Santiago v. Astrue, No. 2:2006cv03052 - Document 36 (D. Ariz. 2010)

Court Description: ORDER granting in part and denying in part 16 Plaintiff's Motion for Summary Judgment; granted with respect to error in the ALJ's disability determination, but denied to the extent that she seeks a remand for an award of benefits. IT IS F URTHER ORDERED denying 24 Defendant's Cross-Motion for Summary Judgment. Commissioner's decision denying benefits is vacated. This matter is remanded for further proceedings consistent with this Order. Signed by Judge Robert C Broomfield on 2/9/10.(LSP)

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Santiago v. Astrue 1 Doc. 36 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Jennifer L. Santiago, 13 14 15 16 Plaintiff, vs. Michael J. Astrue, Commissioner of Social Security, Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. CIV 06-3052 PHX RCB O R D E R Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social 19 Security Act, plaintiff Jennifer L. Santiago commenced the present 20 action seeking judicial review of a final decision of defendant, 21 Michael J. Astrue, Commissioner of Social Security (“the 22 Commissioner”). The Commissioner denied plaintiff’s application 23 for Disability Insurance Benefits (“DIB”) and Supplemental Social 24 Security Income Benefits (“SSSI”), under Titles II and XVI of the 25 Social Security Act. Currently pending before the court is 26 plaintiff’s motion for summary judgment (doc. 16) wherein she 27 argues that the Commissioner’s decision “cannot be sustained as it 28 is based on legal error.” Memo. (doc. 18) at 19:24. Plaintiff Dockets.Justia.com 1 therefore is seeking summary judgment in her favor and a remand for 2 an “immediate award of benefits.” 3 “At a minimum,” plaintiff seeks a “remand[] for further 4 proceedings.” 5 Commissioner asserts that his final decision “is supported by 6 substantial evidence, making it conclusive upon this court[,]” and 7 entitling him to summary judgment as a matter of law. 8 (doc. 24) at 1, ¶ 2:26. 9 10 Id. at 19:26 (citation omitted). Reply (doc. 33) at 19:28. Conversely, the Cross-Mot. Finding this matter suitable for decision without oral argument, the court rules as follows. 11 See LRCiv 7.2(f). Background 12 Plaintiff protectively filed DIB and SSSI alleging disability 13 beginning January 1, 2003. 14 24. 15 reconsideration. 16 rehearing, this matter was heard before an Administrative Law Judge 17 (“ALJ”). 18 hearing, as well as a vocational expert under contract with the 19 Office of Hearings and Appeals. 20 this case consists of, inter alia, a fairly sparse hearing 21 transcript and medical records from a number of sources. 22 Administrative Record (“Admin. R.”) at Those applications were denied initially and upon Id. Id. Following plaintiff’s timely request for Plaintiff, represented by counsel, testified at the Id. The Administrative record in Ultimately the ALJ issued a decision finding that plaintiff is 23 not disabled within the Social Security Act and its accompanying 24 regulations; and thus she is not entitled to benefits. 25 The Social Security Administration Appeals Council denied 26 plaintiff’s request for a review of the ALJ’s decision. 27 12. 28 the Commissioner, which in turn, allowed plaintiff to seek judicial Id. at 31. Id. at 9- At that point, the ALJ’s decision became the final decision of -2- 1 review in this court as she has done. 2 3 See 20 C.F.R. § 404.981. Discussion I. Standard of Review 4 Assuming familiarity with the well-established standards 5 governing summary judgment motions, the court sees no need to 6 repeat the same herein.1 7 standards governing judicial review of a Commissioner’s decision 8 pursuant to 42 U.S.C. § 405(g). 9 Commissioner’s denial of benefits when the ALJ’s findings are based 10 on legal error or are not supported by substantial evidence in the 11 record as a whole.” 12 2009) (internal quotation marks and citation omitted). 13 determinations by the Commissioner, acting through an ALJ, must be 14 affirmed if supported by substantial evidence. 15 Halter, 332 F.3d 1177, 1180 (9th Cir. 2003). 16 Instead, the court will focus on the The court “may set aside the Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. Factual See Celaya v. “‘In determining whether the Commissioner’s findings are 17 supported by substantial evidence, [this Court] must review the 18 administrative record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner’s 20 conclusion.’” Andrews v. Astrue, 2009 WL 2985449, at *3 (C.D.Cal. 21 Sept. 14, 2009) (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th 22 Cir. 1998)) (other citation omitted). 23 more than a mere scintilla but less than a preponderance; it is “Substantial evidence means 24 25 26 27 28 1 A trilogy of cases in 1986, Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 577, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), ushered in a new era of summary judgment motions for the federal courts. See Rand v. Rowland, 154 F.3d 952, 956-57 (9th Cir. 1998) (“It took nearly fifty years for the Supreme Court to pave the way toward mainstream acceptance of the summary judgment procedure with its trilogy of summary judgment cases in the mid-1980s.”) -3- 1 such relevant evidence as a reasonable mind might accept as 2 adequate to support a conclusion.” 