Kenneth G Crosswhite v. Michael J Astrue, No. 5:2011cv01972 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Kenneth G. Crosswhite filed this action on December 16, 2011. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on Januar y 11 and 13, 2012. On September 21, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument.Having reviewed the entire file, the court reverses and re mands the decision of the Commissioner for further proceedings consistent with this opinion. IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the matter remanded for reconsideration of Crosswhite's RFC assessment in light of the agreed medical evaluation dated May 18, 2011. The ALJ is free to reconsider Crosswhite's credibility on remand. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KENNETH G. CROSSWHITE, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. EDCV 11-1972 AGR MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Kenneth G. Crosswhite filed this action on December 16, 2011. Pursuant 19 to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 January 11 and 13, 2012. (Dkt. Nos. 8, 9.) On September 21, 2012, the parties filed a 21 Joint Stipulation ( JS ) that addressed the disputed issues. The court has taken the 22 matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court reverses and remands the decision of the Commissioner for further proceedings consistent with this opinion. 1 I. 2 PROCEDURAL BACKGROUND 3 On October 18, 2007, Crosswhite filed an application for disability insurance 4 benefits, alleging an onset date of November 6, 2005. Administrative Record ( AR ) 19, 5 112. The application was denied initially and upon reconsideration. AR 19, 71-72. 6 Crosswhite requested a hearing before an Administrative Law Judge ( ALJ ). AR 88. 7 On November 4, 2009, the ALJ conducted a hearing at which Crosswhite and a 8 vocational expert testified. AR 36-70. On November 24, 2009, the ALJ issued a 9 decision denying benefits. AR 16-32. On October 20, 2011, the Appeals Council 10 denied the request for review. AR 1-5. This action followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s decision to 14 deny benefits. The decision will be disturbed only if it is not supported by substantial 15 evidence, or if it is based upon the application of improper legal standards. Moncada v. 16 Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 17 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion. Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled and is eligible for benefits, only if his physical or 5 mental impairment or impairments are of such severity that he is not only unable to do 6 his previous work but cannot, considering his age, education, and work experience, 7 engage in any other kind of substantial gainful work which exists in the national 8 economy. Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 9 (2003). 10 B. The ALJ s Findings 11 Crosswhite meets the insured status requirements through December 31, 2010. 12 AR 21. The ALJ found that Crosswhite has the following severe combination of 13 impairments: degenerative disc disease of the lumbosacral spine, osteoarthritis of the 14 cervical spine, tendinosis in the right shoulder with degenerative changes in the 15 acromioclavicular joint and a subchondral cyst, partial tears of the supraspinatus and 16 inferiorspinatus articulating surfaces of the left shoulder with degenerative changes in 17 the acromioclavicular joint with subacromial bursitis, a depressive disorder, and a 18 passive aggressive personality disorder. AR 22. 19 Crosswhite has the residual functional capacity ( RFC ) to lift and carry 20 20 pounds occasionally and 10 pounds frequently. AR 23. He is limited to occasional 21 postural activity, except he is precluded from climbing ropes, ladders and scaffolds, and 22 must avoid workplace hazards such as dangerous machinery and unprotected heights. 23 Id. He is limited to simple repetitive tasks. Id. He cannot perform his past relevant 24 work but there are jobs, such as packer, assembler and gluer, that exist in significant 25 numbers in the national economy that he can perform. AR 30-32. 26 27 28 3 1 C. Medical Evidence 2 Crosswhite contends that the ALJ did not properly consider the medical evidence. 3 The ALJ noted that no medical source opined that Crosswhite was no longer 4 capable of working. AR 27. However, the ALJ acknowledged that the objective medical 5 evidence from Dr. Anguizola, Dr. De La Llana and Dr. Larsen would suggest the 6 presence of significant low back impairments warranting greater residual functional 7 capacity limitations. AR 25. The ALJ generally discounted these workers 8 compensation reports because workers compensation reports are generated in 9 association with the prosecution of adversarial litigation ; Crosswhite selectively failed to 10 offer into evidence a workers compensation report by a chiropractor, Norman Corlew, 11 who concluded he was capable of essentially medium exertion; and there are no 12 meaningful medical treatment records. AR 24-25. For the ALJ, these factors created 13 a substantial concern regarding the reliability of this medical evidence. AR 24. The 14 ALJ then addressed the specific physician reports. 