1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6

T.L.,

7 Case No. 22-cv-03046-JCS Plaintiff, 8 ORDER GRANTING PLAINTIFF’S v. MOTION FOR SUMMARY 9 JUDGMENT, DENYING

KILOLO KIJAKAZI, DEFENDANT’S MOTION FOR

10 SUMMARY JUDGMENT AND Defendant. REMANDING FOR FURTHER 11 PROCEEDINGS

12 Re: Dkt. Nos. 11, 14

13 14 I. INTRODUCTION 15 On September 17, 2019, T.L.1 applied for disability under Title II of the Social Security 16 Act alleging disability beginning January 20, 2016. The claim was denied initially and upon 17 reconsideration, and Serena S. Hong, an administrative law judge (“ALJ”), held a hearing on 18 February 23, 2021. On May 3, 2021, the ALJ denied Plaintiff’s application and on March 28, 19 2022, the Appeals Council denied Plaintiff’s appeal of the ALJ’s decision, making it the final 20 decision of Defendant Commissioner of the Social Security Administration (“Commissioner”). 21 After the Appeals Council denied review, Plaintiff sought review in this Court pursuant to 42 22 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for summary judgment. 23 For the reasons stated below, the Court GRANTS Plaintiff’s Motion for Summary Judgment, 24 DENIES the Commissioner’s Motion for Summary Judgment and remands for further proceedings 25 consistent with this opinion.2 26 1 Because opinions by the Court are more widely available than other filings and this Order 27 contains potentially sensitive medical information, this Order refers to Plaintiff using only his 1 II. FIVE-STEP FRAMEWORK FOR DETERMINING DISABILITY 2 Disability insurance benefits are available under the Social Security Act (the “Act”) when 3 an eligible claimant is unable “to engage in any substantial gainful activity by reason of any 4 medically determinable physical or mental impairment . . . which has lasted or can be expected to 5 last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 6 U.S.C. § 423(a)(1). A claimant is only found disabled if their physical or mental impairments are 7 of such severity that they are not only unable to do their previous work but also “cannot, 8 considering [their] age, education, and work experience, engage in any other kind of substantial 9 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 10 The Commissioner has established a sequential, five-part evaluation process to determine 11 whether a claimant is disabled under the Act. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 12 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof at steps one through 13 four, but the burden shifts to the Commissioner at step five. Id. “If a claimant is found to be 14 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 15 steps.” Id. 16 At step one, the ALJ considers whether the claimant is presently engaged in “substantial 17 gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in such activity, the 18 ALJ determines that the claimant is not disabled, and the evaluation process stops. Id. If the 19 claimant is not engaged in substantial gainful activity, the ALJ continues to step two. See id. 20 At step two, the ALJ considers whether the claimant has “a severe medically determinable 21 physical or mental impairment” or combination of such impairments that meets the regulations’ 22 twelve-month durational requirement. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment 23 or combination of impairments is severe if it “significantly limits [the claimant’s] physical or 24 mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have 25 a severe impairment, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ 26 determines that one or more impairments are severe, the ALJ proceeds to the next step. See id. 27 1 At step three, the ALJ compares the medical severity of the claimant’s impairments to a 2 list of impairments that the Commissioner has determined are disabling (“Listings”). See 20 3 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination 4 of the claimant’s impairments meets or equals the severity of a listed impairment, the claimant is 5 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis continues. See id. 6 At step four, the ALJ must assess the claimant’s residual functional capacity (“RFC”) and 7 past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is “the most [a claimant] can still 8 do despite [that claimant’s] limitations . . . based on all the relevant evidence in [that claimant’s] 9 case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ then determines whether, given the claimant’s 10 RFC, the claimant would be able to perform their past relevant work. 20 C.F.R. § 404.1520(a)(4). 11 Past relevant work is “work that [a claimant] has done within the past fifteen years, that was 12 substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it.” 13 20 C.F.R. § 404.1560(b)(1). If the claimant is able to perform their past relevant work, then the 14 ALJ finds that they are not disabled. If the claimant is unable to perform their past relevant work, 15 then the ALJ proceeds to step five. 16 At step five, the Commissioner has the burden to “identify specific jobs existing in 17 substantial numbers in the national economy that the claimant can perform despite [the claimant’s] 18 identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). If the 19 Commissioner meets this burden, the claimant is not disabled. See 20 C.F.R. § 404.1520(f). 20 Conversely, the claimant is disabled and entitled to benefits if there are not a significant number of 21 jobs available in the national economy that the claimant can perform. Id. 22 III. FACTUAL BACKGROUND 23 A. Education and Work History 24 T.L. was born in January 1971 and was just short of 45 years old as of January 20, 2016, 25 his alleged disability onset date. Admin. Record (“AR,” dkt. 10) at 170. He completed some high 26 school education in Vietnam3 and then took English classes in the United States. AR 36. At the 27 1 time of the hearing, T.L. lived in San Rafael with his wife, minor daughter, and parents. AR 36, 2 251. A work history report submitted to the Social Security Administration reflects that T.L. 3 worked 40 hours a week as a school district cook between 1991 to 2017. AR 238-239. T.L. also 4 testified at the administrative hearing that he had worked other jobs as well, including as an 5 assembly line worker and a substitute janitor in another school district. AR 37-43. After 6 sustaining a back injury in January 2016, T.L. was put on a modified duty. AR486-487. By 2017 7 he had stopped working. AR 198. In July 2019 he had a heart attack and had a stent placed. AR 8 377-378. 9 B. The ALJ’s Decision 10 At step one, the ALJ concluded that T.L. had not engaged in any substantial gainful 11 activity since January 20, 2016. AR 15. At step two, she determined that T.L.’s degenerative disc 12 disease, left rotator cuff tendinitis syndrome, and coronary artery disease (post stent placement) 13 constituted severe impairments that “significantly limit the ability to perform basic work 14 activities.” AR 16. 15 At step three, the ALJ considered T.L.’s medically determinable physical impairments, 16 singly and in combination, and found that they did “not meet or medically equal the severity 17 requirements of any listed impairment.” AR 16. The ALJ specifically considered Listings 1.15 18 (disorders of the skeletal spine affecting nerve root(s)), 1.16 (lumbar spinal stenosis), 1.18 19 (abnormality of major joints in any extremity), 4.02 (chronic heart failure), and 4.04 (ischemic 20 heart disease) in making this determination. AR 16. The ALJ also considered obesity, even 21 though it is not an official listing, and found it to be a nonfactor. AR 16. 22 At step four the ALJ found that T.L. had the residual functional capacity (“RFC”) to 23 perform:

