Ruth R Cox v. Michael J Astrue, No. 2:2011cv10433 - Document 16 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for specifics) (mrgo)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUTH R. COX, 12 13 Plaintiff, v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-10433-SP MEMORANDUM OPINION AND ORDER 18 19 I. 20 INTRODUCTION 21 On December 16, 2011, plaintiff Ruth R. Cox filed a complaint against 22 defendant Michael J. Astrue seeking a review of a denial of a period of disability 23 and Disability Insurance Benefits ( DIB ). Both plaintiff and defendant have 24 consented to proceed for all purposes before the assigned Magistrate Judge 25 pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for 26 adjudication without oral argument. 27 Plaintiff presents three disputed issues for decision: (1) whether the 28 1 1 residual functional capacity ( RFC ) assessment was sufficiently specific; (2) 2 whether the administrative law judge ( ALJ ) properly considered the opinions of 3 plaintiff s treating physician and consultative examiner; and (3) whether the ALJ 4 properly considered plaintiff s credibility. Plaintiff s Memorandum in Support of 5 Complaint ( Pl. Mem. ) at 16-25; Memorandum in Support of Defendant s 6 Answer and in Opposition to Plaintiff s Memorandum in Support of Complaint 7 ( D. Mem. ) at 2-19. 8 Having carefully studied, the parties s written submissions, the 9 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 10 that, as detailed herein, the ALJ s RFC determination was not sufficiently specific, 11 the ALJ failed to properly consider the opinions a treating physician and a 12 consultative examiner, and the ALJ improperly discounted plaintiff s credibility. 13 Therefore, the court remands this matter to the Commissioner of the Social 14 Security Administration ( Commissioner ) in accordance with the principles and 15 instructions enunciated in this Memorandum Opinion and Order. 16 II. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 Plaintiff, who was 55 years old on the date of her January 13, 2010 19 administrative hearing, is a high school graduate and completed vocational 20 training. AR at 53, 112, 137-38. Her past relevant work includes employment as 21 a legal secretary. Id. at 70, 133. 22 On May 12, 2008, plaintiff filed an application for DIB and a period of 23 disability, alleging an onset date of May 10, 2007, due to a herniated disc, bulging 24 disc in neck, carpal tunnel, and a pinched nerve. Id. at 112, 121, 132. The 25 Commissioner denied plaintiff s application initially, after which she filed a 26 request for a hearing. Id. at 75-80. 27 On January 13, 2010, plaintiff, represented by counsel, appeared and 28 2 1 testified at a hearing before the ALJ. Id. at 53-73. The ALJ also heard testimony 2 from Stephen Berry, a vocational expert. Id. at 70-73. On February 11, 2010, the 3 ALJ denied plaintiff s claim for benefits. Id. at 33-41. 4 Applying the well-known five-step sequential evaluation process, the ALJ 5 found, at step one, that plaintiff had not engaged in substantial gainful activity 6 since May 10, 2007. Id. at 35. 7 At step two, the ALJ found that plaintiff suffered from the following severe 8 impairments: degeneration of the cervical spine, thoracic spine, and lumbar spine; 9 and carpal tunnel syndrome. Id. 10 At step three, the ALJ found that plaintiff s impairments, whether 11 individually or in combination, did not meet or medically equal one of the listed 12 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 13 Listings ). Id. at 36. The ALJ then assessed plaintiff s RFC1 and precluded plaintiff from: 14 15 prolonged standing and walking; repetitive bending and twisting2; pushing and 16 pulling more than twenty-five pounds; and repetitive lifting, carrying, gripping, 17 and grasping more than twenty-five pounds. Id. 18 The ALJ found, at step four, that plaintiff was capable of performing her 19 past relevant work. Id. at 40. Consequently, the ALJ concluded that plaintiff did 20 21 1 Residual functional capacity is what a claimant can do despite existing 22 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step 23 evaluation, the ALJ must proceed to an intermediate step in which the ALJ 24 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). 25 2 In the decision, the ALJ precluded plaintiff from repetitive testing. AR at 26 36. Defendant argues that the ALJ made a typographical error and meant to state 27 that plaintiff was precluded from repetitive twisting. D. Mem. at 3, n.2. The court 28 agrees. 3 1 not suffer from a disability as defined by the Social Security Act. Id. at 40-41. 2 The decision of the ALJ stands as the final decision of the Commissioner. 