1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAMELA KAY WAGES, Case No. 1:23-cv-00270-BAM 12 Plaintiff,

ORDER REGARDING PLAINTIFF’S

13 v. MOTION FOR SUMMARY JUDGMENT

14 MARTIN O’MALLEY, Commissioner of (Docs. 16, 18.) 15 Social Security,1 16 Defendant. 17 18

19 INTRODUCTION 20 Plaintiff Pamela Kay Wages (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (“Commissioner”) denying her application for Supplemental 22 Security Income under Title XVI of the Social Security Act. The parties’ briefing on the motion was 23 submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe. (Docs. 16, 18, 19.)2 24 25

26 1 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley is substituted 27 for Kilolo Kijakazi as Defendant in this suit. 2 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, 28 including entry of final judgment, pursuant to 28 U.S.C. § 636(c). (Docs. 8, 20, 21.) 1 Having considered the parties’ briefs, along with the entire record in this case, the Court finds 2 that the decision of the Administrative Law Judge (“ALJ”) is supported by substantial evidence in the 3 record and is based upon proper legal standards. Accordingly, this Court will affirm the agency’s 4 determination to deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 Plaintiff applied for Title XVI Supplemental Security Income on December 22, 2017, alleging 7 that she became disabled on March 1, 2016. AR 311-317, 318-322.3 Plaintiff’s application was 8 denied initially on July 16, 2018, and on reconsideration on November 2, 2018. AR 143-48; 152-57. 9 Plaintiff requested a hearing before an administrative law judge (“ALJ”) and ALJ Bryan Henry held a 10 hearing on August 26, 2021. AR 80-111. ALJ Henry then held an additional hearing on February 25, 11 2022, where Plaintiff was represented by counsel. AR 44-78. At the hearing, Plaintiff requested the 12 ALJ amend the alleged onset date to December 21, 2017, and the ALJ granted and amended the 13 alleged onset date. AR 54-55. ALJ Henry issued an order denying benefits on the basis that Plaintiff 14 was not disabled on March 15, 2022. AR 8-33. Plaintiff sought review of the ALJ’s decision, which 15 the Appeals Council denied. AR 1-7. This appeal followed. 16 August 26, 2021 Hearing Testimony 17 ALJ Bryan Henry held a telephonic hearing on August 26, 2021. AR 80-111. Plaintiff 18 appeared on her own behalf. Id. Daniel Best, an impartial vocational expert, also appeared. The ALJ 19 began by discussing Plaintiff’s right to representation and noting that Plaintiff had previously had a 20 representative who withdrew in August 2019. AR 85-90. The ALJ then discussed the hearing process 21 and explained which medical records he had and noted that he had no medical records from August 22 2020 through August 2021. AR 90-97. Plaintiff then requested a postponement to find counsel who 23 would represent her and to ensure that the ALJ received all relevant medical records, which the ALJ 24 granted. AR 97-98. The ALJ then discussed Plaintiff’s medical providers and how to obtain 25 Plaintiff’s medical records. AR 99-111. 26 27 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate 28 page number. 1 February 25, 2022 Hearing Testimony 2 ALJ Bryan Henry held a telephonic hearing on February 25, 2022. AR 44-78. Plaintiff 3 appeared with her attorney, Amy Kendrick. Id. Pat Pauline, an impartial vocational expert, also 4 appeared and testified. AR 69-76. The ALJ began by admitting exhibits 1A to 4A, 1B to 30B, 1D to 5 26D, 1E to 43E, and 1F to 21F. AR 49. Plaintiff’s attorney began by noting that Plaintiff would turn 6 50 in October 2022 and that Plaintiff intended to amend her alleged onset date to December 21, 2017. 7 AR 52. Plaintiff requested the ALJ amend the alleged onset date to December 21, 2017, and the ALJ 8 granted and amended the alleged onset date. AR 54-55. 9 Plaintiff’s attorney opened by discussing the neuropathy in Plaintiff’s hands and feet. AR 55. 10 The ALJ asked where the record showed Plaintiff had severe neuropathy, and Plaintiff’s attorney 11 specified that it was in Exhibit 17F at page 14, the NCS showed severe sensory neuropathy and severe 12 left motor neuropathy. AR 56. Plaintiff’s attorney further noted that prior to 2021, there were just 13 Plaintiff’s complaints of numbness in her feet but no testing. Id. Plaintiff’s attorney continued that 14 while the medications initially helped Plaintiff improve, the medications later became less effective for 15 Plaintiff. AR 57. Plaintiff’s attorney clarified that there were no testing related to neuropathy prior to 16 February 2021 that provided objective findings beyond Plaintiff’s complaints. Id. Plaintiff’s attorney 17 further highlighted 2021 imaging of Plaintiff’s spine that showed moderate and severe stenosis. AR 18 57-58. Plaintiff’s attorney summarized that Plaintiff would not be able to stay in any position to 19 effectively complete a workday. AR 58. 20 Upon examination by the ALJ, Plaintiff testified that she did not live with anyone and did not 21 have a driver’s license. AR 59-60. Plaintiff further testified that she had frequent headaches, had 22 problems with her stomach, and had pain in her back. AR 60. She testified that no doctor had 23 recommended surgery for her back or neck. Id. Plaintiff noted that she still smoked two cigarettes a 24 day and smoked marijuana “as much as [she] can because it helps with [her] pain.” Id. Plaintiff 25 testified that she usually feels pain in her spine or entire back, and it would hurt her to lay or stand up 26 or to turn. AR 61. Plaintiff testified that it would take her a long time to pick something up and she 27 always feels stabbing, moving pain or “needles” in her hands and feet. Id. She stated that she can 28 walk about twenty steps before needing to stop to catch her breath and could lift at most five pounds. 