24 light work as defined in 20 CFR 404.1567(b) except the claimant can lift or carry up to 15 pounds occasionally; can occasionally climb 25 ramps and stairs, balance, stoop, kneel, crouch, and crawl, but can never climb ladders, ropes, or scaffolds; can occasionally overhead 26 reach; can frequently handle and finger; must avoid concentrated exposure to extreme cold and hazards such as unprotected heights. 27 1 AR 16.4 In reaching this RFC, the ALJ found that T.L.’s “medically determinable impairments 2 could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements 3 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 4 consistent with the medical evidence and other evidence in the record.” AR 17. 5 At step five, the ALJ determined that T.L. could not perform his past relevant work as a 6 cook, a machinist or a janitor with his current RFC. AR 23-24. Nevertheless, considering T.L.’s 7 age, education, work experience, and RFC, and in reliance on the testimony of the vocational 8 expert (“VE”), the ALJ concluded that T.L. could perform jobs as a Ticket Seller, Ticket Taker, 9 and Sales Attendant. AR 24–25. Consequently, the ALJ concluded that T.L. was not disabled at 10 step five. AR 25. 11 IV. ISSUES FOR REVIEW 12 T.L. seeks reversal of the Commissioner’s denial of benefits on the following grounds: (1) 13 the ALJ erred by dismissing the opinions of treating physician Dr. Vu without properly 14 considering the factors governing the consideration of medical opinions under 20 C.F.R. § 15 416.920c(c) and for reasons that were not supported by substantial evidence; (2) the ALJ did not 16 offer specific, clear and convincing reasons supported by substantial evidence for discrediting 17 T.L.’s symptom testimony; (3) the ALJ failed to properly consider headaches and cervical 18 radiculopathy as severe impairments or factor them in to T.L.’s RFC; (4) the ALJ failed to account 19 for T.L.’s change in age category by the time of the hearing, when he was 50 years old, putting 20 him in the category of “person closely approaching advanced age”; and (5) the ALJ reached an 21 22 4 20 C.F.R. § 404.1567 provides: 23

