday and 28 sit about six hours in a workday. He could occasionally engage in all postural activities, and 1 avoid concentrated exposure to hazards. (AR 81-82, 95-96). The ALJ found the opinion fully 2 persuasive for the period beginning August 19, 2018, but not fully persuasive for the period from 3 August 11, 2017 through August 18, 2018 because during that period the ALJ found greater 4 limitations and that Plaintiff’s impairment met Listing 11.04. (AR 29-30). 5 Plaintiff generally argues that “the ALJ’s use of their opinions is inconsistent and not 6 supported by substantial evidence.” (Doc. No. 17 at 4). In particular, Plaintiff argues that the 7 ALJ impermissibly “gave different weight to the same portions of the opinions at different stages 8 of the sequential analysis.” (Id.). However, Plaintiff does not cite any case law or legal authority 9 to support a finding that the ALJ erred by parsing the opinions in this manner; rather, Plaintiff 10 concedes that it is “not uncommon for an ALJ to give different weight to different portions of an 11 opinion based on the medical evidence supporting each portion of the opinion.” (Id. (citing 12 Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). Moreover, Plaintiff fails to 13 specifically challenge the reasons given by the ALJ for finding the opinion fully, and then less 14 than fully, persuasive. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 15 Cir. 2008) (court may decline to address issues not raised with specificity in Plaintiff’s opening 16 brief). Regardless, the Court notes the ALJ considered the opinions as per the new regulations, 17 finding the opinions were supported with references to unremarkable examination findings and 18 consistent with Plaintiff’s testimony for the period beginning August 19, 2018, but not fully 19 persuasive for the closed period of disability because examination notes during this time indicated 20 a worsening numbness and parasthesia of the right arm and leg, impaired gait and difficulty 21 balancing, decreased sensation, and dysmetria on the right. (AR 29-30); see 20 C.F.R. § 22 404.1520c(c)(1)-(2) (ALJ is required to consider supportability and consistency when evaluating 23 the persuasiveness of an opinion). 24 Finally, even were the Court to find the ALJ erred in considering the reviewing medical 25 opinion evidence, any error would be harmless. The ALJ did not rely on the state agency 26 reviewing opinions to find Plaintiff was disabled for the closed period from August 2017 – 27 August 2018. Instead, the ALJ found that Plaintiff met Listing 11.04 during that portion of the 28 relevant adjudicatory period. (AR 22-24). Plaintiff fails to challenge that finding with specificity 1 in his opening brief, nor does he challenge the ALJ’s finding that Plaintiff no longer met the 2 Listing as of August 18, 2018 due to medical improvement. (AR 27). Moreover, as noted by 3 Defendant, “[e]ven if the ALJ incorrectly analyzed these prior administrative medical findings, 4 which she did not, there is no harmful error as both prior administrative medical findings opined 5 to less limitations than in the RFC and adopting either would not have prevented Plaintiff from 6 performing his past relevant work.” (Doc. No. 18 at 20) (citing Molina v. Astrue, 674 F.3d 1104, 7 1115 (9th Cir. 2012) (error is harmless where it is “inconsequential to the [ALJ’s] ultimate 8 nondisability determination.”)). 9 Plaintiff briefly contends that the ALJ’s “treatment of the opinions” is not harmless 10 because the “ALJ found Plaintiff disabled for a closed period in part because of [Plaintiff’s] 11 limited manipulative functioning described in the report of Dr. C.E. Sharma.” (Doc. No. 17 at 4- 12 5). This argument is unavailing. Plaintiff is correct that Dr. Sharma opined manipulative 13 “limitations in holding, feeling and fingering objects with the right hand to occasionally.” (AR 14 555). However, in contrast to Plaintiff’s claim that Dr. Sharma’s opinion was found “credible,” 15 the ALJ specifically found that the manipulative restrictions assessed by Dr. Sharma were not 16 persuasive as they were supported by the record at the end of the closed period. (AR 30). 17 Plaintiff does not identify or challenge this finding. See Carmickle, 533 F.3d at 1161 n.2 (court 18 may decline to address issues not raised with specificity in Plaintiff’s opening brief). Thus, as 19 noted by Defendant, “Plaintiff appears to suggest that he had manipulative limitations that were 20 unaccounted for in the RFC, although he failed to articulate how the ALJ’s evaluation of the 21 evidence, aside from the [state agency reviewing opinions], were in error.” (Doc. No. 18 at 20-22 22 (noting the ALJ considered evidence of medical improvement as of August 19, 2018 showing full 23 strength in Plaintiff’s upper extremities and no sensation abnormalities)). Similarly, Plaintiff fails 24 to cite, nor does the Court discern, evidence in the record that the ALJ relied on Dr. Sharma’s 25 opinion in finding Plaintiff disabled for the closed period, as opposed to relying on objective 26 evidence to support a finding that Plaintiff met Listing 11.04 at step three, as indicated in the 27 decision. (AR 22-24). 28 Based on the foregoing, the Court finds the ALJ properly considered the medical opinion 1 | evidence, and even assuming, arguendo, that the ALJ erred in considering the state reviewing 2 || opinions, any error is harmless. See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 3 | Cir. 2006) (error harmless where it is non-prejudicial to claimant or irrelevant to ALJ's ultimate 4 | disability conclusion). 5 VIII. CONCLUSION 6 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 7 | Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 8 | as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 9 | above, the ALJ properly considered the medical opinion evidence. After review, the Court finds 10 | the ALJ’s decision is supported by substantial evidence and free of harmful legal error. 11 Accordingly, it is ORDERED: 12 1. The decision of the Commissioner of Social Security is AFFIRMED for the reasons 13 set forth above. 14 2. The Clerk is directed to enter judgment in favor of the Commissioner of Social 15 Security, terminate any pending motions/deadlines, and close this case. 16 | Dated: _ February 11, 2022 Mile. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE

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