1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 E.E., Case No. 21-cv-02104-JCS

8 Plaintiff,

ORDER REGARDING CROSS

9 v. MOTIONS FOR SUMMARY

JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. Nos. 23, 25 Defendant. 11

12 I. INTRODUCTION 13 Plaintiff E.E.1 applied for disability insurance benefits under Title II of the Social Security 14 Act on August 18, 2017 for disability that began on October 7, 2016. Her claim was denied first 15 on March 14, 2018 and again upon reconsideration on September 24, 2018, and following a 16 hearing held on January 30, 2020, an Administrative Law Judge (“ALJ”) issued an unfavorable 17 decision on April 7, 2020. E.E. brings this action challenging the final decision of Defendant 18 Kilolo Kijakazi, Commissioner of Social Security (“Commissioner”) finding her not disabled 19 under the Social Security Act and therefore not eligible for disability benefits. The parties filed 20 cross motions for summary judgment pursuant to Civil Local Rule 16-5. For the reasons 21 discussed below, E.E’s motion is GRANTED, the Commissioner’s motion is DENIED, and the 22 case is remanded for further administrative proceedings consistent with this order.2 23 II. BACKGROUND 24 E.E. has a high school education and reported that she held positions as an analyst at an 25 1 Because this order contains potentially sensitive medical information and orders of the Court are 26 more widely available for access than other filings, this order identifies E.E. only by her initials. This order does not alter the degree of public access to other filings in this action provided by Rule 27 5.2(c) of the Federal Rules of Civil procedure and Civil Local Rule 5-1(c)(5)(B)(i). 1 electric and gas company and as an assistant at a contractor. Admin. Record (“AR,” dkt. 18) at 2 232. She stopped work on October 7, 2016, purportedly due to disability. Id. at 231. E.E. 3 reported that several conditions limited her ability to work, including diabetes, heart problem, 4 kidney disease, high blood pressure, chronic anemia, urinary tract infection (“UTI”), coronary 5 artery disease (“CAD”), myalgia, mediastinitis, and high creatine phosphokinase (“CPK”) level. 6 Id. at 230. She reported that while she has seen doctors for physical conditions, she has not sought 7 care for any mental conditions. Id. at 234. 8 A. Summary of Medical Treatment and Medical Opinions 9 E.E. was seen by Dr. Emily L. Richie, M.D., her primary care physician, on February 27, 10 2017 at UCSF Medical Center for type 2 diabetes. Id. at 378. E.E. reported concerns about her 11 heart, including that she had chest pain when walking one to two blocks and that the pain would 12 worsen on hills. Id. Dr. Richie’s notes indicate that E.E. had a stent placed in her coronary artery 13 in 2012. Id. She also reported using a treadmill for 30 minutes per day and experiencing little to 14 no chest pain from that exercise. Id. At this visit, Dr. Richie observed “slowish” capillary refill 15 and mild hyperpigmentation of old sores on E.E.’s legs. Id. at 379. 16 E.E. had an x-ray of her chest performed on March 23, 2017, which showed a “[r]ight 17 upper lobe cavitary appearing nodule,” which “could represent focus of cavitary infection, 18 including tuberculosis, or tumor.” Id. at 540–41. Otherwise, her lungs and cardiac contours were 19 normal. Id. at 541. E.E. also had a study of her carotid arteries performed on March 23, 2017, 20 which showed signs of coronary artery disease. Id. at 532. 21 On March 24, 2017, E.E. visited Scot H. Merrick, M.D., a surgeon, with unstable angina 22 and coronary artery disease for the following operations: triple coronary artery bypass graft, left 23 internal mammary artery pedicle graft, endoscopic saphenous vein harvesting, and left radial 24 artery bypass graft. Id. at 381. A post-operation chest x-ray on March 29, 2017 showed “[h]azy 25 perihilar and basilar opacities which may reflect atelectasis or pulmonary edema . . . unchanged 26 with probable small bilateral pleural effusions,” and “[u]nchanged enlarged cardiomediastinal 27 silhouette.” Id. at 1117. E.E. was discharged on April 3, 2017. Id. at 388. E.E. met Dr. Merrick 1 E.E. “had no issues” since her last visit, and that “[s]he denie[d] shortness of breath orthopnea or 2 PND,” and was “[b]ecoming more active” and her “appetite [was] good.” Id. at 396. On May 8, 3 2017, E.E. underwent a chest CT scan, which showed “[s]ternotomy wound infection with 4 evidence of dehiscence and sternal osteomyelitis,” “[f]indings consistent with mediastinitis, 5 including gas and soft tissue density in the anterior mediastinum,” and “[m]ild pulmonary edema.” 6 Id. at 414. 7 On August 11, 2017, E.E. returned to Dr. Richie with a “new onset of myalgias” as well as 8 “pain in [her] chest when moving about,” pain in her back, legs, and lumbar area, and some 9 weakness in her legs. Id. at 1784. At this time, she reported exercising for fifteen minutes on the 10 treadmill, but “had to stop cardiac rehab” because of her muscle symptoms. Id. The progress 11 notes from this appointment indicate that E.E. asked about applying for disability and had 12 paperwork to complete. Id. at 1785. Dr. Richie’s examination revealed “[b]ilateral tender muscles 13 in [E.E.’s] legs” and “[m]ild stiffness of gait.” Id. 14 At a follow-up with Dr. Richie on August 28, 2017, E.E. reported her muscles continued to 15 ache, but less, and that she was doing “a little walking” for exercise. Id. at 1793. Dr. Richie also 16 performed a physical assessment for E.E. on August 28, 2017, stating that E.E. suffered from 17 coronary artery disease, type 1 diabetes, chronic kidney disease, and hypertension. Id. at 324. Dr. 18 Richie stated that E.E. would “need to recline or lie down during a hypothetical 8-hour workday,” 19 could walk one block “without rest or significant pain,” could sit for one hour total in an eight- 20 hour workday, could not stand or walk in an eight-hour workday, and would need to take six to 21 eight unscheduled twenty-minute breaks during an eight-hour workday. Id. Additionally, Dr. 22 Richie stated that E.E. could occasionally lift less than ten pounds; had limitations in doing 23 repetitive reaching, handling, or fingering; and would likely be absent from work more than four 24 times per month as a result of her impairments. Id. at 324–25. 