1 Id. Plaintiff said that if she started lifting more than five pounds, the lower part of her spine and hands 2 would hurt. Id. Plaintiff testified that she had not received any injections in her back or neck. AR 61- 3 62. She testified that she had not received treatment other than a prescription of Gabapentin, but that 4 prescription or dosage did not help with the pain. AR 62. Plaintiff also testified that she took 5 Lisinopril, Sertraline, Abilify, Quetiapine, and Metformin, and did not feel side effects from these 6 medications. AR 62-63. 7 Upon examination by her attorney, Plaintiff testified that she could stand for five minutes or 8 less at a time due to pain in her legs. AR 64. Plaintiff testified that her sister drives her to doctor’s 9 appointments but she is able to get from the front of the doctor’s office to her appointment by herself. 10 AR 64-65. Plaintiff testified that the pain preventing her from standing for more than five minutes at a 11 time began approximately three or four years ago. AR 65. Plaintiff said that she could sit up for 12 approximately three minutes at a time. AR 65-66. Plaintiff testified that when she needed to sit up to 13 eat or do other tasks, she would put pillows behind her back and lay back and would elevate her legs 14 above her heart to prevent pain or numbness. AR 66. Plaintiff said that she avoided carrying 15 unnecessary items to avoid back pain. AR 67. Plaintiff testified that she could keep her living area 16 clean but could not cook beyond heating something up in the microwave. Id. Plaintiff testified that 17 laying down is the only position she can be in without feeling pain, but she dislikes laying down. AR 18 68. 19 Upon further examination by the ALJ, Plaintiff testified that she last used methamphetamine 20 approximately two to three years ago. Id. Plaintiff further testified that she has problems with her 21 wrists and that her wrists pop when she grasps something. AR 68-69. She said that she has tingling or 22 numbness in her hands but that no doctor has recommended treatment or surgery for her hand issues. 23 AR 69. Plaintiff said that she did not recall any doctor talking to her about carpal tunnel syndrome, 24 though she had recently had nerve testing on her wrists. Id. 25 Following Plaintiff’s testimony, the ALJ elicited testimony from vocational expert (“VE”) Pat 26 Pauline. AR 69-76. The VE testified that her resume correctly reflected her professional 27 qualifications, that she had not discussed the merits of the case prior to the hearing, and that she had 28 reviewed evidence related to Plaintiff’s work history. AR 70. The VE further testified that she would 1 be able to give impartial and neutral opinions, that she was familiar with Social Security’s regulatory 2 definitions of work by skill and exertional level, and that she was familiar with jobs that existed in the 3 national economy. AR 71. The VE also stated that if she gave an opinion that conflicted with the 4 Dictionary of Occupational Titles, she would need to identify the conflict and the basis for her 5 opinion. Id. Plaintiff’s counsel stated that he did not have any objections to the VE’s qualifications. 6 Id. 7 The VE classified Plaintiff’s past work as Cleaner, Housekeeper (DOT No. 323.687-014, SVP 8 2, light, unskilled work, with 195,000 jobs nationally). AR 71-72. The ALJ then noted that he would 9 not count Plaintiff’s previous job as a packer in her past work as Plaintiff only worked in that role 10 during September 2015. AR 72. 11 The ALJ then asked the VE hypothetical questions. For the first hypothetical, the ALJ asked 12 the VE to consider a hypothetical person with the same age, education, and work experience as 13 Plaintiff who: could occasionally lift and carry 20 pounds; could frequently carry ten pounds; could sit 14 for approximately six hours in an eight-hour day; could stand and walk approximately four hours in an 15 eight-hour day; could occasionally climb ramps and stairs; could never climb ladders, ropes, or 16 scaffolds; could occasionally balance as part of their job requirements; could occasionally stoop, 17 crouch, kneel, and crawl; could occasionally reach overhead bilaterally; could handle, finger, and feel 18 bilaterally on a frequent basis; could have occasional exposure to extreme cold; could have occasional 19 exposure to fumes, odors, and/or irritants; could never work around unprotected heights or moving 20 and/or dangerous machinery; could tolerate moderate levels of noise; would need to avoid bright lights 21 that are in excess of retail and office type lighting; and would be limited to perform work that consists 22 of only simple, routine, repetitive tasks. AR 72-73. The VE testified that such an individual could not 23 perform the Housekeeper position. AR 73. The VE further testified that there were examples of jobs 24 in the seated, light, unskilled category that would fit the hypothetical, including: Office Helper (DOT 25 No. 239.567-010, SVP 2, light work, with approximately 10,500 jobs nationally); Router (DOT No. 26 222.587-038, SVP 2, light work, with approximately 31,500 jobs nationally); and