15 16 1. Legal Standard [I]n the absence of other evidence to undermine the credibility of a medical 17 report, the purpose for which the report was obtained does not provide a legitimate 18 basis for rejecting it. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); Saelee v. 19 Chater, 94 F.3d 520, 522-23 (9th Cir. 1996) (per curiam) (ALJ may discount solicited 20 opinion inconsistent with physician s notes and unsupported by objective medical 21 evidence); Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ may reject 22 solicited opinion unsupported by medical findings, observations or test results). An ALJ 23 may not disregard a physician s medical opinion simply because it was initially elicited 24 in a state workers compensation proceeding, or because it is couched in the 25 terminology used in such proceedings. Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 26 (C.D. Cal. 2002). 27 28 An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a 4 1 treating physician s opinion is contradicted by another doctor, the ALJ may not reject 2 this opinion without providing specific and legitimate reasons supported by substantial 3 evidence in the record. This can be done by setting out a detailed and thorough 4 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 5 and making findings. Id. at 632 (quotation marks and citations omitted). When the ALJ 6 declines to give a treating physician s opinion controlling weight, the ALJ considers 7 several factors, including the following: (1) length of the treatment relationship and 8 frequency of examination;1 (2) nature and extent of the treatment relationship;2 (3) the 9 amount of relevant evidence supporting the opinion and the quality of the explanation 10 provided; (4) consistency with record as a whole; and (5) the specialty of the physician 11 providing the opinion. See id. at 631; 20 C.F.R. §§ 404.1527(d), 416.927(d). An examining physician s opinion constitutes substantial evidence when it is 12 13 based on independent clinical findings. Orn, 495 F.3d at 632. An ALJ may reject an 14 uncontradicted examining physician s medical opinion based on clear and convincing 15 reasons. Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 16 2008) (citation and quotation marks omitted). When an examining physician s opinion is 17 contradicted, it may be rejected for specific and legitimate reasons that are supported 18 by substantial evidence in the record. Id. at 1164 (citation omitted). 19 The opinion of a nonexamining physician cannot by itself constitute substantial 20 evidence that justifies the rejection of the opinion of either an examining physician or a 21 treating physician. Ryan v. Comm r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation 22 1 23 24 25 26 27 28 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). 2 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source s medical opinion. 20 C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). 5 1 omitted) (emphasis in original). However, a non-examining physician s opinion may 2 serve as substantial evidence when it is supported by other evidence in the record and 3 is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also 4 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 5 When there is conflicting medical evidence, the Secretary must determine 6 credibility and resolve the conflict. Id. at 956-57 (citation and quotation marks omitted). 7 8 9 2. Dr. Anguizola Crosswhite contends Dr. Anguizola is a treating physician. Dr. Anguizola saw Crosswhite twice and recommended additional treatment. JS 8; AR 243, 250-51; 10 Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (physician who saw claimant 11 twice within 14-month period, prescribed medication and referred to him as my patient 12 was treating physician). The Commissioner does not disagree. 13 Dr. Anguizola provided two pain management evaluation reports dated May 22 14 and July 23, 2007. AR 240-45, 246-52. Dr. Anguizola noted reduced range of motion 15 in Crosswhite s lumbar spine, significant pain at the L3 level, and positive straight leg- 16 raising, Patrick s, Lasegue, and Fabere tests, bilaterally, which the ALJ found to be 17 indicative of impingement. AR 24, 242, 249-50. Dr. Anguizola diagnosed Crosswhite 18 with bilateral lumbar facet arthropathy with radiculopathy. AR 24, 243, 250. With 19 respect to the cervical spine, Dr. Anguizola noted reduced range of motion, spasm, 20 tenderness, which the ALJ found to be indicative of nerve root involvement. AR 25, 21 242, 249. Dr. Anguizola diagnosed Crosswhite with cervical strain with myofasciitis. 