25 On September 8, 2017, E.E. was seen by Yerem Yeghiazarians, M.D., a cardiology 26 specialist, who noted E.E. was experiencing pain in the back of her knees that was “unlikely to be 27 1 vascular in nature,” and “could be due to Baker’s cyst.”3 Id. at 426, 1802, 1807. On October 17, 2 2017, E.E. was seen by Martha N. Kennedy, M.D., an endocrinology and metabolism specialist, 3 whose progress notes indicate that E.E. was engaging in “light” exercise of using “a treadmill, 4 bike, nu-step, or elliptical 1–3 times a week for about 1 [hour],” and that she felt “diabetes [had] 5 caused problems with her family, life, work and sports.” Id. at 341, 421, 1837. 6 On December 20, 2017, E.E. was seen by Victoria C. Hsiao, M.D., an endocrinology and 7 metabolism specialist, regarding her diabetes, and Dr. Hsiao’s notes from that visit indicate that 8 she “[w]alked 15000 steps/day in Europe.” Id. at 426, 436. On January 31, 2018, E.E. saw Dr. 9 Hsiao again, who noted that E.E. was “very busy over [the] holidays, ate more, but walked more 10 too.” Id. at 443. Dr. Hsiao also noted that E.E. had “incisional pain with lying on [her right] 11 side,” and that she experienced muscle tightness while walking two to three blocks. Id. In Dr. 12 Hsiao’s notes reviewing E.E.’s symptoms, E.E. was experiencing various types of discomfort, 13 including “joint pain/stiffness,” “muscle pain/cramps/weakness,” “back pain,” “chest 14 pain/angina,” and “shortness of breath when walking or lying flat.” Id. at 444–45. 15 On March 9, 2018, E.E. was seen by Blake R. Charlton, M.D., a resident, who reported 16 that she complained of sternal pain described as a three or four out of ten for the past year that was 17 getting worse, and that the pain was “particularly bad when taking a deep breath,” “worse when 18 laying on her back or side,” and she had “difficulty sleeping and [slept] partially sitting up.” Id. at 19 448-49. E.E. also “continue[d] to have posterior knee pain” that was worse in the morning, could 20 “walk 2 blocks on flat ground and [could] climb 2 flights of [stairs] without symptoms,” and was 21 “limited by fatigue and leg tiredness.” Id. E.E. then was seen by Melinda M. Gu, M.D. on March 22 13, 2018, and complained of “[w]orsening right shoulder pain and chest wall pain on palpitation,” 23 “[l]imited range of motion of right shoulder due to pain,” and “right chest wall pain” that was 24 worsened when taking deep breaths. Id. at 456. E.E. described the worst pain as anywhere from a 25 five to a seven out of ten. Id. 26 On March 14, 2018, J. Allen, M.D. completed an assessment of E.E.’s capacity, finding 27 1 that she could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, 2 stand and/or walk with normal breaks for a total of six hours in an eight-hour workday, and sit 3 with normal breaks for a total of six hours in an eight-hour workday. Id. at 68–69. Dr. Allen also 4 found that E.E. could occasionally climb ramps or stairs, balance, stoop, kneel, crouch or crawl; 5 could never climb ladders, ropes or scaffolds; and should avoid even moderate exposure to 6 hazards such as machinery and heights. Id. at 69–70. On June 11, 2018, K. Lee, M.D. made the 7 same assessment of E.E.’s capacity. Id. at 88–90. 8 On July 20, 2018, E.E. visited Dr. Richie and reported dizziness, shortness of breath, and 9 tight chest pain in her surgical wound area as well as pain that was worse when lying on her side. 10 Id. at 1861. She added that she sometimes had to stop and catch her breath while watching 11 television, she would have to stop and rest after walking two blocks, and she had a low tolerance 12 for exercise for months. Id. After completing a physical examination, Dr. Richie assessed that 13 E.E. could try to increase stamina by walking and could use two puffs of an inhaler twice a day to 14 help with shortness of breath. Id. at 1862. 15 On August 28, 2018, E.E. underwent a complete psychological evaluation with Ute 16 Kollath, Ph.D., a clinical psychologist. Id. at 463. The evaluation describes E.E’s “current level 17 of functioning” as the following:

18 The claimant reported having physical limitations due to medical problems. She is independent for basic ADL’s. She does need help 19 with preparing meals. She chooses not to drive. She is able to make change at the store. The claimant typically spends her day at 20 appointments, with church activities, or resting. 21 Id. at 460. Dr. Kollath reported E.E.’s mood as “depressed,” and her cognitive and emotional 22 functioning both as “impaired.” Id. at 461. Additionally, E.E. reportedly “presented with limited 23 attention and concentration and frequently asked to have questions and instructions repeated.” Id. 24 Dr. Kollath reported that E.E. was moderately impaired in her abilities to follow complex or 25 detailed instructions, maintain adequate pace or persistence to perform complex tasks, maintain 26 adequate attention or concentration, adapt to changes in job routine, withstand the stress of a 27 routine workday, and adapt to changes, hazards, or stressors in the workplace setting. Id. at 462. 