1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID S.B., Case No. CV 23-5485 RAO 12 Plaintiff, 13 MARTIN J. O’MALLEY,1 MEMORANDUM OPINION AND 14 Commissioner of Social Security, ORDER

15 Defendant. 16 17 I. INTRODUCTION 18 Plaintiff David S.B.2 (“Plaintiff”) challenges the Commissioner’s denial of 19 supplemental security income (“SSI”). For the reasons stated below, the decision 20 of the Commissioner is REVERSED, and the matter REMANDED. 21 /// 22 /// 23 /// 24 /// 25 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley, 26 the Commissioner of Social Security, is hereby substituted as the defendant. 27 2 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 II. BACKGROUND 2 On June 31, 2019, Plaintiff applied for SSI, alleging disability beginning 3 January 1, 2002.3 (AR 110, 291-300.) Plaintiff’s application was denied on April 4 10, 2020, (AR 110), and upon reconsideration on July 2, 2020 (AR 126). On 5 August 4, 2020, Plaintiff appealed the Commissioner’s decision and requested a 6 hearing before an Administrative Law Judge (“ALJ”). (AR 150-52.) The hearing 7 took place on September 8, 2022. (See AR 35-64.) 8 On November 9, 2022, the ALJ issued an unfavorable decision. (AR 17-27.) 9 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 10 since July 31, 2019. (AR 20.) At step two, the ALJ determined Plaintiff had 11 multiple severe impairments: schizoaffective disorder and substance abuse. (AR 12 20.) At step three, the ALJ found Plaintiff did not have an impairment or 13 combination of impairments that medically equals the severity of the impairments 14 listed in

(d), 416.925, and 416.926. (AR 21.) Before 15 proceeding to step four, the ALJ assessed that Plaintiff had the residual functional 16 capacity (“RFC”) to perform a full range of work at all exertional levels, but with 17 nonexertional limitations: He can perform only noncomplex, routine tasks; cannot 18 perform work requiring public interaction or significant teamwork; cannot perform 19 fast-paced work like rapid assembly or conveyor belt work; and cannot adapt to 20 significant changes in a work routine. (AR 24.) At step four, the ALJ concluded 21 Plaintiff had no past relevant work. (AR 26.) At step five, the ALJ determined 22 there were no jobs in significant numbers in the national economy that Plaintiff, 23 considering his age, education, work experience, and RFC, could perform. (See id.) 24 On May 11, 2023, the Appeals Council denied Plaintiff’s request for review. 25 (AR 1-6.) Plaintiff initiated this action challenging the Commissioner’s decision on

26 3 Plaintiff previously filed for and was denied SSI benefits on June 24, 2009. (AR 27 17; see AR 69-84.) Because neither party contests the ALJ’s finding that the presumption of continuing nondisability does not apply, the Court does not address 28 this. (See AR 19 (citing Chavez v. Bowen,

(9th Cir. 1988).) 1 July 7, 2023. (Dkt. No. 1.) The parties filed their respective briefs for the Court’s 2 consideration. (See generally Dkt. Nos. 15 (“Pl. Brief”), 18 (“Comm’r Brief”), 19 3 (“Pl. Reply”).) 4 5 III. STANDARD OF REVIEW 6 Under

(g), a district court may review the Commissioner’s 7 decision to deny benefits. A court must affirm an ALJ’s findings of fact if, when 8 applied against proper legal standards, they are supported by substantial evidence. 9 Mayes v. Massanari,

(9th Cir. 2001). “Substantial evidence 10 . . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such 11 relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion.’” Biestek v. Berryhill,

,

,

504 (2019) (citations omitted); Revels v. Berryhill,

(9th Cir. 14 2017). Substantial evidence is shown “by setting out a detailed and thorough 15 summary of the facts and conflicting clinical evidence, stating his interpretation 16 thereof, and making findings.” Reddick v. Chater,

(9th Cir. 17 1998). “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 18 specific quantum of supporting evidence. . . . Rather, a court must consider the 19 record as a whole, weighing both evidence that supports and evidence that detracts 20 from the Secretary’s conclusion.” Aukland v. Massanari,

(9th 21 Cir. 2001) (citations and internal quotation marks omitted). “However, the ALJ 22 ‘need not discuss all evidence presented’” to her, but “must only explain why 23 ‘significant probative evidence has been rejected.’” Hurn v. Berryhill, No. 17- 24 00884,