22 AR 25, 250. Dr. Anguizola did not provide an assessment of functional limitations. 23 24 3. Dr. De La Llana Dr. De La Llana examined Crosswhite on July 26, 2007, reviewed medical 25 records and provided a neurological consultative report. AR 24, 272-76. Dr. De La 26 Llana reported that Crosswhite limps on the right leg. AR 273. She found tenderness 27 over the paracervical musculature and reduced range of motion of approximately 30% 28 in the cervical spine. All other tests of the upper extremities were negative. AR 274. 6 1 She noted a normal EMG of the cervical spine and upper extremities with chronic 2 denervation potentials in the APB muscle on the right. AR 25, 279. She found 3 electrical evidence of carpal tunnel syndrome, moderate on the right and mild on the 4 left. AR 281. There was no evidence of cervical radiculopathy or any other focal 5 peripheral nerve compression. Id. 6 Dr. De La Llana noted that the thoracic spine was not tender and did not have a 7 reduced range of motion. AR 274. She found tenderness of the paralumbar 8 musculature, sacroiliac joints and sciatic notches of the lumbar spine. She found that 9 range of motion was reduced approximately 40%. Id. Straight leg raising was 80 10 degrees, with 50 degrees on the right and 60 degrees on the left in a supine position. 11 Fabere s test was negative. Id. She found atrophy in Crosswhite s right calf. Id. 12 Electrodiagnostic studies indicated electrical evidence of lumbosacral (L5-S1) 13 radiculopathy, but no focal peripheral nerve compression. AR 283. She found chronic 14 denervation potentials in muscles innervated by lumbosacral (l5-S1) nerve roots 15 consistent with lumbosacral (L5-S1) radiculopathy. AR 24, 286. 16 17 Dr. De La Llana did not provide a functional assessment. AR 272-86. 4. Dr. Larsen 18 On April 28, 2009, Dr. Larsen, a board certified orthopedic surgeon, provided an 19 orthopedic consultative report. AR 502-32. Dr. Larsen reviewed Crosswhite s medical 20 records. Dr. Larsen found some tenderness and reduced range of motion in 21 Crosswhite s lumbar and cervical spine with no spasm. AR 24-25, 509. Dr. Larsen 22 found tenderness and reduced range of motion in Crosswhite s shoulders with no 23 evidence of atrophy. AR 26, 509-10. Dr. Larsen diagnosed cervical strain, lumbar disc 24 bulging, bilateral shoulder impingement syndrome with acromioclavicular joint pain, 25 bilateral carpal tunnel syndrome, depression, insomnia, and status post bilateral 26 herniorrhaphy. AR 26, 527-28. 27 28 7 Dr. Larsen rated Crosswhite at the DRE (diagnosis related estimates) Lumbar 1 2 Category II level3 given his examination and lack of any loss of structural integrity of the 3 lumbar spine. AR 529. Within this range, he rated Crosswhite at a 6% whole person 4 impairment (WPI) level.4 Id. Dr. Larsen noted that an August 2007 MRI of the lumbar 5 spine showed 1 mm disc bulges from L2 down to S1.5 AR 528. 6 Dr. Larsen rated Crosswhite at the DRE Cervical Category II level given his 7 examination and the lack of any alteration in the structural integrity of the cervical spine. 8 AR 529. Within this range, he rated Crosswhite at a 6% WPI level. Id. Dr. Larsen 9 noted that an August 2007 MRI of the cervical spine showed evidence of osteophytes 10 but no stenosis.6 AR 528. 11 With respect to the left shoulder, Dr. Larsen found an 8% WPI based on loss of 12 range of motion in flexion, extension, abduction, and internal rotation. AR 530. As for 13 the right shoulder, Dr. Larsen found a 4% WPI based on loss of range of motion in 14 flexion, extension, and abduction. Id. Taking into account the electrodiagnosic testing 15 results performed by Dr. De La Llana, Dr. Larsen found a combined 14% impairment of 16 the left upper extremity and 12% impairment of the right upper extremity. Id. 17 18 19 20 21 22 23 24 25 26 27 28 3 Dr. Larsen used the American Medical Association Guide to the Evaluation of Permanent Impairment Fifth Edition. AR 529. This Guide is used in California s Workers Compensation system. See State of California, Schedule for Rating Permanent Disabilities 1-3 (Jan. 2005). 4 There are five DRE Lumbar categories, I-V. Category II correlates to a 5%-8% WPI. 5 The ALJ noted that the August 2007 MRI of the lumbar spine (which he mistakenly cited as August 2008) was unremarkable except for small disc protrusions at L2-S1, without signs of nerve root or spinal cord involvement. AR 25, 200. 6 The ALJ noted that the August 2007 MRI study of Crosswhite s cervical spine showed small osteophyte ridges at C4-7, without any signs of nerve root or spinal cord involvement. AR 25, 266-68. A December 22, 2007 x-ray of the cervical spine indicated mild degenerative disease from C3 through C6. AR 25, 311. 