Mary Carmen Valencia v. Michael J. Astrue, No. 2:2010cv06529 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 MARY CARMEN VALENCIA, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-6529-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on September 3, 2010, seeking review of the Commissioner s denial 22 of her application for Supplemental Security Income payments. The parties filed Consents to 23 proceed before the undersigned Magistrate Judge on October 27, 2010, and November 23, 2010. 24 Pursuant to the Court s Order, the parties filed a Joint Stipulation on June 6, 2011, that addresses 25 their positions concerning the disputed issues in the case. The Court has taken the Joint 26 Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on April 14, 1960. [Administrative Record ( AR ) at 26, 56, 138.] She has 4 an eleventh grade education, some vocational training, and has past relevant work experience as, 5 among other things, a home care provider, noon aide, recovery associate, waitress, and sales 6 associate. [AR at 22, 26, 33-35, 112-13, 116, 118-23, 199.] 7 On March 31, 2007, plaintiff protectively filed her application for Supplemental Security 8 Income payments, alleging that she has been disabled since March 23, 2007, due to hepatitis C, 9 an enlarged liver, depression, fibromyalgia, and other impairments. [AR at 56, 90-98, 111-12, 125, 10 131, 141.] After her application was denied initially and upon reconsideration, plaintiff requested 11 a hearing before an Administrative Law Judge ( ALJ ). [AR at 60-63, 65-72.] A hearing was held 12 on September 9, 2009, at which time plaintiff appeared with her representative1 and testified on 13 her own behalf. [AR at 23-55.] A vocational expert also testified. [AR at 52-55.] On November 14 2, 2009, the ALJ determined that plaintiff was not disabled. [AR at 13-22.] The Appeals Council 15 denied plaintiff s request for review on July 6, 2010. [AR at 1-3, 10.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 26 27 28 1 It is unclear from the record whether or not plaintiff s representative is an attorney. On the Request for Review of Hearing Decision form, the non-attorney box next to his signature is checked; however, in other places in the record, he is referred to as plaintiff s attorney. [AR at 10, 23.] 2 1 1257. When determining whether substantial evidence exists to support the Commissioner s 2 decision, the Court examines the administrative record as a whole, considering adverse as well 3 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 4 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 5 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 6 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 7 8 IV. 9 THE EVALUATION OF DISABILITY 10 Persons are disabled for purposes of receiving Social Security benefits if they are unable 11 to engage in any substantial gainful activity owing to a physical or mental impairment that is 12 expected to result in death or which has lasted or is expected to last for a continuous period of at 13 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 14 15 A. THE FIVE-STEP EVALUATION PROCESS 16 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 17 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 18 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 19 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 20 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 21 substantial gainful activity, the second step requires the Commissioner to determine whether the 22 claimant has a severe impairment or combination of impairments significantly limiting her ability 23 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 24 If the claimant has a severe impairment or combination of impairments, the third step requires 25 the Commissioner to determine whether the impairment or combination of impairments meets or 26 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 27 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 28 If the claimant s impairment or combination of impairments does not meet or equal an impairment 3 1 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 2 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 3 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 4 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 5 prima facie case of disability is established. The Commissioner then bears the burden of 6 establishing that the claimant is not disabled, because she can perform other substantial gainful 7 work available in the national economy. The determination of this issue comprises the fifth and 8 final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 9 n.5; Drouin, 966 F.2d at 1257. 