1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ANTHONY NICHOLAS TAGLIERE, Case No. 2:21-cv-00481-NJK

5 Plaintiff, ORDER 6 v. [Docket Nos. 32, 34] 7 KILOLO KIJAKAZI, 8 Defendant. 9 This case involves judicial review of administrative action by the Commissioner of Social 10 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits and 11 supplemental security income pursuant to Titles II and XVI of the Social Security Act. Currently 12 before the Court is Plaintiff’s Motion for Reversal and/or Remand. Docket No. 32. The 13 Commissioner filed a response in opposition and a cross-motion to affirm. Docket Nos. 34, 35. 14 Plaintiff filed a reply. Docket Nos. 36, 38 (corrected image). The parties consented to resolution 15 of this matter by the undersigned magistrate judge. See Docket No. 3. 16 I. STANDARDS 17 A. Disability Evaluation Process 18 The standard for determining disability is whether a social security claimant has an 19 “inability to engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected . . . to last for a continuous period of not 21 less than 12 months.”

(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). The disability 22 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 23

(1987) (citing

, 416.920). The first step addresses 24 whether the claimant is currently engaging in substantial gainful activity.

404.1520(b), 416.920(b).1 The second step addresses whether the claimant has a medically 26 determinable impairment that is severe or a combination of impairments that significantly limits 27

28 1 The five-step process is largely the same for both Title II and Title XVI claims. For a Title II claim, however, a claimant must also meet insurance requirements.

. 1 basic work activities.

(c), 416.920(c). The third step addresses whether the 2 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 3 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(d), 4 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 5 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 6 mental work-related activities.

(e), 416.920(e). The fourth step addresses 7 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 8 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 9 considering the residual functional capacity, age, education, and work experience.

404.1520(g), 416.920(g). 11 B. Judicial Review 12 After exhausting the administrative process, a claimant may seek judicial review of a 13 decision denying social security benefits.

(g). The Court must uphold a decision 14 denying benefits if the proper legal standard was applied and there is substantial evidence in the 15 record as a whole to support the decision. Webb v. Barnhart,

(9th Cir. 2005). 16 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 17 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___

,

(2019). “[T]he threshold for such evidentiary sufficiency is not 19 high.”

20 II. BACKGROUND 21 A. Procedural History 22 On May 25, 2017, Plaintiff filed an application for disability insurance benefits and 23 supplemental security income with an onset date of July 25, 2015. See, e.g., Administrative Record 24 (“A.R.”) 345-61. On January 16, 2018, Plaintiff’s claims were initially denied. A.R. 161-62. On 25 May 3, 2018, Plaintiff’s claims were denied on reconsideration. A.R. 203-04. On May 11, 2018, 26 Plaintiff filed a request for a hearing before an administrative law judge. A.R. 236-37. On May 27 21, 2020, Plaintiff, Plaintiff’s representative, and a vocational expert appeared for a hearing before 28 ALJ Cynthia R. Hoover. See A.R. 55-94. On June 25, 2020, the ALJ issued an unfavorable 1 decision finding that Plaintiff had not been under a disability through the date of the decision. A.R. 2 34-54. On February 9, 2021, the ALJ’s decision became the final decision of the Commissioner 3 when the Appeals Council denied Plaintiff’s request for review. A.R. 1-6. 4 On March 23, 2021, Plaintiff commenced this action for judicial review. Docket No. 1. 5 B. The Decision Below 6 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20

and 416.

-47. At step one, the ALJ found that Plaintiff met the 8 insured status requirements through December 31, 2017, and has not engaged in substantial gainful 9 activity since the alleged onset date. A.R. 39. At step two, the ALJ found that Plaintiff has the 10 following severe impairments: post-traumatic stress disorder (“PTSD”), attention deficit 11 hyperactivity disorder (“ADHD”), depressive disorder, and anxiety disorder. A.R. 39-40. At step 12 three, the ALJ found that Plaintiff does not have an impairment or combination of impairments 13 that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 14 Subpart P, Appendix 1. A.R. 40-42. The ALJ found that Plaintiff has the residual functional 15 capacity to 16 perform a full range of work at all exertional levels but with the following nonexertional limitations: he can understand and 17 remember simple, but not detailed instructions or work procedures, characteristic of the unskilled occupational base. He is able to 18 maintain concentration, persistence, and pace to complete simple tasks in a well-spaced, non-threatening work setting. He is able to 19 interact appropriately in brief, infrequent, non-intensive encounters. He can frequently reach with the left non-dominant hand. 20

