Anthony Ridio v. Michael J Astrue, No. 2:2012cv00189 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge Jean P Rosenbluth 20 . (twdb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ANTHONY RIDIO, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-0189-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security disability insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 22 § 636(c). This matter is before the Court on the parties Joint 23 Stipulation, filed November 5, 2012, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 below, the Commissioner s decision is reversed and this matter is 2 remanded for further proceedings. 3 II. BACKGROUND 4 Plaintiff was born on June 24, 1945. 5 ( AR ) 42.) 6 graduate. (Administrative Record He attended several years of college but did not (AR 42-43, 194.) Plaintiff had worked for about 30 7 years as a literary intellectual properties manager and 8 producer in the film industry and later worked for about three 9 years as a salesman and leasing agent at a car dealership. 10 43, 45, 137-39.) (AR Plaintiff stopped working after he was injured 11 in a car accident during a test drive with a customer on July 2, 12 2005 (AR 44-45, 278), when Plaintiff was 60 years old. 13 On August 8, 2008, Plaintiff filed an application for DIB, 14 alleging a disability onset date of July 1, 2005.2 15 22, 125-127.) (AR 61, 119- After Plaintiff s application was denied, he 16 requested a hearing before an Administrative Law Judge ( ALJ ). 17 (AR 79-81.) A hearing was held on September 2, 2010, at which 18 Plaintiff, who was represented by counsel, testified, as did a 19 vocational expert. (AR 39-59.) On October 7, 2010, the ALJ 20 issued a written decision finding Plaintiff not disabled. 21 15-27.) (AR On November 17, 2010, Plaintiff requested review of the 22 ALJ s decision. (AR 116-18.) On November 10, 2011, after 23 considering additional evidence submitted by Plaintiff, the 24 Appeals Council denied his request for review. (AR 1-5.) This 25 26 2 Plaintiff s application summary listed a disability 27 onset date of January 1, 2008 (AR 119), but the field-office disability report listed an onset date of July 1, 2005 (AR 125), 28 which is the date the ALJ used in his opinion (AR 15). 2 1 action followed. 2 III. STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), a district court may review 4 the Commissioner s decision to deny benefits. The ALJ s findings 5 and decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 8 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 9 742, 746 (9th Cir. 2007). Substantial evidence means such 10 evidence as a reasonable person might accept as adequate to 11 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 12 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 14 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 15 882 (9th Cir. 2006)). To determine whether substantial evidence 16 supports a finding, the reviewing court must review the 17 administrative record as a whole, weighing both the evidence that 18 supports and the evidence that detracts from the Commissioner s 19 conclusion. 20 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 21 or reversing, the reviewing court may not substitute its 22 judgment for that of the Commissioner. Id. at 720-21. 23 IV. THE EVALUATION OF DISABILITY 24 People are disabled for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or which has lasted, or is expected 28 to last, for a continuous period of at least 12 months. 3 42 1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 2 (9th Cir. 1992). 3 A. 4 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 5 assessing whether a claimant is disabled. 20 C.F.R. 6 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 7 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 11 If the claimant is not engaged in substantial gainful activity, 12 the second step requires the Commissioner to determine whether 13 the claimant has a severe impairment or combination of 14 impairments significantly limiting his ability to do basic work 15 activities; if not, the claimant is not disabled and the claim 16 must be denied. § 404.1520(a)(4)(ii). If the claimant has a 17 severe impairment or combination of impairments, the third step 18 requires the Commissioner to determine whether the impairment or 19 combination of impairments meets or equals an impairment in the 20 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 21 404, Subpart P, Appendix 1; if so, disability is conclusively 22 presumed and benefits are awarded. § 404.1520(a)(4)(iii). If 23 the claimant s impairment or combination of impairments does not 24 meet or equal an impairment in the Listing, the fourth step 25 requires the Commissioner to determine whether the claimant has 26 27 28 4 1 sufficient residual functional capacity ( RFC )3 to perform his 2 past work; if so, the claimant is not disabled and the claim must 3 be denied. § 404.1520(a)(4)(iv). The claimant has the burden of 4 proving that he is unable to perform past relevant work. 5 966 F.2d at 1257. Drouin, If the claimant meets that burden, a prima 6 facie case of disability is established. Id. If that happens or 7 if the claimant has no past relevant work, the Commissioner then 8 bears the burden of establishing that the claimant is not 9 disabled because he can perform other substantial gainful work 10 available in the national economy. § 404.1520(a)(4)(v). That 11 determination comprises the fifth and final step in the 12 sequential analysis. § 404.1520; Lester, 81 F.3d at 828 n.5; 13 Drouin, 966 F.2d at 1257. 14 B. 15 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 16 substantial gainful activity since July 1, 2005. (AR 17.) At 17 step two, the ALJ concluded that Plaintiff had the severe 18 impairments of cervical and lumbar strain. (Id.) At step three, 19 the ALJ determined that Plaintiff s impairments did not meet or 20 equal any of the impairments in the Listing. (Id.) At step 21 four, the ALJ found that Plaintiff had the RFC to perform medium 22 work with the limitation that Plaintiff could only occasionally 23 perform postural activities and was mildly limited in his 24 ability to understand and remember tasks, sustain concentration 25 and persistence, interact with the general public, and adapt to 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 workplace change. (AR 17-18.) The ALJ concluded that Plaintiff 2 could perform his past relevant work as a car salesman as it was 3 generally performed.4 (AR 25-26.) Based on the VE s testimony, 4 the ALJ also found that Plaintiff could perform other medium- and 5 light-work jobs that existed in the national economy. (AR 26.) 6 Accordingly, the ALJ determined that Plaintiff was not disabled. 7 (AR 27.) 8 V. RELEVANT FACTS 9 On July 2, 2005, Plaintiff was injured during a customer s 10 test drive of a car he was attempting to sell. 11 290.) (AR 271, 278, When paramedics arrived, Plaintiff was walking around on 12 scene but complained of head, neck, and shoulder pain. 13 278.) (AR At the hospital, an x-ray of Plaintiff s skull revealed no 14 significant skeletal abnormalities. (AR 287.) An x-ray of 15 Plaintiff s cervical spine showed [m]oderate C5-6 cervical 16 spondylosis and [p]ossible left focal carotid vascular 17 calcification. (AR 288.) X-rays of his thoracic spine showed 18 [m]ild lower thoracic bridging osteophytosis. (AR 289.) 19 Plaintiff was prescribed Vicodin, Anaprox, and Flexeril and was 20 released the same day.5 (AR 273-75.) 21 22 23 24 25 26 27 28 4 At one point, the ALJ wrote, while the claimant may not be able to perform her past work . . . . (AR 23.) Given the incorrect gender of the pronoun and the ALJ s conclusion at the end of the decision that Plaintiff could perform his past work, this appears to be a holdover from an earlier decision that inadvertently was not deleted. 