Rosalia Hernandez vs Michael J Astrue, No. 2:2012cv03320 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). 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. (ad)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSALIA HERNANDEZ, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social Security ) Administration, ) ) Defendant. ) ) ) Case No. CV 12-3320-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On April 17, 2012, plaintiff Rosalia Hernandez filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 ( Commissioner ), seeking a review of a denial of a period of disability, disability 24 insurance benefits ( DIB ), and supplemental security income ( SSI ). Both 25 plaintiff and defendant have consented to proceed for all purposes before the 26 assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the 27 matter suitable for adjudication without oral argument. 28 1 1 Plaintiff presents four issues for decision: (1) whether the Administrative 2 Law Judge ( ALJ ) erred at step two; (2) whether the ALJ properly discounted 3 plaintiff s credibility; (3) whether the ALJ properly assessed plaintiff s residual 4 functional capacity ( RFC ); and (4) whether the ALJ posed a proper hypothetical 5 to the vocational expert. Memorandum in Support of Plaintiff s Complaint ( P. 6 Mem. ) at 3-15; Memorandum in Support of Defendant s Answer ( D. Mem. ) at 7 2-20. 8 Having carefully studied, inter alia, the parties s moving papers, the 9 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 10 that, as detailed herein, the ALJ: erred at Step Two; failed to properly discount 11 plaintiff s credibility; failed to properly assess plaintiff s RFC; and posed a proper 12 hypothetical but it was based on an improper RFC determination. Therefore, the 13 court remands this matter to the Commissioner in accordance with the principles 14 and instructions enunciated in this Memorandum Opinion and Order. 15 II. 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Plaintiff, who was forty-four years old on the date of her January 6, 2011 18 administrative hearing, has a sixth grade education. AR at 28, 35. Plaintiff has 19 past relevant work as a janitor, cooking helper, laborer, dishwasher, and babysitter. 20 Id. at 50. 21 On June 3, 2009, plaintiff filed an application for a period of disability and 22 DIB and an application for SSI, alleging an onset date of May 15, 2008, due to a 23 dislocated right arm, ulcers, high blood pressure, and a thyroid condition. Id. at 24 11, 127, 134, 157. The Commissioner denied plaintiff s application initially and 25 upon reconsideration, after which she filed a request for a hearing. Id. at 69-73, 26 75-80. 27 On January 6, 2011, plaintiff, represented by counsel, appeared and testified 28 2 1 at a hearing before the ALJ. Id. at 28-54. The ALJ also heard testimony from 2 Sandra Trost, a vocational expert ( VE ). Id. at 50-53. On February 9, 2011, the 3 ALJ denied plaintiff s claims for benefits. Id. at 11-22. 4 The ALJ found that plaintiff met the insured status requirements through 5 December 31, 2012. Id. at 14. Applying the well-known five-step sequential 6 evaluation process, the ALJ found, at step one, that plaintiff has not engaged in 7 substantial gainful activity since May 15, 2008, the alleged onset date. Id. 8 At step two, the ALJ found that plaintiff suffers from the following severe 9 impairments: history of breast cancer; status post left radical mastectomy; 10 arthritis; obesity; peptic ulcer disease; and gastroesophageal reflux disease. Id. 11 At step three, the ALJ found that plaintiff s impairments, whether 12 individually or in combination, do not meet or medically equal one of the listed 13 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 14 Listings ). Id. at 19. The ALJ then assessed plaintiff s RFC1 and determined that she has the 15 16 RFC to perform light work with the following limitations: lift/carry twenty 17 pounds occasionally and ten pounds frequently; stand/walk/sit for six hours in an 18 eight-hour work day; and occasional overhead reaching with the left arm. Id. at 19 20. The ALJ also found that plaintiff had decreased grip strength in the left hand, 20 but could push and pull without significant limitation. Id. 21 The ALJ found, at step four, that plaintiff was capable of performing her 22 past relevant work as a babysitter. Id. at 21. 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 Consequently, the ALJ concluded that plaintiff did not suffer from a 2 disability as defined by the Social Security Act. Id. at 22. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council. Id. at 1-3. The ALJ s decision stands as the final 5 decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines that the ALJ s findings are based on 13 legal error or are not supported by substantial evidence in the record, the court 14 may reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 4 1 the ALJ s decision, the reviewing court may not substitute its judgment for that 2 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 3 1992)). 4 IV. 5 DISCUSSION 6 A. The ALJ Erred at Step Two 7 Plaintiff argues that the ALJ erred at step two by failing to find that 8 plaintiff s right shoulder and mental conditions were severe impairments. P. Mem. 9 at 3-8. Specifically, plaintiff contends that the objective medical evidence 10 supported a finding that both conditions were severe. Id. The court agrees that the 11 ALJ erred, but the error is harmless, in part. 12 At step two, the Commissioner considers the severity of the claimant s 13 impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920 (a)(4)(ii). [T]he step-two 14 inquiry is a de minimis screening device to dispose of groundless claims. Smolen 15 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 16 The ALJ determined that plaintiff suffered from the following severe 17 impairments: history of breast cancer; status post left radical mastectomy; 18 arthritis; obesity; peptic ulcer disease; and gastroesophageal reflux disease. AR at 19 14. As for plaintiff s mental impairment, the ALJ concluded that it was not severe 20 because it would cause mild or no limitations in the four functional areas set out in 21 the Listings, known as the paragraph B criteria. Id. at 18-19. 22 1. 23 Defendant does not dispute that plaintiff had a severe right shoulder Right Shoulder Condition 24 condition. Instead, defendant contends that the ALJ s finding that plaintiff had the 25 severe impairment of arthritis encompassed the right shoulder condition because a 26 July 2008 MRI of plaintiff s right shoulder showed mild acromioclavicular 27 osteoarthritis. D. Mem. at 2-3. The court disagrees. 28 5 1 The medical evidence is as follows. 2 a. 3 Dr. Edwin Haronian2 Dr. Edwin Haronian, a treating orthopedic surgeon, treated plaintiff from 4 May 2008 through the date of decision. AR at 381. After the initial visit, Dr. 5 Haronian opined that plaintiff could lift twenty pounds and had to avoid repetitive 6 bending, twisting, power gripping, overhead activities, and over shoulder 7 activities. Id. In 2009, Dr. Haronian began to regularly treat plaintiff. See, e.g., 8 id. at 371-80. Dr. Haronian observed that plaintiff had spasm and tenderness in 9 the paravertebral muscles of the cervical spine and right shoulder impingement, as 10 well as a decreased range of motion in both. Id. at 371. Dr. Haronian noted that 11 plaintiff had been treated conservatively by a chiropractor and the MRI of the 12 cervical spine revealed relatively normal findings. Id. at 371, 374, 376. In 13 subsequent examinations, Dr. Haronian observed that plaintiff had right shoulder 14 impingement, decreased range of motion, tenderness, pain, hypertonicity of the 15 right trapezius muscle, and positive Hawkins and Yergason s tests. Id. at 365-68. 16 Dr. Haronian diagnosed plaintiff with, among other things, shoulder impingement 17 and cervical radiculopathy and recommended surgery. See, e.g., id. at 365-66, 18 371-73. Dr. Haronian initially treated plaintiff conservatively but later 19 recommended surgery. See id. 20 b. 21 Dr. Eugene Harris Dr. Eugene Harris, an examining orthopedic surgeon, examined plaintiff on 22 July 19, 2010. Id. at 558-68. Dr. Harris observed, among other things, that 23 24 25 26 27 28 2 Plaintiff incorrectly asserts that the ALJ failed to indicate what weight he gave to Dr. Haronian, but plaintiff s mistake is understandable. See P. Mem. at 6. The ALJ stated he gave great weight to the opinions of the treating physicians, which includes Dr. Haronian. AR at 21. But, as discussed, infra, despite stating that he credited Dr. Haronian s opinion, the ALJ failed to adopt his findings. The ALJ must provide specific and legitimate reasons for rejecting Dr. Haronian s opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 6 1 plaintiff had: a reduced range of motion, tenderness, and positive impingement in 2 the right shoulder; numbness involving the right upper extremity; and hypethesia 3 involving the right upper extremity.3 Id. at 562-63. Based on the examination, Dr. 4 Harris diagnosed plaintiff with impingement syndrome, cervical brachialgia, 5 median nerve compression, and brachial plexitis on the right side. Id. at 566. Dr. 6 Harris recommended an impingement test of the right