3 III. 4 STANDARD OF REVIEW 5 This court is empowered to review decisions by the Commissioner to deny 6 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner 7 must be upheld if they are free of legal error and supported by substantial 8 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as 9 amended). But if the court determines that the ALJ s findings are based on legal 10 error or are not supported by substantial evidence in the record, the court may 11 reject the findings and set aside the decision to deny benefits. Aukland v. 12 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 13 1144, 1147 (9th Cir. 2001). 14 Substantial evidence is more than a mere scintilla, but less than a 15 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 16 relevant evidence which a reasonable person might accept as adequate to support 17 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 18 F.3d at 459. To determine whether substantial evidence supports the ALJ s 19 finding, the reviewing court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that detracts from the 21 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 22 affirmed simply by isolating a specific quantum of supporting evidence. 23 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 24 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 25 the ALJ s decision, the reviewing court may not substitute its judgment for that 26 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 27 1992)). 28 4 1 IV. 2 DISCUSSION 3 A. The RFC Was Not Sufficiently Specific 4 Plaintiff argues that the RFC assessment was not sufficiently specific 5 because the ALJ failed to make a function-by-function assessment. Pl. Mem. at 6 16-17. Specifically, plaintiff contends that the ALJ s failure to quantify her 7 limitations and restrictions by hours, weight, and frequency rendered the RFC 8 assessment impermissibly vague. Id. at 17. The court agrees. 9 RFC is what one can still do despite [his or her] limitations. 20 C.F.R. 10 § 416.945(a)(1). An RFC assessment must first identify the individual s 11 functional limitations or restrictions and assess his or her work-related abilities on 12 a function-by-function basis. Social Security Ruling ( SSR ) 96-80, 1996 WL 13 374184, *1.3 The ALJ must describe the maximum amount of each work-related 14 activity the individual can perform based on the evidence available in the case 15 record. Id. at *7. An RFC assessment must address both the exertional and 16 nonexertional capacities of the individual. Id. at *5. Exertional capacity relates to 17 the ability to perform sitting, standing, walking, lifting, carrying, pushing, and 18 pulling. Id. Nonexertional capacity refers to all work-related limitations that do 19 not depend on physical strength such as stooping and climbing. Id. at *6. 20 The Commissioner reaches an RFC determination by reviewing and 21 considering all of the relevant evidence. Id. When the record is ambiguous, the 22 Commissioner has a duty to develop the record. See Webb v. Barnhart, 433 F.3d 23 24 25 26 27 28 3 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 683, 687 (9th Cir. 2005); see also Mayes, 276 F.3d at 459-60 (ALJ has a duty to 2 develop the record further only when there is ambiguous evidence or when the 3 record is inadequate to allow for proper evaluation of the evidence ); Smolen v. 4 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ( If the ALJ thought he needed to 5 know the basis of [a doctor s] opinion[ ] in order to evaluate [it], he had a duty to 6 conduct an appropriate inquiry, for example, by subpoenaing the physician[ ] or 7 submitting further questions to [him or her]. ). This may include retaining a 8 medical expert or ordering a consultative examination. 20 C.F.R. § 416.919a(a). 9 Here, the ALJ restricted plaintiff from: pushing and pulling more than 10 twenty-five pounds; repetitive lifting, carrying, gripping, and grasping more than 11 twenty-five pounds; repetitive bending and twisting; and prolonged standing and 12 walking. AR at 36. 13 The RFC was not sufficiently specific. The ALJ failed to describe the 14 maximum amount of standing and walking plaintiff may engage in an eight-hour 15 work day. The ALJ precluded plaintiff from prolonged standing and walking, 16 but he failed to define prolonged . See Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 17 1994) (stating that the term prolonged walking is vague); cf. Gallagher v. 18 Astrue, No. 07-5688, 2009 WL 57033, at *6 (C.D. Cal. Jan. 6, 2009) (holding that 19 the ALJ erred when he failed to adopt a consistent, unambiguous definition of 20 moderate ). 21 In reaching the determination that plaintiff be restricted from prolonged 22 standing and walking, the ALJ relied on a Primary Treating Orthopedic 23 Physician s Narrative Report and a Permanent and Stationary Report dated July 24 14, 2008 ( WC Report ) by Dr. Satish Kadaba, in which he did not define 25 prolonged. AR at 37, 249-64. Generally, when a physician s opinion is 26 ambiguous, the ALJ has the duty to conduct further inquiry or develop the record. 