5 Vicodin is a combination of acetaminophen and hydrocodone, a narcotic analgesic used to relieve pain. Hydrocodone, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a601006.html (last updated Mar. 25, 2013). Anaprox is a nonsteroidal anti-inflammatory drug used to relieve pain, 6 1 Sometime thereafter, Plaintiff filed a worker s compensation 2 claim concerning the injuries he received from the car accident. 3 On October 27, 2005, Plaintiff underwent a lumbar-spine MRI at 4 the request of his chiropractor. (AR 361-66.) It showed (1) 5 disc desiccation and decreased disc height at L1 to L2, with a 6 3.5-millimeter disc protrusion that produced mild spinal-canal 7 narrowing; (2) a 3.5-millimeter disc protrusion at L2 to L3, with 8 bilateral facet arthropathy, mild to moderate spinal-canal 9 narrowing, mild to moderate bilateral neuroforaminal 10 encroachment, and encroachment on the L2 exiting nerve roots; (3) 11 disc desiccation and decreased disc height at L3 to L4, with a 12 3.5-millimeter disc protrusion, bilateral facet arthropathy, 13 moderate spinal-canal narrowing, moderate to severe bilateral 14 neuroforminal encroachment, and effacement of the L3 exiting 15 nerve roots; (4) disc desiccation and decreased disc height at L4 16 to L5, with a 2.3-millimeter disc protrusion, bilateral facet 17 arthropathy, mild to moderate spinal-canal narrowing, moderate to 18 severe right and moderate left neuroforaminal encroachment, and 19 impingement on the right and encroachment of the left L4 exiting 20 nerve roots; (5) disc desiccation at L5 to S1, with a 2.621 millimeter central disc protrusion with bilateral facet 22 arthropathy, mild to moderate spinal-canal narrowing, mild 23 bilateral neuroforaminal encroachment, and encroachment on the L5 24 25 tenderness, swelling, and stiffness. 26 27 28 Naproxen, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html#pre cautions (last updated Mar. 25, 2013). Flexeril is a muscle relaxant used to relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle injuries. Cyclobenzaprine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a682514.html (last updated Mar. 25, 2013). 7 1 exiting nerve root; and (6) moderate hypolordosis of the lumbar 2 spine, with left lateral convexity. (AR 361-62.) 3 VI. DISCUSSION 4 Plaintiff alleges that the ALJ erred in (1) rejecting the 5 opinions of his treating and examining physicians and (2) 6 discounting his subjective symptom testimony. (J. Stip. at 3.) 7 A. 8 With regard to his physical impairments, Plaintiff contends The ALJ s Evaluation of the Medical Evidence 9 that the ALJ erred in rejecting the opinions of examining 10 physicians Lawrence M. Richman and Ray L. Craemer and treating 11 physician Charles Schwarz. (J. Stip. at 4-8, 10-13, 20-21.) 12 With regard to his mental impairments, Plaintiff contends that 13 the ALJ erred in rejecting the opinion of an examining 14 psychologist. (J. Stip. at 8-10, 21.) 15 Applicable law 16 1. Three types of physicians may offer opinions in social 17 security cases: (1) those who treat[ed] the claimant (treating 18 physicians); (2) those who examine[d] but d[id] not treat the 19 claimant (examining physicians); and (3) those who neither 20 examine[d] nor treat[ed] the claimant (non-examining 21 physicians). Lester, 81 F.3d at 830. A treating physician s 22 opinion is generally entitled to more weight than the opinion of 23 a doctor who examined but did not treat the claimant, and an 24 examining physician s opinion is generally entitled to more 25 weight than that of a nonexamining physician. 26 Id. The opinions of treating physicians are generally afforded 27 more weight than the opinions of nontreating physicians because 28 treating physicians are employed to cure and have a greater 8 1 opportunity to know and observe the claimant. 2 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, If a treating physician s 3 opinion is well supported by medically acceptable clinical and 4 laboratory diagnostic techniques and is not inconsistent with the 5 other substantial evidence in the record, it should be given 6 controlling weight. 20 C.F.R. § 404.1527(c)(2). If a treating 7 physician s opinion is not given controlling weight, its weight 8 is determined by length of the treatment relationship, frequency 9 of examination, nature and extent of the treatment relationship, 10 amount of evidence supporting the opinion, consistency with the 11 record as a whole, the doctor s area of specialization, and other 12 factors. 13 20 C.F.R. § 404.1527(c)(2)-(6). When a treating or examining doctor s opinion is not 14 contradicted by another doctor, it may be rejected only for 15 clear and convincing reasons. Carmickle v. Comm r, Soc. Sec. 16 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 17 F.3d at 830-31). When a treating or examining physician s 18 opinion conflicts with another doctor s, the ALJ must provide 19 only specific and legitimate reasons for discounting the 20 treating doctor s opinion. The weight given an examining Id. 21 physician s opinion, moreover, depends on whether it is 22 consistent with the record and accompanied by adequate 23 explanation, among other things. 24 25 26 2. 20 C.F.R. § 404.1527(c)(3). The ALJ erred in evaluating the evidence of Plaintiff s physical impairments Plaintiff contends that the ALJ erred in rejecting the 27 opinions of examining physicians Richman and Craemer and treating 28 9 1 physician Schwarz.6 (J. Stip. at 4-8, 10-13, 20-21.) For the 2 reasons discussed below, the Court agrees that the ALJ failed to 3 provide specific and legitimate reasons, supported by substantial 4 evidence, for rejecting the controverted opinions of those 5 examining and treating physicians. 6 a. 7 8 The medical opinions i. Dr. Craemer On March 2, 2006, Dr. Craemer, who was board certified in 9 orthopaedic surgery, examined Plaintiff as part of his worker s 10 compensation case. (AR 318-29.) Plaintiff reported to Dr. 11 Craemer that he thought chiropractic treatments had helped and 12 he had less pain and better motion. (AR 320.) Dr. Craemer 13 summarized the October 2005 MRI scan and other medical records 14 (AR 320, 324-25) and noted that Plaintiff was using over-the15 counter medications and moved his cervical spine and low back 16 carefully. 17 (AR 320-21.) Upon examination, Dr. Craemer found that Plaintiff s 18 cervical and lumbar spine had reduced range of motion, 19 tenderness, and spasm. (AR 321-23.) In the upper extremities, 20 sensation was intact, motor power was strong and equal, and 21 reflexes were 2+ and equal. (AR 322.) Plaintiff s grip was 22- 22 20-20 on the right and 24-24-22 on the left, and he had trigger 23 finger of the right ring finger. (Id.) Sensation in the right 24 25 26 27 28 6 Plaintiff also argues that the ALJ erred by failing to give clear and convincing reasons for rejecting Plaintiff s alleged hearing limitations. (J. Stip. at 12.) But as the ALJ found (AR 22), the only doctor to opine as to any functional limitations resulting from that condition found that Plaintiff had no work limitations or restrictions resulting from his hearing loss (AR 805). Plaintiff s claim therefore fails. 10 1 anterior thigh and right anterior calf was decreased, but 2 sensation was otherwise intact in the lower extremities. 3 323.) (AR Reflexes in the lower extremities had decreased but motor 4 power was strong and equal. (Id.) Plaintiff walked with a 5 slow gait, but no limp, and he could perform heel and toe 6 walking without difficulty. (AR 322-23.) His posture was 7 abnormal and he had lost his lumbar lordosis. 