Light work. Light work involves lifting no more than 20 pounds at a time with frequent 24 lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, 25 or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you 26 must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional 27 limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 1 RFC unsupported by substantial evidence.5 2 V. ANALYSIS 3 A. Standard of Review 4 District courts have jurisdiction to review the final decisions of the Commissioner and may 5 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 6 hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). When reviewing the 7 Commissioner’s decision, the Court takes as conclusive any findings of the Commissioner that are 8 free of legal error and supported by “substantial evidence.” Substantial evidence is “such 9 evidence as a reasonable mind might accept as adequate to support a conclusion” and that is based 10 on the entire record. Richardson v. Perales, 402 U.S. 389, 401. (1971). “ ‘Substantial evidence’ 11 means more than a mere scintilla,” id., but “less than preponderance.” Desrosiers v. Sec’y of 12 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (cleaned up). Even if the 13 Commissioner’s findings are supported by substantial evidence, “the decision should be set aside 14 if the proper legal standards were not applied in weighing the evidence and making the decision.” 15 Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (cleaned up). In reviewing the record, the 16 Court “must consider both the evidence that supports and the evidence that detracts” from the 17 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 B. Whether the ALJ Erred in Rejecting Dr. Vu’s Medical Opinions 19 1. Background 20 Dr. Vu is a physical medicine and rehabilitation specialist at the main campus of the San 21 Rafael Kaiser. AR 412. She began treating T.L. for lumbar radiculopathy on January 14, 2019. 22 AR 412, 618. In her treatment notes, Dr. Vu wrote that T.L. “present[ed] with more than 3 years 23 of low back pain” and that T.L. reported he had been experiencing low back pain that radiated into 24 5 The Court notes that neither party complied with its May 25, 2022 Order requiring them to file a 25 joint or separate statements of the administrative record. The Court adopted this requirement not only to assist it in evaluating the parties’ arguments but, more importantly, to ensure that the 26 parties conduct a fulsome review of the record in connection with their motions. While the extensive factual background provided by Plaintiff in the body of his summary judgment motion 27 reflects that Plaintiff’s counsel has conducted such a review, it is not apparent that the 1 his left thigh and calf for two and a half years. AR 412 (1/14/19 treatment note). T.L. reported 2 thigh and calf numbness in addition to one or two instances of leg buckling, but no falls. AR 412. 3 T.L. told Dr. Vu he had tried physical therapy and acupuncture with no improvement since onset. 4 AR 412. Dr Vu noted, “Worse with - sitting, standing, bending forward or back[;] Better with - 5 walking and lying flat on back[.]” AR 412. Dr. Vu further noted that T.L.’s range of motion 6 appeared “[l]imited and painful with flexion, extension and left lateral and flexion reproducing 7 radiating pain.” AR 413. Dr. Vu prescribed gabapentin and referred T.L. to radiology for an MRI 8 of his spine. AR 413. 9 The MRI revealed multilevel disc desiccation, slight retrolisthesis at L4, marrow signal 10 within normal limits, and normal soft tissue. AR 548–549. There was a mild disc bulge and mild 11 bilateral face arthropathy at L2–L3 with no central canal stenosis or neuroforaminal narrowing; at 12 L3–L4, a mild disc bulge and mild bilateral face arthropathy with no central canal stenosis, and 13 with mild neuroforaminal narrowing bilaterally. AR 549. At L4–L5, the MRI showed a large disc 14 bulge with moderate bilateral facet arthropathy and marked ligamentum flavum thickening 15 accompanied by moderate central canal stenosis and moderate neural foraminal narrowing 16 bilaterally. AR 549. Additionally, T.L. had a small disc bulge at L5–S1, exhibiting moderate 17 bilateral facet arthropathy, with no central canal stenosis, and with moderate neural foraminal 18 narrowing bilaterally. AR 549. 19 Dr. Vu called T.L. and explained the results of the MRI to him, diagnosing T.L. with 20 “lumbar disc herniation w[ith] radiculopathy.” AR 409 (1/17/19 treatment note). T.L. told Dr. Vu 21 that the radiculopathy was “much improved with gabapentin” but that the medication was causing 22 him to feel lightheaded and so Dr. Vu reduced T.L.’s gabapentin dose from four capsules to three. 23 AR at 409. 24 T.L. returned to Dr. Vu on February 5, 2019 with “worsening low back pain when weather 25 is cold[.]” AR 408 (2/5/2019 treatment note). T.L. reported that the gabapentin was not helping 26 with his back pain. He also reported that he still had leg pain but that his legs “[felt] much 27 better[.]” AR 408. Dr. Vu prescribed 600mg Motrin, advised T.L. to increase his gabapentin dose 1 At T.L.’s February 5, 2019 appointment, he dropped off forms for Dr. Vu to complete in 2 connection with his application for disability benefits. AR 407. On that same date, Dr. Vu 3 completed a Spinal Impairment Questionnaire. AR 618-624. Under “Frequency of treatment” she 4 wrote, “recommend once/week x 12 weeks [physical therapy].” AR 618. Dr. Vu listed T.L.’s 5 diagnosis as lumbar radiculopathy, noting that she “[d]id not treat [T.L.] for cervical spine.” AR 6 618. Dr. Vu listed T.L.’s prognosis as “Good.” AR 618. Dr. Vu summarized T.L.’s symptoms 7 as “3 years low back pain, 2.5 years low back pain radiating to left lateral thigh and posterolateral 8 calf. Initially see[n] by another physician as an occupational injury, now retired from that job. 9 Complaint of thigh and calf numbness.” AR 620. Under “clinical findings” Dr. Vu noted a 10 limited range of movement at the lumbar spine in “Flex/Ext/left lateral flexion.” AR 618. She 11 found that the lumbar spine exhibited no tenderness, no muscle spasms, no sensory loss, some 12 reflex changes at T.L.’s right and left knees and ankles, but no muscle atrophy, abnormal gait, 13 swelling, crepitus, or trigger points. AR 619. Dr. Vu found positive facet loading on T.L.’s left 14 side. AR 619. Under “laboratory and diagnostic test results” that supported her diagnosis, Dr. Vu 15 wrote, “Large L4–L5 disc bulge, ligamentum flavum hypertrophy, facet arthropathy with 16 moderate neural foraminal narrowing.” AR 620. She reported that T.L. suffered neuropathic pain 17 in his “left lateral thigh and posterior, lateral calf and low back.” AR 620. 