Collator (DOT No. 27 208.685-010, SVP 2, light work, with approximately 40,000 jobs nationally). Id. 28 1 For the second hypothetical, the ALJ added the limitation that the hypothetical individual could 2 only have occasional contact with the public to the conditions of the first hypothetical individual. Id. 3 The VE testified that there would be no change, erosion, or elimination of the three job examples 4 given by the VE in response to the first hypothetical. Id. The VE then stated that employers 5 customarily do not tolerate their employees to be off task for more than 15 percent of the day. Id. The 6 VE testified that employers tolerate no more than one unexcused or unscheduled absence per month, 7 such as getting to work late or leaving work early. AR 74. The VE further testified that employers 8 customarily permit three routine rest or break periods per day, including two 15-minute breaks and a 9 meal break of typically 45 minutes. Id. The VE then stated that exceeding these limits on a regular 10 basis would eliminate all jobs in a competitive workplace. Id. The VE testified that her testimony is 11 consistent with the Dictionary of Occupational Titles and the Selected Characteristics of Occupations, 12 but the ALJ relied upon professional experience in picking jobs based on how they were performed 13 related to the combination of sitting and standing. The VE testified that she also used her professional 14 experience in assessing employers’ off-task tolerance, employers’ absenteeism tolerance, employers’ 15 break period allowances, and limitation on bright lights in the ALJ’s hypotheticals. AR 74-75. 16 Plaintiff’s attorney then asked the VE if the jobs listed by the VE in the first two hypotheticals 17 would still be available if the hypothetical individual would need a sit/stand option throughout the 18 workday, which would allow the employee to sit and stand at will. AR 75. The VE testified that at- 19 will sitting and standing options would be work-preclusive as they would be too disruptive, and the 20 employee would be off-task. Id. The VE then testified that if the hypothetical individual from the 21 ALJ’s hypotheticals were limited to standing only two hours of the workday, there would still be 22 seated light production work that does not involve standing. Id. The VE then testified that there 23 would still be sedentary work if a limitation of needing to elevate the bilateral lower extremity was 24 added to the hypothetical. AR 76. 25 Medical Record 26 The relevant medical record was reviewed by the Court and will be referenced below as 27 necessary to this Court’s decision. 28 /// 1 The ALJ’s Decision 2 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 3 determined that Plaintiff was not disabled under the Social Security Act. AR 8-26. Specifically, the 4 ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date of 5 December 21, 2017. AR 13. The ALJ identified the following severe impairments: diabetes mellitus 6 type II; diabetic neuropathy; degenerative disc disease of the cervical spine; degenerative disc disease 7 of the lumbar spine; bilateral carpal tunnel syndrome. Id. The ALJ additionally evaluated and 8 discussed other impairments that did not constitute severe medically determinable impairments, 9 including hypothyroid, incipient cataracts of the bilateral eyes, asthma, migraine headache disorder, 10 nicotine misuse disorder, cannabis misuse disorder, and narcissism and antisocial personality features 11 disorder. AR 13-15. The ALJ determined that Plaintiff did not have an impairment or combination of 12 impairments that met or medically equaled any of the listed impairments. AR 18-19. 13 Based on a review of the entire record, the ALJ found that Plaintiff retained the RFC to 14 perform light work with the limitations that Plaintiff could: stand and walk for four hours total in an 15 eight-hour workday; could occasionally climb ramps and stairs; could never climb ladders, ropes, or 16 scaffolds; could occasionally balance as part of her job requirements; could occasionally stoop, kneel, 17 crouch, and crawl; could occasionally reach overhead bilaterally; could frequently handle, finger, and 18 feel bilaterally; could have occasional exposure to extreme cold; could have occasional exposure to 19 fumes, odors, and/or pulmonary irritants; could never work around unprotected heights and moving 20 and/or dangerous machinery; could tolerate moderate levels of noise; must avoid bright lights, defined 21 as in excess of retail and office-type lighting; was limited to performing work that only consists of 22 simple, routine, repetitive tasks; and was limited to occasional contact with the public. AR 19. The 23 ALJ considered “all symptoms and the extent to which these symptoms can reasonably be accepted as 24 consistent with the objective medical evidence and other evidence,” as well as “medical opinion(s) and 25 prior administrative medical finding(s).” AR 19-24. 