10 11 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 12 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 13 gainful activity since March 31, 2007, the date of plaintiff s application for Supplemental Security 14 Income payments. [AR at 18.] At step two, the ALJ concluded that plaintiff has the following 15 severe impairments:2 hepatitis C, fibromyalgia, plantar fasciitis, chronic fatigue, and obesity. [Id.] 16 At step three, the ALJ determined that plaintiff s impairments do not meet or equal any of the 17 impairments in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional 18 capacity ( RFC )3 to perform a full range of light work4 with certain limitations: [plaintiff] should 19 avoid unprotected heights, hazardous machinery and extreme temperatures. [AR at 19.] At step 20 21 22 2 The ALJ noted that while not all of the medically determinable impairments are severe if considered separately, in combination, [they] cause more than minimal limitation in the claimant s ability to perform basic work activities and therefore are severe. [AR at 18.] 23 3 24 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 Light work is defined as work that involves lifting no more than 20 pounds at a time with frequent 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, 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, [a claimant] must have the ability to do substantially all of these activities. 20 C.F.R. §§ 404.1567(b), 416.967(b). 4 1 four, the ALJ concluded that plaintiff is capable of performing her past relevant work as a sales 2 clerk and waitress.5 [AR at 22.] Accordingly, the ALJ found plaintiff not disabled. [Id.] 3 4 V. 5 THE ALJ S DECISION 6 Plaintiff contends that the ALJ (1) failed to set forth legally sufficient reasons for rejecting 7 the opinion of treating physician Dr. Lloyd Costello; and (2) improperly evaluated plaintiff s 8 subjective complaints. [Joint Stipulation ( JS ) at 2-3, 11.] As set forth below, the Court agrees 9 with plaintiff, in part, and remands the matter for further proceedings. 10 11 A. TREATING PHYSICIAN S OPINION 12 13 Plaintiff argues that the ALJ erred in evaluating the opinion of treating physician Dr. Lloyd Costello. [JS at 2-5.] The Court agrees. 14 In evaluating medical opinions, the case law and regulations distinguish among the opinions 15 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 16 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 17 nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 18 416.902, 416.927; see also Lester, 81 F.3d at 830. Generally, the opinions of treating physicians 19 are given greater weight than those of other physicians, because treating physicians are employed 20 to cure and therefore have a greater opportunity to know and observe the claimant. Orn v. Astrue, 21 495 F.3d 625, 631 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Despite 22 the presumption of special weight afforded to treating physicians opinions, an ALJ is not bound 23 to accept the opinion of a treating physician. Where a treating physician s opinion does not 24 contradict other medical evidence, an ALJ must provide clear and convincing reasons to discount 25 it. An ALJ may afford less weight to a treating physician s opinion that conflicts with other medical 26 27 28 5 The ALJ indicated that plaintiff s past relevant work as a sales clerk and waitress does not require the performance of work-related activities precluded by her residual functional capacity. [AR at 22.] 5 1 evidence only if the ALJ provides specific and legitimate reasons for discounting the opinion. See 2 Lester, 81 F.3d at 830-31; see also Orn, 495 F.3d at 632-33 ( Even when contradicted by an 3 opinion of an examining physician that constitutes substantial evidence, the treating physician s 4 opinion is still entitled to deference. ) (citation omitted); Social Security Ruling6 96-2p (a finding 5 that a treating physician s opinion is not entitled to controlling weight does not mean that the 6 opinion is rejected). Similar rules apply to an ALJ s evaluation of an examining physician s 7 opinion. Lester, 81 F.3d at 830-31. 