18 Dr. Vu wrote that T.L. experienced this pain intermittently “with sitting, standing, bending 19 forward and backward,” and that T.L.’s pain symptoms improved “with walking and lying flat on 20 [his] back.” AR 620–621. In response to the question, “Have you been able to completely relieve 21 the pain with medication without unacceptable side effects?” Dr. Vu checked “No.” AR 621. 22 The questionnaire then asked Dr. Vu to evaluate T.L.’s residual functional capacity were 23 he to be placed in a “normal competitive five day a week work environment on a sustained basis.” 24 AR 621 (emphasis removed). Dr. Vu opined that T.L. could sit two hours intermittently, stand 25 two hours intermittently, and walk four hours. AR 621. She opined that it would be “necessary or 26 medically recommended” for T.L. not to sit or stand continuously in a work setting, but he could 27 walk. AR 621. Furthermore, if T.L. were to sit, Dr. Vu opined that he would need to get up and 1 patient can sit again?” Dr. Vu wrote “Depends on his [progress] he needs to demonstrate 2 participation in physical therapy.” AR 621. Dr. Vu opined that T.L. could lift up to ten pounds 3 frequently, up to twenty pounds occasionally, but never more than twenty pounds. AR 621. In a 4 handwritten note in the margin, Dr. Vu wrote that her estimate of never more than twenty pounds 5 was “temporary.” AR 621. Dr. Vu stated that T.L.’s gabapentin “uptitration dose” was 300 mg. 6 but that no “stable dose” had been reached yet. AR 622. Dr. Vu checked “No” as to whether 7 T.L.’s impairments were “ongoing, creating an expectation . . . that they will last at least twelve 8 months”; and she checked “No” as to whether emotional factors contributed to the severity of 9 T.L.’s symptoms and functional limitations. AR 622. 10 In response to the question, “Will your patient sometimes need to take unscheduled breaks 11 to rest (e.g. shift positions to relieve pain, etc.) during an 8-hour working day?” Dr. Vu opined 12 that T.L. would need to “change position every 15 min[utes]” to “ease pain.” AR 623. In 13 response to a question about T.L.’s ability to keep his neck in a constant position, Dr. Vu wrote, 14 “Cannot say. I did not treat his neck.” AR 623. Dr. Vu opined that T.L. would have “good days” 15 and “bad days,” and that T.L. would likely be absent from work about once a month because of his 16 impairments. AR 623. In the “additional comments” section of the form, Dr. Vu wrote, “This is a 17 combination of wear and tear . . . on the spine probably aggravated by lifting . . . boxes on the job. 18 This is a chronic problem with occasional flares.” AR 624. The record shows that Dr. Vu 19 continued to treat T.L. for his back, and later his neck and shoulder, and prescribed injections to 20 control his lower back pain when it had not improved by May 2019. AR 396–399, 400. 21 In her decision, the ALJ acknowledged Dr. Vu’s role as a “treating source” but found her 22 opinions about T.L.’s impairments “not persuasive” because “[t]he medical opinion is not 23 supported by the examination of the claimant, references to specific findings, and well-supported 24 explanations.” AR 19, 21. She goes on to offer the following examples in support of this 25 statement: 26 For example, the claimant was evaluated for chest pain on September 2019 but the claimant’s ECG on September 2019 showed a normal 27 sinus rhythm with no acute changes (2F/27). On October 2019, at his sometimes (2F/4). The claimant last felt chest pain on September 1 2019 but reported he was doing well on October 2019 (2F/4). At the claimant’s internal medicine consultative exam on January 2020, the 2 claimant was asymptomatic for chest pains and his cardiovascular exam was negative for congestive heart failure or arrhythmia (4F/5). 3 On December 2020, the claimant had a stress test, which indicated 10.1 METs achieved (9F/8). His blood pressure response was normal, 4 and the claimant’s resting EKG was normal, and no chest pain or shortness of breath developed during the stress test. The claimant 5 developed left leg pain and stopped the study (9F/8). 6 AR 22. The ALJ states further that Dr. Vu’s opinions are “not consistent with evidence from other 7 medical or nonmedical sources, such as the claimant’s daily and walking swimming [sic], 8 discussed above.” AR 22. 9 2. Legal Standards 10 For claims filed before March 27, 2017, “[t]he medical opinion of a claimant’s treating 11 physician is given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable 12 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 13 evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) 14 (quoting 20 C.F.R. § 404.1527(c)(2)). However, the regulations regarding the evaluation of 15 medical evidence have been amended and several of the prior Social Security Rulings, including 16 SSR 96-2p (“Titles II and XVI: Giving Controlling Weight to Treating Source Medical 17 Opinions”), have been rescinded for claims protectively filed after March 27, 2017, as is the case 18 here. See Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to 19 Rules”), 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan. 18, 2017); see also 20 C.F.R. §§ 20 404.1520c (a), 416.920c(a). 21 The new regulations provide that the Commissioner “will no longer give any specific 22 evidentiary weight to medical opinions; this includes giving controlling weight to any medical 23 opinion.” 20 C.F.R. § 416.920c(a). Instead, the Commissioner must consider all medical opinions 24 and “evaluate their persuasiveness” based on the following factors: 1) supportability; 2) 25 consistency; 3) relationship with the claimant; 4) specialization; and 5) “other factors.” 