27 Mayes, 276 F.3d at 459-60; Smolen, 80 F.3d at 1288. But in this instance further 28 6 1 development of the record was unnecessary, because in a subsequent opinion Dr. 2 Kadaba precluded plaintiff from standing and walking for more than one to two 3 hours in an eight-hour day. AR at 436. The ALJ could have reasonably defined 4 prolonged as no more than two hours. Instead, the ALJ interpreted the two 5 opinions as inconsistent and rejected the opined time limitation. Id. at 37. Thus, 6 it is unclear what the ALJ meant by prolonged other than it is longer than two 7 hours. 8 For these reasons, the ALJ s RFC assessment is unclear and is not supported 9 by substantial evidence. As such, the ALJ erred in his RFC assessment. 10 B. The ALJ Failed to Provide Specific and Legitimate Reasons for 11 Rejecting the Opinions of a Treating and an Examining Physician 12 Plaintiff contends that the ALJ improperly rejected the opinions of Dr. 13 Kadaba, a treating physician, and Dr. Humberto A. Galleno, a consultative 14 examiner. Pl. Mem. at 17-22. Specifically, plaintiff claims that the ALJ failed to 15 offer specific and legitimate reasons for discounting portions of Dr. Kadaba s 16 opinion and Dr. Galleno s opinion in its entirety. Id. The court agrees. 17 In determining whether a claimant has a medically determinable 18 impairment, among the evidence the ALJ considers is medical evidence. 20 19 C.F.R. § 416.927(b). In evaluating medical opinions, the regulations distinguish 20 among three types of physicians: (1) treating physicians; (2) examining 21 physicians; and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester 22 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Generally, a treating 23 physician s opinion carries more weight than an examining physician s, and an 24 examining physician s opinion carries more weight than a reviewing physician s. 25 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 26 § 416.927(c)(1)-(2). The opinion of the treating physician is generally given the 27 greatest weight because the treating physician is employed to cure and has a 28 7 1 greater opportunity to understand and observe a claimant. Smolen, 80 F.3d at 2 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 3 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 4 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 5 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 6 81 F.3d at 830. If the treating physician s opinion is contradicted by other 7 opinions, the ALJ must provide specific and legitimate reasons supported by 8 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 9 specific and legitimate reasons supported by substantial evidence in rejecting the 10 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 11 non-examining physician, standing alone, cannot constitute substantial evidence. 12 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 13 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); Erickson v. Shalala, 9 F.3d 813, 818 14 n.7 (9th Cir. 1993). 15 16 1. Medical Opinions a. Treating Physicians 17 Dr. Satish Kadaba 18 Dr. Kadaba, an orthopedic surgeon, treated plaintiff from October 2, 2007 19 through 2009, under the future medical provisions of plaintiff s worker s 20 compensation case. AR at 66, 230. Dr. Kadaba regularly examined plaintiff and 21 reviewed her medical records. See, e.g., id. at 305-09, 326-29, 334-37. Among 22 Dr. Kadaba s findings were observations that plaintiff had: pain during 23 examinations; positive Tinel s and Phalen s signs; a positive Finkelstein s test; 24 sensory loss; limitation of motion; tenderness; and carpal tunnel syndrome. See, 25 e.g., id. at 249-64, 338-41. Based on his examinations and review of plaintiff s 26 medical records, Dr. Kadaba diagnosed plaintiff with: cervical ligamentous and 27 muscular strain; thoracic ligamentous and muscular strain with discopathy; 28 8 1 lumbosacral ligamentous and muscular strain with discopathy; bilateral carpal2 tunnel syndrome; and stress, anxiety, and depression. See, e.g., id. at 258. Dr. 3 Kadaba recommended surgery to treat the carpal tunnel syndrome, but it was not 4 authorized. See id. at 332, 351, 452. 5 On three separate occasions, Dr. Kadaba offered opinions as to plaintiff s 6 exertional limitations. On May 30, 2008, in a Musculoskeletal Questionnaire, Dr. 7 Kadaba opined that plaintiff was limited in her above the shoulder and overhead 8 motion, and was precluded from repetitive grasping, lifting, and carrying. Id. at 9 230-32. In the July 14, 2008 WC Report, Dr. Kadaba opined that plaintiff is 10 precluded from: prolonged standing and walking; repetitive bending and twisting; 11 pushing and pulling more than twenty-five pounds; and repetitive lifting, carrying, 12 gripping, and grasping more than twenty-five pounds. Id. at 260. On December 13 12, 2008, in a Spinal Impairment Questionnaire, Dr. Kadaba opined that in an 14 eight-hour work day, plaintiff: could sit/stand/walk for one to two hours; could 15 frequently lift/carry five pounds and occasionally lift/carry ten pounds; could not 16 keep her neck in a constant position; and could only engage in limited 17 reaching/pushing/pulling/stooping. Id. at 433-39. 