. See also A.R. 42-45. At step four, the ALJ found Plaintiff is unable to perform past 22 relevant work as a delivery driver. A.R. 45-46. At step five, the ALJ found that jobs exist in 23 significant numbers in the national economy that Plaintiff can perform based on his age, education, 24 work experience, and residual functional capacity. A.R. 46-47. In doing so, the ALJ defined 25 Plaintiff as a younger individual aged 18-49 at the time of the alleged disability onset date, and as 26 having at least a high school education. A.R. 46. The ALJ found the transferability of job skills 27 to be immaterial to the determination of disability. A.R. 46. The ALJ considered the Medical- 28 Vocational Rules, which provide a framework for finding Plaintiff not disabled, along with 1 vocational expert testimony that an individual with the same residual functional capacity and 2 vocational factors could perform work as a janitor, uniform attendant, and laundry worker. A.R. 3 46-47. 4 Based on all of these findings, the ALJ found Plaintiff not disabled through the date of the 5 decision. A.R. 47. 6 III. ANALYSIS 7 Plaintiff raises a single issue on appeal, asserting that the ALJ erred in discounting Dr. 8 Short’s opinion about Plaintiff “appear[ing] not to retain sufficient cognitive resources to sustain 9 even simple employment at this time.” Docket No. 32 at 5-12. Plaintiff submits that the ALJ 10 ignored this opinion and, as a result, the ALJ’s decision as to Plaintiff being not disabled lacks the 11 support of substantial evidence.

. Plaintiff asks the Court to order the immediate payment 12 of benefits or, alternatively, to remand the case for further administrative proceedings.

. 13 In response, the Commissioner submits that the ALJ properly considered Dr. Short’s opinion, as 14 the evaluation was proper under the governing regulations for assessing medical opinions, and the 15 ALJ’s determination was supported by substantial evidence. Docket No. 34 at 4-17. The 16 Commissioner further submits that the statement in contention was not a medical opinion as 17 defined by the regulations but was an opinion about Plaintiff’s ultimate disability status, which is 18 an issue reserved for the Commissioner, and so the ALJ properly declined to speak on the 19 statement.

. 20 The new agency regulations, effective March 27, 2017, apply to Plaintiff’s case. Under 21 these new regulations, the ALJ will no longer “give any specific evidentiary weight, including 22 controlling weight, to any medical opinion(s)…”

.1520c(a), 416.920c(a). 23 Instead, the ALJ must consider and evaluate the persuasiveness of all medical opinions or prior 24 administrative medical findings from medical sources.

When evaluating the persuasiveness 25 of medical opinions, the ALJ must consider factors articulated in the regulations, including 26 supportability, consistency, relationship with the claimant, specialization, and “other factors that 27 tend to support or contradict a medical opinion or prior administrative medical finding,” including 28 but not limited to “evidence showing a medical source has familiarity with the other evidence in 1 the claim or an understanding of our disability program’s policies and evidentiary requirements.” 2

.1520c(c)(1)-(5), 416.920c(b)(2). The two most important factors in this 3 assessment are consistency and supportability and the ALJ must explain how both factors were 4 considered.

.1520c(b)(2), 416.920c(b)(2). The ALJ can, but is not required to, 5 discuss how the other factors were considered.

If the medical opinion includes evidence on an 6 issue reserved to the Commissioner, the ALJ need not provide an analysis of the evidence in her 7 decision, even in the discussions required by

.1520c, 416.920c. See

404.1520b(c)(3), 415.920b(c)(3). 9 Under the regulations, a medical opinion is “a statement from a medical source about what 10 you can still do despite your impairment(s) and whether you have one or more impairment-related 11 limitations or restrictions in abilities.”

(a)(2). Judgments about “the nature 12 and severity of [a claimant’s] impairments, [his] medical history, clinical findings, diagnosis, 13 treatment prescribed with response, or prognosis” are all considered “other medical evidence” 14 under the regulations and are not considered medical opinion because they do not provide 15 perspectives about the claimant’s functional limitations and abilities. See

404.1513(a)(c),

. 17 The Court finds that Plaintiff’s challenge to the ALJ’s discounting of parts of Dr. Short’s 18 opinion and medical evidence fails. The ALJ properly considered Dr. Short’s opinions in light of 19 the amended regulations and considered both the consistency and supportability of his medical 20 opinions and in consideration with the other medical opinions available to her. In her evaluation 21 of Dr. Short’s opinion, the ALJ specifically found that Dr. Short’s opinion on a simple instructions 22 limitation was supported by Dr. Short’s own examination findings that Plaintiff has good memory 23 but poor concentration. A.R. 44. The ALJ further found that Dr. Short’s finding about Plaintiff’s 24 inability to interact with others was unsupported because Dr. Short did not articulate any 25 examination findings to support this limitation. A.R. 45. The ALJ also specifically found that Dr. 26 Short’s opinion about Plaintiff’s difficulty in responding appropriately to work pressure in a work 27 setting was consistent with Plaintiff’s treatment records.

