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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LISA ANN M.,1 Case No. 2:23-cv-01081-MAA 12 13 Plaintiff, MEMORANDUM DECISION AND 14 v. ORDER REVERSING DECISION OF THE COMMISSIONER 15 16 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 17 18 Defendant. 19

20 21 I. INTRODUCTION 22 On February 13, 2023, Plaintiff filed a Complaint seeking review of the 23 Commissioner’s final decision denying her application for a period of disability and 24 Disability Insurance Benefits pursuant to Title II of the Social Security Act. (ECF 25 No. 1.) Pursuant to

(c), the parties consented to the jurisdiction of a 26 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. 1 United States Magistrate Judge. (ECF Nos. 5, 13.) On April 17, 2023, the Commissioner filed an Answer and the Administrative Record (“AR”). (ECF No. 2 7.) On August 14, 2023, Plaintiff filed a Memorandum in Support of Complaint 3 (“Plaintiff’s Brief”). (Pl’s Br., ECF No. 12.) On October 20, 2023, Defendant filed 4 Commissioner’s Responsive Brief (“Defendant’s Brief”). (Def’s Br., ECF No. 19.) 5 Pursuant to the Supplemental Rules for Social Security Actions Under 42 U.S.C. 6 § 405(g), Plaintiff’s optional reply brief was due “within 14 days after service of” 7 Defendant’s Brief, or by no later than November 2, 2023. (ECF No. 6, at 2.)2 See 8 Supp. R. Soc. Sec. 8. The deadline for Plaintiff to file a reply to Defendant’s Brief 9 has passed with no reply filed, such that the matter is fully briefed. The Court 10 deems the matter appropriate for resolution without oral argument. See Fed. R. Civ.

(b); C.D. Cal. L.R. 7-15. For the reasons discussed below, the 12 Commissioner’s final decision is reversed, and this matter is remanded for further 13 administrative proceedings. 14

15 II. ADMINISTRATIVE HISTORY 16 On July 2, 2021, Plaintiff filed an application for Disability Insurance 17 Benefits, alleging disability beginning on April 1, 2021. (AR 211–20.) Plaintiff 18 alleged disability from bipolar disorder, diabetes, high cholesterol, and acid reflux. 19 (AR 91.) After the Social Security Administration denied the applications initially 20 and on reconsideration, on December 28, 2021, Plaintiff requested a hearing before 21 an Administrative Law Judge (“ALJ”). (AR 91–95, 96–101, 118–32.) On May 24, 22 2022, the ALJ held a telephonic hearing where Plaintiff appeared with counsel, and 23 where the ALJ heard testimony from Plaintiff and a vocational expert. (AR 40–53.) 24 In a decision dated June 13, 2022, the ALJ denied Plaintiff’s claim after 25 making the following findings under the Commissioner’s five-step evaluation. (AR 26

27 2 With the exception of the Administrative Record, citations to pages in docketed 28 documents reference the page numbers created by the CM/ECF headers. 1 13–33.) Plaintiff had not engaged in substantial gainful activity since April 1, 2021, the alleged onset date. (AR 19.) Plaintiff had severe impairments, including: 2 “bipolar disorder; generalized anxiety disorder; and question of pseudo dementia.” 3 (Id.) Plaintiff did not have an impairment or combination of impairments that met 4 or medically equaled the severity of one of the agency’s listed impairments. (Id.) 5 Plaintiff had a residual functional capacity to “perform a full range of work at all 6 exertional levels but with the following nonexertional limitation: simple work.” 7 (AR 22.) 8 The ALJ further found that Plaintiff was unable to perform any past relevant 9 work, but was “capable of making a successful adjustment to other work that exists 10 in significant numbers in the national economy.” (AR 25–26.) On January 3, 2023, 11 the Appeals Council denied Plaintiff’s request for review. (AR 1–7.) Thus, the 12 ALJ’s decision became the final decision of the Commissioner. 13

14 III. STANDARD OF REVIEW 15 This Court will disturb the Commissioner’s final decision to deny benefits 16 “only if it is not supported by substantial evidence or is based on legal error.” 17 Treichler v. Commissioner of Social Security Administration,

, 1098 18 (9th Cir. 2014);