26 Given this RFC, the ALJ found that Plaintiff had no past relevant work, but found that there 27 were jobs that exist in the national economy that Plaintiff could perform. AR 24. The ALJ noted that 28 examples of jobs at the light work level consistent with Plaintiff’s RFC included: (1) Office Helper 1 (DOT No. 239.567-010, light work, SVP 2, approximately 10,500 jobs in the national economy); (2) 2 Router (DOT No. 222.587-038; light work; SVP 2; with approximately 31,500 jobs in the national 3 economy); and (3) Collator Operator (DOT No. 208.685-010; light work; SVP 2; approximately 4 40,000 jobs in the national economy). AR 24-25. The ALJ also found that the VE’s testimony was 5 consistent with the Dictionary of Occupational Titles, except for the VE’s testimony regarding 6 additional information such as positions for the jobs that do not require more than four hours of 7 standing or walking and overhead reaching requirements, which the VE based on the VE’s education, 8 training, and professional experience. AR 25. The ALJ therefore concluded that Plaintiff had not 9 been disabled from December 21, 2017, through the date of the decision. Id. 10 SCOPE OF REVIEW 11 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 12 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 13 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 14 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 15 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 16 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 18 considered, weighing both the evidence that supports and the evidence that detracts from the 19 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 20 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 21 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 22 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 23 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 24 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 25 REVIEW 26 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 27 substantial gainful activity due to a medically determinable physical or mental impairment which has 28 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 2 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 3 her age, education, and work experience, engage in any other kind of substantial gainful work which 4 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 5 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 6 1990). 7 DISCUSSION4 8 Plaintiff contends that the ALJ improperly discounted the opinion of Brigit Siekerkotte, M.D., 9 without setting forth specific, legitimate reasons for doing so. (Doc. 16 at 10-19; Doc. 19 at 1-5.) 10 Defendant in turn argues that the ALJ appropriately evaluated Dr. Siekerkotte’s opinion with reference 11 to the supportability and consistency factors. (Doc. 18 at 4-8.) 12 Because Plaintiff applied for benefits after March 27, 2017, her claim is governed by the 13 agency’s new regulations concerning how an ALJ must evaluate medical opinions. 20 C.F.R. § 14 416.920c. Under the new regulations, the Commissioner does “not defer or give any specific 15 evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative 16 medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R. § 416.920c(a). 17 The Commissioner evaluates the persuasiveness of the medical opinions based on the 18 following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) 19 specialization; and (5) other factors, such as “evidence showing a medical source has familiarity with 20 the other evidence in the claim or an understanding of our disability program’s policies and 21 evidentiary requirements.” C.F.R. § 416.920c(c)(1)-(5). Supportability and consistency are the most 22 important factors. 20 C.F.R. § 416.920c(b)(2). 23 Ninth Circuit case law preceding the new regulations afforded deference to the medical 24 opinions of treating and examining physicians. Indeed, prior to the current regulations, the Ninth 25 Circuit required ALJs to provide clear and convincing or specific and legitimate reasons for rejecting 26

27 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 the medical opinions of treating or examining physicians. Contrary to Plaintiff’s suggestion, these 2 standards of articulation no longer apply in light of the new regulations, and the ALJ was not required 3 to provide “specific and legitimate reasons” to discount the medical opinions. See Woods v. Kijakazi, 4 32 F.4th 785, 792 (9th Cir. 2022) (finding revised social security regulations “clearly irreconcilable 5 with our caselaw according special deference to the opinions of treating and examining physicians on 6 account of their relationship with the claimant”). However, the Ninth Circuit has clarified that “under 7 the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 8 inconsistent without providing an explanation supported by substantial evidence.” Id. “The agency 9 must ‘articulate ... how persuasive’ it finds ‘all of the medical opinions’ from each doctor or other 10 source, . . . and ‘explain how [it] considered the supportability and consistency factors’ in reaching 11 these findings.” Id. (internal citations omitted); see 20 C.F.R. § 404.1520c(c). In this context, 12 Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant ... objective medical 13 evidence. Id. § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent ... with the evidence from other medical 14 sources and nonmedical sources in the claim. Id. § 404.1520c(c)(2). 15 Id. at 791-92. 