1 her legs after walking about 2 blocks.” Id. at 1895. She visited Dr. Richie again on April 24, 2 2019 and complained of pain in her posterior left knee as well as back pain. Id. at 1902. During 3 that meeting, Dr. Richie also completed a DMV disability form for E.E. Id. at 1903. Dr. Richie 4 further noted that E.E.’s diabetes remained “uncontrolled,” and that she should make changes to 5 her diet. Id. 6 On May 3, 2019, Anjali K. Asrani, Nurse Practitioner (“N.P.”) examined E.E., focusing on 7 her endocrine systems and related symptoms. Id. at 1905. Notes from that visit show that E.E. did 8 “not drive,” was “travelling a lot,” and had a normal cardiovascular report, but had other 9 symptoms including “muscle pain/cramps/weakness,” “back pain,” “shortness of breath,” and 10 “trouble with memory.” Id. at 1905–06. 11 On September 20, 2019, Dr. Yeghiazarians saw E.E., and she complained of “DOE[4] with 12 2-3 blocks of walking.” Id. at 1922. During this visit, E.E. also complained of “pain behind the 13 knee.” Id. 14 On January 6, 2020, Dr. Richie noted that E.E. had “coronary artery disease that limits 15 walking to one block or half flight of stairs” and “daily chest pain and shortness of breath due to 16 heart and asthma,” and that E.E.’s “diabetes [was] affecting [her] nerves and kidneys with 17 peripheral neuropathy and chronic kidney disease stage 3.” Id. at 4674. Dr. Richie reported to 18 E.E.: “Your primary doctor has advised you that you are disabled and cannot work.” Id. On 19 January 10, 2020, Dr. Richie wrote a letter to Philippine Airline reservations stating that due to 20 E.E.’s medical conditions and specifically her “weakness, inability to handle her luggage, inability 21 to walk the distances needed to traverse airports, and her risk of low or high blood sugar,” she 22 required certain accommodations for travel, including needing her husband to accompany her and 23 assist with luggage. Id. at 4673. 24 B. E.E.’s Hearing 25 At E.E.’s hearing on January 30, 2020, she testified that she last worked in October of 26 2016 and used to work at PG&E as an analyst and at agencies doing clerical or secretarial work. 27 1 Id. at 43. She also testified that she took care of her disabled mother for a month or two for a few 2 hours per day. Id. at 44. 3 E.E then explained that she first had a surgery involving her heart in 2012, during which 4 stents were placed, which did not prevent her from working at that time. Id. at 44–45. She 5 explained that in 2016, when her year-long contract as a clerk ended, she began “feeling really bad 6 about [her] heart,” could not walk long, and had shortness of breath. Id. at 46. She did not “have 7 a good insurance” while not working until 2017, when she was able to be covered under Covered 8 California. Id. E.E. explained that once she got insurance, her doctors began testing her and 9 ultimately performed a bypass in March of 2017. Id. Then, in May, she developed an infection, 10 which she described as “a lot more painful” than the bypass surgery itself. Id. at 47. 11 E.E. testified that since the surgery and subsequent infection, she needed help around the 12 house, and her husband stopped working “just to support [her].” Id. She also explained that 13 physically, her condition has worsened since 2017, specifically including her chest pain around the 14 wound from her surgery, vertigo, and pain in her back and legs. Id. at 47–48. She testified that 15 her level of concentration or focus is “really bad,” she does not drive anymore, and her husband or 16 daughter helps her with shopping. Id. at 49. She explained that she needs somebody with her 17 even when walking due to her vertigo and diabetes, in case her blood sugar goes down. Id. at 49– 18 50. She also reported other difficulties related to walking, including that she uses an inhaler every 19 morning to go up the stairs in her house, she always has pain and weakness in her legs, and she 20 has “no energy.” Id. at 50. E.E. testified that there was “no way” she would be able to do her 21 previous job anymore due to her physical condition, specifically saying that she cannot sit or stand 22 for long periods of time, take public transportation, or walk far. Id. at 52–53. 23 E.E. also testified to details about her travels over the past few years to the Philippines, 24 New York, and Europe. Id. at 51, 54–55. She explained that on her travels, she needs her 25 daughter or her husband to help her walk because of her pains. Id. at 51. She testified that there 26 were various purposes for the trips, including an event she had to attend in New York, to see 27 sights in Europe of religious significance to her and her family, and to see family in the 1 anything” as she visited family there. Id. 2 A vocational expert, Mr. Schmidt, also testified at the hearing and provided perspective on 3 E.E.’s ability to perform work. Id. at 56–58. Mr. Schmidt testified to a series of hypotheticals, 4 including that an individual would be able to perform E.E.’s past job if their stand and walk time 5 and lifting time was reduced during the day, and that the same individual would not be able to 6 perform E.E.’s past job if they were off task for ten percent of the day due to cardiac-related 7 symptoms. Id. at 57. Additionally, Mr. Schmidt testified that if the same individual needed the 8 option to stand up or sit down as needed, they would not be able to perform E.E.’s past job. Id. at 9 58. 