8 The record shows that plaintiff received medical treatment from Dr. Costello beginning in 9 January 2008 until at least June 2009. [See AR at 269-96, 322-29, 335-38.] Plaintiff s initial 10 complaints and illnesses included, among other things, chronic aches, hepatitis C, fibromyalgia, 11 and insomnia. [AR at 269-71.] On March 19, 2009, Dr. Costello completed a Physical Residual 12 Functional Capacity Questionnaire, in which he listed plaintiff s diagnoses as fibromyalgia, 13 hepatitis C, insomnia, and menopause. [AR at 311-15.] He listed plaintiff s symptoms as pain, 14 fatigue, dizziness, anxiety, irritability, and difficulty concentrating. [AR at 311.] Regarding 15 plaintiff s pain, Dr. Costello noted that she has pain in her back, neck, and shoulders ranging in 16 severity from three to ten (on a scale of one to ten), and that plaintiff is never without pain. [AR 17 at 311, 348.] He also noted that plaintiff s medications7 cause certain side effects such as 18 sedation, difficulty focusing, dry mouth, dizziness, and fatigue. [Id.] Dr. Costello further indicated 19 that during a typical workday plaintiff constantly experiences pain or other symptoms severe 20 enough to interfere with the attention and concentration needed to perform simple work tasks. [AR 21 at 312.] Specifically, in regard to plaintiff s functional limitations, he stated that plaintiff cannot sit 22 for longer than ten to fifteen minutes at one time before needing to get up, she cannot stand for 23 longer than five to ten minutes at one time before needing to sit down or walk around, and she can 24 6 25 26 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 27 7 28 Plaintiff s medications include, among other things, Lyrica, Zolpidem, Oxycodone, and Percodan. [AR at 43, 197.] 6 1 only sit and stand/walk for less than two hours total in an eight hour working day. [AR at 312-13.] 2 Moreover, Dr. Costello noted that plaintiff is incapable of even low stress jobs because plaintiff s 3 pain limits her ability to deal with external pressures. [AR at 312.] He further stated that plaintiff s 4 impairments have lasted or can be expected to last at least twelve months and that she is likely 5 to be absent from work more than four days per month as a result of her impairments or treatment. 6 [AR at 311, 314.] In a letter dated January 12, 2010, Dr. Costello opined that although plaintiff 7 is clinically stable, her ability to function is significantly limited and she experiences significant pain 8 ranging anywhere from four to seven on a one-to-ten scale (where one is minimal pain and ten 9 is excruciating pain).8 [AR at 348.] In the letter, he also clarified his earlier residual functional 10 capacity evaluation in which he had stated that plaintiff could sit, stand, and/or walk less than two 11 hours in an 8 hour work day: I believe this to be true because although [plaintiff] can perform light 12 chores at home, she is able to lie down when she becomes tired or the pain becomes severe. In 13 a typical workplace situation she would not be afforded this luxury. [Id.] 14 In the decision, the ALJ provided several reasons for rejecting Dr. Costello s opinion of 15 plaintiff s limitations expressed in the March 19, 2009, Physical Residual Functional Capacity 16 Questionnaire: it was not consistent with other medical opinions; it was not supported by the 17 record; and it was more extreme than plaintiff s own allegations regarding her limitations and 18 functional ability. [AR at 21-22.] For the reasons explained below, the Court concludes that the 19 ALJ provided insufficient reasons for rejecting Dr. Costello s opinion. 20 First, an ALJ may not properly reject a treating physician s opinion by merely referencing 21 the contrary findings of another physician. Even when contradicted, a treating physician s opinion 22 is still entitled to deference, and the ALJ must provide specific and legitimate reasons supported 23 by substantial evidence for rejecting it. See Orn, 495 F.3d at 632-33; SSR 96-2p; see also 24 Valentine v. Comm r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) ( to reject the opinion 25 of a treating physician in favor of a conflicting opinion of an examining physician[,] an ALJ still 26 27 8 28 Dr. Costello s letter was written on January 12, 2010, and was not part of the record when the ALJ rendered his decision on November 2, 2009. [AR at 13, 348.] 7 1 must make[] findings setting forth specific, legitimate reasons for doing so that are based on 2 substantial evidence in the record ) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 3 2002)). Here, the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Costello s 4 opinion in favor of allegedly conflicting medical opinions. Specifically, the ALJ found Dr. Costello s 5 assessment that plaintiff could sit, stand and/or walk less than two hours in an eight-hour work 6 day...[and] could use her hands and fingers only ten percent of the time and use her arms only five 7 percent of the time, far too restrictive and not consistent with other medical opinions. [AR at 21.] 8 However, it is not clear from the ALJ s decision which specific other medical opinions he 9 determined to contradict Dr. Costello s opinion. [Id.] Indeed, the ALJ also failed to give substantial 10 weight to the opinions of either examining physician Dr. Ehreema Nadir or non-examining State 11 agency physicians Dr. B. Harris and Dr. David J. Seff. [AR at 21, 220-23, 257, 267-68.] 