16 On October 10, 2018, Birgit Siekerkotte, M.D., completed a comprehensive internal medicine 17 evaluation. AR 724-729. In the medical source statement portion of the evaluation, Dr. Siekerkotte 18 opined that Plaintiff was able to stand or walk up “to six hours slowly with breaks;” had no limitations 19 in sitting capacity; needed no ambulatory device; was able to lift 50 pounds occasionally and 25 20 pounds frequently with proper technique; could frequently climb, frequently balance, frequently stoop, 21 frequently kneel, frequently crawl, and occasionally crouch; had no manipulative activity limitations; 22 and had no workplace environmental exposure limitations. AR 728. Dr. Siekerkotte diagnosed 23 Plaintiff with diabetes neuropathy and back pain. Id. 24 In the physical exam portion of the evaluation, Dr. Siekerkotte noted that Plaintiff is a well- 25 developed, well-nourished female in no acute distress;” and provided neck findings: “Supple without 26 adenopathy, thyromegaly, or masses. There are no palpable cervical, supraclavicular, epi trochlear, or 27 axillary lymph nodes.” AR 726. Dr. Siekerkotte further found that Plaintiff’s extremities were “warm 28 without cyanosis, clubbing or edema.” AR 727. Regarding Plaintiff’s coordination, station, and gait, 1 Dr. Siekerkotte found: “Normal gait. Normal Romberg testing. The claimant is able to stand on toes, 2 heels, and one leg alone. She can squat one-third of the way down.” Id. Dr. Siekerkotte also included 3 range of motion findings for Plaintiff’s Spine (“Cervical region: Flexion 0-50 degrees and extension 0- 4 60 degrees. Lateral flexion 0-45 degrees and rotation 0-80 degrees bilaterally”); Lumbar region 5 (“Flexion 0-90 degrees and extension 0-25 degrees. Lateral flexion 0-25 degrees bilaterally”); Hip 6 (“Forward flexion 0-10 0 degrees, backward extension 0-30 degrees, rotation-internal 0-40 degrees, 7 rotation-external 0-50 degrees, abduction 0-40 degrees, and adduction 0-20 degrees bilaterally”); Knee 8 (“Extension zero degrees and flexion 150 degrees bilaterally”); Ankle (“Dorsiflexion 0-20 degrees and 9 plantar flexion 0-40 degrees bilaterally”); Shoulder (“Forward flexion 0-150 degrees, extension 0-40 10 degrees, abduction 0-150 degrees, adduction 0-30 degrees, internal rotation 0-80 degrees, and external 11 rotation 0-90 degrees bilaterally”); Elbow (“Flexion-extension 0-150 degrees, supination 0-80 degrees, 12 and pronation 0-80 degrees bilaterally.”); Wrist (“Extension 0-60 degrees, flexion 0-60 degrees, radial 13 deviation 0-20 degrees, and ulnar deviation 0-30 degrees bilaterally”); and Finger/Thumb (“Thumb: 14 Extension-flexion MCP 0-70 degrees and IP 0-90 degrees bilaterally. Fingers: Extension-flexion 15 MCP 0-90 degrees, PIP 0-100 degrees, and DIP 0-70 degrees bilaterally”). AR 727. Dr. Siekerkotte 16 further found that the straight leg raising test was: “Negative on the left in seated and supine position. 17 Negative on the right in supine position, negative on the right in seated position with the claimant 18 having right thigh pain.” AR 727-28. Related to Plaintiff’s motor strength, muscle bulk, and muscle 19 tone, Dr. Siekerkotte observed: “Left quadriceps 5-/5, right 5/5. Bilateral biceps, shoulders, 20 dorsiflexion, and plantar flexion 5/5.” AR 728. Dr. Siekerkotte further noted that there was 21 “tenderness over the entire back to light touch,” and on “the entire right side of the body, including the 22 face, the claimant perceives touch as painful.” Id. 23 In evaluating Dr. Siekerkotte’s opinion, the ALJ summarized Dr. Siekerkotte’s findings and 24 reasoned as follows: 25 The undersigned finds the opinions of Brigit Siekerkotte, MD, who conducted an internal medicine consultative examination on October 10, 26 2018, mostly persuasive. Dr. Siekerkotte opined that the claimant can stand/walk up to six hours, lift and carry 50 pounds occasionally and 25 27 pounds frequently, occasionally climb, balance, stoop, kneel, and crawl, 28 and occasionally crouch (9F/5). The undersigned finds these opinions 1 generally persuasive because they are well supported by this doctor’s physical exam findings, which are generally mild (9F/3-5). They are also 2 generally consistent with the current and complete record as a whole, including the physical exam findings demonstrating normal gait and 3 coordination, grossly normal motor strength, and grossly normal 4 musculoskeletal range of motion; as well as the treatment notes generally demonstrating adequate control of diabetes mellitus with medication 5 (4F/57; 9F/4-5; 11F/158, 171; 12F/19, 28, 31, 35, 39, 47, 58, 70; 14F/17; 17F/1-2, 21, 30, 31; 19F/3; 20F/45, 51, 62, 68; 21F/8, 52). 6

7 On the other hand, Dr. Siekerkotte opined that the claimant is limited to walking slowly and with breaks. The undersigned notes that these 8 limitations are vague as to the most that the claimant can do on a function- by-function basis, as the speed of walking and the length and frequency 9 of breaks are not defined. However, to the extent that these opinions 10 suggest greater standing and/or walking limitation than as stated in the residual functional capacity, the undersigned finds them unpersuasive 11 because they are not well-supported by this doctor’s physical exam findings, which do not suggest the need for greater walking and standing 12 limitation than up to four hours total in an eight-hour workday with normal breaks (9F/3-5). They are also inconsistent with the current and 13 complete record as a whole, which likewise does not demonstrates more 14 extensive standing and/or walking limitation, including the physical exam findings demonstrating normal gait and coordination, grossly normal 15 motor strength, and grossly normal musculoskeletal range of motion; as well as the treatment notes generally demonstrating adequate control of 16 diabetes mellitus with medication (4F/57; 9F/4-5; 11F/158, 171; 12F/19, 17 28, 31, 35, 39, 47, 58, 70; 14F/17; 17F/1-2, 21, 30, 31; 19F/3; 20F/45, 51, 62, 68; 21F/8, 52). 18

AR 23-24.