20 C.F.R. 26 § 416.920c(a)-(c). “Although the regulations eliminate the ‘physician hierarchy,’ deference to 27 specific medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still 1 medical opinions.’” Christopher Charles A. v. Comm’r of Soc. Sec., No. C19-5914-MLP, 2020 2 WL 916181, at *2 (W.D. Wash. Feb. 26, 2020) (citing 20 C.F.R. §§ 404.1520c(a) and (b) (1), 3 416.920c(a) and (b) (1)); see also Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 4 As with all other determinations made by the ALJ, the ALJ’s explanation must be 5 supported by substantial evidence. See Woods, 32 F.4th at 787 (holding that, under the new 6 regulations, “an ALJ’s decision . . . must simply be supported by substantial evidence”); Patricia 7 F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *4 (W.D. Wash. Apr. 9, 2020) (citing 82 8 Fed. Reg. at 5852) (finding that, under the new regulations, “[t]he Court must . . . continue to 9 consider whether the ALJ’s analysis has the support of substantial evidence”); J.B. v. Kijakazi, No. 10 20-cv-06231-VKD, 2022 WL 282513, at *3 (N.D. Cal. January 31, 2002). 11 The two “most important factors for determining the persuasiveness of medical opinions 12 are consistency and supportability,” which are the “same factors” that “form[ed] the foundation of 13 the [prior] treating source rule.” Revisions to Rules, 82 Fed. Reg. 5844-01 at 5853. The ALJ is 14 required to explicitly address supportability and consistency in their decision. 20 C.F.R. § 15 404.1520c(b)(2). With respect to “supportability,” the new regulations provide that “[t]he more 16 relevant the objective medical evidence and supporting explanations presented by a medical 17 source are to support his or her medical opinion(s) or prior administrative medical finding(s), the 18 more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 19 C.F.R. § 416.920c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more 20 consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence 21 from other medical sources and nonmedical sources in the claim, the more persuasive the medical 22 opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 416.920c(c)(2). 23 Typically, the ALJ “may, but [is] not required to,” explain how they considered the 24 remaining three factors listed in the regulations. Id. However, where two or more distinct medical 25 opinions are equally supported and considered, the ALJ is required to articulate how they 26 considered factors other than supportability and consistency, including the treatment relationship. 27 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3); see also Woods, 32 F.4th at 792; Ceja v. Comm’r 1 The third factor, relationship with the claimant, is split into five sub-factors. 20 C.F.R. §§ 2 404.1520c(c)(3), 416.927c(c)(3). When analyzing the relationship with the claimant, the 3 adjudicator should consider: (1) the length of the treatment relationship; (2) the frequency of 4 examinations; (3) the purpose of the treatment relationship; (4) the extent of the treatment 5 relationship; and (5) whether there was an examining relationship. Id. 6 Specialization, the fourth factor, suggests that a medical opinion is more persuasive if the 7 source is a specialist in an area relevant to the claimant’s conditions. 20 C.F.R. §§ 8 404.1520c(c)(4), 416.927c(c)(4). Finally, the catch-all provision, “other factors,” permits 9 adjudicators to consider “other factors that tend to support or contradict” a medical opinion. 20 10 C.F.R. §§ 404.1520c(c)(5); 416.927c(c)(5) (including, but not limited to, “evidence showing a 11 medical source has familiarity with the other evidence in the claim or an understanding of our 12 disability program’s policies and evidentiary requirements.”). 13 3. Discussion 14 In determining the weight to give Dr. Vu’s opinions, the ALJ was required to consider the 15 factors discussed above, the most important of which are supportability and consistency with the 16 record as a whole. Although the ALJ purported to conduct such an analysis, the reasons she 17 offered for discrediting Dr. Vu’s opinions are not supported by substantial evidence. 18 Rather than addressing other evidence in the record relating to treatment or findings by 19 medical providers who – like Dr. Vu -- treated T.L. for his back pain, the ALJ cites a cherry- 20 picked list of medical findings by providers who treated him for his heart condition. The ALJ fails 21 to explain why the opinions of these providers are more persuasive than the opinions of Dr. Vu, 22 who is a specialist in physical medicine and rehabilitation. Indeed, the findings the ALJ cites 23 appear to be entirely irrelevant to Dr. Vu’s opinions. How, for example, does a September 2019 24 ECG finding of “normal sinus rhythm with no acute changes” conflict with any opinion of Dr. Vu 25 or have any bearing on the persuasiveness of Dr. Vu’s opinions? See AR 21. 26 This error is compounded by the fact that the ALJ fails to meaningfully address the 27 opinions of other providers who examined or treated T.L.’s back pain, including T.L.’s prior 1 in 2016 and opined that T.L. “was limited to lifting and carrying 15 pounds occasionally; can 2 stand and walk for 45 minutes per hour, and no bending or twisting, partial to zero postural 3 activities.” AR 21. The ALJ found this opinion “partially persuasive” for the identical reason she 4 discounted Dr. Vu’s opinion in its entirety, stating, “The medical opinion is not supported by the 5 examination of the claimant, references to specific findings, and well-supported explanations.” 6 AR 21. She went on to list the same examples, verbatim, that she provided in support of 7 discrediting Dr. Vu. As discussed above, these examples do not relate to T.L.’s back pain and it is 8 not even clear why they are inconsistent with Dr. Ledean’s opinion. 