(g). Substantial evidence is “more than a mere 19 scintilla, but less than a preponderance.” Lingenfelter v. Astrue,

, 20 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 22 Perales,

(1971). The Court must review the record as a whole, 23 “weighing both the evidence that supports and the evidence that detracts from the 24 Commissioner’s conclusion.” Lingenfelter,

. “Where evidence is 25 susceptible to more than one rational interpretation, the ALJ’s decision should be 26 upheld.” Orn v. Astrue,

(9th Cir. 2007) (internal quotation 27 marks and citations omitted). 28 1 V. DISCUSSION 2 A. Disputed Issue The parties raise the following disputed issue: Whether the ALJ erred in 3 evaluating the opinion of Azadeh Ellsworth, PMHNP. 4 (Pl’s Br. 12; Def’s Br. 2.) 5

6 7 B. Applicable Law For claims, such as Plaintiff’s claim, filed on or after March 27, 2017, an 8 adjudicator “will not defer or give any specific evidentiary weight” “to any medical 9 opinion(s) or prior administrative medical finding(s),” “including those from [a 10 claimant’s] medical sources.”

.1520c(a), 416.920c(a). An ALJ 11 does not need to take medical opinions at face value and may consider the “quality 12 of the explanation” when weighing a medical opinion. Ford v. Saul,

1141, 1155 (9th Cir. 2020). An ALJ must articulate how persuasive the ALJ found 14 the medical opinions in the case record.

.1520c(b). An ALJ’s 15 decision to discredit any medical opinion “must simply be supported by substantial 16 evidence.” Woods v. Kijakazi,

(9th Cir. 2022). 17 An ALJ cannot reject a medical opinion without explaining “how [the ALJ] 18 considered the supportability and consistency factors.”

. “Supportability” 19 means how well a medical source supports their opinion by explaining relevant 20 objective evidence.

at 791–92; see

.1520c(c)(1). “Consistency” 21 refers to whether the medical opinion is consistent with “evidence from other 22 medical sources and nonmedical sources in the claim.” Woods,

; see 23

.1520c(c)(2). While “ALJs should endeavor to use [the] terms of 24 art—‘consistent’ and ‘supported’—with precision,” it is sometimes possible to 25 ascertain which factor the ALJ analyzed by looking at the context of the ALJ’s 26 reasoning and whether the ALJ compared the opinion to the medical source’s own 27 treatment notes and objective findings (which goes to supportability) or other 28 1 evidence in the record (which goes to consistency). Woods,

n.4 (although the ALJ used “not supported by” interchangeably with “consistency,” the 2 Court could ascertain from context that the ALJ was making a consistency finding 3 because the ALJ analyzed the opinion against other treatment notes in the record). 4