19 The Court finds that the ALJ properly evaluated Dr. Siekerkotte’s opinion under the new 20 regulations. First, the ALJ noted that Dr. Siekerkotte’s “limitations are vague as to the most that the 21 claimant can do on a function-by-function basis, as the speed of walking and the length and frequency 22 of breaks are not defined.” AR 23. The ALJ also found that Dr. Siekerkotte’s opinion that Plaintiff 23 was limited to walking slowly and with breaks was “not well-supported by this doctor’s physical exam 24 findings, which do not suggest the need for greater walking and standing limitation than up to four 25 hours total in an eight-hour workday with normal breaks.” AR 23 (citing AR 726-728). The ALJ’s 26 reasoning invokes the supportability factor, which means the extent to which a medical source 27 supports the medical opinion by explaining the “relevant ... objective medical evidence.” 20 C.F.R. § 28 1 416.920c(c)(1); Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022). The ALJ’s reasoning 2 regarding vagueness is supported by reference to Dr. Siekerkotte’s treatment notes, which state that 3 the Plaintiff may walk up “to six hours slowly with breaks,” but does not clarify the length or 4 frequency of breaks required, nor the speed Plaintiff may “slowly” walk at. AR 728. The ALJ also 5 found that Dr. Siekerkotte’s physical exam findings do not support Dr. Siekerkotte’s conclusion that 6 Plaintiff required greater walking and standing limitation than up to four hours total in an eight-hour 7 workday with normal breaks. AR 23; 724-729. In reviewing the physical exam findings, the ALJ 8 highlighted Dr. Siekerkotte’s findings that tests related to coordination, station, and gait showed a 9 normal gait, normal Romberg testing, the ability to stand on toes, heels, and one leg alone, and the 10 ability to squat one-third of the way down. AR 727. The ALJ also noted that Dr. Siekerkotte’s 11 findings showed a generally normal musculoskeletal range of motion and motor strength. AR 23, 727 12 (normal range of motion findings for spine, hip, knee, ankle, shoulder), 728 (motor strength findings 13 note: “left quadriceps 5-/5, right 5/5.”). By comparing Dr. Siekerkotte’s physical examination 14 findings with Dr. Siekerkotte’s opined limitations, the ALJ appropriately addressed the supportability 15 factor. 16 Second, the ALJ found that Dr. Siekerkotte’s opinion was “also inconsistent with the current 17 and complete record as a whole, which likewise does not demonstrates [sic] more extensive standing 18 and/or walking limitation, including the physical exam findings demonstrating normal gait and 19 coordination, grossly normal motor strength, and grossly normal musculoskeletal range of motion; as 20 well as the treatment notes generally demonstrating adequate control of diabetes mellitus with 21 medication.” AR 23-24 (citations omitted). The ALJ’s reasoning invokes the consistency factor, 22 which means the extent to which a medical opinion is “consistent ... with the evidence from other 23 medical sources and nonmedical sources in the claim.” 20 C.F.R. § 416.920c(c)(2). Examination of 24 the record confirms the ALJ’s evaluation that the record demonstrates relatively normal exam findings 25 related to gait, motor strength, and musculoskeletal systems despite Plaintiff’s ongoing diabetes 26 mellitus. AR 641 (May 12, 2018 medical record noting normal motor exam, extremities, and 27 appearance findings); 727-728 (October 10, 2018 physical exam findings from Dr. Siekerkotte noting 28 diabetes diagnosis but generally normal findings for range of motion, motor strength, coordination, 1 station, and gait); 891 (November 13, 2018 medical report noting ongoing diabetes but generally 2 normal findings for general appearance, musculoskeletal, extremities, neck, and “no edema.”); 904 3 (October 22, 2018 clinic note noting ongoing diabetes but generally normal findings for general 4 appearance, musculoskeletal, extremities, neck, and “no edema”); 932 (August 28, 2019 medical 5 report noting normal extremities findings, generally normal systems findings, and Plaintiff “denies any 6 lower extremity edema”); 941 (May 7, 2019 medical report showing normal findings for appearance, 7 neck, extremities, and motor strength); 944 (March 28, 2019 clinic note noting “Type 2 diabetes with 8 Alc 7.6” but normal motor findings); 948 (February 27, 2019 clinic note noting “Type 2 diabetes 9 mellitus Alc. 7.6 <- 7.7 <-11.2 from 12.2 – on insulin, but discontinue due to hypoglycemia” and 10 “Neuropathy secondary to above.” Physical exam showed no edema in extremities and motor exam 11 findings were “5/5 bilateral upper and lower extremity.”); 952 (January 30, 2019 clinic note noting 12 “Type 2 diabetes mellitus” and neuropathy but showing normal appearance findings, no edema in 13 extremities, and motor exam findings of “5/5 bilateral upper and lower extremity.”); 960 (November 14 5, 2018 clinic note noting “Motor exam: intact” and “Extremities: No lower extremity edema”); 971 15 (August 20, 2018 physical exam report noting use of insulin and showing normal findings for 16 appearance, no edema, and “5/5 bilateral upper and lower extremity” for motor exam); 983 17 (September 19, 2017 physical exam report noting “DM” in past medical history, normal appearance 18 findings, no edema, and normal musculoskeletal findings); 1030 (February 18, 2020 clinic note noting 19 “Type 2 diabetes mellitus with unspecified complications” but no edema); 1146-47 (June 29, 2021 20 progress note noting “Diabetes type 2, uncontrolled,” but Plaintiff denied hypoglycemia, symptoms of 21 hyperglycemia, and “numbness, tingling, pain in feet”); 1166 (August 25, 2021 clinic note noting 22 “Diabetes type 2, uncontrolled” and “lower leg extremity +4 bilaterally, tenderness to right ankle upon 23 palpation due to previous history of dog bite in that