9 The ALJ cut and pasted the identical reasoning in support of her finding that the opinions 10 of Dr. Benrazavi were only partially persuasive. AR 21. Dr. Benrazavi conducted an internal 11 medicine evaluation and addressed both T.L.’s “history of heart attacks” and his back pain. AR 12 574-577. Among other things, Dr. Benrazavi examined T.L.’s lumbar spine and made specific 13 findings; he also reviewed T.L.’s MRI. The ALJ’s list of findings related to T.L.’s heart condition 14 provide no support for her determination that this examiner’s opinions are only partially 15 persuasive, at least as to Dr. Benrazavi’s opinions that relate to T.L.’s back pain. 16 Finally, the ALJ erred in relying on T.L.’s daily activities to discredit Dr. Vu’s opinions for 17 the same reasons she erred in rejecting T.L.’s testimony about the severity of his symptoms, 18 discussed below. 19 In sum, the ALJ failed to provide reasons consistent with the rules set forth above for her 20 evaluation of Dr. Vu’s opinions and her determination that Dr. Vu’s opinions are not persuasive is 21 not supported by substantial evidence. 22 1. Whether the ALJ Erred in Rejecting T.L.’s Symptom Testimony 23 a. Background 24 At the hearing on February 23, 2021, T.L. testified that his back pain prevents him from 25 carrying heavy items, twisting and bending his back. AR 43. He testified that if he attempts these 26 activities, it “hurt[s] really bad” and he will be unable to do anything for the whole week.” AR 43. 27 According to T.L., when that occurs, he rests, takes medication and uses the TENS machine to 1 for about 25 to 30 minutes at a time. AR 45. 2 In addition to T.L.’s back pain, he testified that his chest hurt as a result of suffering two 3 heart attacks, the first in 2019, the second after seeing a “really bad” accident while driving. AR 4 46. T.L. testified that he takes three types of medication for his heart including nitroglycerin, and 5 that while the medication does not make him sleepy or tired, it sometimes makes his heart beat 6 faster and make him nervous. AR 46, 47, 50. T.L. testified that when his heart beats faster T.L. 7 needs to rest and that he has returned to Kaiser a number of times because of his heart rate. AR 8 47. 9 Regarding his daily activities, T.L testified that he wakes up each morning, takes his “heart 10 medicine and the medicine for the nerves,” and then does a little exercise before brushing his 11 teeth. AR 47. At the time of the hearing, T.L. drove his daughter to school at 8:30 a.m. three 12 times a week, and dropped off his wife at work at 9 a.m., which T.L. testified was about five 13 minutes away from home. AR 47. T.L. picked up his daughter at 3:30 p.m. on the days she went 14 to school, and then at 6 p.m. he picked up his wife. AR at 48. He reported that after he dropped 15 his family off, he returned home to “do a little bit more exercise and relax.” AR 47. 16 Regarding T.L.’s exercise routine, T.L. testified that when he takes a walk he can walk 17 about 15 minutes and then he needs to sit down and take a break. AR 45. Describing his daily 18 routine with respect to taking walks, he testified, “Every day I take a walk . . . around the building. 19 Take a walk 15 minute and sit down and 15 minute again and come home, less than one hour 20 every day. If I don’t do it, the back, a lot of pain.” AR 45. The ALJ also questioned T.L. about 21 swimming. She observed that “the “record mentioned swimming” and asked, “Before the 22 pandemic were you doing a lot of swimming.?” AR 49. T.L. answered, “Yes. Can you – I don’t 23 understand.” AR 49. The ALJ responded, “So, the record mentions you would go swimming 24 three to four times a week. Did you used to go swimming before the pandemic?” AR 49. T.L. 25 responded, “I not swim. Swim? No. I go in the YMCA. I work in the water for, to help my lower 26 back. But I not swim.” He went on to testify that he went to the YMCA because the doctor from 27 Kaiser had sent him “to the YMCA to help [his] heart.” AR 49. He said the pool was closed 1 exercises. AR at 49. 2 T.L. testified that some days he needs to stop what he is doing to rest two to three times 3 because of his heart rate, while other days he can go about his normal activities without stopping 4 to rest. AR 47. T.L. testified that if he does need to stop and rest, he lies down for about half an 5 hour and drinks some water. AR 47. If the increased heart rate returns, he stops again and sits 6 down to relax. AR 47. T.L. testified that on a bad day, he “can do nothing” and must relax. AR 7 48. T.L. also reported pain in his left hand sometimes, but not at the time of the hearing because 8 T.L.’s days consisted of mostly nothing that would aggravate his hands or wrists. AR 48. He 9 reported no trouble reaching forward. AR 48. 10 Finally, T.L. testified that he traveled to Vietnam in 2017 but that the plane trip had been a 11 “real big problem” due to his inability to sit still for long periods of time. AR 53. He had to take 12 his medication and “walk around a lot . . . to help [his] lower back” during the flight. AR 53. 13 In her decision, the ALJ found that T.L.’s daily activities were “inconsistent with the 14 claimant’s statements about the intensity and persistence of symptoms.” AR 17. She supported 15 this conclusion with the following reasoning: 16 The claimant’s daily activities included walking three to four blocks on a daily basis on July 2019 [AR 359]. On August 2019, the claimant 17 reported he goes on walks three times per day for 45 to 60 minutes [AR 345]. The claimant reported that he will try swimming [AR 338]. 18 On August 2019, the claimant reported that he walks three to four times per week and started swimming on August 29, 2019 at the 19 YMCA with no chest pain [AR 338]. On October 2019, the claimant reported swimming 3 to 4 times per week and walking daily, with 20 only a little chest pain sometimes [AR 309]. Further, the claimant’s treatment record indicated that he traveled to Vietnam for five weeks 21 for tourism, visiting family and friends, swimming, and staying at friend’s home and hotels [AR 434–435]. These daily activities are 22 specifically inconsistent with the claimant’s subjective complaints about low back pain and chest pains limiting the claimant’s ability to 23 perform physical activities. 24 25 AR 17.