, at *3 (W.D. Wash. Aug. 23, 2018) (citing Vincent v. 25 Heckler,

(9th Cir. 1984)). 26 “‘Where evidence is susceptible to more than one rational interpretation,’ the 27 ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec.,

, 28 1198 (9th Cir. 2008) (citing Burch v. Barnhart,

(9th Cir. 2005)); 1 see Robbins v. Soc. Sec. Admin.,

(9th Cir. 2006) (“If the 2 evidence can support either affirming or reversing the ALJ’s conclusion, we may 3 not substitute our judgment for that of the ALJ.”). The Court may review only “the 4 reasons provided by the ALJ in the disability determination and may not affirm the 5 ALJ on a ground upon which [s]he did not rely.” Orn v. Astrue,

, 630 6 (9th Cir. 2007) (citing Connett v. Barnhart,

(9th Cir. 2003)). 7 8 IV. DISCUSSION 9 Plaintiff contends the ALJ failed to properly (1) consider the severity of his 10 physical impairments and (2) evaluate the opinion of Dr. Malia Dadestan. (See 11 generally Pl. Brief.) 12 a. Evaluation of Plaintiff’s Physical Impairments at Step Two 13 Plaintiff contends the ALJ erred at step two in finding that his physical 14 impairments of carpal tunnel syndrome, cubital tunnel syndrome and history of 15 degenerative disc disease were not severe impairments. (Pl. Brief at 2-7.) Plaintiff 16 points to medical records that demonstrate these physical impairments were 17 documented for the minimum required continuous period of at least 12 months 18 throughout the period at issue. (Id.) The Commissioner opposes Plaintiff’s 19 argument, noting that Plaintiff relies on his own subjective complaints during the 20 relevant period. (Comm’r Brief at 2.) The Commissioner also points to the 21 absence of evidence or medical opinions showing that any of these physical 22 conditions, or any combination of them, significantly limited Plaintiff’s ability to 23 perform basic work activities for the relevant period. (Id. at 3.) 24 The Ninth Circuit recently issued an opinion regarding whether a medically 25 determinable impairment is severe under step two of the familiar five-step 26 sequential analysis used in social security cases. Glanden v. Kijakazi,

(9th Cir. 2023). “Step two inquires whether the claimant had severe impairments 28 during the period for which he seeks disability benefits. 20 C.F.R. 1 § 404.1520(a)(4)(ii). An impairment is severe if it ‘significantly limits’ an 2 individual’s ‘ability to do basic work activities.’

(c).”

at 3 843. “Each time we have reviewed an ALJ’s step-two analysis, we have reiterated 4 the corollary principles that claimants need only make a de minimis showing for the 5 analysis to proceed past this step and that properly denying a claim at step two 6 requires an unambiguous record showing only minimal limitations.”

. 7 “Our approach to reviewing an ALJ’s denial of a claim at this preliminary stage 8 remains constant and firmly in step with our sister circuits: once a claimant presents 9 evidence of a severe impairment, an ALJ may find an impairment or combination 10 of impairments ‘not severe’ at step two ‘only if the evidence establishes a slight 11 abnormality that has no more than a minimal effect on an individual’s ability to 12 work.’”

at 844 (citing Webb v. Barnhart,

(9th Cir. 2005); 13 emphasis in original). “If a claimant has submitted evidence of a severe 14 impairment, we analyze an ALJ’s step-two denial by asking ‘whether the ALJ had 15 substantial evidence to find that the medical evidence clearly established that [the 16 claimant] did not have a medically severe impairment or combination of 17 impairments.’”

at 844 (quoting Webb,

). “An inconclusive 18 medical record precludes denial at this step.”

19 A review of the administrative record shows that Plaintiff presented medical 20 evidence establishing a diagnosis of carpal tunnel syndrome in October 2017. (AR 21 409.) With respect to the relevant period (i.e., from July 31, 2019, the date Plaintiff 22 applied for benefits, through November 9, 2022, the date of the ALJ’s decision), 23 medical records show Plaintiff was seen in August 2019 for ongoing and worsening 24 carpal tunnel symptoms and was referred for a nerve conduction study. (AR 437- 25 39.) Medical records from February 2021 state that Plaintiff had an onset of carpal 26 tunnel syndrome and cubital tunnel syndrome in March 2020 and document 27 positive tests for both syndromes. (AR 951-52.) The same records state that since 28 Plaintiff has already received an EMG nerve conduction study and has had chronic 1 symptoms of numbness and tingling, he is a surgical candidate because he is 2 “heading toward chronic nerve damage.” (AR 953.) 3 Based on its review of the record, the Court finds that Plaintiff has made the 4 de minimis showing that his carpal tunnel syndrome and cubital tunnel syndrome 5 were severe for purposes of step two. See Glanden,