8 (AR 322.) Dr. Craemer diagnosed [h]yper flexion ligamentous cervical 9 sprain superimposed on cervical degenerative disease ; 10 [c]erebral concussion with persistent frontal cephalgia ; 11 cervical C5-6 degenerative disc disease, pre-existing ; 12 [l]igamentous low back sprain with right radiculopathy (meralgia 13 paresthetica) 7; [l]umbar spine degenerative disc disease, 14 multilevel, preexisting, non symptomatic ; and [r]ight ring 15 finger, stenosing tenosynovitis, secondary contusion. (AR 326.) 16 Dr. Craemer recommended that Plaintiff be evaluated by a 17 neurologist, who could prescribe medications and physical 18 therapy, if necessary; be referred to an anesthesiologist for a 19 course of lumbar epidurals, if appropriate; undergo hand-surgery 20 consultation if ring-finger locking persisted; and receive 21 further testing. (AR 327-28.) Dr. Craemer opined that Plaintiff 22 23 24 25 26 27 28 7 Meralgia paresthetica occurs when the lateral femoral cutaneous nerve a nerve that supplies sensation to the surface of [the] outer thigh becomes compressed, or pinched. Meralgia paresthetica, Mayo Clinic, http://www.mayoclinic.com/ health/meralgia-paresthetica/DS00914/DSECTION=causes (last accessed April 4, 2013). The lateral femoral cutaneous nerve is purely a sensory nerve and does not affect [the] ability to use [the] leg muscles. Id. 11 1 was temporarily totally disabled. 8 2 (AR 328.) On April 24, 2007, Dr. Craemer reexamined Plaintiff as part 3 of his worker s compensation case. (AR 299-314.) Dr. Craemer 4 noted that Plaintiff had problems with hearing and that 5 November 2006 EMG and nerve conduction studies showed [r]ight C7 6 radiculopathy with evidence of S1 radiculopathy, both on the 7 left, and absence of right lateral femoral cutaneous nerve. 8 (AR 301-02.) Dr. Craemer also summarized Plaintiff s other 9 medical records. 10 (AR 301-02, 306-09.) Upon examination, Dr. Craemer found that Plaintiff had 11 tenderness and reduced range of motion of the cervical and lumbar 12 spine and spasm of the cervical spine. (AR 303-05.) Sensation 13 in the upper extremities was intact and motor power was strong 14 and equal. (AR 304.) Sensation in the right lateral thigh and 15 lateral femoral cutaneous was reduced at 4/5, but sensation was 16 otherwise intact in the lower extremities. (AR 305.) Motor 17 power was 4.5/5 in the right tibialis anterior and 5/5 in other 18 lower-extremity muscles. (Id.) Reflexes in the upper and lower 19 extremities were 2+ and equal. (AR 304, 306.) Plaintiff s 20 21 8 In workers compensation parlance, [t]he term 22 temporarily totally disabled means that an individual is totally incapacitated and unable to earn any income during the 23 period when he is recovering from the effects of the injury. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1103 n.2 (C.D. Cal. 24 2002) (quoting Rissetto v. Plumbers & Steamfitters Local 343, 94 25 F.3d 597, 600, 605 (9th Cir. 1996)). 26 27 28 A period of temporary total disability is that period when the employee is totally incapacitated for work and during which he may reasonably be expected to be cured or materially improved with proper medical attention. Id. (quoting W.M. Lyles Co. v. Workmen s Comp. Appeals Bd., 3 Cal. App. 3d 132, 136, 82 Cal. Rptr. 891, 894 (1969)). 12 1 grip was 30-30-28 on the right and 24-24-22 on the left, and he 2 had mild trigger finger in the right ring finger. (AR 304.) 3 Plaintiff walked with an antalgic gait favoring the right leg 4 but [h]eel and toe walking [were] accomplished without 5 difficulty. 6 (AR 305.) As in his March 2006 report, Dr. Craemer diagnosed 7 [h]yperflexion ligamentous cervical sprain superimposed on 8 cervical degenerative disease ; [c]erebral concussion with 9 persistent frontal cephalgia ; cervical C5-6 degenerative disc 10 disease, pre-existing ; [l]igamentous low back sprain with right 11 radiculopathy (meralgia paresthetica) ; [l]umbar spine 12 degenerative disc disease, multilevel, preexisting, non13 symptomatic ; and [r]ight ring finger, stenosing tenosynovitis, 14 secondary contusion. (AR 309-10.) Dr. Craemer also diagnosed 15 the additional impairment of bilateral hearing loss. (AR 310.) 16 He listed his objective findings regarding Plaintiff s cervical 17 spine as including [p]ain on range of motion; tenderness over 18 the cervical spinous ligaments; multilevel on the plain films 19 noted to be abnormal. (AR 310.) His findings regarding 20 Plaintiff s lumbar spine included [p]ain on range of motion, 21 multilevel disc disease noted on MRI; positive straight leg 22 raising; decreased sensation in right lateral thigh; atrophy of 23 right calf. 24 (Id.) Dr. Craemer opined that [f]or the cervical spine, 25 Plaintiff was precluded from repetitive motions of the neck, 26 prolonged postural positioning of the neck in flexion, and 27 repetitive work above shoulder level. (AR 311.) For the low 28 back, Plaintiff was precluded from heavy work and could not do 13 1 sitting or standing greater than 30 minutes or prolonged walking 2 greater than one hour without a change in position of 5-8 minutes 3 after which he [could] resume a similar period of the same 4 activity and repeat this sequence throughout an eight-hour day. 5 (Id.) Under Future Medical, Dr. Craemer stated that Plaintiff 6 will need periodic access for prescription modalities of care 7 and should be provided with a pool/spa membership so he could 8 handle minor exacerbations on his own. (AR 312-13.) Dr. 9 Craemer noted that Plaintiff may need a course of physical 10 therapy and/or chiropractic therapy for acute exacerbations 11 and that a transcutaneous-electrical-nerve-simulation unit or 12 electrical simulator may be indicated on a home basis at the 13 discretion of the treating doctor. (AR 313.) He believed that 14 myofascial injections may be indicated for the cervical or 15 lumbar spine and that epidurals may be indicated for the lumbar 16 spine, but not for the cervical spine. (Id.) Dr. Craemer stated 17 that he would not expect operative treatment being indicated in 18 the future for Plaintiff s cervical spine, but for the lumbar 19 spine, given the radiculopathy, if he has deterioration he may 20 need operation for the lumbar spine. (Id.) Dr. Craemer stated 21 that if Plaintiff s trigger finger persisted, he would need an 22 operative release, which is a simple outpatient procedure. 9 23 (Id.) Dr. Craemer believed that Plaintiff could not return to 24 his former type of work. 25 26 ii. (Id.) Dr. Richman Dr. Richman, who was board certified in psychiatry, 27 9 28 finger. Plaintiff later declined surgery to resolve his trigger (AR 729.) 14 1 neurology, and electrodiagnostic medicine, examined Plaintiff on 2 September 20, 2006, and later completed a Complex Neurologic 3 Consultation/Agreed Medical Examination as part of Plaintiff s 4 workers compensation case.10 (AR 243-63.) Dr. Richman 5 summarized Plaintiff s medical records, including Plaintiff s x6 rays and MRI and Dr. Craemer s March 2006 report. (AR 246-56.) 7 Upon examination, Dr. Richman found that Plaintiff had normal 8 cranial nerves, with the exception of diminished auditory acuity 9 to finger rub on the left, and full motor force throughout with 10 no evidence of weakness, wasting or fasciculations. (AR 245.) 11 Plaintiff had diminished sensation in the C6 and C7 distribution 12 on the right, diminished sensation over the right thigh in the 13 distribution of the lateral femoral cutaneous nerve, and 14 diminished sensation of the left lower limb in the L4-5 and L515 S1 distribution. 16 symmetrical. (AR 245.) (Id.) His gait was normal but he had an 17 unstable tandem gait. 18 Deep tendon reflexes were 1+ and (Id.) Dr. Richman found that Plaintiff s cervical spine had 19 tenderness and straightening of the cervical lordosis with 20 increased tension but no frank spasm. (Id.) Plaintiff s lumbar 21 spine had tenderness, a negative straight-leg test, and 22 straightening of the lumbar lordosis with increased tension but 23 no frank spasm. (Id.) Dr. Richman conducted an EMG and nerve 24 study and found C7 radiculopathy on the right, S1 25 26 27 28 10 Dr. Richman stated that he examined Plaintiff on September 20, 2006, but the report itself is not dated. (AR 263.) Dr. Richman referred to Plaintiff s October 22, 2006 sleep study, however, so the report must have been written after that date. (AR 246.) 