area,” but “No bilateral leg edema noted [and] 24 [g]ait normal”); 1175-76 (January 5, 2021 clinic note noting Diabetes type 2 uncontrolled and 25 neuropathy but normal constitutional findings; “5/5 [motor strength] throughout in upper and lower 26 extremities;” and normal gait, station, base, stance, arm swing, and stride”); 1279 (progress note 27 noting diabetes type 2 uncontrolled and neuropathy but stating that Plaintiff denied numbness, 28 tingling, or pain in feet); 1380 (March 16, 2019 medical report noting relatively normal physical 1 examination findings); 1386 (November 24, 2019 medical report noting “Normal ROM, normal 2 strength” in musculoskeletal findings); 1397 (medical report noting “Normal ROM, normal strength”); 3 1403 (August 18, 2021 medical report noting “Normal ROM, normal strength, no tenderness, no 4 swelling, no deformity”); 1505 (January 24, 2022 clinic noting type 2 diabetes mellitus uncontrolled 5 and with musculoskeletal findings noting “Normal range of motion and strength,” and “no tenderness 6 or swelling”). The Court therefore finds that the ALJ adequately discussed the consistency factor in 7 discounting Dr. Siekerkotte’s opinion. 8 Plaintiff first argues that the ALJ’s discussion of the supportability factor is inadequate because 9 the ALJ did not sufficiently articulate what was vague about Dr. Siekerkotte’s opinion. (Doc. 16 at 10 12-13.) In support, Plaintiff cites district court cases in which courts found that the ALJs’ 11 characterization of medical opinions as “vague” was insufficient to support their evaluation of the 12 medical opinion. See Thompson v. Comm’r of Soc. Sec. Admin., No. CV-22-08067-PCT-SPL, 2023 13 WL 4117492 (D. Ariz. June 22, 2023); Kimberli M. S. v. Kijakazi, No. 21-cv-1836-AJB-MDD, 2023 14 WL 2346330, (S.D. Cal. Mar. 3, 2023), report and recommendation adopted, No. 21-cv-01836-AJB- 15 MDD, 2023 WL 8696370 (S.D. Cal. Apr. 11, 2023). 16 In Thompson, the district court noted that the ALJ’s characterization of a medical assessment 17 as “vague and imprecise” “simply does not identify which aspects of the assessments would be served 18 by further clarification.” Thompson, 2023 WL 4117492, at *5. Similarly, in Kimberli M.S., the ALJ 19 simply wrote that the medical opinion was “quite vague as to what extent the limitations affect the 20 claimant’s abilities.” Kimberli M. S., 2023 WL 2346330, at *8. The district court in Kimberli M.S. 21 found that the ALJ “insufficiently articulated this evaluation of” the medical opinion because the 22 “swift evaluation of [the medical] opinion does not allow the Court to trace the path of the ALJ's 23 reasoning.” Id. 24 The ALJ’s characterization of the opinion as “vague” here is distinguishable from the ALJs’ 25 characterizations in the cases Plaintiff relies upon. While the ALJs in those cases used conclusory 26 language without clarifying which parts of the opinions were vague, the ALJ here specified that the 27 “limitations are vague as to the most that the claimant can do on a function-by-function basis, as the 28 speed of walking and the length and frequency of breaks are not defined.” AR 23. The ALJ identified 1 that Dr. Siekerkotte’s opinion was imprecise as to the speed of walking and length and frequency of 2 breaks and allowed the Court to trace his reasoning in discounting Dr. Siekerkotte’s opined limitations 3 regarding standing and walking. See Kimberli M. S., 2023 WL 2346330, at *8. The ALJ’s 4 characterization of Dr. Siekerkotte’s opinion as “vague” is therefore appropriately discussed in 5 relation to the supportability factor, and Plaintiff’s argument is unavailing. 6 Plaintiff further contends that the ALJ’s discussion of the supportability factor is inadequate 7 because the ALJ mischaracterized the evidence. (Doc. 16 at 13-15.) Plaintiff instead highlights some 8 favorable notes and findings in Dr. Siekerkotte’s opinion. (Doc. 16 at 13-14.) Dr. Siekerkotte wrote 9 that “Diabetes neuropathy is present for 4-5 years” and that “claimant states she has numbness in both 10 hands and feet and both are burning and hurting all the time.” AR 725. Dr. Siekerkotte further noted 11 that Plaintiff “can squat one-third of the way down” and that the Straight Leg Raising test was 12 “negative on the right in seated position with the claimant having right thigh pain.” AR 727-28. 13 Plaintiff, however, ignores the relevant but less favorable portions of Dr. Siekerkotte’s findings cited 14 by the ALJ in support of his analysis, including findings that Plaintiff had a normal gait, normal 15 Romberg testing, the ability to stand on toes, heels, and one leg alone, normal musculoskeletal range 16 of motion, and normal motor strength. AR 726, 727 (normal range of motion findings for spine, hip, 17 knee, ankle, shoulder), 728 (motor strength findings note: “left quadriceps 5-/5, right 5/5.”). In 18 reviewing Dr. Siekerkotte’s opinion, it does not appear that the ALJ mischaracterized the evidence but 19 instead highlighted the most relevant evidence regarding Plaintiff’s ability to walk and stand. 20 Furthermore, while Plaintiff attempts to substitute her own characterization of the evidence for that of 21 the ALJ, “the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence.” 22 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing Andrews v. Shalala, 53 F.3d 1025, 23 1039-40 (9th Cir. 1995)). To the extent that there is any ambiguity in Dr. Siekerkotte’s opinion 24 between the findings cited by the ALJ and the findings cited by Plaintiff, the ALJ is the final arbiter in 25 resolving that ambiguity. Plaintiff is therefore incorrect in arguing that the ALJ mischaracterized Dr. 26 Siekerkotte’s findings in examining the supportability factor. 