18 Dr. Melvin Coats 19 Dr. Coats treated plaintiff from April 2007 through March 2008. Id. at 183- 20 86, 208-14. Dr. Coats s records reflect that plaintiff complained of back and neck 21 pain. Id. Dr. Coats ordered MRIs which showed, among other things, a three22 millimeter posterior disc protrusion at T8-9, mild degenerative disc disease at T923 10 with posterior disc extrusion measuring approximately five millimeters in AP 24 dimension by three millimeters in craniocaudal dimension, a three-millimeter 25 posterolateral/foraminal disc protrusion at L2-3, and two to three-millimeter 26 posterior disc bulges at L3-4, L4-5, and L5-S1. Id. at 395-96. 27 28 9 1 Dr. Melanie Kinchen 2 Upon referral by Dr. Coats, Dr. Kinchen, a physician at the Spine Center of 3 the Presbyterian Intercommunity Hospital ( Spine Center ), treated plaintiff in 4 2007. Id. at 179-81, 215, 223. Dr. Kinchen observed that an MRI showed mild 5 degenerative changes without evidence of nerve root compression and disc 6 herniation. Id. Dr. Kinchen diagnosed plaintiff with thoracic disc herniation and 7 recommended additional studies. Id. at 180-81, 215. Dr. Kinchen ordered an 8 epidural injection and was uncertain that surgery would improve plaintiff s 9 symptoms because the pain was not myelopathic. Id. at 172, 215. 10 b. Examining Physicians 11 Dr. Humberto A. Galleno 12 Dr. Galleno an orthopedic surgeon, examined plaintiff on December 28, 13 2009, and completed a Comprehensive Orthopedic Disability Evaluation 14 ( Galleno Evaluation ) and Multiple Impairment Questionnaire ( Galleno 15 Questionnaire ). Id. at 630-38, 640-47. Dr. Galleno reviewed plaintiff s history 16 and medical records, and conducted a physical examination. Id. At the 17 examination, Dr. Galleno observed that plaintiff had: decreased sensation and 18 range of motion in the thoracolumbar spine and cervical spine; positive Tinel s 19 and Phalen s tests; bilateral thenar eminence atrophy; and slight pain with 20 extremes of wrist range. Id. at 633-34. Dr. Galleno diagnosed plaintiff with: 21 cervical spine sprain-strain with degenerative disc syndrome; thoracic spine 22 sprain-strain with disc protrusions; lumbrosacral spine sprain-strain with disc 23 protusion, disc bulging, and slight central and foraminal stenosis; bilateral carpal 24 tunnel syndrome; and anxiety and depression. Id. at 637. 25 In the Galleno Evaluation, Dr. Galleno opined that plaintiff should be 26 precluded from lifting, pushing, and carrying over five pounds, as well as 27 repetitive bending, stooping, above shoulder work activities, climbing, motion of 28 10 1 the cervical or hyper extension of the cervical spine, grasping, and gripping. Id. at 2 637-38. Dr. Galleno also opined that plaintiff could type for no more than thirty 3 minutes at a time with a ten to fifteen-minute break in between, could sit for no 4 more than one to two hours in an eight-hour work day, and could not drive for 5 more than an hour. Id. at 638. Dr. Galleno also noted these limitations in the 6 Galleno Questionnaire, but with two minor differences. Id. at 640-47. In the 7 Galleno Questionnaire, Dr. Galleno opined that plaintiff could occasionally lift 8 and carry ten pounds and precluded her from bending and stooping. Id. at 643, 9 646. 10 Dr. Gabriel Fabella 11 Dr. Fabella, an internist, examined plaintiff on June 28, 2008. Id. at 233-37. 12 Dr. Fabella did not review any medical records. Id. at 234. At the examination, 13 Dr. Fabella observed that plaintiff had: no tenderness to palpation in the midline 14 or paraspinal areas; decreased range of motion in the back; no thoracic tenderness; 15 and no tenderness in the wrists. Id. at 236. Dr. Fabella diagnosed plaintiff with: 16 chronic mid back pain from degenerative disc disease and disc bulging; 17 hypertension; gastroesophageal reflux disease; and hyperlipidemia. Id. at 237. 18 Based on the examination, Dr. Fabella opined that plaintiff could: stand/walk for 19 six hours in an eight-hour day; lift twenty pounds occasionally and ten pounds 20 frequently; and occasionally bend and stoop. Id. Dr. Fabella placed no limitations 21 on sitting. Id. 22 Dr. Ali Hafezi 23 Dr. Hafezi of the Spine Center, examined plaintiff on June 27, 2007. Id. at 24 224-25. Dr. Havezi observed that plaintiff had mild paraspinal muscle discomfort 25 at the scapular and rhomboid areas, a three millimeter posterior disc with broad 26 based mild stenosis at the central canal, mild degenerative disease with posterior 27 disc extrusion causing mild ventral cord effacement with mild to moderate right 28 11 1 foraminal stenosis, and disc desiccation. Id. Dr. Hafezi opined that the pain was 2 consistent with discogenic type pain and that an epidural would have only 3 marginal benefit. Id. at 225. 