3 (internal quotation marks and citation omitted). 4 Vasquez, 572 F.3d at 591 “The ALJ is responsible for determining credibility, resolving 5 conflicts in medical testimony, and for resolving ambiguities.” 6 Vasquez, 572 F.3d at 591 (internal quotation marks and citation 7 omitted). 8 affirming or reversing the [Commissioner’s] decision, [this court] 9 may not substitute [its] judgment for that of the Commissioner.” “Where the evidence can reasonably support either 10 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citation 11 omitted). 12 more than one rational interpretation, the ALJ’s decision must be 13 affirmed.” 14 citation omitted). 15 “In other words, “where the evidence is susceptible to Vasquez, 572 F.3d at 591 (internal quotation marks and Given this “highly deferential standard of review[,]” 16 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 17 2009), it stands to reason that "[a] decision of the ALJ will not 18 be reversed for errors that are harmless." 19 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). 20 that are inconsequential to the ALJ's ultimate determination as to 21 disability are not reversible. 22 is, in short, fairly limited, although it “must consider the 23 evidence that supports as well as detracts from the [ALJ’s] 24 conclusion.” 25 2009) (citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 26 1975)). 27 “when applying the substantial evidence standard, [it] should not 28 mechanically accept the Commissioner’s findings but should review Stout v. Comm'r, 454 Id. at 1055. Thus, errors This court’s review Werle v. Astrue, 633 F.Supp.2d 857, 879 (D.Ariz. At the same time, however, the court is keenly aware that -4- 1 the record critically and thoroughly.” 2 at 1156). 3 “consider the entire record as a whole and . . . not [to] affirm 4 simply by isolating a ‘specific quantum of supporting evidence.’ ” 5 Olguin v. Astrue, 2009 WL 4641728, at *1 (C.D.Cal. Dec. 2, 6 2009)(quoting Robbins v. Social Security Administration, 466 F.3d 7 880, 882 (9th Cir. 2006)) (other citations omitted). 8 II. 9 Id. (citing Day, 522 F.2d The court is equally aware of its obligation to Disability Determination Framework “To medically qualify for benefits under the Social Security 10 Act, a claimant must establish ‘the inability to engage in any 11 substantial gainful activity by reason of any medically 12 determinable physical or mental impairment . . . which has lasted 13 or can be expected to last for a continuous period of not less than 14 12 months.” 15 § 423(d)(1)(A)). 16 process which the Commissioner, through an ALJ, must employ for 17 determining whether a claimant is disabled. See id. (citing 20 18 C.F.R. §§ 404.1520, 416.920). 19 Stout, 454 F.3d at 1052 (quoting 42 U.S.C. There is a five step sequential evaluation The first step requires the ALJ to determine whether the 20 claimant is currently engaged in “substantial gainful [work] 21 activity.” 22 requires the ALJ to proceed to step two. 23 F.3d 1273, 1289 (9th Cir. 1996) (citation omitted) (“In conducting 24 this [five-step] inquiry, the Commissioner asks five questions in 25 order until a question is answered in such away [sic] that the 26 claimant is conclusively determined disabled or not.”) At step two, 27 the focus is on “whether the claimant has a medically severe 28 impairment or combination of impairments that significantly limits 20 C.F.R. § 404.1520(a)(4)(i). -5- A negative response See Smolen v. Chater, 80 1 h[er] ability to do basic work activities.” 2 F.3d 683, 686 (9th Cir. 2005) (citations omitted). 3 determination is analyzed in terms of what is “not severe.” 4 Smolen, 80 F.3d at 1290. 5 burden of establishing severity, the ALJ proceeds to step three, 6 where medical severity is also a consideration. 7 § 416.920(a)(4)(iii). 8 Webb v. Barnhart, 433 This severity If a claimant satisfies this step two 20 C.F.R. At step three, the ALJ determines if the claimant has an 9 impairment or combination of impairments that meets or equals the 10 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 11 § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). 12 satisfies this criteria, she will be found to be disabled. 13 v. Barnhart, 331 F.3d 1030, 1034 (9th Cir. 2003). 14 condition does not meet or exceed the Listing requirements, the 15 analysis proceeds to step four. 16 If the claimant Benton If a claimant’s See id. The inquiry at step four turns to the claimant’s residual 17 functional capacity (“RFC”) which is, essentially, “a summary of 18 what the claimant is capable of doing[,]” 19 689, as well as the claimant’s “past relevant work.” 20 § 416.920(a)(4)(iv). 21 must consider . . . her symptoms (including pain), signs and 22 laboratory findings, together with other evidence.” 23 Astrue, 2009 WL 839046, at *6 (N.D.Cal. March 30, 2009) (citing 20 24 C.F.R. § 404, Subpt. P, App. 2 § 200.00(c)). 25 ALJ determines that the claimant “can still do [her] past relevant 26 work,” despite the limitations caused by her impairments, the 27 Commissioner will find that she is not disabled. 