15 1 radiculopathy on the left, and absent response of the lateral 2 femoral cutaneous nerve on the right consistent with meralgia 3 parasthetica. (AR 246.) Dr. Richman noted that 4 [e]lectrodiagnostic testing today does confirm the presence of 5 an injury to the lateral femoral cutaneous nerve of the right 6 thigh, which is a pure sensory nerve, as well as cervical 7 radiculopathy on the right and lumbar radiculopathy on the left 8 involving the C7 and the S1 root, respectively. (AR 258.) Dr. 9 Richman also noted that Plaintiff had undergone a sleep study in 10 October 2006, which had shown obstructive sleep apnea of 11 substantial magnitude as well as some elements that support some 12 panic and restlessness. 13 (Id.; see also AR 266.) Dr. Richman s diagnosis included (1) history of head 14 contusion and posttraumatic headaches related to his car 15 accident, (2) history of posttramatic head syndrome, (3) cervical 16 spine strain/sprain and cervical radiculopathy on the right, (4) 17 lumbar spine strain/sprain and lumbar radiculopathy on the left, 18 (5) injury to lateral femoral cutaneous nerve on the right 19 related to seat-belt injury, (6) obstructive sleep apnea, (7) 20 sleep disturbance unrelated to sleep apnea, and (8) [t]raumatic21 induced vestibular injury. (AR 257.) Dr. Richman opined that 22 as to his cervical spine, Plaintiff was precluded from 23 repetitive flexion/extension of the neck and head, working 24 above the shoulder level, and repetitive rotation of the head and 25 neck; as to the lumbar spine, Plaintiff was precluded from heavy 26 work ; and as to his posttraumatic head syndrome, he was 27 precluded from working in a very stressful environment. 28 260.) (AR Dr. Richman summarily noted that Plaintiff was not a 16 1 surgical candidate at the cervical or lumbar levels. 2 3 (Id.) iii. Dr. Schwarz On December 27, 2007, Dr. Schwarz, who specialized in 4 orthopedic surgery, sports medicine, and arthroscopic surgery, 5 examined Plaintiff and completed a comprehensive orthopedic 6 primary treating physician consultation as part of Plaintiff s 7 worker s compensation case. (AR 545-60.) Dr. Schwarz summarized 8 Drs. Craemer s and Richman s reports and Plaintiff s other 9 medical records, including his MRI, EMG, nerve conduction study, 10 and sleep study. (AR 553-58.) Dr. Schwarz also noted that 11 Plaintiff was taking sleeping pills and Motrin. 12 (AR 548.) Upon examination, Dr. Schwarz found that Plaintiff walked 13 without a limp, could sit and lie down on the examination table 14 without assistance, had 5+/5 strength and intact sensation in 15 the upper extremities, and had intact strength and sensation in 16 the lower extremities. (AR 549, 552.) Plaintiff had positive 17 straight-leg-raising tests in the seated and supine positions. 18 (AR 552.) Plaintiff s grip was 30-28-30 on the right and 30-32- 19 31 on the left. (AR 553.) Dr. Schwarz diagnosed cervical spine 20 musculoligamentous sprain with degenerative disc disease; 21 cerebral concussion with persistent frontal cephalgia; 22 lumbosacral spine musculoligamentous sprain with right-lower23 extremity radiculopathy and meralgia paresthetica; stenosing 24 tenosynovities, right ring finger; bilateral hearing loss; and 25 psychiatric injury. (AR 558.) He recommended that Plaintiff 26 continue with Motrin for pain and inflamation, undergo 27 operative release of his trigger finger, and see specialists for 28 evaluation of his hearing loss and psychiatric complaints. 17 (AR 1 560.) Dr. Schwarz opined that Plaintiff was unable to return to 2 work at that time. 3 (Id.) After the initial consultation and report, Dr. Schwarz 4 treated Plaintiff about once a month from January 2008 to at 5 least December 2010 (see, e.g., AR 453-54, 516-17, 523, 544, 684, 6 778, 782-90, 1011-24) and occasionally submitted reports and 7 authorization requests as part of Plaintiff s worker s 8 compensation case. On May 23, 2008, Dr. Schwarz completed a 9 prolonged-service report noting that Plaintiff in the past has 10 had good benefit from chiropractic care and [a]uthorization for 11 additional chiropractic care would be appropriate based upon his 12 improvement. (AR 694.) On June 6, 2008, Dr. Schwarz completed 13 a prolonged-service report and opined that Plaintiff continued to 14 be temporarily totally disabled. 15 (AR 690-91.) On August 14, 2008, Dr. Schwarz completed a comprehensive 16 orthopedic primary treating physician followup consultation. 17 (AR 427-33.) Dr. Schwarz noted that Plaintiff walked without a 18 limp and could sit and lie down on the examination table without 19 assistance. (AR 428.) Plaintiff had 5+/5 strength, intact 20 sensation, 2+ reflexes in the upper extremities, and intact 21 strength and sensation and 2+ reflexes in the lower 22 extremities. 23 positive. (AR 428-29.) (AR 429.) A straight-leg-raising test was As in his December 2007 report, Dr. Schwarz 24 diagnosed cervical spine musculoligamentous sprain with 25 degenerative disc disease; cerebral concussion; lumbosacral spine 26 musculoligamentous sprain with right-lower-extremity 27 radiculopathy and meralgia paresthetica; stenosing 28 tenosynovities, right ring finger; hearing loss; and psychiatric 18 1 injury. (AR 430.) Dr. Schwarz stated that he had reviewed Dr. 2 Craemer s April 2007 report and Dr. Richman s September 2008 3 report and had no significant disagreement with the 4 recommendations as expressed by Dr. Craemer and by Dr. Richman. 5 (AR 431-32.) Dr. Schwarz did state, however, that he believed 6 Plaintiff had an additional disability/impairment based upon his 7 hearing loss injury as well as psychiatric injury which have not 8 been previously addressed. 9 (AR 432.) On October 14, 2008, Dr. Schwarz completed a prolonged- 10 service report stating that Plaintiff continued to experience 11 significant pain for the cervical, thoracic and lumbar spine ; 12 may have fibromyalgia ; and was taking Ambien, cyclobenzaprine, 13 and Xanax.11 (AR 369.) On December 14, 2009, Dr. Schwarz 14 completed an authorization request, noting that Plaintiff 15 complained of stiffness and pain in the lower extremities and had 16 significant peripheral edema. (AR 780.) Dr. Schwarz requested 17 authorization for evaluation for the peripheral edema to 18 determine causation and possible treatment on industrial basis. 19 (Id.) On December 8, 2010, Dr. Schwarz completed an 20 authorization request noting that Plaintiff had chronic pain and 21 22 23 24 25 26 27 28 11 Ambien is a sedative-hypnotic used to treat insomnia. Zolpidem, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a693025.html (last updated Feb. 15, 2013). Cyclobenzaprine is the generic form of the muscle relaxant Flexeril. Cyclobenzaprine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682514.html (last updated Mar. 25, 2013). Xanax is a benzodiazepine that is used to treat anxiety and panic disorders. Alprazolam, MedlinePlus, http://www.nlm. nih.gov/medlineplus/druginfo/meds/a684001.html (last updated Nov. 1, 2010). 19 1 would benefit from chiropractic treatment and acupuncture.12 (AR 2 995-96.) 3 iv. 4 Dr. Sourehnissani On June 5, 2009, Dr. Mehran Sourehnissani, who was board 5 certified in internal medicine, performed an internal-medicine 6 evaluation of Plaintiff at the Social Security Administration s 7 request. (AR 735-39.) Dr. Sourehnissani noted Plaintiff s 8 report that his pain was aggravated by prolonged standing and 9 walking, lifting objects, and bending over, and it was relieved 10 by rest and pain medication. (AR 735.) Dr. Sourehnissani 11 found that Plaintiff had no tenderness or spasm and grossly 12 normal range of motion of the cervical spine. (AR 737.) 