10 C. Regulatory Framework for Determining Disability 11 An individual can claim disability insurance benefits under the Social Security Act if they 12 are unable “to engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which has lasted or can 14 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 15 see also 42 U.S.C. § 423(a)(1). A claimant can only be found disabled “if [their] physical or 16 mental impairment or impairments are of such severity that [they are] not only unable to do [their] 17 previous work but cannot, considering [their] age, education, and work experience, engage in any 18 other kind of substantial gainful work.” 42 U.S.C. § 423(d)(2)(A). 19 Social Security Administration (“SSA”) regulations set out a five-step process to determine 20 whether a claimant is disabled. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 21 20 C.F.R. § 404.1520). For steps one through four, the claimant bears the burden of proof, and the 22 burden shifts to the Commissioner for step five. See id. 23 First, the ALJ considers whether the claimant is presently “doing substantial gainful 24 activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the ALJ finds that the claimant is not disabled. Id. 25 If not, the ALJ moves to step two. Id. 26 Second, the ALJ considers whether the claimant has “a severe medically determinable 27 physical or mental impairment . . . or a combination of impairments that is severe” that meets the 1 “severe impairment” is an “impairment or combination of impairments which significantly limits 2 [one’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the 3 ALJ concludes that the claimant does not have a severe impairment, the claimant is found to not 4 be disabled. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ concludes that the claimant has a severe 5 impairment, they move to step three. Id. 6 Third, the ALJ considers the medical severity of the impairment compared to a list of 7 impairments the Commissioner has deemed sufficient to establish disability. 20 C.F.R. § 8 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination of the 9 claimant’s impairments meets or equals the severity of a listed impairment, the claimant is 10 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the ALJ moves to step four. Id. 11 Fourth, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and past 12 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). A claimant’s RFC “is the most [they] can still do 13 despite [their] limitations,” and RFC is assessed “based on all the relevant evidence in [the 14 claimant’s] case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ then determines whether, given a 15 claimant’s RFC, they can still do their past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). “Past 16 relevant work is work that [a claimant has] done within the past 15 years, that was substantial 17 gainful activity, and that lasted long enough for [them] to learn to do it.” 20 C.F.R. § 18 404.1560(b)(1). If the ALJ finds that the claimant can still perform their past relevant work given 19 their RFC, then the ALJ finds that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). If 20 the ALJ finds that the claimant cannot perform their past relevant work, the ALJ moves to step 21 five. Id. 22 Fifth, the burden shifts to the Commissioner and the ALJ considers the RFC assessment 23 and the claimant’s “age, education, and work experience to see if [they] can make an adjustment to 24 other work.” 20 C.F.R. § 404.1520(a)(4)(v). To meet this burden, “[t]he Commissioner must 25 identify specific jobs existing in substantial numbers in the national economy that claimant can 26 perform despite [their] identified limitations.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 27 1999) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)) (internal quotation marks 1 claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). If the ALJ finds that the claimant cannot 2 make the adjustment, the ALJ finds that the claimant is disabled. Id. 3 D. ALJ Decision 4 Following the hearing, the ALJ issued an unfavorable decision for E.E. on April 7, 2020. 5 Id. at 18. The ALJ found that E.E. met the insured requirements of the Social Security Act 6 through December 31, 2021, has not engaged in substantial gainful activity since October 7, 2016, 7 and has severe impairments including coronary artery disease post bypass surgery, insulin 8 dependent diabetes mellitus, asthma, hypertension, and anemia. Id. at 23. However, the ALJ also 9 found that E.E. did not have an impairment that met the severity of one of the listed impairments 10 in 20 C.F.R. Part 404, had the residual functional capacity to perform light work as defined in 20 11 C.F.R. § 404.1567(b), and could perform past relevant work as an administrative assistant and 12 secretary, and therefore E.E. was not disabled from October 7, 2016 until the date of the decision. 13 Id. at 26–31. 14 The ALJ found that although E.E. “had a brief period when she may have had significant 15 limitations while she recovered from surgeries in 2017, her alleged level of restriction is not fully 16 supported throughout the relevant period,” and that “[i]n contrast to her severe allegations, [E.E.] 17 retains a remarkable level of functionality.” Id. at 27. The ALJ cited E.E’s frequent travel, her 18 ability to perform personal care activities, and her exercise as evidence that was “inconsistent with 19 her allegations of constant and debilitating fatigue.” Id. The ALJ also found that Dr. Richie’s 20 opinions “ha[d] limited probative value and were not persuasive,” stating that the medical 21 evidence did not support Dr. Richie’s assessments about E.E.’s capabilities in performing basic 22 tasks, and that her conclusions were not consistent with E.E.’s ability to travel. Id. at 30. The ALJ 23 therefore concluded that E.E. could perform past relevant work in the role of an administrative 24 assistant or secretary and found E.E. not disabled under sections 216(i) and 223(d) of the Social 25 Security Act. Id. at 30–31. 