12 Specifically, the ALJ gave some weight to Dr. Nadir s assessment that plaintiff s hepatitis C was 13 not so severe as to restrict her from working, but gave little weight to Dr. Nadir s assessment that 14 plaintiff could perform a full range of medium work because the ALJ determined plaintiff was 15 more restricted than Dr. Nadir s assessment indicated. [AR at 21.] Similarly, the ALJ gave only 16 some weight to the opinions of the non-examining State agency physicians because they did not 17 contemplate all of plaintiff s allegations and therefore did not provide a complete assessment of 18 the claimant s limitations as a whole. [Id.] By giving limited weight to the opinions of the other 19 physicians, the ALJ did not provide any reference to justify his rejection of the treating physician s 20 opinion. Thus, the first reason provided by the ALJ to reject Dr. Costello s opinion fails. See 21 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) ( The ALJ may not reject the opinion of 22 a treating physician, even if it is contradicted by the opinions of other doctors, without providing 23 specific and legitimate reasons supported by substantial evidence in the record. ); see also 24 Hostrawser v. Astrue, 364 Fed.Appx. 373, 376-77 (9th Cir. 2010) (citable for its persuasive value 25 pursuant to Ninth Circuit Rule 36-3) (ALJ erred in affording nontreating physicians opinions 26 controlling weight over the treating physicians opinions, where the ALJ did not provide a thorough 27 summary of the conflicting clinical evidence and his interpretations thereof with an explanation as 28 to why his interpretations of the evidence, rather than those of the treating physicians, were 8 1 correct). Furthermore, as explained below, the other two reasons stated by the ALJ for rejecting 2 Dr. Costello s opinion are also not specific and legitimate reasons for rejecting the opinion of a 3 treating physician. 4 The ALJ s general assertion that Dr. Costello s findings are not supported by the overall 5 record is inadequate to reject Dr. Costello s treating opinion, as this reason fails to reach the level 6 of specificity required for rejecting a medical opinion. See Embrey v. Bowen, 849 F.2d 418, 421- 7 23 (9th Cir. 1988) ( To say that medical opinions are not supported by sufficient objective findings 8 or are contrary to the preponderant conclusions mandated by the objective findings does not 9 achieve the level of specificity our prior cases have required ... The ALJ must do more than offer 10 his conclusions. He must set forth his own interpretations and explain why they, rather than the 11 doctors , are correct. ) (footnote omitted). Here, the ALJ s contention that Dr. Costello s medical 12 opinion was unsupported is not a wholly accurate description of the treatment record. First, Dr. 13 Costello diagnosed plaintiff and treated her for fibromyalgia, and opined that this condition resulted 14 in disabling limitations. 15 understood within much of the medical community. Benecke v. Barnhart, 379 F.3d 587, 594 n.4 16 (9th Cir. 2004) (citation omitted). Significantly, there is no known cause or cure, and fibromyalgia 17 is diagnosed entirely on the basis of patients reports of pain and other symptoms. Id. at 590; 18 Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) ( [Fibromyalgia s] cause or causes are 19 unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely 20 subjective. ). Courts have noted that there are no laboratory or diagnostic tests that can confirm 21 the presence of fibromyalgia. Benecke, 379 F.3d at 590 (citations omitted); Sarchet, 78 F.3d at 22 306; Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003). Hence, fibromyalgia is often 23 diagnosed by eliminating other possible conditions and confirming the presence of the disease s 24 symptoms: widespread pain existing for at least three months, fatigue, disturbed sleep, stiffness, 25 and tenderness in at least eleven of eighteen specified sites ( trigger points ) on the body. 26 Brosnahan, 336 F.3d at 672 n.1 ( [d]iagnosis [of fibromyalgia] is usually made after eliminating 27 other conditions ); Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988) [AR at 273, 311-12.] 28 9 Fibromyalgia is a syndrome that is poorly 1 ( no objective tests . . . can conclusively confirm [fibromyalgia] ); Rollins v. Massanari, 261 F.3d 2 853, 855 (9th Cir. 2001) (listing fibromyalgia s symptoms (quoting Sarchet, 78 F.3d at 306)). 