26 27 1 b. Legal Standards 2 In assessing a claimant’s subjective testimony, an ALJ conducts a two-step analysis. 3 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine “whether 4 the claimant has presented objective medical evidence of an underlying impairment which could 5 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. Comm’r of 6 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (cleaned up). If the claimant does so, and 7 there is no affirmative evidence of malingering, then the ALJ can reject the claimant’s testimony 8 as to the severity of the symptoms “only by offering specific, clear and convincing reasons for 9 doing so.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (cleaned up). “These 10 findings, properly supported by the record, must be sufficiently specific to allow a reviewing court 11 to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did not 12 arbitrarily discredit a claimant’s testimony regarding pain.” Bunnell v. Sullivan, 947 F.2d 341, 13 345–346 (9th Cir. 1991) (en banc). “General findings are insufficient.” Reddick v. Chater, 157 14 F.3d 715, 722 (9th Cir. 1998). “Factors that an ALJ may consider in weighing a claimant’s 15 credibility include reputation for truthfulness, inconsistencies in testimony or between testimony 16 and conduct, daily activities, and unexplained, or inadequately explained, failure to seek 17 treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 18 2007) (cleaned up). 19 An ALJ may consider the daily activities of a claimant when weighing the claimant’s 20 subjective testimony. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “If the claimant runs 21 marathons, as an extreme example, an ALJ could reasonably assume that the claimant’s pain is not 22 so debilitating as to prevent him from working.” Id. On the other hand, if a claimant “engages in 23 numerous daily activities involving skills that could be transferred to the workplace, the ALJ may 24 discredit the claimant’s allegations upon making specific findings relating to those activities.” 25 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However, a claimant need not “vegetate in 26 a dark room” in order to be eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 27 1987). 1 c. Discussion 2 The ALJ found that T.L. met the first requirement of the two-step analysis discussed above 3 because his medically determinable impairments “could reasonably be expected to cause the 4 alleged symptoms.” AR 17. Therefore, she had to offer specific, clear, and convincing reasons 5 for declining to fully credit T.L.’s testimony about the severity of his symptoms. The ALJ did not 6 do so. Nor are the reasons she did cite supported by substantial evidence. 7 The ALJ relied on T.L.’s walking, “swimming” and a trip to Vietnam before his two heart 8 attacks to discredit his symptom testimony. The most glaring shortcoming in her analysis is her 9 failure to address T.L.’s specific testimony, discussed above, that these activities were performed 10 at the recommendation of T.L’s doctors and were for the purpose of reducing his pain and/or 11 addressing his heart issues. Indeed, the record is replete with notes from treatment providers 12 recommending that T.L. include such exercise in his daily routine. Among other things, the 13 record reflects that in March of 2019 T.L attended a 90-minute “back class” where he was given 14 “guidelines for exercise.” AR 407. A handout from Kaiser’s Back Clinic that was given to T.L. 15 specifically recommends walking and aquatic exercises. AR 567-568. In particular, it states: 16 Regular aerobic exercise is necessary to help you recover and to prevent reinjury. 17 • Your goal is to exercise 5 days weekly, and work up to 30-60 18 minutes daily.