26 E. The Parties’ Motions 27 E.E. moves for summary judgment, asking this Court to vacate the Commissioner’s 1 including a new hearing and decision. See generally Pl.’s Mot. (dkt. 23). E.E. contends that the 2 ALJ’s determination was “unsupported by substantial evidence as she failed to properly evaluate 3 the opinion of treating medical source Emily Richie, M.D.” Id. at 14. E.E. seeks “that the 4 Commissioner’s decision be vacated and that [the] matter be remanded to the Commissioner for 5 further administrative proceedings including a de novo hearing and new decision.” Id. at 18. E.E. 6 does not argue for an award of benefits without further administrative proceedings. 7 The Commissioner’s cross-motion for summary judgment seeks for this Court to affirm the 8 ALJ’s decision finding that E.E. is not disabled. See generally Def.’s Mot. (dkt. 25). The 9 Commissioner contends that the ALJ properly applied the new SSA rules adopted on January 18, 10 2017. Id. at 3. Specifically, the Commissioner contends that the ALJ properly found that Dr. 11 Richie’s opinions were “poorly supported and inconsistent with [E.E’s] frequent international 12 travel, activities, and a medical record showing [E.E.’s] impairments had stabilized.” Id. at 4. The 13 Commissioner focuses on three purported inconsistencies that the ALJ identified “between Dr. 14 Richie’s opinion and the record,” including inconsistencies between Dr. Richie’s opinion and 15 E.E.’s travel, E.E.’s exercise activities, and the medical record. Id. at 5. 16 E.E.’s reply reaffirms her argument that the ALJ’s decision be vacated, and the action be 17 remanded for a new hearing and decision. See generally Pl.’s Reply (dkt. 26). She contends that 18 Dr. Richie’s opinion was not inconsistent with the record. Id. Specifically, E.E. contends that her 19 ability to travel with assistance did not conflict with Dr. Richie’s conclusions, that her engaging in 20 exercise was not inconsistent with Dr. Richie’s assessment of her capabilities, and that the 21 Commissioner “relied on a selective reading of the medical record” to show that E.E.’s condition 22 had stabilized when there was also evidence of E.E.’s continued pain. Id. at 2–3. 23 III. ANALYSIS 24 E.E. contends that she is disabled under the Social Security Act and seeks reversal of the 25 ALJ’s unfavorable opinion. At issue in this case is whether the ALJ erred in finding that E.E. has 26 the RFC to perform light work and can perform past relevant work, and that E.E. is therefore not 27 disabled and not entitled to benefits. The only error that E.E. asserts is the ALJ’s rejection of the 1 rejection of Dr. Richie’s opinion to determine if the ALJ’s unfavorable decision was appropriate. 2 A. Standard of Review 3 District courts have jurisdiction to review final decisions of the Commissioner and may 4 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 5 hearings. 42 U.S.C. § 405(g); see also id. § 1383(c)(3). When reviewing a decision of the 6 Commissioner, courts “may set aside . . . denial of disability insurance benefits when the ALJ’s 7 findings are based on legal error of are not supported by substantial evidence in the record as a 8 whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The Ninth Circuit has held 9 “substantial evidence” to be “more than a mere scintilla” but “less than a preponderance.” Matney 10 ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing Richardson v. Perales, 402 11 U.S. 389, 401 (1971); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 12 1988)). Additionally, “the Commissioner’s decision cannot be affirmed simply by isolating a 13 specific quantum of evidence.” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 14 1240, 1243 (9th Cir. 1998)) (internal quotation marks omitted). Courts “consider the record as a 15 whole, weighing both evidence that supports and evidence that detracts from the . . . conclusion.” 16 Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). 17 B. The ALJ Erred in Rejecting Dr. Richie’s Opinion 18 Dr. Richie was E.E.’s treating physician and had followed E.E.’s care for no less than three 19 years. AR at 4673. The ALJ’s conclusion that E.E. is not disabled rests on her finding that “[t]he 20 opinions of Emily Richie, MD, have limited probative value and were not persuasive.” Id. at 30. 21 The first of Dr. Richie’s opinions which the ALJ rejected was that, in 2017, E.E. “could walk, 22 stand, or sit for less than 1 hour per day[5]; her symptoms would often interfere with [her] 23 performing even simple tasks; she would require 6–8 unscheduled work breaks of up to 20 24 minutes per day; she could occasionally lift less than 10 pound, but never more; she had 25 significant handling restrictions; and would miss more than 4 days of work per month.” Id. The 26 second was Dr. Richie’s letter, written in January of 2020, “stating that [E.E.] needed to be 27 1 accompanied when travelling, due to weakness, inability to handle her luggage, inability to walk 2 the distances needed to traverse airports, and her risk of low or high blood sugar.” Id. The ALJ 3 found that these opinions were inconsistent with (1) the medical record and (2) E.E.’s travel and 4 exercise. Id. 5 1. Legal Standards for ALJ Consideration of Medical Opinions 6 The parties agree that because E.E. filed her application after March 27, 2017, it is 7 governed by the new regulations implemented that year rather than by Ninth Circuit precedent 8 taking a hierarchical approach to opinions of treating, examining, and consulting doctors in earlier 9 cases. See Pl.’s Mot. at 14 (“[T]he new rules apply here.”); Woods v. Kijakazi, 32 F.4th 785, 792 10 (9th Cir. 2022) (applying the new regulations and noting that they are “are clearly irreconcilable 11 with our caselaw according special deference to the opinions of treating and examining 12 physicians”). 