4 Dr. Richard A. Rison 5 On July 18, 2007, Dr. Rison, a neurologist, examined plaintiff upon referral 6 by Dr. Coats. Id. at 216-17. Dr. Rison observed that plaintiff had slightly 7 diminished sensation in the bilateral lower extremities. Id. at 217. Dr. Rison s 8 impression was that plaintiff had appendicular paresthesias, thoracic spondylosis 9 disc extrusion, and mild central canal stenosis, lumbar spondylosis disc protrusion 10 with mild right neuroforaminal stenosis and posterior disc bulges, migraine, 11 hypertension, and hypercholesterolemia. Id. Dr. Rison recommended further 12 studies. Id. 13 Dr. B. Sam Tabibian 14 On November 1, 2007, Dr. Tabibian conducted an electrodiagnostic 15 evaluation of the bilateral upper and lower extremities. Id. at 416-23. The EMG 16 did not detect indicators of neuropathy involving the motor portion of the cervical 17 and lumbar nerve roots or in the lower extremities. Id. at 422. Dr. Tabibian noted, 18 however, that he could not rule out radiculopathy on the basis of normal EMG 19 findings because EMG does not detect all forms of radiculopathy. Id. Therefore, 20 clinical correlation was required for an accurate diagnosis. Id. 21 Dr. Manuel S. Anel 22 Dr. Anel, an orthopedic surgeon, examined plaintiff on December 12, 2007. 23 Id. at 527-34. Dr. Anel reviewed plaintiff s medical records and history, and 24 conducted an examination. Id. Dr. Anel observed that plaintiff had positive 25 Phalen s and Tinel s tests, and negative Finkelstein s tests. Id. at 532. Dr. Anel 26 further observed that the radial and ulnar pulses on both wrists were full and 27 bounding and palpable. Id. Dr. Anel diagnosed plaintiff with bilateral wrist 28 12 1 carpal tunnel syndrome, specifically noting that he was aware of Dr. Tabibian s 2 EMG results but that it was common knowledge that a certain percentage of 3 carpal tunnel cases may not present with abnormal EMG findings. Id. Dr. Anel 4 submitted his report as an authorization request for carpal tunnel decompression of 5 both wrists. Id. at 512, 533. 6 Dr. Ronald Portnoff4 7 Dr. Portnoff, an orthopedic surgeon, appears to have examined plaintiff on 8 at least two occasions. Id. at 256-58, 306-08, 451-52. On May 16, 2008, Dr. 9 Portnoff reviewed plaintiff s medical records and history, and examined plaintiff. 10 Id. at 256-58. Dr. Portnoff found, among other things, that plaintiff: experienced 11 tenderness on the paravertebral muscles and thoracic area; had decreased sensation 12 along the median nerve of the hands; and had cervical, thoracic, and lumbar strain 13 superimposed on preexisting arthritic changes. Id. at 257-58. Dr. Portnoff opined 14 that plaintiff should avoid repetitive bending, stooping, heavy lifting, pushing, 15 pulling, and twisting of the hands. Id. at 257. Subsequently, Dr. Portnoff reevaluated plaintiff and additional MRIs. Id. at 16 17 306. After the second examination, Dr. Portnoff s diagnostic impression was that 18 plaintiff had: cervical strain; lumbar strain; degenerative disc disease of the 19 cervical spine; thoracic disc disease without disc protrusion; low back strain; 20 degenerative lumbar disease; lumbar disc disease; disc protrusion; disc bulges; 21 osteoarthritis; and a history of anxiety disorder and depression. Id. Dr. Portnoff 22 23 24 25 26 27 28 4 The Administrative Record does not contain any of Dr. Portnoff s reports and supplemental reports. Dr. Portnoff s reports are solely referenced by Dr. Kadaba. See AR at 256-58, 306-08, 446, 451-52. Dr. Kadaba stated that portions of Dr. Portnoff s reports needed further explanation, plaintiff claimed that Dr. Portnoff did not perform all of the examinations, and Dr. Portnoff did not adhere to the AMA Guides. Id. at 257-58, 307. Because Dr. Portnoff s reports are not included in the Administrative Record, his opinions do not constitute evidence and are discussed only to provide context. 13 1 opined the same work limitations. Id. 2 Dr. Portnoff issued three additional reports after reviewing additional 3 records and Dr. Kadaba s responses. Id. at 451-52. Dr. Portnoff s diagnosis 4 remained relatively unchanged except for the additional diagnosis of bilateral 5 carpal tunnel. Id. at 451. Dr. Portnoff s opinion regarding work limitations 6 remained unchanged. Id. 7 c. State Agency Physicians 8 Dr. H. Blandon 9 Dr. Blandon, a state agency physician, issued an RFC assessment and case 10 analysis on July 3, 2008. Id. at 239-47. Dr. Blandon opined that plaintiff could 11 occasionally lift/carry twenty pounds, frequently lift/carry ten pounds, and 12 stand/walk/sit for six hours in an eight-hour workday. Id. at 240. Dr. Blandon 13 further opined that plaintiff could occasionally climb, balance, stoop, kneel, 14 crouch, and crawl, but was precluded from activities requiring balancing. Id. at 15 241. 