3 With regard to plaintiff s fibromyalgia, the ALJ cited to treatment records where plaintiff 4 reported significant improvement in her symptoms, and concluded that the medical record 5 demonstrated plaintiff s symptoms were consistently and currently well controlled with the use of 6 medication. [AR at 20.] However, contrary to the ALJ s assessment, Dr. Costello s treatment 7 records from January 2008 through February 2009 demonstrate that plaintiff suffered from chronic 8 aching, had persistent pain despite her medications, and experienced pain all over her body. [AR 9 at 269, 272, 274, 276, 287, 291, 293.] Plaintiff saw no significant help from her pain medication. 10 [AR at 287, 291, 293.] Thus, although plaintiff s fibromyalgia stabilized occasionally when she took 11 medication, her symptoms were by no means consistently and currently well controlled as 12 indicated by the ALJ. [AR at 20, 278, 280, 335.] Indeed, Dr. Costello s treatment records mirror 13 some of the criteria for fibromyalgia listed above and reflect plaintiff s repeated complaints of 14 aches and pains existing for at least three months [AR at 269, 272, 274, 276, 280, 287, 291, 293], 15 fatigue [AR at 269, 282, 289], and disturbed sleep [AR at 272.] Furthermore, treatment records 16 of plaintiff s former treating physician from Arizona, Dr. Jason Brown, indicate, among other things, 17 that plaintiff complained of fatigue/malaise and musculoskeletal weakness. [AR at 213-14, 233.] 18 Although Dr. Brown was not plaintiff s treating physician at the time of her application for 19 Supplemental Security Income payments, the ALJ could have taken his medical treatment notes 20 into account as a basis for comparison when determining the validity of Dr. Costello s opinion. Dr. 21 Costello s opinion expressed in the Physical Residual Functional Capacity Questionnaire that 22 plaintiff suffers from pain and fatigue is consistent with Dr. Brown s medical treatment notes. [AR 23 at 311-15.] Moreover, in a letter dated July 27, 2009, plaintiff s treating podiatrist, Dr. Jeff 24 Bruening, also noted that plaintiff suffers from fibromyalgia and is a candidate for Supplemental 25 Security Income payments. [AR at 342.] Thus, the ALJ s conclusion that Dr. Costello s opinion 26 is isolated and in contradiction to all other reporting sources and is not supported by the record 27 appears to be a selective consideration of the evidence [AR at 21]; an ALJ cannot ignore or 28 misstate competent evidence in order to justify his conclusion (Gallant v. Heckler, 753 F.2d 1450, 10 1 1456 (9th Cir. 1984)), but rather must consider all of the relevant evidence in context without 2 misconstruing portions of the record to bolster his findings. See Reddick v. Chater, 157 F.3d 715, 3 722-23 (9th Cir. 1998) (it is impermissible for the ALJ to develop an evidentiary basis by not fully 4 accounting for the context of materials or all parts of the testimony and reports ); see also Day v. 5 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not permitted to reach a conclusion 6 simply by isolating a specific quantum of supporting evidence ). 7 Second, Dr. Costello also treated plaintiff for hepatitis C and his treatment records indicate 8 that plaintiff s condition is chronic. [AR at 274.] The ALJ noted that laboratory tests were positive 9 for hepatitis C, he cited to an unremarkable abdominal ultrasound, and referred to treatment 10 notes that do not document any established fatigue or weakness. [AR at 20.] The ALJ did not, 11 however, consider Dr. Costello s treatment records from July and September 2008 indicating that 12 plaintiff complained of aching, had elevated liver function tests, and complained of increased 13 stress and fatigue [AR at 280-82], or plaintiff s associated complaints of increased nausea and 14 dizziness in March 2009. [AR at 328.] Moreover, Dr. Brown s treatment records also demonstrate 15 plaintiff s similar subjective complaints of chills and fatigue/malaise over the years. [AR at 213-14.] 16 Also, when testifying at the hearing before the ALJ, plaintiff complained of being fatigued all the 17 time, having flulike symptoms, not being able to stand for long periods, and having to sleep. [AR 18 at 37.] In sum, the ALJ s rejection of Dr. Costello s opinion in the Physical Residual Functional 19 Capacity Questionnaire as lacking adequate support in the record was erroneous because several 20 sources, including Dr. Costello s own treatment notes, corroborate his conclusion about plaintiff s 21 limitations. [AR at 312.] 22 Finally, the ALJ s rejection of Dr. Costello s opinion as being more extreme than plaintiff s 23 own allegations regarding her limitations and functional ability was unwarranted. [AR at 21.] 