13 Under the new regulations, the Commissioner “will not defer or give any specific 14 evidentiary weight, including controlling weight, to any medical opinion(s).” 20 C.F.R. § 15 404.1520c(a). Instead, the Commissioner considers all medical opinions together using the 16 following five factors: (1) supportability, (2) consistency, (3) relationship with the claimant, 17 (4) specialization, and (5) “other factors.” 20 C.F.R. § 404.1520c(c). The ALJ must still 18 “articulate how [they] considered the medical opinions” and “articulate . . . how persuasive [they 19 found] all of the medical opinions.” 20 C.F.R. § 404.1520c(a)–(b). “As with all other 20 determinations made by the ALJ, the ALJ’s persuasiveness explanation must be supported by 21 substantial evidence.” J.B. v. Kijakazi, No. 20-cv-06231-VKD, 2022 WL 282513, at *3 (N.D. 22 Cal. Jan. 31, 2022) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *4 23 (W.D. Wash. Apr. 9, 2020)). 24 Of the five factors, supportability and consistency are “most important,” and the ALJ must 25 “explain how [they] considered the supportability and consistency factors for a medical source’s 26 medical opinions.” 20 C.F.R. § 404.1520c(b)(2). For supportability, “[t]he more relevant the 27 objective medical evidence and supporting explanations presented by a medical source are to 1 C.F.R. § 404.1520c(c)(1). For consistency, “[t]he more consistent a medical opinion[] . . . is with 2 the evidence from other medical sources and nonmedical sources in the claim, the more persuasive 3 the medical opinion[] . . . will be.” 20 C.F.R. § 404.1520c(b)(2). The ALJ “may, but [is] not 4 required to, explain how [they] considered” the remaining three factors. Id. However, when “two 5 or more medical opinions . . . about the same issue are both equally well-supported . . . and 6 consistent with the record . . . but are not exactly the same, [the ALJ] will articulate how [they] 7 considered the other most persuasive factors.” 20 C.F.R. § 404.1520c(b)(3). 8 Relationship with the claimant, the third factor, is split into consideration of five issues: 9 length of the treatment relationship, frequency of examinations, purpose of the treatment 10 relationship, extent of the treatment relationship, and examining relationship. 20 C.F.R. § 11 404.1520c(c)(3)(i)–(v). 12 Specialization, the fourth factor, provides that a “medical opinion . . . of a medical source 13 who has received advanced education and training to become a specialist may be more persuasive 14 about medical issues related to [their] area of specialty than the medical opinion . . . of a medical 15 source who is not a specialist in the relevant area of specialty.” 20 C.F.R. § 404.1520c(c)(4). 16 The fifth factor is a catch-all provision of “other factors,” including “evidence showing a 17 medical source has familiarity with the other evidence in the claim or an understanding of [the] 18 disability program’s policies and evidentiary requirements.” 20 C.F.R. § 404.1520c(c)(5). When 19 the ALJ “consider[s] a medical source’s familiarity with the other evidence in a claim, [they] also 20 consider whether new evidence [they] receive after the medical source made his or her medical 21 opinion . . . more or less persuasive.” Id. 22 2. The Medical Record and Dr. Richie’s Opinions 23 The ALJ found that Dr. Richie’s assessment of E.E.’s physical limitations were “not 24 supported by underlying evidence.” AR at 30. The ALJ stated that while Dr. Richie in 2017 and 25 2020 “posited that [E.E.] was limited to less than sedentary work,” the “underlying evidence” in 26 the medical record showed that E.E. “felt that her overall health was fair and that her diabetes was 27 fairly well controlled,” that “[s]he was stable from a cardiovascular standpoint,” and “[i]n 2019, 1 2017 visit with Dr. Kennedy and the normal cardiovascular report from Anjali K. Asrani, N.P. 2 from May of 2019. Id. at 1837, 1906. However, these two visits do not paint a complete picture 3 either of E.E.’s condition from 2017 to 2020 or of the medical record. Even under the new SSA 4 regulations, an ALJ cannot ignore evidence that cuts against their conclusions in assessing the 5 relevant factors. The ALJ therefore erred in evaluating the supportability and consistency of Dr. 6 Richie’s opinion. 7 For supportability, “[t]he more relevant the objective medical evidence and supporting 8 explanations presented by a medical source are to support [their] medical opinion(s) . . . the more 9 persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). So, the ALJ should 10 have examined whether Dr. Richie’s medical evidence supported her conclusions about E.E.’s 11 physical limitations. The ALJ did not do this, despite the volume of evidence in the record 12 describing the information that Dr. Richie had available to her about E.E.’s condition that could 13 support her opinions about E.E. For example, after E.E.’s bypass surgery in 2017 and prior to Dr. 14 Richie’s 2017 assessment about E.E.’s limitation to less than sedentary work, Dr. Richie saw E.E. 15 twice in August. AR at 1784, 1793. During these visits, E.E. complained of various types of pain 16 which limited her ability to exercise and move about, and Dr. Richie examined E.E. and found 17 “tender muscles in [E.E.’s] legs” and “[m]ild stiffness of gait.” Id. at 1785, 1793. Further, prior to 18 Dr. Richie’s 2020 letter describing E.E.’s limitations, Dr. Richie examined E.E. multiple times, 19 and during these visits E.E. continued to complain of symptoms related to her physical discomfort. 