8 1 2 3 4 Dr. Larsen concluded that Crosswhite is a qualified injured worker for vocational rehabilitation and recommended evaluation by a vocational expert. AR 27, 530. 5. Analysis The ALJ stated that the findings of Dr. Anguizola, Dr. De La Llana and Dr. Larsen 5 would suggest the presence of significant low back impairments warranting greater 6 residual functional capacity limitations. AR 25. The ALJ did not state what RFC 7 limitations would be appropriate if their opinions were accepted. 8 As discussed above, the ALJ discounted the reports generally due to his concern 9 about the reliability of workers compensation evidence. AR 24-25. In addition, the ALJ 10 found that greater limitations were unwarranted based on three reasons: (1) the results 11 were not reproduced by Dr. Altman, the state agency consultant who examined 12 Crosswhite; (2) imaging studies showed minimal abnormalities in the lumbosacral 13 spine without any evidence of spinal cord or nerve root involvement; and (3) lack of 14 significant medical treatment records. AR 24-25. 15 Crosswhite s alleged failure to identify and offer into evidence Corlew s report is 16 not a legitimate reason to discount the physicians opinions. AR 24. Dr. Larsen spent 17 over five single-spaced pages describing Corlew s report and explained why he found 18 Corlew s ratings for neck and low back pain to be frankly absurd. AR 520-26, 529. 19 Crosswhite s primary treating chiropractor, Dr. Larson, also provided a detailed 20 description of Corlew s findings and explained why he believed those findings could not 21 be squared with the objective medical evidence. AR 542-47, 552. The ALJ did not 22 address or undermine the reasons given. The other two physicians examined 23 Crosswhite before Corlew and obviously could not comment on Corlew s findings. 24 Moreover, at the hearing, the ALJ observed Crosswhite doesn t seem clear on 25 what doctors he s seen. AR 58. The ALJ questioned whether Crosswhite had been to 26 an AME (agreed medical examiner). Crosswhite s counsel responded that Crosswhite 27 had been to see a chiropractor named Corlew. Id. The ALJ s finding that the claimant 28 failed to identify Corlew is therefore not supported by the record. When counsel 9 1 identified Corlew, the ALJ did not request a copy of the report and relied on the detailed 2 description of Corlew s findings in the record. AR 59; see AR 24, 520-26. The ALJ 3 elsewhere noted that chiropractors are not acceptable medical sources. AR 27. The 4 ALJ s adverse inference is not supported by substantial evidence. 5 The ALJ s finding that Crosswhite did not produce meaningful treatment records, 6 as distinguished from workers compensation records, is unclear. Crosswhite s primary 7 treating physician was Dr. Larson, a chiropractor. AR 533. He states that in order to 8 provide treatment to cure or relieve Crosswhite s injuries, and provide an accurate AMA 9 WPI required by workers compensation guidelines, he referred his patient to various 10 11 providers over a period of several years. AR 533-52. The ALJ noted that the state agency physician, Dr. Altman, did not reproduce 12 findings indicative of impingement. AR 25. Dr. Altman did not indicate he reviewed any 13 medical records. AR 307-10. Dr. Altman observed Crosswhite had a slight antalgic gait 14 on the right leg and moved sluggishly on the table. AR 308. Crosswhite had full 15 cervical range of motion but reduced range of motion in the flexion and extension of the 16 thoracolumbar spine. Id. He had some tenderness in the lower cervical spinous 17 processes, and overall tenderness in the thoracic and lumbar paraspinals with slight 18 spasm in the right midthoracic region. AR 25, 308-09. His straight leg raising was 90 19 degrees while sitting. In the supine position, Crosswhite had 70 degrees on the left and 20 30 degrees on the right. AR 309. Range of motion of the shoulders was within normal 21 limits. AR 26, 308. Dr. Altman found Crosswhite capable of light work. AR 310. 22 The ALJ cited a neurological evaluation by Dr. Altman in September 2007. AR 23 25. Dr. Altman found some slight decreased range of motion of the cervical spine, 24 some spasm, and tenderness in the cervical paraspinals and trapezius left greater than 25 26 27 28 10 1 right. AR 375. Crosswhite had decreased range of motion of the left shoulder. Id. The 2 EMG of the upper extremities was within normal limits.7 AR 373. The ALJ noted that the imaging studies indicated at most minimal abnormalities 3 4 in the lumbar spine, and Dr. Altman could not reproduce the positive straight leg raising 5 found by Dr. Anguizola.8 AR 25. Similarly, the ALJ noted that imaging studies of the 6 cervical spine noted mild degenerative changes, with mixed and inconsistent clinical 7 findings.9 AR 26. However, to the extent that the ALJ discounted Dr. Larsen s opinions, the ALJ s 8 9 reasons are not supported by substantial