5 6 C. Background Ms. Ellsworth is a nurse practitioner who completed a Mental Capacity 7 Assessment and Physical Assessment on Plaintiff’s behalf on August 3, 2021. (AR 8 413–17.) Ms. Ellsworth identified Plaintiff’s diagnoses to include “bipolar 9 disorder, current episode, depressed, severe, without psychiatric features (F31.4.).” 10 (AR 413.) Ms. Ellsworth assessed that Plaintiff had a “moderate” limitation in her 11 ability to follow one or two-step instructions. (Id.) Ms. Ellsworth assessed that 12 Plaintiff had “marked” limitations in her abilities to: recognize a mistake and 13 correct it or identify and solve problems; sequence multi-step activities; use reason 14 and judgment to make work-related decisions; initiate and perform a task the 15 patient knows how to do; work at an appropriate and consistent pace, or complete 16 tasks in a timely manner; ignore or avoid distractions while working; sustain an 17 ordinary routine and regular attendance at work; work a full day without needing 18 more than the allotted number or length of rest periods during the day; adapt to 19 changes; manage psychologically based symptoms; set realistic goals; and maintain 20 personal hygiene and attire appropriate to a work setting. (AR 413–14.) Ms. 21 Ellsworth assessed that Plaintiff had no limitations in her abilities to: cooperate 22 with others, or ask for help where needed; handle conflicts with others; understand 23 and respond to social cues; and keep social interactions free of excessive irritability, 24 sensitivity, argumentativeness, or suspiciousness. (AR 415.) She explained that 25 Plaintiff had “challenges with instability and sensitivity with social interactions.” 26 (Id.) Ms. Ellsworth opined that Plaintiff would be absent from work more than four 27 times each month due to her conditions. (AR 417.) 28 1 On August 12, 2021, Ms. Ellsworth completed an Attending Physician’s Statement of Functionality on Plaintiff’s behalf, in which she opined that Plaintiff 2 was able to sit, stand, and walk for four hours each day. (AR 420.) On September 3 8, 2021, Ms. Ellsworth wrote a letter in response to a Medical Information Request, 4 in which she opined that Plaintiff was very depressed and anxious, had diminished 5 motivation and energy, and would get easily fatigued by doing simple tasks. (AR 6 444.) She wrote that Plaintiff struggled with “concentration, focus and attention,” 7 became easily distracted, was unable to multi-task, and was forgetful. (Id.) She 8 wrote that Plaintiff struggled with decision-making and problem-solving. (Id.) Ms. 9 Ellsworth assessed that the severity of Plaintiff’s struggles was “moderate to 10 severe,” and Plaintiff’s symptoms had affected Plaintiff for the last four and a half 11 months. (Id.) Ms. Ellsworth stated that Plaintiff “would prefer to try and stabilize 12 her depression symptoms through medication changes and psychotherapy,” before 13 pursuing “a higher level of care.” (AR 445.) 14

15 D. Analysis 16 The ALJ found Ms. Ellsworth’s opinions not persuasive and provided the 17 following, single sentence explaining her finding: 18 19 The undersigned finds these opinions unpersuasive, as they are not consistent with or supported by the longitudinal evidence 20 of record, which reflects that the claimant has generally normal 21 mental status examinations without observations of significant impairments in the claimant’s ability to perform detailed and 22 complex tasks, maintain concentration, or adapt or manage 23 herself. 24 (AR 24.) 25 Plaintiff argues that “this one-sentence analysis offers no citations to the 26 record,” the ALJ mischaracterized the record by stating that Plaintiff generally had 27 normal mental status examinations, and the ALJ failed to build a logical bridge 28 between the evidence in the record and the ALJ’s conclusions. (Pl. Br. 16–20.) 1 Defendant argues that Plaintiff “ignores the ALJ’s citations and analysis in other portions of the opinion.” (Def. Br. 3 (citing AR 20–22).) Defendant then 2 references evidence in the record that she contends was inconsistent with Ms. 3 Ellsworth’s opinions. (Id. at 4–5.) 4 It appears that the ALJ blurred the analysis of the supportability and 5 consistency factors as to Ms. Ellsworth’s opinion by generally concluding that Ms. 6 Ellsworth’s opinions were “not consistent with or supported by the longitudinal 7 evidence of record, which reflects that [Plaintiff] ha[d] generally normal mental 8 status examinations.” (AR 24.) “‘Supportability’ and ‘consistency’ are terms of art 9 and are not interchangeable.” Ronald S.A. v. Kijakazi, No. 2:22-cv-5152-JDE, 2023

, at *11 (C.D. Cal. Aug. 16, 2023). The ALJ’s conflation 11 of these factors, without separate analyses for each factor, renders her analysis 12 insufficient under the regulations. See E.S. v. Kijakazi, No. 20-cv-06550-JCS, 2022

, at *33 (N.D. Cal. Sept. 16, 2022) (finding ALJ’s 14 conflation of consistency and supportability factors improper by failing to articulate 15 which evidence supported the findings regarding each factor) (citing

404.1520c(b)(2) (ALJs must “explain how [they] considered the supportability and 17 consistency factors” when determining how persuasive they find a medical 18 opinion)); Jesse D. v. Kijakazi, No. 21-cv-04233-BLF,