The ALJ found these findings 28 consistent with both other medical opinions and the evidence in the record. A.R. 44-45. 1 The ALJ’s evaluation of Dr. Short’s various opinions is supported by substantial evidence. 2 As the ALJ explained, a simple instructions limitation was supported by the testing that Dr. Short 3 undertook as part of his evaluation. A.R. 44. Treatment notes, other assessments, and evidence 4 from lay witnesses also support a finding that Plaintiff has difficulty understanding complex 5 instructions and has an easier time understanding simple instructions. See e.g., A.R. 362, 419, 6 428-29, 901, 903, 907, 911, 915, 919, 923. The Court finds that substantial evidence supports the 7 ALJ’s determination about Plaintiff’s inability to interact with others. As the ALJ discussed, Dr. 8 Short’s examination did not include findings to support this limitation. Further, treatment notes 9 and the Plaintiff’s own testimony at the hearing contradict this purported limitation. Treatment 10 notes consistently describe Plaintiff as “calm and cooperative,” “well-related,” “engaged,” and 11 “attentive.” See, e.g., A.R. 612, 615, 676, 678, 680, 774, 777, 780, 783, 786, 789, 791-92, 802- 12 03, 905, 909, 917-18. Plaintiff testified and provided evidence that he was able to volunteer in the 13 community, go to the store, socially interact with others in person and on the phone, attend 14 religious services, and take public transportation. See, e.g., A.R. 73-74, 83-84, 135-36, 193-95, 15 392-93, 418, 426-27. The ALJ, in weighing the acceptable medical opinions, found Dr. Wright, a 16 state agency consultant, more persuasive than Dr. Short on discussion of potential limitations for 17 Plaintiff’s interactions with others. A.R. 45. In discussing this finding, the ALJ looked to Dr. 18 Wright’s opinion that Plaintiff’s main limitation was acceptance and tolerance of others, which 19 could be improved with treatment. A.R. 174. Dr. Short’s own functional assessment, other 20 treatment notes, and Plaintiff’s hearing testimony are consistent with discounting a limitation of 21 interacting with others. A.R. 41, 65, 75, 84-85, 393, 395, 418-20, 427-29, 599, 604-06, 771, 774, 22 780, 803. The ALJ properly followed the guidance of the regulations in assessing the available 23 evidence and experts and determining that one was more persuasive than others. Further, the ALJ 24 pointed to the specific evidence in the record supporting her determination that Dr. Wright is the 25 more persuasive expert. A.R. 45. 26 Plaintiff’s main contention with the ALJ’s decision is his belief that the ALJ improperly 27 omitted Dr. Short’s statement that Plaintiff appeared “not to retain sufficient cognitive resources 28 to sustain even simple employment” at the time of Dr. Short’s evaluation. Docket No. 32 at 7-13. 1 Plaintiff is mistaken. The Court finds that the ALJ properly excluded this statement from her 2 opinion. The statement is best understood as a judgment about the nature and severity of Plaintiff’s 3 impairments, and is, therefore, other medical evidence under the regulations and not medical 4 opinion. While there is an articulation requirement for medical opinions, see, e.g.,

404.1520c, the regulations are silent on whether or not an ALJ must specifically articulate her 6 consideration of other medical evidence. 7 Further, the statement goes to Plaintiff’s ability to work, which is explicitly excluded from 8 discussion by the ALJ as it is not inherently valuable or persuasive. See

404.1520b(c)(3)(i) (excluding from consideration or discussion “statements that you are or are not 10 disabled, blind, able to work, or able to perform regular or continuing work”),

415.920b(c)(3)(i) (same). ALJ articulation is therefore prohibited.

.1520b(c). 12 Moreover, this statement is unlike the statement at issue in Margaret M. v. Comm’r. of Soc. 13 Sec.,

,

(D. Or. July 8, 2021), the sole case on 14 this issue on which Plaintiff relies in his briefing. In Margaret M., the Court found that an ALJ 15 had inappropriately discounted an expert’s opinion that the plaintiff was unable to engage in an “8 16 hour per day job with normal breaks on a 5 day per week basis,” and the conclusion that “Plaintiff 17 experiences monthly flareups,” because the ALJ failed to cite relevant medical evidence in the 18 record and did not discuss supportability or consistency when evaluating the opinion.

Dist. LEXIS 127378, at *19-20,

, at *8. Here, as discussed above, the ALJ 20 properly discussed both consistency and supportability, relying on the available record and citing 21 to relevant medical evidence. The ALJ properly omitted discussion of Dr. Short’s statement under 22 the regulations. There was no error in the ALJ’s analysis of Dr. Short’s medical opinions as her 23 analysis properly evaluated Dr. Short’s articulated medical opinions and her analysis is supported 24 by substantial evidence. 25 III. CONCLUSION 26 Based on the forgoing, the Court DENIES the motion for reversal or remand (Docket No. 27 32) and GRANTS the countermotion to affirm (Docket No. 34). The decision below is 28 1} AFFIRMED. The Clerk’s Office is instructed to ENTER FINAL JUDGMENT accordingly and 2|| to CLOSE this case. 3 IT IS SO ORDERED. 4 Dated: February 17, 2022 ie

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