20 For example, E.E. saw Dr. Richie in July of 2018 and reported dizziness, shortness of breath, tight 21 chest pain in her surgical wound, and that she sometimes had to stop and catch her breath after 22 watching television, had to stop and rest after walking two blocks, and that she had a low exercise 23 tolerance for months. Id. at 1861. She also saw Dr. Richie in March of 2019 and reported back 24 pain and “fatigue and pain in her legs after walking about 2 blocks,” and in April of 2019 she 25 visited Dr. Richie and complained of knee and back pain. Id. at 1895, 1902. If the ALJ had 26 correctly applied the new standards regarding supportability, she would have discussed the above 27 medical evidence that was available to Dr. Richie and determined whether Dr. Richie’s opinions 1 For consistency, “[t]he more consistent a medical opinion[] . . . is with the evidence from 2 other medical sources and nonmedical sources in the claim, the more persuasive the medical 3 opinion[] . . . will be.” 20 C.F.R. § 404.1520c(b)(2). While the ALJ cited two other medical 4 sources (E.E.’s visits with Dr. Kennedy in October of 2017 and Anjali K. Asrani, N.P. in May of 5 2019) from the record which she found to be inconsistent with Dr. Richie’s opinions, those two 6 medical opinions do not provide a full picture of the other medical sources available in the record. 7 For example, E.E. complained of various pain and other bothersome symptoms before and after 8 the October 2017 visit with Dr. Kennedy. She reported pain in the back of her leg potentially due 9 to a Baker’s cyst in the September 2017 visit with Dr. Yeghiazarians. See id. at 1802, 1807. E.E. 10 saw Dr. Hsaio in January of 2018 and complained of various pains including muscle tightness 11 while walking two to three blocks. Id. at 443–45. E.E. saw Dr. Charlton in March of 2018 and 12 reported sternal and knee pain and that she could walk two blocks on flat ground. Id. at 449. E.E. 13 saw Dr. Gu in March of 2018 and reported she was having chest pains described as a five to seven 14 out of ten at their worst. Id. at 456. And, during the very visit that the ALJ cites with Anjali K. 15 Asrani, N.P. in May of 2019, E. E. had symptoms including “muscle pain/cramps/weakness,” 16 “back pain,” “shortness of breath,” and “trouble with memory.” Id. at 1905–06. Further, E.E. 17 complained of “DOE with 2-3 blocks of walking” and “pain behind the knee” in the September 18 2019 visit with Dr. Yeghiazarians. Id. at 1922. If the ALJ had correctly applied the new SSA 19 standards regarding consistency, she would haver examined the other medical sources across the 20 record to determine if Dr. Richie’s opinions were consistent, rather than picking out two particular 21 visits. See 20 C.F.R. § 404.1520c(b)(2); see also V.R. v. Kijakazi, No. 20-cv-03994-VKD, 2021 22 WL 5279813, at *3 (N.D. Cal. Nov. 12, 2021) (finding that an “ALJ’s citation to . . . two 23 treatment notes ignore[d] other notes that contradict[ed] the ALJ’s conclusions”); Holohan v. 24 Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (concluding that an ALJ erred in disregarding 25 certain medical opinions but considering others). 26 The ALJ also incorrectly applied the new SSA standards in evaluating the opinion of the 27 1 Disability Determination Service (“DDS”) non-examining physicians.6 The ALJ stated that the 2 “State agency physical consultants’ opinions [were] persuasive,” explaining that “the DDS 3 opinions carry great weight because the doctors were privy to much of the record giving them a 4 longitudinal prospective,” that “they are specialists in evaluating impairments and have experience 5 in evaluating claimants in the context determining disability,” and their “opinions [were] 6 consistent with the medical evidence.” Id. at 29–30. The ALJ used these assessments of the 7 medical opinions to conclude, in assessing E.E.’s RFC, that the evidence showed “remarkable 8 improvement since her bypass surgery in 2017,” and that E.E. “has gone on to lead an active 9 lifestyle.” Id. at 30. In making this conclusion, the ALJ did not address supportability, and she 10 also did not cite any specific evidence for consistency. While it is possible that the DDS opinions 11 could be persuasive, the ALJ’s rationale for concluding so is inconsistent with the framework set 12 out in the new SSA regulations. 13 The ALJ erred by misapplying the new SSA regulations to Dr. Richie’s opinions and the 14 opinions of the DDS non-examining physicians. This error warrants remand. 15 3. E.E.’s Travel and Exercise 16 The ALJ also stated that Dr. Richie’s opinions were unpersuasive because Dr. Richie’s 17 opinions of E.E.’s limited physical abilities were “not consistent with [E.E.’s] activities traveling 18 around the world frequently since the alleged onset date.” AR at 30. In her hearing, E.E. 19 described her travels to the Philippines, Europe, and New York, which were for the purposes of 20 visiting family, attending occasions, and seeing sights of religious significance. Id. at 54; see also 21 id. at 436 (E.E. visited Dr. Hsiao in January of 2018 and reported that she “[w]alked 15000 22 steps/day in Europe”); id. at 1905 (notes from E.E.’s visit to Anjali K. Asrani, N.P. indicate she 23 traveled or planned to travel to New York, the Philippines, Canada, and Europe). The ALJ cited 24 E.E.’s travel as evidence of her “ability to engage in an active lifestyle since her bypass 25 procedure,” and found that that both Dr. Richie’s 2017 physical assessment describing E.E.’s 26