128844, at *21–22 (N.D. Cal. July 20, 2022) (finding ALJ’s rejection of medical 20 opinion not supported by substantial evidence where the ALJ “failed to engage with 21 [the physician’s] assessment in any meaningful sense and made only a passing 22 assessment of the ‘supportability’ and ‘consistency’ factors”). 23 While it is sometimes possible to ascertain whether the ALJ was analyzing 24 supportability or consistency from the context of the ALJ’s reasoning and whether 25 the ALJ compared the medical opinion to the source’s own treatment notes and 26 objective findings or other evidence in the record, as explained above, see Woods, 27

n.4, here that is not the case because the ALJ cites no records or 28 1 explains the evidence on which she relied in reaching the conclusion that Ms. Ellsworth’s opinions were “not consistent with or supported by the longitudinal 2 evidence of record, which reflects that [Plaintiff] ha[d] generally normal mental 3 status examinations.” (AR 24.) Nevertheless, the Court will address the ALJ’s 4 reasoning and findings regarding the consistency and supportability factors, or lack 5 thereof, below. 6

7 1. Consistency 8 To the extent the Court interprets the ALJ’s reference to “longitudinal 9 evidence of record” to refer to evidence outside of Ms. Ellsworth’s records, and 10 therefore constitute a finding that Ms. Ellsworth’s opinion was inconsistent with 11 evidence of Plaintiff’s “generally normal mental status examinations” (AR 24), 12 such a finding is not supported by substantial evidence. 13 In weighing the consistency factor, the ALJ considers whether a medical 14 opinion is inconsistent with “the evidence from other medical sources and 15 nonmedical sources in the claim.”

.1520c(c)(2); 20 C.F.R. 16 § 416.920c(c)(2). An ALJ may discount a medical opinion where substantial 17 evidence supports a finding that the opinion is “inconsistent with the overall 18 treating notes and mental status exams in the record.” Woods,

19 (finding substantial evidence supporting an inconsistency finding where an ALJ 20 pointed to observations from another medical source). 21 The Court has independently reviewed the medical evidence in the record 22 and agrees with Plaintiff that the ALJ mischaracterized Plaintiff’s mental status 23 examinations as “generally normal,” such that the conclusion that Ms. Ellsworth’s 24 opinions were inconsistent with those “generally normal mental status 25 examinations” was not supported by substantial evidence. (Pl. Br. 16–20.) See 26 Sandra B. v. Kijakazi, No. 2:20-cv-011359-GJS,

, at 27 *17 (C.D. Cal. July 8, 2022) (finding ALJ’s conclusion that medical opinion was 28 1 inconsistent with “benign” or “unremarkable” examination findings unsupported by substantial evidence where the ALJ mischaracterized the record in describing the 2 examination results). Plaintiff’s mental status examinations from January 2021 3 through April 2022 showed varied findings, with reports indicating some levels of 4 functioning were within normal limits, but consistently reflected that Plaintiff was 5 depressed and anxious, with constricted, sad, and tearful affect, slowed thoughts, 6 and limited memory. (AR 449–53, 621–25, 759–60.) In an April 18, 2022 7 psychiatric evaluation by Psychiatric-Mental Health Nurse Practitioner, Shannon 8 Enochs, Plaintiff was assessed to have a “guarded” prognosis for improvement of 9 her anxiety, bipolar, and neurocognitive disorders. (AR 763–66.) Ms. Enochs 10 found that Plaintiff’s bipolar disorder was “chronic and her symptoms have long 11 been significant and intrusive, having a negative impact on her ability to maintain 12 or manage all aspects of her life.” (AR 766.) In addition, Ms. Enochs found that 13 Plaintiff “experienced cognitive decline since 2020,” with intrusive symptoms and 14 Plaintiff appeared “to be failing despite all appropriate treatment.” (Id.) The Court 15 finds that the ALJ’s characterization of Plaintiff’s mental status examinations as 16 “generally normal” is inaccurate and, therefore, substantial evidence does not 17 support discounting Ms. Ellsworth’s opinions on this basis. See Sandra B., 2022

, at *17. 19 Defendant offers reasoning and specificity that is absent from the ALJ’s 20 decision. (Def. Br. 3–5.) Specifically, Defendant argues that Plaintiff’s testimony 21 at the hearing regarding her daily activities (including reorienting herself after 22 getting lost while walking or driving) was inconsistent with Ms. Ellsworth’s 23 opinions. (Id. at 4–5.) However, the Court is constrained to “review the ALJ’s 24 decision based on the reasoning and factual findings offered by the ALJ—not post 25 hoc rationalizations that attempt to intuit what the adjudicator may have been 26 thinking.” Bray v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 27 2009). The only explanation provided by the ALJ for the consistency factor was 28 1 based on a mischaracterization of the record, and therefore is not supported by substantial evidence. 2