shoulder to determine 7 whether she would be a candidate for surgery. Id. In the event that plaintiff was 8 not a candidate for surgery, Dr. Harris precluded her from overhead use of the 9 right upper extremity, heavy lifting, pulling, and pushing. Id. 10 c. 11 Dr. Concepcion A. Enriquez Dr. Concepcion A. Enriquez, a consultative internist, examined plaintiff on 12 August 11, 2009. Id. at 252-56. Dr. Enriquez observed that plaintiff had 13 tenderness and decreased range of motion in the right shoulder. Id. at 254. Dr. 14 Enriquez opined that plaintiff had the RFC to lift/carry twenty-five pounds 15 frequently and fifty pounds occasionally and had no limitations with regard to 16 above-the-shoulder lifting, pulling, and pushing. Id. at 255. 17 d. 18 Dr. Eric Gofnung Dr. Eric Gofnung, a treating chiropractor from approximately May 2008 19 through April 2009, observed that plaintiff s right shoulder had tenderness to 20 palpation, a positive right shoulder impingement sign, and a decreased range of 21 motion. Id. at 439, 442. Based on his own examinations and her medical records, 22 Dr. Gofnung s diagnostic impressions were that plaintiff had: cervical spine 23 myofascitis and disc protrusion; right shoulder sprain/strain and tendonitis; 24 insomnia; anxiety/depression; and right carpal tunnel syndrome. Id. at 446. Dr. 25 Gofnung restricted plaintiff from: heavy lifting; use of the right arm at or above 26 27 3 The ALJ mistakenly stated that Dr. Harris observed hypesthesia involving 28 the right lower extremity, rather than the right upper extremity. Id. at 17, 563. 7 1 the shoulder; repetitive torquing, pulling, pushing with right arm; and repetitive 2 use of right hand for grasping, pulling, or pushing. Id. at 448. 3 4 e. Medical Tests Plaintiff had numerous tests conducted. EMGs conducted on July 12, 2008 5 showed no atrophy in the upper extremities, as well as no acute or chronic 6 denervation potentials. Id. at 311-16. A July 25, 2008 right shoulder MRI showed 7 mild acromioclavicular osteoarthritis and thickening of the supraspinatus and 8 infraspinatus tendons consistent with tendonitis. Id. at 302-03. Cervical spine 9 MRIs performed on July 25, 2008 showed disc bulges at C3 through C7. Id. at 10 304-10. 11 The medical evidence of a severe impairment to plaintiff s right shoulder 12 clearly meets the de minimis threshold required at step two. The question then is 13 whether the ALJ intended for the arthritis finding to encompass the right shoulder 14 condition. The answer is unclear. 15 The medical evidence does not appear to support defendant s claim that the 16 ALJ s finding that plaintiff had the severe impairment of arthritis was sufficient. 17 Although one MRI showed mild acromioclavicular osteoarthritis (id. at 302-03), 18 the treating and examining physicians did not identify arthritis as the source of 19 plaintiff s right shoulder problems. Instead, Dr. Haronian and Dr. Harris opined 20 another cause for the pain, shoulder impingement syndrome. Id. at 365-66, 56221 63. The ALJ failed to explain why he made the arthritis finding and effectively 22 rejected Dr. Haronian s and Dr. Harris s opinions. Accordingly, the court 23 concludes that the arthritis finding does not sufficiently encompass plaintiff s right 24 shoulder condition. The ALJ erred by failing to find that plaintiff s right shoulder 25 condition was severe. 26 27 28 8 1 2. 2 Here, the issue is not whether plaintiff had a mental condition, but rather Mental Impairment 3 whether it was severe. The ALJ reasoned that plaintiff s mental condition was not 4 severe because she had only mild limitations in the paragraph B criteria: (1) 5 activities of daily living; (2) social functioning; (3) concentration, persistence, or 6 pace; and (4) episodes of decompensation. Id. at 18-19. 7 The record indicates that plaintiff did not seek treatment for her alleged 8 mental condition. Instead, she was examined on three occasions. Dr. Cynthia 9 Mothersole examined plaintiff on April 24, 2009 and June 8, 2010. Id. at 528-40. 10 Dr. Mothersole observed that plaintiff scored in the mild range on the Beck11 Depression Inventory-II, diagnosed plaintiff with a depressive order, not otherwise 12 specified, and assigned a GAF score of 59.4 Id. at 533, 536. Id. Dr. Ernest A. 13 Bagner examined plaintiff on August 27, 2009. Id. at 248-51. Dr. Bagner 14 observed that plaintiff s thought processes were tight, she had average 15 intelligence, she could register one of three objects after five minutes, and while 16 she could do serial threes, she was unable to do serial sevens. Id. at 249-50. Dr. 17 Bagner diagnosed plaintiff with depressive disorder, not otherwise specified and 18 assigned a GAF score of 70.5 Id. at 250. Dr. Bagner opined that plaintiff would 19 have zero to mild limitations maintaining concentration and attention and mild to 20 moderate limitations handling normal work stresses and completing a normal work 21 week. Id. at 250-51. Dr. Bagner further opined that plaintiff would be 22 23 4 A GAF rating of 51-60 indicates [m]oderate symptoms [] OR moderate 24 difficulty in social, occupational, or school functioning []. Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Ed. 2000) 25 ( DSM ). 26 5 A GAF rating of 61-70 indicates [s]ome mild symptoms [] OR some 27 difficulty in social, occupational, or school functioning [], but generally 28 functioning pretty well, has some meaningful interpersonal relationships. Id. 9 1 significantly better in less than six months with treatment. Id. at 250. Dr. P.M. 2 Balson, a State Agency physician, agreed with Dr. Bagner. See id. at 257-78. 3 The ALJ erred. Dr. Mothersole opined moderate limitations, which 4 indicated a severe impairment, while Dr. Bagner opined primarily mild limitations. 5 Although Dr. Bagner s opinion may constitute substantial evidence, the ALJ must 6 give specific and legitimate reasons as to why he gave less weight to Dr. 7 Mothersole s opinion, which he failed to do. See Lester, 81 F.3d at 830-31. 8 Even assuming that the ALJ properly rejected Dr. Mothersole s opinion, 9 arguably he still erred. If the evidence indicates that there is more than a minimal 10 limitation in [a claimant s] ability to do basic work activities, the mental 11 impairment can still be considered severe even when a claimant has no or mild 12 limitations in the four foundation areas. 20 C.F.R. §§ 404.1520a(d)(1), 13 416.920a(d)(1); see also 20 C.F.R. §§ 404.1521, 416.921. Here, Dr. Bagner 14 opined that plaintiff may have moderate limitations handling normal work stresses 15 and completing a normal workweek. AR at 251, 269. And the ability to complete 16 a normal workweek is a subset of the third broad functional area. See id. at 268-70 17 (Mental Residual Functional Capacity Assessment form lists the ability to 18 complete a normal workweek under the Sustained Concentration and Persistence 19 category). Because Dr. Bagner opined that plaintiff would have moderate 20 limitations in completing a normal workweek, the ALJ should have found the 21 mental impairment to be severe. 22 Nevertheless, the ALJ s error was harmless. Dr. Mothersole opined that 23 plaintiff presented as temporarily disabled and Dr. Bagner opined that plaintiff s 24 mental condition would improve within six months with treatment. Id. at 250, 25 535. Thus, even if the ALJ correctly found that plaintiff had a severe mental 26 impairment and established a prima facie case of disability, there is no evidence 27 showing that plaintiff s mental impairment could be expected to last for a 28 10 1 continuous period of at least twelve months. 42. U.S.C. § 423(d)(1)(A); Drouin v. 2 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992); see also Hoopai v. Astrue, 499 F.3d 3 1071, 1076 (9th Cir. 2007) ( The step two and step five determinations require 4 different levels of severity of limitations such that the satisfaction of the 5 requirements at step two does not automatically lead to the conclusion that the 6 claimant has satisfied the requirements at step five. ). 7 In sum, the ALJ erred at step two. Substantial evidence supported a 8 determination that plaintiff had a severe right shoulder condition and depressive 9 disorder, and the ALJ failed to give specific and legitimate reasons for rejecting 10 the opinions of the treating and examining physicians that constituted this 11 substantial evidence. The ALJ s failure to find that plaintiff had a severe mental 12 impairment was harmless, but his failure to find plaintiff had a severe right should 13 impairment was not. 14 B. The ALJ Failed to Provided Clear and Convincing Reasons for 15 Discounting Plaintiff s Credibility 16 Plaintiff complains that the ALJ failed to make a proper credibility finding. 17 P. Mem. at 8-10. Specifically, plaintiff argues that the reasons the ALJ provided 18 for discounting her credibility were not clear and convincing. P. Mem. at 9-10. 19 The court agrees. 20 The ALJ must make specific credibility findings, supported by the record. 21 Social Security Ruling ( SSR ) 96-7p.6 To determine whether testimony 22 concerning symptoms is credible, the ALJ engages in a two-step analysis. 23 24 25 26 27 28 6 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 SSA. 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). 