19 • If this is not your habit, start with something simple like walking. Begin with 10 minutes, 3 times daily. Gradually increase the intensity 20 and length of your walks.

21 • Please note: you should not have increased symptoms when you exercise. If you do, you must modify what you are doing and consult 22 with your Physical Therapist.

23 • If walking hurts, doing aquatic exercise is a great alternative, because your spine is unloaded in the water. Even if you are not a 24 swimmer, walking in the water is very therapeutic. Start with 10-15 minutes. 25 26 AR 568; see also AR 356 (7/23/19 treatment note reflecting that “exercise guidelines” were 27 reviewed); 378 (7/6/19 treatment note stating “Patient able to return home with independent 1 instructed.”); 425 (7/3/18 wellness coaching treatment note including exercise and “tak[ing] a 2 walk” as strategies to help T.L. quit smoking). 3 Nor does the ALJ address the specific testimony T.L. offered about how he performs these 4 activities. In particular, she does not offer any explanation for finding T.L.’s walking and pool 5 exercises to be inconsistent with his symptom testimony in the face of his testimony that he takes 6 breaks every 15 minutes when he takes walks and that his exercise in the pool do not include 7 swimming. She also fails to acknowledge the distinction between “swimming” and other types of 8 exercise in the pool that had been recommended by T.L.’s doctors (e.g. “aquatic exercise” and 9 “walking in the water”), a distinction that also was not clarified at the hearing. (In fact, T.L. 10 himself seemed to be unsure of what the ALJ meant by “swimming”, answering first “yes” then 11 “no” to her questions on that subject.) 12 Finally, the ALJ’s reliance on T.L.’s 2017 trip to Vietnam does not constitute a specific, 13 clear and convincing reason for discounting his symptom testimony. First, that trip sheds no light 14 on his symptoms related to his heart condition, including chest pain and elevated heartbeat, 15 because the trip was before T.L.’s 2019 heart attack. As to his back pain, the ALJ does not 16 address or offer any reason for discounting T.L.’s testimony that the plane trip was very difficult 17 for him. In fact, the only evidence the ALJ cites in connection with this trip is a treatment note 18 from before the trip describing the planned “trip activity” as: “Tourism, Visit family/ relatives/ 19 friends and swim will stay at family’s/ friend’s home and hotels.” AR 435. The ALJ does not 20 explain why visiting family and friends is inconsistent with T.L.’s symptom testimony or why 21 T.L.’s statement that he planned to “swim” during his trip rendered his testimony not credible. 22 In sum, the reasons offered by the ALJ for discounting T.L.’s symptom testimony were not 23 supported by specific, clear and convincing reasons or substantial evidence. 24 C. Whether the ALJ’s RFC Is Supported By Substantial Evidence 25 A claimant’s RFC is “the most [he] can still do despite [his] limitations.” 20 C.F.R. § 26 416.945(a)(1). “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in 27 the record,” which includes “medical records, lay evidence, and the effects of symptoms, 1 SSA, 466 F.3d 880, 883 (9th Cir. 2006) (cleaned up); 20 C.F.R. § 416.945(a)(1) & (3). The ALJ 2 considers limitations supported by the record and need not take into account properly rejected 3 evidence or subjective complaints. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); 4 and Batson v. Comm’r of the SSA, 359 F.3d 1190, 1197 (9th Cir. 2004). 5 As discussed above, the Court concludes that the ALJ erred in partially discounting Dr. 6 Vu’s medical opinion and rejecting T.L.’s symptoms testimony and that her reasons for doing so 7 are not supported by substantial evidence. Consequently, the Court finds that T.L.’s RFC is not 8 supported by substantial evidence and the Commissioner’s decision must be reversed.6 9 VI. REMEDY 10 “A district court may affirm, modify, or reverse a decision by the Commissioner with or 11 without remanding the cause for a rehearing.” Garrison v. Colvin, 759 F.3d 990, 1019 (9th Cir. 12 2014) (cleaned up) (emphasis omitted). “If additional proceedings can remedy defects in the 13 original administrative proceeding, a social security case should be remanded.” Lewin v. 14 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). On the other hand, the court may remand for award 15 of benefits under the “credit as true” rule where: (1) “the ALJ failed to provide legally sufficient 16 reasons for rejecting evidence, whether claimant testimony or medical opinion”; (2) “there are [no] 17 outstanding issues that must be resolved before a disability determination can be made” and 18 “further administrative proceedings would [not] be useful”; and (3) “on the record taken as a 19 whole, there is no doubt as to disability.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) 20 (cleaned up); see also Garrison, 759 F.3d at 1021 (holding that a district court abused its 21 22 6 The Court need not reach the question of whether the ALJ properly took into account T.L.’s age 23 category at the time of the hearing in performing her step five analysis as the Commissioner will be required to revisit this question on remand. Likewise, the Commissioner will be required to 24 consider all of T.L.’s impairments in determining his RFC. See Frary v. Comm'r of Soc. Sec., No. 25 1:20-CV-00260-SAB, 2021 WL 5401495, at *7 (E.D. Cal. Nov. 18, 2021) (“The ALJ must consider both severe and nonsevere medically determinable impairments when determining the 26 RFC”). Thus, the Commissioner will be required to consider any limitations associated with T.L.’s headaches and cervical radiculopathy in determining T.L.’s new RFC. Therefore the Court 27 does not reach the question of whether the ALJ erred by failing to include in T.L.’s RFC any 1 discretion in declining to apply the “credit as true” rule to an appropriate case). 2 It is not clear from the record here that the ALJ would be required to find T.L. disabled if 3 all of the evidence were properly evaluated. In particular, although Dr. Vu found T.L.’s 4 || limitations to be more significant than the limitations in the ALJ’s RFC, she completed the form 5 after having only treated T.L. for less than a month and at that time her prognosis for him was 6 || “good.” Therefore, the Court concludes that remand for further proceedings consistent with this 7 opinion is appropriate. 8 || VII. CONCLUSION 9 For the reasons discussed above, T.L.’s motion for summary judgment is GRANTED, the 10 || Commissioner’s motion for summary judgment is DENIED, and this matter is remanded for 11 further proceedings. The Clerk shall enter judgment accordingly and close the file. a 12 IT IS SO ORDERED.

v 14 || Dated: September 13, 2023

15

JQSEPH C. SPERO

A 16 ief Magistrate Judge

it

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