16 2. 17 Here, the ALJ s RFC assessment was a direct adoption of the work The ALJ s Findings 18 limitations from Dr. Kadaba s WC Report. Id. at 36. In reaching that 19 determination, the ALJ rejected Dr. Kadaba s other opinions, gave less weight to 20 Dr. Galleno s opinion, and some weight to Dr. Fabella s and Dr. Blandon s 21 opinions. Id. at 37-40. The ALJ erred because he failed to give specific and 22 legitimate reasons supported by substantial evidence for rejecting Dr. Kadaba s 23 other opinions and Dr. Galleno s opinion.5 24 25 5 The ALJ correctly noted that it was within his purview, and not the 26 physician s, to make the ultimate disability determination. AR at 39; 20 C.F.R. § 416.927(d). But the ALJ still must provide specific and legitimate reasons when 27 rejecting a physician s opinion. See Smith v. Astrue, No. 10-4463, 2011 WL 28 5294848, *4 (N.D. Cal. Nov. 3, 2011) ( Although the treating physician s opinion 14 1 2 a. Dr. Kadaba None of the ALJ s reasons for rejecting Dr. Kadaba s opinions are specific 3 and legitimate reasons supported by substantial evidence. 4 First, the ALJ rejected Dr. Kadaba s opined functional limitations in the 5 Musculoskeletal and Spinal Impairment Questionnaires on the basis that the 6 findings were inconsistent with those in the WC Report, which he adopted because 7 the findings were contemporaneous with an examination. Id. at 37. Internal 8 inconsistencies may be a specific and legitimate reason for rejecting a physician s 9 opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding that 10 it was not error for the ALJ to not fully credit a physician s statements on the basis 11 that they were internally inconsistent). But in this instance, substantial evidence 12 does not support the ALJ s conclusion. 13 The ALJ focused on the fact that in the Musculoskeletal Questionnaire, Dr. 14 Kadaba precluded plaintiff from repetitive grasping and lifting (AR at 231), then 15 in the WC Report Dr. Kadaba precluded plaintiff from repetitive lifting, carrying, 16 gripping, and grasping more than twenty-five pounds (id. at 260), and finally in 17 the Spinal Impairment Questionnaire, Dr. Kadaba failed to limit gripping and 18 grasping (id. at 433-39). Id. at 37 n.2. The ALJ is correct that the opinions were 19 not identical. But the inconsistencies were minor, not contradictory. See Sprague 20 v. Bowen, 812 F.2d 1226, 1230-31 (9th Cir. 1987) (reference to minor differences 21 or inconsistencies is not a specific and legitimate reason for rejecting the 22 physician s opinion). Dr. Kadaba s inconsistencies stand in sharp contrast to 23 Rollins, in which the physician had claimed that the plaintiff was disabled but his 24 notes from an earlier examination indicated that the plaintiff was not disabled. 25 26 is not necessarily conclusive as to either a physical condition or the ultimate issue of disability, an ALJ must provide specific and legitimate reasons for rejecting the 27 opinion of the treating physician. ) (quoting Murray v. Heckler, 722 F.2d 499, 28 502 (9th Cir. 1983)). 15 1 Rollins, 261 F.3d at 856. While Dr. Kadaba s failure to list gripping and grasping 2 in the Spinal Impairment Questionnaire was inconsistent with his other opinions, 3 substantial evidence supports the conclusion that it was likely an oversight. In Dr. 4 Kadaba s reports, he consistently discussed plaintiff s carpal tunnel syndrome and 5 her need for surgery. See, e.g., id. at 271, 445-58. 6 The ALJ also stated that the opinions were inconsistent because Dr. Kadaba 7 opined limitations with respect to sitting, standing, and walking only in the Spinal 8 Impairment Questionnaire. Id. at 37 n.2. The ALJ is correct that Dr. Kadaba did 9 not mention sitting, standing, and walking limitations in the Musculoskeletal 10 Questionnaire, but that form did not ask Dr. Kadaba to opine about those 11 limitations except to the extent plaintiff would require an assistive device for 12 standing and walking. See id. at 231. Thus, the fact that Dr. Kadaba did not 13 mention such limitations in the Musculoskeletal Questionnaire did not render it 14 inconsistent with his other opinions. And given that the ALJ included a standing 15 and walking restriction in his RFC assessment, which he adopted directly from the 16 WC Report, the ALJ is clearly incorrect in his assertion that the WC Report did 17 not restrict standing and walking.6 See id. at 260. As such, reference to the 18 inconsistencies with respect to standing and walking was not a specific and 19 legitimate reason for discounting the Musculoskeletal and Spinal Impairment 20 Questionnaires. 