13 Plaintiff had tenderness, spasm, and limited range of motion of 14 the lumbar spine but a negative straight-leg-raising test. (Id.) 15 Plaintiff had an unremarkable neurological examination, showing 16 intact sensation, good motor tone and motion, strength of 5/5 17 throughout, a normal gait, and no atrophy or fasciculation. 18 738.) (AR Dr. Sourehnissani noted that x-rays, which were taken in 19 June 2009 and attached to her report, showed early hypertrophic 20 lipping and splinting to the left suggesting muscle spasm. 13 21 22 23 24 25 26 27 28 12 After the ALJ issued his decision, Plaintiff submitted to the Appeals Council this record and other additional treatment records from Dr. Schwarz. (See AR 1-5.) Because that evidence was made part of the record by the Appeals Council, the Court has considered it in determin[ing] whether, in light of the record as a whole, the ALJ s decision was supported by substantial evidence. Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). 13 The x-rays were dated June 11, 2009 (AR 740), but Dr. Sourehnissani referred to them in her June 5, 2009 report (AR 738). 20 1 (AR 738, 740.) Under impression, Dr. Sourehnissani stated that 2 Plaintiff was a 63-year-old male who was involved in a motor 3 vehicle accident in 2005 with residual low back pain. (AR 738.) 4 She opined that Plaintiff could lift and carry 50 pounds 5 occasionally and 25 pounds frequently, stand and walk for six 6 hours, sit for six hours, and occasionally climb, stoop, kneel, 7 and crouch. (Id.) 8 9 b. Analysis With regard to Plaintiff s physical limitations, the ALJ 10 found that Plaintiff s serious impairments included only 11 cervical and lumbar strain and that he retained the RFC to 12 perform medium work that was limited to only occasionally 13 performing postural activities such as climbing, stooping, 14 kneeling, and crouching. (AR 17-18, 23-24.) In doing so, the 15 ALJ accorded little, if any, weight to the opinions of Drs. 16 Richman, Craemer, and Schwarz and greater weight to the opinion 17 of examining physician Sourehnissani. (AR 20-22, 23-24.) As 18 discussed below, however, the ALJ failed to give specific and 19 legitimate reasons that were supported by substantial evidence 20 for rejecting the opinions of Drs. Richman, Craemer, and Schwarz. 21 As an initial matter, the ALJ erroneously concluded that the 22 physicians who submitted reports as part of Plaintiff s worker s 23 compensation case, which included Drs. Craemer, Richman, and 24 Schwarz, described limitations that were consistent with the 25 ALJ s findings except to the extent they limited Plaintiff to 26 less than six hours of sitting, standing, or walking in an eight27 hour workday. (AR 22.) To the contrary, unlike the ALJ, Dr. 28 Craemer found that Plaintiff was precluded from repetitive 21 1 motions of the neck, prolonged postural positioning of the neck 2 in flexion, and repetitive work above shoulder level; he also 3 found that Plaintiff could not sit or stand for more than 30 4 minutes or walk for more than an hour without a five- to eight5 minute change in position. (AR 311.) Dr. Richman similarly 6 found that Plaintiff was precluded from repetitive 7 flexion/extension of the neck and head, working above the 8 shoulder level, and repetitive rotation of the head and neck. 9 (AR 260.) And Dr. Schwarz reviewed Drs. Craemer s and Richman s 10 reports and stated that he agreed with their assessments, 11 although Dr. Schwarz believed Plaintiff had additional 12 limitations based on his hearing loss and psychiatric injury. 13 (AR 431-32.) All three doctors therefore agreed that Plaintiff 14 had limitations exceeding those that were later reflected in his 15 RFC. 16 The ALJ also appeared to discount the medical reports 17 generated within the context of a workers compensation claim 18 because reports submitted on behalf of the employee tend to 19 maximize the nature and extent of the injury and resultant 20 limitations, while reports submitted on behalf of the employer 21 tend to emphasize just the opposite. (AR 22.) But Drs. Craemer 22 and Richman were selected by agreement of both parties to examine 23 Plaintiff and render opinions as to his impairments and 24 limitations. (See AR 263 (Dr. Richman s Sept. 2006 agreed 25 medical examination ; AR 299 (Dr. Craemer s March 2006 agreed 26 medical examination ); AR 318 (Dr. Craemer s April 2007 agreed 27 medical re-examination )); see also Cal. Labor Code § 4062.2 28 (2012) (procedure for parties in worker s compensation case to 22 1 together select agreed medical evaluator ).14 Their opinions 2 were therefore quite likely to be objective and unbiased. In any 3 event, the ALJ also erred because the purpose for which medical 4 reports are obtained does not provide a legitimate basis for 5 rejecting them. Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 6 1190, 1196 n.5 (9th Cir. 2004) (citation and internal quotation 7 marks omitted) (rejecting plaintiff s claim that doctor hired by 8 worker s compensation insurance company was biased); accord 9 Lester, 81 F.3d at 832. An ALJ, moreover, may not disregard a 10 physician s medical opinion simply because it was initially 11 elicited in a state workers compensation proceeding, or because 12 it is couched in the terminology used in such proceedings. 13 Booth, 181 F. Supp. 2d at 1105. Thus, the ALJ s rejection of the 14 doctors reports simply because they were generated as part of 15 Plaintiff s worker s compensation case was unfounded. 16 The ALJ also rejected Drs. Craemer s and Schwarz s opinions 17 that Plaintiff was temporarily totally disabled for the purpose 18 of his worker s compensation claim because they were based on 19 criteria other than Social Security Regulations and because 20 statements of disability are reserved to the Commissioner. 21 22-23.) (AR It is true that a physician s conclusion on the ultimate 22 issue of disability status is not determinative or entitled to 23 any special weight. 20 C.F.R. § 404.1527(d)(1); see also McLeod 24 v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) ( A disability is an 25 administrative determination of how an impairment, in relation to 26 education, age, technological, economic, and social factors, 27 14 This version of the code was in effect from January 1, 28 2005, through December 31, 2012. 23 1 affects ability to engage in gainful activity. ). But the fact 2 that the doctors opined that Plaintiff was disabled does not 3 justify the ALJ s rejection of their medical opinions regarding 4 Plaintiff s specific impairments, symptoms, diagnosis, prognosis, 5 and physical restrictions. See Boardman v. Astrue, 286 F. App x 6 397, 399 (9th Cir. 2008) (ALJ erred in ignor[ing] doctor s 7 opinion as to claimant s symptoms, prognosis, and restrictions 8 on the ground that [the doctor] also expressed an opinion 9 regarding [claimant s] ultimate disability and [RFC] ). Here, in 10 addition to concluding that Plaintiff was temporarily totally 11 disabled, Drs. Craemer and Schwarz made specific findings, based 12 on objective medical evidence and personal examination, regarding 13 Plaintiff s diagnoses, symptoms, and functional limitations, 14 among other things. The ALJ was required to provide specific and 15 legitimate reasons, supported by substantial evidence, for 16 rejecting those specific findings. 