11 1 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 2 must determine whether a claimant produced objective medical evidence of an 3 underlying impairment which could reasonably be expected to produce the pain 4 or other symptoms alleged. Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 5 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 6 malingering, an ALJ can reject the claimant s testimony about the severity of her 7 symptoms only by offering specific, clear and convincing reasons for doing so. 8 Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 9 2003). The ALJ may consider several factors in weighing a claimant s credibility, 10 including: (1) ordinary techniques of credibility evaluation such as a claimant s 11 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 12 of treatment; and (3) a claimant s daily activities. Tommasetti v. Astrue, 533 F.3d 13 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 14 At the first step, although the ALJ does not expressly state so, the ALJ 15 presumably found that plaintiff s medically determinable impairments could 16 reasonably be expected to cause the symptoms alleged. See AR at 20-21. 17 At the second step, because the ALJ did not find any evidence of 18 malingering, the ALJ was required to provide clear and convincing reasons for 19 discounting plaintiff s credibility. Here, the ALJ discounted plaintiff s credibility 20 because: (1) pain medication controlled plaintiff s pain; (2) her daily activities 21 were inconsistent with her alleged symptoms; (3) she received conservative 22 treatment; and (4) she was able to sit through the hearing with no apparent 23 discomfort. Id. 24 1. 25 The ALJ s first ground for discounting plaintiff s credibility that pain Controlled Symptoms 26 medication controls her pain was not clear and convincing. It may be a clear and 27 convincing reason to find a plaintiff less credible when his or her symptoms can be 28 controlled by medication. See 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv); 12 1 see also Warre v. Comm r, 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments 2 that can be controlled effectively with medication are not disabling for purposes of 3 determining eligibility for SSI benefits. ). But here, the facts do not support the 4 ALJ s conclusion. Although the record reflects that medication alleviated 5 plaintiff s pain (see AR 183, 252, 496), the ALJ incorrectly found that plaintiff 6 stated medication controlled her pain. See id. at 20. Plaintiff never stated that. 7 Indeed, the record shows that although the medication helped, plaintiff continued 8 to experience pain. Because there is no evidence that the pain was controlled, this 9 was not a clear and convincing reason to discount plaintiff s credibility. See e.g., 10 Lankford v. Astrue, No. 12-01517, 2013 WL 416221, at *5 (N.D. Cal. Jan. 31, 11 2013) (the ALJ s finding that a claimant s pain was controlled did not support his 12 credibility assessment because the ALJ failed to recognize that the medication did 13 not resolve the problem and claimant continued to complain of chronic pain). 14 2. 15 The ALJ cited plaintiff s daily activities as the second ground for finding Daily Activities 16 her less credible. AR at 20. Specifically, the ALJ noted that plaintiff could clean 17 the house without the use of her right hand, could lift pots and cleaning tools, and 18 spent seven hours cleaning the house. Id. Inconsistency between a claimant s 19 alleged symptoms and her daily activities may be a clear and convincing reason to 20 find a claimant less credible. Tommasetti, 533 F.3d at 1039 ; Bunnell, 947 F.2d at 21 346-47. But the mere fact a [claimant] has carried on certain daily activities, such 22 as grocery shopping, driving a car, or limited walking for exercise, does not in any 23 way detract from her credibility as to her overall disability. Vertigan v. Halter, 24 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant does not need to be utterly 25 incapacitated. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 26 Here, plaintiff s activities were not inconsistent with her alleged symptoms 27 and the ALJ misconstrued plaintiff s statements. The fact that plaintiff can lift a 28 broom or pot is not inconsistent with her alleged shoulder pain. See AR at 172. 13 1 As for plaintiff s statement that it took her seven hours to clean the house, she did 2 not specify whether it took her seven hours in a day, week, or month to clean the 3 house. Id. Without greater context, the reason cannot be clear and convincing. 