evidence in the record. Dr. Larsen s opinions 10 relied upon the same imaging studies along with an independent clinical examination in 11 April 2009. The ALJ accurately stated that Dr. Larsen did not include an assessment of 12 Crosswhite s functional limitations.10 AR 27. As discussed above, Dr. Larsen identified 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 As Crosswhite argues, the EMG report notes that conventional EMG and nerve conduction studies cannot test small sensory fibers which, when relatively irritated, may underlie pain and paresthesias arising from within named peripheral nerves, soft tissues and bony structures, and sensory roots. AR 373. Crosswhite argues that he may experience spasms and limited range of motion even with normal EMG and nerve conduction studies. JS 7. 8 Contrary to Crosswhite s argument, there are inconsistent findings between Drs. Anguizola and De La Llana. Whereas Dr. Anguizola found a positive Fabere test on July 23, 2007, Dr. De La Llana noted a negative Fabere test on July 26, 2007. AR 242, 274. Whereas Dr. Anguizola found positive straight leg raising at 60 degrees, Dr. De La Llana found positive straight leg raising at 80 degrees. AR 242, 274. Dr. Altman noted that Crosswhite performed straight leg raising at 90 degrees on December 22, 2007. AR 309. 9 Whereas Dr. Anguizola found reduced range of motion and spasm, Dr. Larsen found reduced range of motion with no spasm. AR 242, 509. 10 The ALJ acknowledges that the workers compensation and Social Security programs are two distinct programs. See Desrosiers v. Sec. of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (Under California s workers compensation guidelines, work capacity is not based on strength but on whether a claimant sits, stands or walks most of the day. The categories of work under the Social Security Act are measured quite differently. They are differentiated primarily in step increases in lifting 11 1 impairments in Crosswhite s shoulders. The ALJ acknowledged MRI studies of 2 Crosswhite s left and right shoulders showing shoulder abnormalities, but observed that 3 Drs. Anguizola, De La Llana, and Altman did not note any shoulder abnormalities in 4 2007. AR 26. 5 However, the May 18, 2011 orthopedic agreed medical evaluation, which was 6 made a part of the record by the Appeals Council,11 contained work restrictions. The 7 evaluation indicated some reduced range of motion in the cervical spine with muscle 8 guarding and no spasm; reduced range of motion in the shoulders; decreased motor 9 strength of the left shoulder musculature; crepitation of the left shoulder; normal range 10 of motion in the thoracic spine; reduced range of motion of the lumbosacral spine with 11 muscle guarding and no spasm; negative straight leg raising in both sitting and supine 12 positions; negative Patrick s and Lasegue tests; and no evidence of radiculopathy in the 13 lower extremities. AR 576-77, 579-81, 583, 588-89. X-rays of the lumbar spine showed 14 mild degenerative changes. AR 583-84. Dr. Luciano diagnosed cervical strain, left 15 shoulder impingement, lumbar disc disease and hernia/groin pain by history. AR 584. The evaluation assessed the following work restrictions: Crosswhite is precluded 16 17 from repetitive above-shoulder-level heavy work and heavy lifting and repetitive 18 bending. AR 589. Dr. Luciano recommended vocational rehabilitation. AR 592. 19 Crosswhite would require future medical care in the form of orthopedic evaluations, anti- 20 21 22 23 capacities. ); see also Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (Terms of art used in workers compensation proceedings are not equivalent to Social Security disability terminology.). 11 24 25 26 27 28 These documents were made a part of the record by the Appeals Council. AR 5. See Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) ( when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner s final decision for substantial evidence ) (citation omitted). Crosswhite also submitted Kaiser treating records for the period July 2003 through December 2006 and Life Chiropractic Center records for the period January 2006 through June 2008. AR 659-88. 12 1 inflammatory medications, possible physical therapy treatment not to exceed three to 2 four weeks, and possible referral to pain management for possible limited number of 3 cortisone injections to the left shoulder. AR 592-93. For Crosswhite s lumbar spine, he 4 should have access to a possible limited number of epidural/facet injections. AR 593. 5 The agreed medical evaluation in May 2011, only five months after the close of 6 Crosswhite s insured status, is consistent with and provides significant support for Dr. 7 Larsen s assessment in April 2009. The ALJ s finding that Dr. Larsen s opinion lacks 8 substantial medical support when the record is viewed as a whole is incorrect. AR 27. 