17 The ALJ also rejected Drs. Craemer s and Schwarz s reports 18 because they contained internal inconsistencies, but he failed 19 to clearly identify those inconsistencies or explain how they 20 undermined the doctors findings. (AR 21-22); see Reddick, 157 21 F.3d at 725 (9th Cir. 1998) (in rejecting medical opinions, ALJ 22 must do more than offer his conclusions ; [h]e must set forth 23 his own interpretations and explain why they, rather than the 24 doctors , are correct ). The Commissioner points to Dr. 25 Craemer s finding that Plaintiff could sit or stand for 30 26 minutes and walk for an hour before having to change positions 27 for five to eight minutes, arguing that [w]alking was far more 28 strenuous than the standing, and both required an upright 24 1 position, such that the ability to walk for twice-as-long periods 2 simply made no sense. (J. Stip. at 15.) But walking presumably 3 would accommodate, at least to some extent, Plaintiff s need to 4 frequently change positions; thus, Dr. Craemer s finding that 5 Plaintiff could walk for longer periods than he could sit or 6 stand appears reasonable and internally consistent. 7 The Commissioner also noted Dr. Schwarz s findings that 8 Plaintiff suffered from pain and other symptoms but nevertheless 9 walked without evidence of a limp, was able to assume a seated 10 and supine position on examination without assistance, and had 11 intact strength and sensation. (J. Stip. at 17.) However, 12 neither the Commissioner nor the ALJ explained how Plaintiff s 13 ability to walk during the exam and sit and lie down on the 14 examining table without assistance are inconsistent with Dr. 15 Schwarz s diagnosis and other findings, most of which were 16 established by objective testing. And to the extent that Dr. 17 Schwarz s finding of intact strength and sensation could arguably 18 be inconsistent with his diagnoses of radiculopathy and meralgia 19 paresthetica, Dr. Schwarz apparently reasonably relied on the MRI 20 results showing disc protrusions at multiple levels and 21 electrodiagnostic studies showing radiculopathy on the right and 22 left. (AR 431.) Indeed, Dr. Schwarz treated Plaintiff about 23 once a month for three years, his opinion was supported by 24 objective evidence such as the MRI and electrodiagnostic testing, 25 and his findings were consistent with Drs. Craemer s and 26 Richman s. 27 weight. His opinion was therefore entitled to controlling See 20 C.F.R. § 404.1527(c)(2) (treating physician s 28 opinion entitled to controlling weight when well supported by 25 1 medically acceptable clinical and laboratory diagnostic 2 techniques and not inconsistent with other substantial evidence 3 in record); see also Lester, 81 F.3d at 833 ( The treating 4 physician s continuing relationship with the claimant makes him 5 especially qualified to evaluate reports from examining doctors, 6 to integrate the medical information they provide, and to form an 7 overall conclusion as to functional capacities and limitations, 8 as well as to prescribe or approve the overall course of 9 treatment. ). 10 The ALJ also erred in finding that Dr. Richman s opinion was 11 generally unsupported by the record. (AR 20.) To the 12 contrary, Dr. Richman s findings were based on his own physical 13 examination of Plaintiff (AR 244-45) and on extensive objective 14 evidence, including x-rays, an MRI, a sleep study, an EMG, and a 15 nerve study (AR 246-47, 250). Dr. Richman s findings were 16 largely consistent with those of Drs. Craemer and Schwarz, who 17 reviewed and relied upon the same objective evidence. 18 generally AR 299-314, 318-29, 427-33, 545-60.) (See The ALJ, 19 moreover, failed to discuss any specific evidence that undermined 20 Dr. Richman s opinion. The ALJ therefore erred in finding that 21 Dr. Richman s opinion lacked record support. 22 The ALJ s reliance on Dr. Sourehnissani s opinion, instead 23 of those of Drs. Craemer, Richman, and Schwarz, also lacks the 24 support of substantial evidence and is inconsistent with Social 25 Security regulations. Dr. Sourehnissani diagnosed Plaintiff with 26 low back pain and found that he could perform medium work that 27 required only occasional climbing, stooping, kneeling, and 28 crouching (AR 738), whereas Drs. Craemer, Richman, and Schwarz 26 1 largely agreed that Plaintiff suffered from a variety of 2 conditions, including degenerative disc disease, cervical and 3 lumbar strain, radiculopathy, cerebral concussion, trigger 4 finger, and hearing loss (AR 257, 309-12, 326, 430, 558), and 5 agreed that he was precluded from heavy work and was limited in 6 his ability to move his neck and perform above-shoulder work (AR 7 260, 311, 431-32). See 20 C.F.R. 404.1527(c)(4) (ALJ will give 8 more weight to opinion that is more consistent with the record 9 as a whole ). Moreover, unlike Drs. Craemer, Richman, and 10 Schwarz, Dr. Sourehnissani apparently did not review any of 11 Plaintiff s medical records or the other medical opinions, nor 12 did she consider Plaintiff s MRI, EMG, nerve study, sleep study, 13 or other clinical evidence. (See AR 735-39); 20 C.F.R. 14 § 404.1527(c)(3) (ALJ will give more weight to opinions supported 15 by medical signs and laboratory findings and evaluate degree to 16 which doctors consider all of the pertinent evidence . . . 17 including opinions of treating and other examining sources ). 18 Dr. Sourehnissani specialized in internal medicine (AR 739), but 19 the other doctors specialized in areas more relevant to 20 Plaintiff s back and nerve impairments: Dr. Craemer was board 21 certified in orthopaedic surgery (AR 318), Dr. Richman was board 22 certified in psychiatry, neurology, and electrodiagnostic 23 medicine (AR 261), and Dr. Schwarz specialized in orthopedic 24 surgery, among other things (AR 545). See 20 C.F.R. 25 § 404.1527(c)(5) (ALJ will generally give more weight to the 26 opinion of a specialist about medical issues related to his or 27 her area of specialty than to the opinion of a source who is not 28 a specialist ). Moreover, as previously discussed, treating 27 1 physician Schwarz s opinion is entitled to controlling weight 2 because his opinion was well-supported by the objective evidence 3 and consistent with the opinions of the other examining doctors. 15 4 See 20 C.F.R. § 404.1527(c)(2). Thus, the ALJ erred by relying 5 on Dr. Sourehnissani s opinion instead of those of Drs. Craemer, 6 Richman, and Schwarz. 7 The ALJ also categorically discounted the opinions rendered 8 in the context of Plaintiff s worker s compensation claim because 9 he found no evidence of aggressive treatment such as surgery or 10 emergency hospitalization ; rather, Plaintiff s treatment 11 consisted of physical therapy, exercise, and medication, all of 12 which appear to provide relief. (AR 24.) Although such 13 conservative treatment may be grounds for rejecting the opinion 14 of a treating physician, see, e.g., Rollins v. Massanari, 261 15 F.3d 853, 856 (9th Cir. 2001) (ALJ may reject opinion of treating 16 physician who prescribed conservative treatment yet opined that 17 claimant was disabled), Dr. Craemer opined that Plaintiff may 18 15 Although Dr. Schwarz had the most extensive 19 relationship with Plaintiff, the examining doctors also appear to be more familiar with Plaintiff and his impairments than Dr. 20 Sourehnissani. In his March 2006 report, Dr. Craemer stated that 21 he had spent one and a half hours face-to-face with Plaintiff, two hours reviewing medical records, and one hour preparing his 22 report (AR 318); in his April 2007 report, Dr. Craemer stated that he had spent two hours face to face with Plaintiff, two 23 hours reviewing Plaintiff s chart, and two hours preparing the report (AR 299). In his September 2006 report, Dr. Richman 24 stated that he had spent two hours face to face with patient, 25 over two hours reviewing medical records, one hour reviewing 26 27 28 Plaintiff s deposition, and three and a half hours preparing his report. (AR 263.) In her report, Dr. Sourehnissani did not refer to any of Plaintiff s medical records, nor did she state how long she had spent with Plaintiff during the exam. (See AR 735-39.) Plaintiff testified that the exam took five minutes. (AR 51.) 