4 Moreover, plaintiff s statements that she could not use her right hand to clean, that 5 she did household chores, and did not do heavy housework were not inconsistent 6 with her allegations that she could not do heavy lifting or reach overhead. See id. 7 at 171, 249, 559. As such, plaintiff s daily activities were not a clear and 8 convincing reason for finding her less credible. 9 10 3. Conservative Treatment The ALJ s third ground for an adverse credibility finding was that plaintiff 11 received only conservative treatment. Id. at 20-21; see Parra v. Astrue, 481 F.3d 12 742, 751 (9th Cir. 2007) ( [E]vidence of conservative treatment is sufficient to 13 discount a claimant s testimony regarding severity of an impairment. ). To 14 support his conservative treatment finding, the ALJ also noted that plaintiff s 15 treatment was initially infrequent and motivated by financial gain, and her 16 condition was permanent and stationary. AR at 20-21. This also was not a clear 17 and convincing reason. 18 The ALJ correctly identified that plaintiff received conservative treatment, 19 but he failed to acknowledge the recommendations for more aggressive treatment. 20 Initially, plaintiff was treated with chiropractic care, acupuncture, and pain 21 medication. See, e.g., id. at 439-51, 495-501. But when the pain continued, the 22 physicians considered and employed more aggressive forms of treatment. Dr. 23 Haronian recommended a subacromial injection or arthroscopic surgery, and Dr. 24 Harris recommended an impingement test to determine whether plaintiff was a 25 candidate for surgery. Id. at 367-68, 573-74. At the hearing, plaintiff testified that 26 Dr. Haronian recommended surgery but she was awaiting authorization by the 27 28 14 1 insurance company.7 Id. at 42; see also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2 2007) (noting that a failure to seek treatment may be the basis for an adverse 3 credibility finding unless there is a good reason for the failure). Thus, plaintiff s 4 treatment plan did not remain conservative. 5 The ALJ s characterization of plaintiff s treatment as irregular and 6 infrequent, at best, until [plaintiff] applied for benefits was misleading See AR at 7 20. Plaintiff alleges a disability onset date of May 15, 2008. Id. at 157. Although 8 plaintiff did not seek medical treatment until nearly three months after she first 9 incurred the injury, this was not as significant amount of time as the ALJ implied. 10 See id. at 495-501. Moreover, plaintiff explained that she did not earlier report her 11 injuries because she was afraid of losing her job. Id. at 496. 12 The ALJ s citation to Dr. Harris to support his conservative treatment 13 ground was similarly misleading. The ALJ stated that Dr. Harris opined that 14 plaintiff s condition had not changed since 2008 and that she was permanent and 15 stationary. Id. at 21. Dr. Harris, in fact, opined that plaintiff s condition had not 16 changed since mid-2008, but he did not opine that it was permanent and 17 stationary .8 Id. at 566-68. To the contrary, Dr. Harris merely noted Dr. 18 Gofnung s assessment that plaintiff was permanent and stationary. See id. at 565. 19 Dr. Harris, on the other hand, opined that plaintiff could be a candidate for surgery 20 depending on the results of an impingement test, which she had never received. 21 Id. at 566-68. Dr. Harris clearly disagreed with that opinion as he suggested 22 additional testing. 23 24 7 26 8 Indeed, just two days after the ALJ denied benefits, plaintiff underwent 25 right shoulder arthroscopic surgery. AR at 570-72. Permanent and stationary is a term used in the worker s compensation 27 context. It simply means that a medical condition has reached the maximum medical improvement and is unlikely to change, and not that the person is not 28 disabled. See Cal. Code Regs. tit. 8, § 10152 (2013). 15 1 4. 2 The ALJ s final ground for an adverse credibility hearing was based on his Personal Observations 3 own observations. Id. at 21. The ALJ noted that plaintiff was able to sit through 4 the hearing in no apparent discomfort, respond to questions in an appropriate 5 manner, and did not have any noted distractions or overt pain behavior. Id. 6 This again was not clear and convincing. 7 An ALJ s reliance upon personal observations at the hearing has been 8 condemned as sit and squirm jurisprudence. See Perminter v. Heckler, 765 F.2d 9 870, 871 (9th Cir. 1985) (per curiam) ( Denial of benefits cannot be based on the 10 ALJ s observation of [claimant], when [claimant s] statements to the contrary, as 11 here, are supported by objective evidence. ). Nonetheless, the Ninth Circuit has 12 noted that the inclusion of the ALJ s personal observations does not render the 13 decision improper. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 14 (quoting Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 1999)). And an ALJ s 15 observations that a plaintiff engaged in behavior at the hearing that was 16 inconsistent with that plaintiff s complaints have been held adequate to justify an 17 ALJ s discounting of plaintiff s credibility. See Quang Van Han v. Bowen, 882 18 F.2d 1453, 1458 (9th Cir. 1989). Here, however, the ALJ did not observe 19 behavior inconsistent with plaintiff s complaints. Plaintiff primarily complained 20 of a right shoulder injury and limitations to reach and lift. See, e.g., AR at 41, 252, 21 367, 559. It is unclear how an ability to sit through a fifty-minute hearing and 22 respond appropriately was inconsistent with plaintiff s alleged symptoms. 23 Accordingly, the ALJ failed to provide clear and convincing reasons 24 supported by substantial evidence to discount plaintiff s credibility. 25 C. The ALJ Made an Improper RFC Determination 26 Plaintiff argues that the ALJ s RFC determination was not based on 27 substantial evidence. P. Mem. at 11-14. The court agrees. 28 16 1 The ALJ determined that plaintiff could perform light work with the 2 following limitations: lift/carry ten pounds frequently and twenty pounds 3 occasionally; stand/walk/sit for six hours out of an eight-hour day; occasional 4 overhead reaching with the left arm; and decreased grip strength in the left arm. 5 AR at 20. In reaching his RFC determination, the ALJ stated that he afforded 6 great weight to the treating physicians, consultative examiners, and State Agency 7 physicians. Id. at 21. The ALJ gave little weight to the opinions of two treating 8 chiropractors, in part, because they were not considered acceptable medical 9 source. Id. The ALJ also considered plaintiff s medical history. Id. The court has already discussed the medical evidence supra. Based on the 10 11 opinions, it is unclear to the court how the ALJ reached his RFC determination. 12 Although he stated that he gave great weight to all of the treating and consulting 13 physicians (id. at 21), the ALJ s RFC determination suggests otherwise. Indeed, it 14 appears that his RFC determination adopted only a portion of Dr. Enriquez s 15 opinion and was modified by the ALJ s own assessments.9 16 The medical evidence clearly showed that plaintiff had a right shoulder 17 condition. All of the physicians noted decreased range of motion and tenderness. 18 See, e.g., id. at 254, 365-68, 562-63. Dr. Haronian and Dr. Harris both opined that 19 plaintiff may require surgery. Id. at 365-67, 566. After plaintiff s initial 20 examination in May 2008, Dr. Haronian opined that plaintiff avoid, among other 21 things, repetitive twisting, overhead activities, and over shoulder activities. Id. at 22 381. Dr. Harris opined restrictions with respect to lifting, overhead use, pushing, 23 and pulling. Id. at 566. As discussed supra, the ALJ expressly afforded great 24 25 9 Curiously, the ALJ placed restrictions with regard to plaintiff s left arm. 26 AR at 20. His basis for those restrictions was due to the effects of her 27 mastectomy, including decreased grip strength. Id. at 21. But plaintiff only complained of pain on her left side at the hearing. Id. at 47. Her medical record 28 did not reflect any symptoms involving her left shoulder, arm, or hand. 17 1 weight to their findings, yet his RFC determination did not reflect their opinions. 2 It did not incorporate any of Dr. Haronian s or Dr. Harris s limitaitons. Because 3 the ALJ clearly did not accept the opinions of Dr. Haronian and Dr. Harris, he 4 must provide specific and legitimate reasons for rejecting them. See Lester, 80 5 F.3d at 830-31; see also Reed v. Massanari, 270 F.2d 838, 845 (9th Cir. 2001) 6 (noting the agency generally gives more weight to specialists than to the opinion 7 of a non-specialist). 8 The ALJ also rejected the opinion of Dr. Gofnung on the bases that he was 9 not an acceptable medical source, his conclusions were not based on objective 10 medical tests, and his opinion was beyond the scope of his expertise.10 AR at 21. 