27 In her supportability factor argument, Plaintiff also cites findings from the record beyond Dr. 28 Siekerkotte’s report to show the ALJ mischaracterized the evidence. (Doc. 16 at 14-15.) However, 1 the supportability factor addresses “the extent to which a medical source supports the medical opinion 2 by explaining the ‘relevant ... objective medical evidence.’” Woods, 32 F.4th at 791–92 (citing 20 3 C.F.R. § 404.1520c(c)(1)). Whether Dr. Siekerkotte’s opinion is consistent with evidence from other 4 medical sources goes to the consistency factor, and therefore does not support Plaintiff’s supportability 5 factor argument. Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(c)(1)) (“Consistency means 6 the extent to which a medical opinion is ‘consistent ... with the evidence from other medical sources 7 and nonmedical sources in the claim.’”). Plaintiff’s argument that the ALJ mischaracterized evidence 8 while evaluating the supportability factor is therefore unavailing. Accordingly, the ALJ did not err in 9 his analysis of the supportability factor when evaluating Dr. Siekerkotte’s opinion. 10 Plaintiff further argues that the ALJ’s evaluation of the consistency factor created harmful 11 error due to the ALJ’s “cherry-picking of evidence.” (Doc. 16 at 15-19.) Plaintiff contends that the 12 ALJ’s references to normal gait and coordination, grossly normal motor strength, and grossly normal 13 musculoskeletal range of motion do not sufficiently explain how the consistency factor demonstrated 14 Dr. Siekerkotte’s opinion was unpersuasive. (Doc. 16 at 17.) 15 Plaintiff correctly notes that the ALJ may not cherry-pick evidence in evaluating a medical 16 opinion. See Peek v. Kijakazi, No. 1:21-cv-01828-HBK, 2023 WL 3062107, at *5 (E.D. Cal. Apr. 24, 17 2023) (citing Buethe v. Comm’r of Soc. Sec., 2021 WL 1966202, at *4 (E.D. Cal. May 17, 2021)); 18 Cruz v. Kijakazi, No. 1:21-cv-01248-AWI-HBK, 2023 WL 1447855, at *5 (E.D. Cal. Feb. 1, 2023) 19 (“Even under the new regulations, the ALJ may not ‘cherry-pick’ evidence in discounting a medical 20 opinion.”). When district courts have analyzed arguments regarding cherry-picking, they have 21 examined whether the ALJ appropriately reviewed the record as a whole. See Cruz, 2023 WL 22 1447855, at *5 (“However, as part of the summary of medical evidence in the decision, the ALJ did 23 review ‘objective findings, diagnostic studies, treatment modalities, and the treatment record as a 24 whole,’ including ongoing evidence…that could be considered favorable to Plaintiff… Thus, when 25 viewing the medical record as a whole, it was reasonable for the ALJ to conclude that the severity of 26 limitations assessed… were not consistent with objective medical evidence in the record.”); Sapien v. 27 Kijakazi, No. 1:22-cv-00553-BAM, 2023 WL 3601571, at *3 (E.D. Cal. May 23, 2023) (“when 28 1 viewing the medical record as a whole, it was reasonable for the ALJ to conclude that the limitations 2 in fingering and handling proposed… were not consistent with the overall record.”) 3 Here, the ALJ similarly reviewed the record related to Plaintiff’s severe impairments and noted 4 that Plaintiff’s “neck, back, neuropathy, and diabetes mellitus impairments limit her ability to stand, 5 walk, lift, carry, and reach overhead, and impose some workplace environmental limitations.” AR 22. 6 The ALJ did not ignore the medical record regarding Plaintiff’s diabetes mellitus and other 7 impairments, but instead cited to findings over multiple years, discussed how and whether 8 impairments were controlled in his RFC analysis, and explained the degree of limitations the 9 impairments imposed in relation to Plaintiff’s ability to walk and stand. See AR 21-24; 641; 727-728; 10 891; 904; 932; 941; 944; 952; 960; 971; 983; 1146-47; 1166; 1175-76; 1279; 1380; 1386; 1403; 1505. 11 Despite Plaintiff’s contention that the ALJ’s references are insufficiently connected to discounting Dr. 12 Siekerkotte’s opinion, the ALJ’s citations to normal findings for gait and coordination, motor strength, 13 and musculoskeletal range of motion directly contrast with Dr. Siekerkotte’s opinion that Plaintiff had 14 greater limitations in her walking and standing abilities. The contrast between the relatively normal 15 findings and opined greater limitations allow the Court to trace the ALJ’s reasoning in discounting Dr. 16 Siekerkote’s opinion. When viewing the medical record as a whole, it was reasonable for the ALJ to 17 conclude that the limitations on walking and standing proposed by Dr. Siekerkotte were inconsistent 18 with the broader record. Moreover, the “key question is not whether there is substantial evidence that 19 could support a finding of disability, but whether there is substantial evidence to support the 20 Commissioner's actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 21 1067 (9th Cir. 1997). To the extent Plaintiff suggests an alternative interpretation of the evidence, this 22 is not sufficient to establish reversible error. If the evidence “is susceptible to more than one rational 23 interpretation, it is the ALJ's conclusion that must be upheld.” Ford v. Saul, 950 F.3d 1141, 1154 (9th 24 Cir. 2020), citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Accordingly, the ALJ did not 25 err in assessing the consistency factor when evaluating Dr. Siekerkotte’s opinion. 26 /// 27 /// 28 /// 1 CONCLUSION AND ORDER 2 Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial 3 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 4 DENIES Plaintiff's motion for summary judgment and her appeal from the administrative decision of 5 the Commissioner of Social Security, and affirms the agency's determination to deny benefits. The 6 Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Martin O’Malley, 7 Commissioner of Social Security, and against Plaintiff Pamela Kay Wages. 8 9 IT IS SO ORDERED.

10 Dated: February 5, 2024 /s/ Barbara A. McAuliffe _ 11 UNITED STATES MAGISTRATE JUDGE

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