24 While this may be a proper ground on which to reject a treating doctor s opinion (see 20 C.F.R. 25 §§ 404.1527(d)(4), 416.927(d)(4) (the more consistent an opinion is with the record as a whole, 26 the more weight it will be given); see also, e.g., Arnold v. Astrue, 2011 WL 2261058, at *7 (C.D. 27 Cal. June 8, 2011) (an ALJ is entitled to reject a treating doctor s opinion that is not supported by 28 a plaintiff s statements or [by] the record as a whole )), that is not the case here. Dr. Costello 11 1 opined that plaintiff is incapable of even low stress jobs because her pain limits her ability to deal 2 with external pressures; and she can never stoop (bend), crouch/squat, or climb ladders. He 3 further indicated that plaintiff cannot lift and carry over twenty to fifty pounds in a competitive work 4 situation, although she can occasionally lift and carry less than ten pounds. [AR at 312-14.] 5 Plaintiff testified that she can lift groceries, can lift but not pour a gallon of milk if it is full, and 6 cannot lift one hundred pounds. [AR at 41.] Dr. Costello further stated that plaintiff cannot sit for 7 longer than ten to fifteen minutes at one time before needing to get up. [AR at 312-14.] Plaintiff 8 testified that she cannot sit for two hours at one time without constantly moving or getting up. [AR 9 at 40.] Dr. Costello stated that plaintiff cannot stand for longer than five to ten minutes at one time 10 before needing to sit down or walk around. [AR at 312-14.] Plaintiff testified that she can never 11 stand for an hour and can only stand for five minutes or less at one time because it is too painful. 12 [AR at 41.] Dr. Costello stated that plaintiff can only sit and stand/walk for less than two hours 13 total in an eight hour working day. [AR at 312-14.] Plaintiff testified that she can only walk around 14 the block and then needs to rest because she gets winded, she cannot walk for thirty minutes, and 15 she walks in pain. [AR at 39.] Finally, Dr. Costello stated that plaintiff suffers from fatigue, 16 dizziness, anxiety, difficulty concentrating, and pain in her back, legs, neck and shoulders. [AR 17 at 311.] Plaintiff testified that she gets dizzy [AR at 35, 43], has a lot of pain in her legs, hands and 18 throughout her body [AR at 35, 43, 45], cannot focus or concentrate for extended periods of time 19 [AR at 44-45], and is fatigued all the time [AR at 37.] Thus, plaintiff s testimony regarding her own 20 functional limitations is largely consistent with Dr. Costello s assessment of her limitations. 21 Accordingly, the ALJ s assessment that Dr. Costello s opinion regarding plaintiff s functional 22 limitations is more extreme than what plaintiff herself claims9 is not a specific and legitimate reason 23 24 9 25 26 27 28 The Court notes that although the ALJ summarized some of plaintiff s other more general claimed symptoms and limitations in his report (hepatitis C makes it hard for her to function because she always gets sick when she works; she suffers from fibromyalgia; her energy level is low and she is tired all the time; she needs a lot of sleep, otherwise she cannot function throughout the day; she is forgetful and her memory is clouded; and she is sometimes disoriented and dizzy), he did not explain how these limitations do not comport with Dr. Costello s medical opinion. [AR at 19.] 12 1 to reject the opinion of the treating physician. Remand is warranted for the ALJ to properly 2 evaluate Dr. Costello s opinion. 3 4 B. PLAINTIFF S CREDIBILITY 5 Plaintiff next contends that the ALJ erred in his credibility determination and failed to set 6 forth legally sufficient reasons for rejecting her subjective complaints. [JS at 2, 11.] As the ALJ s 7 credibility determination was based, in part, on his analysis of the medical evidence, which the 8 Court finds was improper for the reasons discussed above, the ALJ is instructed to reassess 9 plaintiff s credibility after he has reconsidered the medical evidence. 10 11 VI. 12 REMAND FOR FURTHER PROCEEDINGS 13 As a general rule, remand is warranted where additional administrative proceedings could 14 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 15 Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate 16 for the ALJ to reevaluate Dr. Costello s opinion and reassess plaintiff s credibility. The ALJ is 17 instructed to take whatever further action is deemed appropriate and consistent with this decision. 18 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 19 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 20 for further proceedings consistent with this Memorandum Opinion. 21 22 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 23 24 DATED: July 19, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 25 26 27 28 13

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