. Because 6 the ALJ did not consider these physical impairments when formulating Plaintiff’s 7 RFC, the ALJ’s error at step two was not harmless and remanded is warranted.4 8 b. Evaluation of Dr. Dadestan’s Opinion 9 Plaintiff next argues that the ALJ erred by not discussing Dr. Dadestan’s 10 medical opinion, thereby leaving no reasoning or explanation as to its 11 persuasiveness. (Pl. Brief at 7-8.) The Commissioner contends that the 12 musculoskeletal form Dr. Dadestan filled out does not constitute a medical opinion 13 within the meaning of the social security regulations. (Comm’r Brief at 3-5 (citing 14

(a)(2), (a)(2)(i)(A)).) The Court agrees with Plaintiff. 15 i. Medical Opinion 16 Dr. Dadestan evaluated Plaintiff and completed a musculoskeletal form. She 17 diagnosed Plaintiff as having severe elbow joint arthritis beginning in 2015. (AR 18 677-78.) As to Plaintiff’s left elbow, Dr. Dadestan check-marked the “Flexion” and 19 “Extension” boxes. Dr. Dadestan noted frequent tenderness in the left elbow but no 20 paravertebral muscle spasms. She recorded no neurological abnormalities in 21 sensation, reflex motor, or straight leg raise tests. She rated Plaintiff a five out of 22 five, meaning he could engage in active movement against full resistance without 23 fatigue (normal strength), and determined Plaintiff did not exhibit atrophy. (AR 24 677.) Dr. Dadestan recorded a limitation of the left arm when reaching for or 25 pulling items. She did not find a fracture in Plaintiff’s lower extremities nor 26 27 4 Plaintiff does not cite to any evidence supporting his contention that his degenerative disc disease is a severe impairment. Accordingly, the Court finds no 28 error in the ALJ’s determination that this condition was not a severe impairment. 1 evidence of non-union on an x-ray. 2 Dr. Dadestan noted that Plaintiff’s upper extremity limitations affected his 3 ability to lift or carry with his free hand and that he experienced pain with lifting or 4 carrying heavy items. She noted Plaintiff had participated in exercise regimens 5 with minimal improvement. (AR 678.) Dr. Dadestan recorded Plaintiff’s prognosis 6 as likely having continued pain (long-term symptoms) and having trouble lifting 7 objects because of elbow arthritis. (AR 679.) 8 ii. Applicable Law 9 The revised regulations applicable to claims filed after March 27, 2017, 10 narrowed the definition of “medical opinion.” A medical opinion within the 11 meaning of

(a)(2)5 encompasses both functional limitations and 12 what a claimant is still capable of doing. William A. v. Kijakazi, No. 23-0274, 2023

, at *2 (C.D. Cal. Nov. 15, 2023); Rodin v. Comm’r of Soc. Sec., No. 14 21-0900,

, at *12 (E.D. Cal. May 5, 2023) (“[T]he revised 15 regulations now more narrowly define as [medical opinion] a statement from a 16 medical source about what a claimant can still do despite impairments, and whether 17 the claimant is functionally restricted in the demands of work activities such as 18 sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical 19 functions.”); see Allen T. v. Comm’r of Soc. Sec., No. 20-1257,

, 20 at *4 (W.D. Wash. May 11, 2021) (finding that a form opinion describing the 21 claimant’s symptoms and limitations constituted medical opinion because the 22 doctor opined the claimant could perform sedentary work and recommended 23 claimant elevate his legs at work, thereby implicating his ability to sit, which is a 24 25 5 Cases discussing

(a)(2) (disability insurance benefits), instead of

(a)(2) (supplemental security income), are applicable here 26 because the provisions are identical and courts have interpreted them as such. See, 27 e.g., Gonzalez v. Colvin, No. 13-1701,

, at *2 n.2 (C.D. Cal. July 7, 2014) (noting that the provisions for disability insurance benefits are “parallel and 28 virtually identical” to those governing supplemental security income). 1 functional workplace limitation). Cf. Chanel T. v. Kijakazi, No. 21-0751,

4647256, at *6-7 (C.D. Cal. Sept. 30, 2022) (concluding that equivocal 3 recommendations for improvement do not constitute medical opinion because they 4 are not findings of necessary functional limitations); Jessie L. v. Kijakazi, No. 20- 5 9305,