11 It is proper to give less weight to a chiropractor because he or she is not an 12 acceptable medical source. See 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) 13 (chiropractors are not acceptable medical sources). But here, the reasons for 14 giving no weight to Dr. Gofnung were not valid. See Bain v. Astrue, 319 Fed. 15 Appx. 543, 546 (9th Cir. 2009) (ALJ had to provide a germane reason for 16 discrediting a nurse s opinion). First, Dr. Gofnung conducted objective range of 17 motion testing and his findings and opinions were, for the most part, consistent 18 with those of Dr. Haronian and Dr. Harris. See SSR 06-03p (among the factors to 19 consider when evaluating the opinion of other sources includes how consistent 20 the opinion is with other evidence). Second, chiropractors may also treat shoulder 21 pain. See, e.g., Garcia v. Astrue, No. 08-3383, 2010 WL 1293376, at *1 (N.D. 22 Cal. Mar. 31, 2010) (chiropractor treated claimant for back and shoulder pain). 23 24 10 Similarly, the ALJ rejected the opinion of Dr. Reinherz on the bases that he was a chiropractor and his opined limitations were inconsistent with those of Dr. 26 Chalison, an examining internist. AR at 21. The opinions of Dr. Reinherz and Dr. 27 Chalison predated the alleged onset of injury and relate to an earlier back injury as opposed to the bases of plaintiff s application for DIB, a period of disability, and 28 SSI. See id. at 157, 319-32, 405-10. 25 18 1 This leaves the fact that Dr. Gofnung was not an acceptable medical source as the 2 sole remaining basis for rejecting his opinion. This reason, by itself, was not a 3 legitimate basis for rejecting the opinion of a chiropractor. See Sanfilippo v. 4 Astrue, 274 Fed. Appx. March 19, 2013551, 553 (9th Cir. 2008); SSR 06-03p (the 5 agency will consider all relevant evidence). 6 Thus, the medical evidence did not support the ALJ s RFC determination. 7 The ALJ s RFC determination was based on the improper rejection of opinions 8 from both acceptable and not acceptable medical sources without legitimate or 9 germane reasons. 10 D. The ALJ Failed to Ask a Proper Hypothetical 11 Plaintiff argues that the ALJ failed to ask a proper hypothetical. P. Mem. at 12 14-15. Specifically, plaintiff alleges that the VE failed to incorporate all of 13 plaintiff s limitations in the hypothetical and to ask the VE if her testimony 14 conflicted with the Dictionary of Occupation Titles ( DOT ). Id. 15 In his hypothetical, the ALJ incorporated all of the limitations set forth in 16 his RFC determination. AR at 51. But, as discussed supra, the ALJ s hypothetical 17 was based on an erroneous RFC determination. Therefore, the hypothetical was 18 improper. 19 V. 20 REMAND IS APPROPRIATE 21 The decision whether to remand for further proceedings or reverse and 22 award benefits is within the discretion of the district court. McAllister v. Sullivan, 23 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by 24 further proceedings, or where the record has been fully developed, it is appropriate 25 to exercise this discretion to direct an immediate award of benefits. See Benecke 26 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 27 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings 28 turns upon their likely utility). But where there are outstanding issues that must be 19 1 resolved before a determination can be made, and it is not clear from the record 2 that the ALJ would be required to find a plaintiff disabled if all the evidence were 3 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; 4 Harman, 211 F.3d at 1179-80. 5 Here, as set out above, remand is required because the ALJ erred at step two 6 by failing to find that plaintiff s right shoulder injury and mental condition were 7 severe, failing to provide clear and convincing reasons to discount plaintiff s 8 credibility, failing to make a proper RFC determination, and posing an improper 9 hypothetical to the VE. On remand, the ALJ shall: (1) reconsider the medical 10 opinions, particularly those provided by Dr. Haronian and Dr. Harris, and either 11 credit their opinions or provide specific and legitimate reasons for rejecting them; 12 (2) reconsider plaintiff s credibility and, if discounting it, provide clear and 13 convincing reasons for finding plaintiff less credible; (3) reconsider the opinion of 14 Dr. Gofnung and either credit it or provide a germane reason for rejecting it; and 15 (4) reevaluate the ALJ s step two and RFC determinations in light of the 16 reconsidered opinions and evidence. The ALJ shall then proceed through steps 17 four and five to determine what work, if any, plaintiff is or was capable of 18 performing and for what period of time. 19 VI. 20 CONCLUSION 21 IT IS THEREFORE ORDERED that Judgment shall be entered 22 REVERSING the decision of the Commissioner denying benefits, and 23 REMANDING the matter to the Commissioner for further administrative action 24 consistent with this decision. 25 26 DATED: March 25, 2013 27 28 SHERI PYM United States Magistrate Judge 20

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