9 The fact that Dr. Altman did not see shoulder impairment in December 2007 does not 10 mean that Crosswhite s shoulder issues did not worsen and become symptomatic in the 11 April 2009-May 2011 time frame. 12 13 This matter is remanded for reconsideration of Crosswhite s RFC in light of the work restrictions assessed by the agreed medical evaluation dated May 18, 2011. 14 D. 15 Crosswhite contends the ALJ failed to articulate legally sufficient reasons for 16 17 Credibility rejecting his subjective symptom testimony. To determine whether a claimant s testimony regarding subjective pain or 18 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter v. 19 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 20 At step one, the ALJ must determine whether the claimant has presented 21 objective medical evidence of an underlying impairment which could reasonably be 22 expected to produce the pain or other symptoms alleged. Id. (citations omitted); 23 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). 24 Second, if the claimant meets this first test, and there is no evidence of 25 malingering, the ALJ can reject the claimant s testimony about the severity of [the 26 claimant s] symptoms only by offering specific, clear and convincing reasons for doing 27 so. Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 28 determination, the ALJ must specifically identify what testimony is credible and what 13 1 testimony undermines the claimant s complaints. Greger v. Barnhart, 464 F.3d 968, 2 972 (9th Cir. 2006) (citation omitted). 3 The ALJ gave Crosswhite s allegations limited weight for three reasons: (1) lack 4 of treatment; (2) inconsistencies in Crosswhite s statements and actions; and (3) lack of 5 supporting objective medical evidence. AR 29-30. 6 Although lack of objective medical evidence supporting the degree of limitation 7 cannot form the sole basis for discounting pain testimony, it is a factor that an ALJ 8 may consider in assessing credibility. Burch, 400 F.3d at 681. The medical evidence 9 may not support the degree of limitation asserted by Crosswhite even after taking into 10 account the work restrictions assessed by Dr. Luciano. Regarding bilateral carpal 11 tunnel syndrome, the ALJ noted electrodiagnostic testing in July 2007 was consistent 12 with bilateral carpal tunnel syndrome, but Crosswhite did not report any hand or wrist 13 symptoms to Dr. Anguizola just three days prior to the electrodiagnostic testing. AR 22, 14 240-45, 281. Further, a neurology examination taken at the same time as the 15 electrodiagnostic testing failed to confirm the existence of carpal tunnel syndrome. AR 16 22, 379. The ALJ noted that Crosswhite was diagnosed with a sleep disorder, but the 17 record contains no evidence that Crosswhite took sleep aids or that a sleep disorder 18 affected his ability to work. AR 22-23, 340. The ALJ noted that Crosswhite has not 19 received any specialized psychiatric treatment or care, and Dr. Francisco, a Qualified 20 Medical Examiner who performed a psychological evaluation, found him to be only 21 slightly impaired. AR 24, 304. 22 However, as this matter is being remanded for reconsideration of the RFC 23 assessment in light of the work restrictions assessed by the agreed medical evaluation 24 dated May 18, 2011, the ALJ is free to reconsider Crosswhite s credibility. The ALJ is 25 cautioned that although a claimant s credibility may be discounted based on lack of 26 treatment records, benefits may not be denied because of the claimant s failure to 27 obtain treatment he cannot obtain for lack of funds. Orn, 495 F.3d at 638 (citation and 28 internal quotation marks omitted). Crosswhite testified that his employer canceled his 14 1 insurance and dismissed him a year after surgery. AR 55. He was unable to get 2 medical treatment through the county because he is a homeowner. AR 57. He paid for 3 a chiropractor through June 2008 and submitted those records to the Appeals Council. 4 AR 56, 660-65. The ALJ also noted that Crosswhite made inconsistent statements 5 regarding his work history because he reported that he worked on a full-time basis from 6 1982 to 2005, while his earnings record during 1991, 1994, 1995 and 1996 were 7 limited and spotty. AR 30. Crosswhite, however, testified that he worked off and on 8 between 1982 and 1994. AR 44, 140. 9 IV. 10 CONCLUSION 11 IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and 12 the matter remanded for reconsideration of Crosswhite s RFC assessment in light of the 13 agreed medical evaluation dated May 18, 2011. The ALJ is free to reconsider 14 Crosswhite s credibility on remand. 15 16 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 17 18 19 DATED: January 10, 2013 ALICIA G. ROSENBERG United States Magistrate Judge 20 21 22 23 24 25 26 27 28 15

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