27 6 While E.E.’s briefs do not specifically address the ALJ’s treatment of these consulting 1 physical limitations and Dr. Richie’s 2020 note describing her limitations while traveling were 2 inconsistent with the travel. Id. at 27, 30. 3 Another reason the ALJ gave for finding Dr. Richie’s opinion unpersuasive was that Dr. 4 Richie’s opinions of E.E.’s limited physical abilities were inconsistent with E.E.’s levels of 5 exercise. AR at 30. The specific instance of exercise the ALJ cited was that on October 18, 2017, 6 Dr. Kennedy noted that E.E. would “use a treadmill, bike, nu-step or elliptical 1–3 times a week 7 for about 1 [hour].” Id. at 334, 1837. 8 The ALJ did not explain how exactly Dr. Richie’s opinions of E.E.’s physical limitations 9 were inconsistent with E.E. traveling or engaging in the exercise described above, and she did not 10 address the evidence related to travel and exercise across the record that may have been contrary 11 to her opinion. Id. at 30. 12 The ALJ did not cite any specific reasons why E.E.’s disability and her travel could not 13 coexist,7 and the ALJ only cited one example of light exercise that Dr. Kennedy reported in 14 October of 2017 as evidence of E.E.’s living an “active lifestyle.” Id. at 27. In doing so, the ALJ 15 failed to address the evidence in the medical record which showed E.E.’s physical limitations and 16 contradicted her conclusion that E.E. was physically capable of work. For example, Dr. Richie 17 noted in August of 2017 that E.E.’s exercise consisted of fifteen minutes on the treadmill and light 18 walking. Id. at 1784. Dr. Hsiao noted in January of 2018 that E.E. experienced muscle tightness 19 when walking two to three blocks, and Dr. Charlton noted in March of 2018 that E.E. could walk 20 two blocks on flat ground. Id. at 443, 449. Dr. Richie reported in July of 2018 that E.E. had a low 21 tolerance for exercise for months and would have to stop to rest after walking two blocks, and she 22 reported in March of 2019 that E.E. experienced pain after walking two blocks. Id. at 1861, 1895. 23 Additionally, Dr. Richie’s 2020 note itself and E.E.’s testimony at her hearing indicate that E.E. 24 7 The Commissioner’s brief includes that Dr. Hsiao’s notes from her January 2018 appointment 25 with E.E. say that E.E. “[w]alked 15000 steps/day in Europe.” Def.’s Mot. (dkt. 25) at 5. The ALJ did not cite this anecdote in her opinion, and the Ninth Circuit has held that courts “review 26 only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [they] did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 27 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). However, even if the ALJ had 1 was limited in her physical abilities while traveling. Id. at 51, 4674. 2 Rather than addressing the evidence across the record regarding E.E.’s physical limitations, 3 including evidence that tends to support Dr. Richie’s conclusions, the ALJ selected certain 4 instances of E.E.’s travel and exercise to discredit Dr. Richie’s opinions. See Holohan, 246 F.3d 5 at 1207 (9th Cir. 2001) (finding error when an ALJ “selectively relied” on entries in a claimant’s 6 medical record). Because the ALJ’s conclusion is not supported by addressing the relevant 7 evidence in the record, it could suggest that E.E. is being “penalized for attempting to lead [a] 8 normal [life] in the face of [her] limitations.” See George D. D. L. v. Saul, No. 20-cv-03552-SK, 9 2021 WL 5205600, at *8 (N.D. Cal. Nov. 9, 2021). The Court does not reach the question of 10 whether an ALJ could find E.E.’s travel and exercise to be sufficient evidence to discredit aspects 11 of Dr. Richie’s assessments, but the ALJ here did not provide a full view of the relevant medical 12 evidence in doing so. See Garrison v. Colvin, 759 F.3d 995, 1018 n.23 (9th Cir. 2014) (finding 13 that an ALJ is “not permitted to ‘cherry-pick’ from . . . mixed results to support a denial of 14 benefits” (quoting Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011)). The Ninth Circuit has 15 held that an “ALJ is ‘not required to discuss every piece of evidence,’” but it has framed that rule 16 as excusing discussion of “‘evidence that is neither significant nor probative.’” Hiler v. Astrue, 17 687 F.3d 1208, 1212 (9th Cir. 2012) (citation omitted). Here, the above evidence relating to 18 E.E.’s physical abilities could be potentially probative in determining whether Dr. Richie’s 19 assessments of E.E.’s physical abilities were persuasive, regardless of whatever the appropriate 20 conclusion might be. The ALJ therefore should have addressed it in a discussion of E.E.’s travel 21 and exercise in the context Dr. Richie’s assessment of E.E.’s physical limitations. 22 The ALJ erred in failing to address relevant evidence in the medical record to conclude 23 that E.E.’s travel and exercise gave reason to reject Dr. Richie’s opinions. This error warrants 24 remand. 25 / / / 26 / / / 27 / / / 1 IV. CONCLUSION 2 For the reasons discussed above, E.E.’s motion is GRANTED, the Commissioner’s motion 3 is DENIED, and the case is remanded for further administrative proceedings consistent with this 4 order. 5 IT ISSO ORDERED. 6 || Dated: July 26, 2022 7 c ao

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