3 2. Supportability 4 Turning to the ALJ’s consideration of the supportability factor, or lack 5 thereof, the Court finds that the passing reference that Ms. Ellsworth’s opinion was 6 “not . . . supported by the longitudinal evidence of record” reflecting normal mental 7 status examinations was insufficient under the regulations. See Wheeler v. Kijakazi, 8 No. 1:21-cv-1225 JLT BAM,

, at *9 (E.D. Cal. June 9 23, 2023) (ALJ failed to properly address supportability factor by not explaining to 10 what extent the physician’s treatment records did not support the opinion); Sandra

U.S. Dist. LEXIS 121047, at *16 (ALJ’s supportability analysis consisting 12 of single-sentence conclusory statement was insufficient under regulations); Gurule 13 v. Comm’r of SSA, No. CV-21-01651-PHX-DGC,

, 14 at *18 (D. Ariz. Aug. 1, 2022) (finding ALJ’s analysis of supportability factor 15 deficient where “the ALJ failed entirely to explain whether or how she considered 16 the supportability factor of [the physician’s] opinion”). 17 In analyzing the supportability factor, the ALJ considers the extent to which 18 a medical source supports his or her explanations and explains the objective 19 medical evidence forming the basis for the opinion. See 20 C.F.R. 20 § 404.1520c(c)(1) (“Supportability examines the relevant objective medical 21 evidence and supporting explanations presented by the source”). Here, the ALJ did 22 not explain why she found Ms. Ellsworth’s opinions not supported, nor did she cite 23 any findings in Ms. Ellsworth’s treatment notes that demonstrate a lack of support. 24 (See generally AR 20–26.) Therefore, the ALJ failed to properly address the 25 supportability factor, and remand is appropriate on these grounds. See Wheeler, 26

, at *9 (remanding case based on ALJ’s failure to 27 “properly address the supportability factor under the new regulations”); Gurul, 28 1

, at *18 (remanding case due to ALJ’s failure to explain her consideration of the supportability factor); Sandra B., 2022 U.S. Dist.

, at *18–19 (same). Because the ALJ’s consideration of the 3 supportability factor cannot reasonably be discerned from the ALJ’s decision, 4 reversal is warranted. 5 6 VI. REMAND FOR FURTHER ADMINISTRATIVE PROCEEDINGS 7 Ninth Circuit case law “precludes a district court from remanding a case for 8 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 9

(9th Cir. 2015) (citations omitted). “The district court must first 10 determine that the ALJ made a legal error, such as failing to provide legally 11 sufficient reasons for rejecting evidence.”

“If the court finds such an error, it 12 must next review the record as a whole and determine whether it is fully developed, 13 is free from conflicts and ambiguities, and all essential factual issues have been 14 resolved.”

(citation and internal quotation marks omitted). 15 Here, further administrative proceedings are warranted because outstanding 16 factual issues remain. For example, Ms. Ellsworth’s opinion is “inconsistent with 17 the reports of other physicians.” Dominguez,

(remanding for 18 further administrative proceedings where this circumstance was present). The State 19 agency consultants were not as restrictive as Ms. Ellsworth in assessing Plaintiff’s 20 mental capacity limitations. (AR 54–68, 70–84.) Moreover, Plaintiff requests 21 remanding this matter for further administrative proceedings as the only remedy. 22 (Pl. Br. 21.) Based on its review and consideration of the entire record, the Court 23 has concluded on balance that a remand for further administrative proceedings 24 pursuant to sentence four of

(g) is warranted here. It is not the 25 Court’s intent to limit the scope of the remand. 26 /// 27 /// 28 1 VII. ORDER It is ordered that Judgment be entered reversing the decision of the 2 Commissioner of Social Security and remanding this matter for further 3 administrative proceedings. 4 5 DATED: January 3, 2024 6 7 8 9 HONORABLE MARIA A. AUDERO 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28