, at *14 (N.D. Cal. June 21, 2022) (finding that a 6 psychologist’s notes describing the effects of illicit drugs on the claimant’s brain 7 functioning, and claimant’s drug abuse as an effort at self-medication to avoid the 8 effects of chronic post-traumatic stress disorder, depression, and psychic pain; and 9 recommending increased individual psychotherapy, continued medication, and 10 participation in individual and group treatment for substance abuse, did not 11 constitute medical opinion because the psychologist did not offer an opinion on the 12 claimant’s functional limitations). Courts “do not take an all-or-nothing approach.” 13 Rodin,

, at *14. Instead, they extract portions of records that 14 qualify as medical opinions from portions that may touch upon issues reserved for 15 the Commissioner.

16 iii. Analysis 17 Here, portions of the musculoskeletal form completed by Dr. Dadestan 18 constitute a medical opinion within the meaning of

(a)(2) 19 because her notes that Plaintiff has “limitation[s in] reaching for or pulling items,” 20 and will have “difficulty lifting objects due to elbow arthritis” denote what Plaintiff 21 is still capable of performing and implicate functional limitations. (AR 677-78; Pl. 22 Reply at 2); see Christine M.R. v. Kijakazi, No. 20-1690,

, at *6 23 (C.D. Cal. Sept. 23, 2021) (doctor’s evaluation and report “plainly express 24 limitations on Plaintiff’s ability to perform” work that meets revised rules of the 25 definition of “medical opinion” pursuant to

(a)(2)). 26 Specifically, it is conceivable that Plaintiff may be restricted in what items he can 27 or cannot lift in a workplace setting because of the limitations in reaching for or 28 pulling items. See Carrie D. v. Kijakazi, No. 20-3227,

, at *6 1 (E.D. Wash. June 6, 2022) (finding doctor’s notes that Plaintiff needs to raise her 2 legs while seated which may have corresponding workplace limitations falls within 3 the definition of medical opinion as it relates to meeting the physical demands of 4 work). 5 On this record, the Court concludes that Dr. Dadestan’s completed 6 musculoskeletal form is a medical opinion, the ALJ needed to have evaluated it for 7 supportability and consistency, and, if he decided it was unpersuasive, he needed to 8 specify why. See William A.,

, at *2-3 (ALJ must explain ALJ’s 9 evaluation of supportability and consistency factors, among other factors, in 10 weighing medical opinion); (Pl. Brief at 7-8). 11 The Commissioner’s argument that Dr. Dadestan’s opinion lacks specificity 12 about Plaintiff’s functional limitations is unpersuasive because, as explained above, 13 Dr. Dadestan’s notes implicate functional limitations in the workplace setting, 14 thereby making his notes “medical opinion” within the meaning of the revised 15 regulations. (See Comm’r Brief at 4.) For that reason, the “significant probative 16 evidence” standard applicable to “other medical evidence” does not apply. (Id.); 17 see William A.,

, at *2. Additionally, the Commissioner’s 18 reliance on Howard ex rel. Wolff v. Barnhart,

(9th Cir. 2003) 19 is inapposite because the Court concludes that the musculoskeletal form is a 20 medical opinion not evidence. 21 22 V. REMAND FOR FURTHER ADMINISTRATIVE PROCEEDINGS 23 The Court finds that remand for further administrative proceedings is 24 appropriate, as further administrative review could remedy the ALJ’s errors. See 25 Brown-Hunter,

(9th Cir. 2015) (remanding for an award of 26 benefits is appropriate in rare circumstances). On remand, the ALJ is directed to 27 find Plaintiff’s carpal tunnel syndrome and cubital tunnel syndrome are severe 28 impairments and proceed through steps three to five. With respect to Dr. Dadestan, 1 the ALJ shall evaluate Dr. Dadestan’s completed musculoskeletal form as a medical 2 opinion, reassess Plaintiff’s RFC, and then proceed through steps four and five to 3 determine what work, if any, Plaintiff is capable of performing. 4 5 VI. CONCLUSION 6 IT IS ORDERED that Judgment shall be entered REVERSING and 7 REMANDING the decision of the Commissioner denying his application for SSI. 8 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 9 Order and the Judgment on counsel for both parties. 10 DATED: June 26, 2024 /s/ 11 ROZELLA A. OLIVER 12 UNITED STATES MAGISTRATE JUDGE

13

14 NOTICE 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 16 LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28