28 1 also require a transcutaneous-electrical-nerve-simulation unit or 2 electrical simulator, myofascial injections for the cervical or 3 lumbar spine, and epidurals for the lumbar spine (AR 313), which 4 do not appear to be consistent with conservative treatment, see 5 Salinas v. Astrue, No. CV 11 4478-SP, 2012 WL 1400362, at *4 6 (C.D. Cal. Apr. 23, 2012) (epidural steroid injection suggests 7 less conservative treatment ); Christie v. Astrue, No. CV 8 10 3448 PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) 9 (refusing to characterize steroid, trigger-point, and epidural 16 10 injections as conservative). In any event, even if Plaintiff s 11 conservative treatment were a specific and legitimate reason 12 supported by substantial evidence for rejecting the three 13 doctors opinions, the Court cannot find that it would render 14 harmless the ALJ s other errors. Compare Stout v. Comm r, Soc. 15 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ s error 16 harmless when inconsequential to the ultimate nondisability 17 determination ). 18 Plaintiff is entitled to remand on this claim.17 3. 19 evidence 20 21 The ALJ properly evaluated the psychological Plaintiff contends that the ALJ erred in rejecting the 22 23 24 25 26 27 28 16 Dr. Craemer also opined that Plaintiff may need lumbarspine surgery in the event of deterioration. (AR 313.) 17 Plaintiff also argues that his back disability met the criteria of Listing 1.04 (J. Stip. at 12) and that the ALJ failed to translate the examining doctors finding in the context of Plaintiff s worker s compensation case that Plaintiff was precluded from heavy work (id. at 10). The ALJ should address these arguments on remand after reconsidering the opinions of Drs. Craemer, Richman, and Schwarz. 29 1 opinion of an examining psychologist. (J. Stip. at 8-10, 21.) 2 For the reasons discussed below, the ALJ properly analyzed the 3 medical evidence regarding Plaintiff s psychological impairment. a. 4 Relevant facts i. 5 Psychologist Feldman On May 15, 2008, clinical psychologist Bernard Feldman, 6 7 Ph.D., completed a comprehensive initial psychological evaluation 8 of Plaintiff as part of his workers compensation case. 9 55.) (AR 332- Dr. Feldman found that Plaintiff was very cooperative, 10 with normal speech and above-average intelligence; his mood was 11 generally depressed and anxious ; and his thought processes 12 seemed moderately impaired. (AR 336-37.) Plaintiff reported a 13 30-year marriage, characterized by affection, respect and 14 happiness, and strong social ties. (AR 339.) After 15 administering several psychological tests, Dr. Feldman diagnosed 16 Plaintiff with major depressive disorder and generalized anxiety 17 disorder, with a global assessment of functioning ( GAF ) score 18 of 50, indicating [s]erious symptoms of depression and anxiety 19 with serious impairment in social and occupational 18 20 functioning. (AR 351.) Dr. Feldman opined that Plaintiff was 21 temporarily totally disabled as a result of his severe 22 depression and anxiety disorders. (AR 348.) He believed that 23 24 25 26 27 28 18 A GAF score represents a rating of overall psychological functioning on a scale of 0 to 100. See Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Disorders, Text Revision 34 (4th ed. 2000). A GAF score in the range of 41 to 50 indicates [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. 30 1 psychotropic medication should be considered by a psychiatrist 2 and prescribed on an as-needed basis and that [c]ognitive and 3 behavioral therapy should also be provided to [Plaintiff] on a 4 weekly basis. (AR 353.) Dr. Feldman believed that Plaintiff s 5 prognosis was favorable. ii. 6 7 (Id.) Dr. Gilberg On June 12, 2008, Arnold L. Gilberg, M.D., Ph.D, who was 8 board certified in psychiatry and neurology and certified in 9 psychoanalysis, examined Plaintiff as part of his worker s 10 compensation case. (AR 379-404.) Dr. Gilberg conducted 11 psychological testing and diagnosed Plaintiff with cognitive and 12 depressive disorder not otherwise specified; he assigned a GAF 19 13 score of 64, indicating some mild symptoms. (AR 393-95.) Dr. 14 Gilberg opined that Plaintiff had a very slight level of 15 impairment in his ability to comprehend and follow instructions; 16 maintain attention and concentration; perform simple and 17 repetitive tasks; maintain an appropriate work pace; maintain a 18 regular schedule; perform complex or varied tasks; make 19 independent decisions or judgments; negotiate, instruct, and 20 supervise; and respond appropriately to changes in work 21 conditions, among other things. (AR 398-99.) Dr. Gilberg found 22 that Plaintiff had a slight level of impairment in his ability 23 to relate to other people, get along with peers, respond 24 25 26 27 28 19 A GAF score in the range of 61 to 70 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. 31 1 appropriately to criticism, convince or direct others, and 2 interact appropriately with people, among other things. (AR 3 399.) 4 On July 1, 2009, Dr. Gilberg reviewed additional medical 5 records, including Dr. Feldman s report, and completed a 6 supplemental report. (AR 836-38.) Dr. Gilberg noted that Dr. 7 Feldman had found that Plaintiff had a GAF score of 50, which 8 indicated flat affect, circumstantial speech, few friends and 9 noted conflicts with peers or coworkers. (AR 837.) Dr. Gilberg 10 stated that he had found no such behaviors when evaluating 11 Plaintiff, who had been able to complete all psychological 12 testing and provide an adequate history, and who had reported 13 good social relationships and a wonderful marriage. (Id.) Dr. 14 Gilberg reaffirmed his June 2009 report, including his finding 15 that Plaintiff had a GAF score of 64. iii. Dr. Aguilar 16 17 (Id.) On June 13, 2009, Dr. Norma R. Aguilar, a board eligible 18 psychiatrist, conducted a complete psychiatric evaluation of 19 Plaintiff at the Social Security Administration s request. 20 741-45.) (AR Dr. Aguilar noted that Plaintiff reported that he 21 watches television, reads, exercises, bathes, dresses without 22 assistance, gets along well with family members and friends, and 23 had good relationships with others. (AR 742-43.) Dr. Aguilar 24 performed a mental-status examination, finding that Plaintiff had 25 a slightly depressed mood, slightly constricted affect, and 26 normal speech. (AR 743.) Plaintiff was cooperative and did not 27 exhibit any looseness of association, thought disorganization, 28 flight of ideas, thought blocking, tangentiality, or 32 1 circumstantiality. (Id.) Dr. Aguilar diagnosed Plaintiff with a 2 pain disorder associated with psychological factors and a general 3 medical condition, and she assigned a GAF score of 65 to 70. 4 744.) (AR Dr. Aguilar opined that Plaintiff was not limited in his 5 ability to follow simple oral and written instructions; follow 6 detailed instructions; interact appropriately with the public, 7 coworkers, and supervisors; or comply with job rules concerning 8 safety and attendance. (Id.) Plaintiff was mildly limited in 9 his ability to respond to changes in a routine work setting, 10 respond to work pressure in the usual work setting, and perform 11 daily activities. (Id.) Dr. Aguilar opined that Plaintiff s 12 psychiatric prognosis was fair. b. 13 14 (Id.) Analysis With regard to Plaintiff s mental impairments, the ALJ found 15 that Plaintiff was mildly limited in his ability to understand 16 and remember tasks, sustain concentration and persistence, 17 interact with the general public, and adapt to workplace change. 