21 Second, although the ALJ adopted Dr. Kadaba s limitations as set forth in 22 the WC Report, the ALJ appeared to do so reluctantly as he also discounted Dr. 23 Kadaba s opinions as a whole. See id. at 37-38 (accepting the WC Report with 24 reservation and declining to find Dr. Kadaba s opinions controlling). The ALJ 25 rejected Dr. Kadaba s conclusions on the ground that there was concern that Dr. 26 27 6 The ALJ correctly noted that Dr. Kadaba did not opine any sitting 28 limitations in the WC Report. 16 1 Kadaba, by his unstinting criticism of Dr. Portnoff s conclusions, had ventured 2 beyond his role as a treating physician and become an expert witness for 3 [plaintiff]. Id. 4 This court disagrees Dr. Kadaba s criticisms of Dr. Portnoff s opinions 5 constitute substantial evidence that Dr. Kadaba was biased. Dr. Kadaba s 6 statements may be interpreted as harsh or arrogant, but his criticisms appear 7 supportable. Indeed, since Dr. Portnoff s reports are not included in the record, 8 the ALJ had no basis to find otherwise although the ALJ s opinion suggests he 9 in fact speculated about those reports and somehow credited the unseen reports 10 over Dr. Kadaba s. See id. at 40. Further, there is no evidence of bias or 11 impropriety by Dr. Kadaba. See Lester, 81 F.3d at 832 ( The Secretary may not 12 assume that doctors routinely lie in order to help their patients collect disability 13 benefits. ) (internal quotations and citation omitted). Moreover, Dr. Kadaba s 14 findings and conclusions were consistent internally and with the opinions of 15 several other physicians, as set forth above. 16 Defendant argues at length that the ALJ properly rejected certain of Dr. 17 Kadaba s opinions as inconsistent with the other medical evidence, including the 18 opinions of Drs. Hafezi, Fabella, Coats, Kinchen, and Galleno. D. Mem. at 9-14. 19 The court need not decide whether this contention is supported by substantial 20 evidence because the ALJ did not state he rejected or discounted Dr. Kadaba s 21 opinions on this basis. See AR at 37-39. Indeed, to the extent he discussed any of 22 these physicians opinions at all, the ALJ explicitly gave only some weight to 23 Dr. Fabella s opinion, no special significance to the opinion of Dr. Coats, and 24 less weight to Dr. Galleno s opinions. See id. at 38-39. 25 The court is limited to considering the reasons the ALJ actually gave for 26 rejecting or discounting Dr. Kadaba s opinions. See Orn v. Astrue, 495 F.3d 625, 27 630 (9th Cir. 2007) ("We review only the reasons provided by the ALJ in the 28 17 1 disability determination and may not affirm the ALJ on a ground upon which he 2 did not rely." (citation omitted)). Those reasons were only two: that Dr. Kadaba s 3 own opinions were inconsistent with one another, and that Dr. Kadaba improperly 4 criticized Dr. Portnoff. As discussed above, those were not specific and legitimate 5 reasons supported by substantial evidence. 6 7 b. Dr. Galleno Similarly, the ALJ gave less weight to Dr. Galleno s opinions on the basis 8 that there were internal inconsistencies. AR at 39. Specifically, the ALJ stated 9 that in the Galleno Evaluation, Dr. Galleno opined that plaintiff could lift and 10 carry five pounds and should avoid repetitive bending and stopping, but in the 11 Galleno Questionnaire, he opined that plaintiff could occasionally lift and carry 12 ten pounds and precluded plaintiff from bending and stooping. Id. at 38-39. 13 Again, the inconsistencies were minor. See Sprague, 812 F.2d at 1230-31. 14 In contrast to Rollins, where the physician s assessment contradicted his earlier 15 statement regarding disability, Dr. Galleno consistently opined that plaintiff had 16 exertional limitations. See Rollins, 261 F.3d at 856. A five-pound difference in 17 the maximum weight plaintiff could lift or carry and inconsistency between 18 whether plaintiff was precluded from all or merely repetitive bending and stooping 19 were not significant enough to constitute specific and legitimate reasons for 20 rejecting Dr. Galleno s entire opinion. 21 Accordingly, the ALJ erred in rejecting portions of Dr. Kadaba s opinions 22 and in discounting Dr. Galleno s opinions. 23 C. The ALJ Failed to Properly Consider Plaintiff s Credibility 24 Plaintiff contends that the ALJ failed to properly consider plaintiff s 25 credibility. Pl. Mem. at 22-25. Specifically, plaintiff argues that the ALJ failed to 26 provide a clear and convincing reason supported by substantial evidence for 27 discounting plaintiff s credibility. Id. The court agrees. 28 18 1 The ALJ must make specific credibility findings, supported by the record. 