18 (AR 17-18.) In so finding, the ALJ accorded less weight to the 19 opinion of psychologist Feldman and significant weight to the 20 opinions of Drs. Gilberg and Aguilar. 21 (AR 24-25.) Plaintiff contends that the ALJ failed to provide any 22 translation nor offer any reason to reject the opinions of the 23 [agreed-medical-examination] psychologist. (J. Stip. at 8.) 24 Plaintiff repeatedly refers to that psychologist as Dr. 25 Gilbert, but the record does not include an opinion from a 26 psychologist by that name, and Plaintiff in fact cites to and 27 discusses psychologist Feldman s findings in his initial28 psychological-evaluation report. 33 (See J. Stip. at 8-10 1 (referring to Dr. Gilbert but citing Dr. Feldman s report at AR 2 332, 343, 351).) The Court therefore assumes that Plaintiff is 3 challenging the ALJ s rejection of Dr. Feldman s opinion. The 4 ALJ, however, was not obligated to accept Dr. Feldman s 5 conclusion that Plaintiff was temporarily totally disabled, see 6 20 C.F.R. § 404.1527(d)(1); see also McLeod, 640 F.3d at 885, and 7 as discussed below, he also provided legally sufficient reasons 8 for rejecting Dr. Feldman s medical opinion. The ALJ noted record evidence that was inconsistent with Dr. 9 10 Feldman s finding that Plaintiff had a totally disabling 11 impairment. The ALJ noted that no evidence showed that Plaintiff 12 had received psychiatric treatment such as individual 13 psychotherapy or group therapy sessions or that he had ever been 20 14 psychiatrically hospitalized or attempted suicide. (AR 24.) 15 Rather, Plaintiff took psychiatric medications, and nothing 16 suggest[ed] that such medication [did] not help [Plaintiff]. 17 (Id.) The ALJ also noted (AR 25) Dr. Gilberg s finding that Dr. 18 Feldman s assignment of a GAF score of 50 which indicated 19 serious psychological symptoms was inconsistent with 20 21 20 In June 2008, Dr. Gilberg noted that Plaintiff had been 22 in treatment with Dr. Feldman on a weekly basis for the previous two months (AR 383, 391), but notes from that asserted treatment 23 are not in the record; moreover, in a disability report, Plaintiff stated that he had seen Dr. Feldman only once, on May 24 15, 2008, for the purpose of a psychological examination (AR 25 189), and he did not state in that report or his subsequent 26 27 28 report that he had ever received psychotherapy (see AR 189, 211). By July 2008, moreover, Dr. Gilberg noted that Plaintiff was no longer seeing Dr. Feldman. (AR 444.) Thus, it is not clear that Plaintiff in fact ever received psychotherapy, as Dr. Gilberg noted, but even if he did, it was so brief as to be negligible. 34 1 Plaintiff s ability to complete all psychological testing, 2 provide an accurate medical history, and maintain good social 3 relationships (AR 837). Those constitute specific and legitimate 4 reasons for rejecting Dr. Feldman s controverted opinion. See 5 Batson, 359 F.3d at 1195; Rollins, 261 F.3d at 856. 6 Moreover, the ALJ was entitled to credit the opinions of 7 Drs. Gilberg and Aguilar, instead of Dr. Feldman, because their 8 opinions were supported by independent clinical findings and thus 9 constituted substantial evidence upon which the ALJ could 10 properly rely. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 11 (9th Cir. 2001); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 12 1995). Dr. Gilberg reviewed Plaintiff s medical records, 13 conducted psychological testing, and administered a mental-status 14 examination before finding that Plaintiff had a depressive 15 disorder, cognitive disorder, and GAF score of 64, indicating 16 mild symptoms. (AR 379-404.) Dr. Aguilar, moreover, performed a 17 complete psychiatric evaluation before concluding that Plaintiff 18 had, at most, only mild psychological limitations. (AR 741-45.) 19 Any conflict in the properly supported medical-opinion evidence 21 20 was the sole province of the ALJ to resolve. See Andrews, 53 21 F.3d at 1041. 22 23 24 25 26 27 28 21 It also appears that Drs. Gilberg s and Aguilar s opinions were entitled to more weight because Dr. Feldman was a psychologist, whereas Dr. Gilberg was a medical doctor who was board-certified in psychiatry and neurology and certified in psychoanalysis and Dr. Aguilar was a medical doctor who was board eligible in psychiatry. See 20 C.F.R. 404.1527(c)(5) ( We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist. ); Smolen, 80 F.3d at 1285 (same). 35 1 Plaintiff argues that the ALJ failed to provide a 2 translation of the workers compensation terms found in the 3 opinion of the AME psychologist. Specifically, Plaintiff 4 argues that the ALJ did not understand the significance of very 5 slight to slight mental limitations in worker s compensation 6 terminology because even a slight impairment under [workers 7 compensation] is a noticeable impairment. (J. Stip. at 9.) Dr. 8 Feldman, however, did not find that Plaintiff had very slight to 9 slight mental limitations; rather, those findings were part of 10 Dr. Gilberg s report (AR 398), which the ALJ specifically 11 credited (AR 25). In any event, even assuming that Dr. Gilberg s 12 findings indicate that Plaintiff had a noticeable impairment, 13 that would fail to establish any error in the ALJ s conclusion 14 that Plaintiff had only mild psychological limitations. Indeed, 15 the ALJ s findings are fully consistent with Dr. Gilberg s 16 finding that Plaintiff had a GAF score of 64, indicating some 17 mild psychological symptoms. 18 (See AR 837.) The ALJ s findings regarding Plaintiff s mental impairment 19 are entitled to affirmance. 20 B. Plaintiff s Credibility 21 Plaintiff contends that the ALJ failed to provide clear and 22 convincing reasons to discredit his subjective symptom testimony. 23 (J. Stip. 21-23, 26.) Because the Court finds that the ALJ s 24 rejection of the opinions of Drs. Craemer, Richman, and Schwarz 25 was in error, it is not necessary for it to address the remainder 26 of Plaintiff s arguments. See Negrette v. Astrue, No. EDCV 08- 27 0737 RNB, 2009 WL 2208088, at *2 (C.D. Cal. July 21, 2009) 28 (finding it unnecessary to address further disputed issues when 36 1 court found that ALJ failed to properly consider treating 2 doctor s opinion and lay-witness testimony). On remand, the ALJ 3 will necessarily reevaluate Plaintiff s credibility after 4 reconsidering the examining and treating doctors opinions 5 regarding Plaintiff s physical impairments. 6 VI. CONCLUSION 7 When error exists in an administrative determination, the 8 proper course, except in rare circumstances, is to remand to the 9 agency for additional investigation or explanation. INS v. 10 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 11 (2002) (citations and quotation marks omitted); Moisa v. 12 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, 13 remand, not an award of benefits, is the proper course in this 14 case. See Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 15 1136 (9th Cir. 2011) (remand for automatic payment of benefits 16 inappropriate unless evidence unequivocally establishes 17 disability). As noted above, on remand, the ALJ will necessarily 18 reevaluate the opinions of Drs. Craemer, Richman, and Schwarz and 19 make additional findings regarding Plaintiff s physical 20 impairments consistent with this opinion. 21 22 23 24 25 26 27 28 37 1 ORDER 2 3 Accordingly, IT IS HEREBY ORDERED that (1) the decision of 4 the Commissioner is REVERSED; (2) Plaintiff s request for remand 5 is GRANTED; and (3) this action is REMANDED for further 6 proceedings consistent with this Memorandum Opinion. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve 8 copies of this Order and the Judgment herein on all parties or 9 their counsel. 10 11 DATED: April 19, 2013 12 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38

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