2 SSR 96-7p. To determine whether testimony concerning symptoms is credible, the 3 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 10354 36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced 5 objective medical evidence of an underlying impairment which could reasonably 6 be expected to produce the pain or other symptoms alleged. Id. at 1036 (quoting 7 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 8 is no evidence of malingering, an ALJ can reject the claimant s testimony about 9 the severity of her symptoms only by offering specific, clear and convincing 10 reasons for doing so. Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 11 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing a 12 claimant s credibility, including: (1) ordinary techniques of credibility evaluation 13 such as a claimant s reputation for lying; (2) the failure to seek treatment or follow 14 a prescribed course of treatment; and (3) a claimant s daily activities. Tommasetti 15 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346. 16 At the first step, the ALJ found that plaintiff s medically determinable 17 impairments could reasonably be expected to cause the symptoms alleged. AR at 18 40. At the second step, because the ALJ did not find any evidence of malingering, 19 the ALJ was required to provide clear and convincing reasons for discounting 20 plaintiff s credibility. 21 Here, the ALJ discounted plaintiff s credibility solely on the basis that the 22 medical records did not support her claims. Id. at 39-40. By itself, the reason was 23 not clear and convincing. Although the lack of objective medical evidence may be 24 one factor in evaluating credibility, it cannot be the sole reason for rejecting a 25 claimant s subjective complaints.7 Bunnell, 947 f.2d at 345 ( [O]nce the claimant 26 27 7 Moreover, the ALJ may not substitute his own interpretation of the medical 28 evidence for the opinion of medical professionals. See Tackett v. Apfel, 180 F.3d 19 1 produces objective medical evidence of an underlying impairment, an adjudicator 2 may not reject [her] subjective complaints based solely on a lack of objective 3 medical evidence. ); Rollins, 261 F.3d at 856-57. 4 Defendant cites other reasons for discounting plaintiff s credibility, which 5 may be clear and convincing if supported by substantial evidence; however, the 6 ALJ does not cite those reasons. Compare D. Mem. at 17-19 and AR at 39-40. 7 Again, the court may not affirm the ALJ on a ground upon which he did not rely. 8 Orn, 495 F.3d at 630. 9 Accordingly, the ALJ erred in failing to cite a clear and convincing reason 10 for discounting plaintiff s credibility. 11 V. 12 REMAND IS APPROPRIATE 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 16 further proceedings, or where the record has been fully developed, it is appropriate 17 to exercise this discretion to direct an immediate award of benefits. See Benecke 18 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 19 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 20 turns upon their likely utility). But where there are outstanding issues that must be 21 resolved before a determination can be made, and it is not clear from the record 22 that the ALJ would be required to find a plaintiff disabled if all the evidence were 23 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 24 Harman, 211 F.3d at 1179-80. 25 26 1094, 1102-03 (9th Cir. 1999); Rohan v. Chater, 98 F.3d 966, 970 (9th Cir. 1996) 27 (finding that the ALJ improperly substituted his own judgment of the evidence for 28 that of the physician). 20 1 Here, as set out above, remand is required because the ALJ erred in failing 2 to provide a sufficiently specific RFC assessment, in failing to provide specific 3 and legitimate reasons supported by substantial evidence for rejecting or 4 discounting Dr. Kadaba s and Dr. Galleno s opinions, and in failing to properly 5 evaluate plaintiff s credibility. On remand, the ALJ shall: (1) reconsider the 6 opinions of Dr. Kadaba and Dr. Galleno, and either credit their opinions or 7 provide specific and legitimate reasons supported by substantial evidence for 8 rejecting them; (2) reconsider plaintiff s subjective complaints and either credit 9 plaintiff s testimony or provide clear and convincing reasons supported by 10 substantial evidence for rejecting them; and (3) clearly state his RFC 11 determination. The ALJ should also further develop the record as necessary to 12 resolve any ambiguity, including by obtaining the treatment notes and reports of 13 Dr. Portnoff and, if necessary, contacting Dr. Kadaba and Dr. Galleno. 14 The ALJ shall then proceed through steps four and five to determine what 15 work, if any, plaintiff is capable of performing. 16 VI. 17 CONCLUSION 18 IT IS THEREFORE ORDERED that Judgment shall be entered 19 REVERSING the decision of the Commissioner denying benefits, and 20 REMANDING the matter to the Commissioner for further administrative action 21 consistent with this decision. 22 23 24 DATED: November 9, 2012 25 SHERI PYM United States Magistrate Judge 26 27 28 21

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