28 § 416.920(a)(4)(iv). Valentine, 574 F.3d at 20 C.F.R. “In assessing an individual’s RFC, the ALJ -6- Combs v. If, at step four, the 20 C.F.R. 1 On the other hand, if the claimant does not have “sufficient 2 [RFC] despite the impairment or various limitations to perform her 3 past work[,]” the ALJ will proceed to the fifth and last step in 4 this evaluation process. 5 claimant has the burden of proof at steps one through four, but at 6 step five “the burden of proof shifts to the [Commissioner] . . . 7 to show that the claimant can do other kinds of work.” 8 574 F.3d at 689 (internal quotation marks and citation omitted). 9 claimant’s RFC also factors into this inquiry. See Andrews, 2009 WL 2985449, at *4. The Valentine, A The Commissioner 10 will “assess[]” a claimant’s RFC and her “age, education and work 11 experience to see if [the claimant] can make an adjustment to other 12 work.” 13 such an adjustment can be made will result in a finding of no 14 disability, whereas a finding that claimant cannot make an 15 adjustment to other work will result in a finding that the claimant 16 is disabled. 17 III. 18 20 C.F.R. § 416.920(a)(4)(v). At step five, a finding that See id. Overview of ALJ’s Sequential Evaluation Findings Engaging in that five-step process here, at step one the ALJ 19 found that plaintiff “has not engaged in any substantial gainful 20 activity since January 1, 2003.” 21 dispute. 22 evidence showed that plaintiff had the following: “fibromyalgia,2 Admin. R. at 25. This is not in Proceeding to step two, the ALJ found that the medical 23 2 24 25 26 27 28 Fibromyalgia is, as the Ninth Circuit has explained: [a] rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. . . . Common symptoms, . . . , include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease. . . . Fibromyalgia's cause is unknown, there is no cure, and it is poorly-understood within much of the medical community. The disease is diagnosed entirely on the basis of patients' reports of pain and other symptoms. The -7- 1 irritable bowel syndrome [(“IBS”)], a bipolar disorder, a post 2 traumatic stress disorder, an anxiety disorder with panic attacks, 3 and an obsessive-compulsive disorder[.]” Id. at 26 (citations 4 omitted) (footnote added). “[W]hen considered in combination[,]” 5 the ALJ also found the foregoing to be “‘severe’ impairments[.]” 6 See id. 7 have an “impairment, or combination of impairments, that meets or 8 equals in severity the appropriate medical criteria of any 9 impairment” in the Listing. The ALJ next found, at step three, that plaintiff did not Id. at 26. Implicit in that finding 10 is that plaintiff was not disabled because her impairments did not 11 satisfy the Listing criteria. 12 step four. 13 Consequently, the ALJ proceeded to At step four, based upon what the ALJ found to be plaintiff’s 14 RFC, discussed below, and her past relevant work, the ALJ found 15 that she was “unable to perform any of her past relevant work[.]” 16 Id. at 31 (citations omitted). 17 the ALJ found that plaintiff retained the RFC to perform several 18 types of jobs involving “unskilled, light work[,]” he concluded 19 that she “has not been under a disability[.]” Id. 20 was not entitled to DIB or SSSI benefits. Proceeding to step five, because Hence, plaintiff Id. 21 “Like most Social Security cases, this case involves [alleged 22 errors in that] five-step procedure[.]” See Valentine, 574 F.3d at 23 24 25 26 27 28 American College of Rheumatology issued a set of agreed-upon diagnostic criteria in 1990, but to date there are no laboratory tests to confirm the diagnosis. Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004) (citations omitted). Further, “[f]ibromyalgia is a physical disease, . . . , which is diagnosed based on widespread pain with tenderness in at least eleven of eighteen sites known as trigger points.” Hanson v. Astrue, 2009 WL 349138, at * 1 n.4 (C.D.Cal. Feb. 11, 2009) (citations and internal quotation marks omitted). -8- 1 688 (citations omitted). 2 scope of the ALJ’s severity determination at step two. 3 for a host of reasons more fully discussed herein, plaintiff argues 4 that “legal error occurred at step five of the sequential 5 evaluation process” as well. 6 court will address these challenges seriatim. 7 IV. 8 Plaintiff Santiago is challenging the Further, Memo. (doc. 18) at 4:17-18. The Step Two -Severity The ALJ found at step two, as mentioned earlier, that 9 plaintiff Santiago had a number of impairments which “in 10 combination” were “‘severe’ . . . within the meaning of the Act and 11 Regulations[.]” AR at 26. The ALJ thus properly and necessarily 12 moved to step three of the sequential disability analysis. 13 Nevertheless, plaintiff claims that the ALJ erred at step two by 14 finding that her “diagnosis of degenerative disc disease with 15 scoliosis[,]” which he broadly described as “claimant’s back 16 disorder[,]” was “non-severe[.]” See Admin. R. at 26 and 28. 17 Plaintiff overlooks the fact, however, that because she 18 received a favorable determination at step two, the ALJ continued 19 with the sequential disability analysis. “Thus, any error in 20 failing to consider certain impairments severe[,]” such as 21 degenerative disc disease with scoliosis, “did not prejudice 22 [plaintiff’s] claim at this level.” See Wright v. Astrue, 2009 WL 23 2827567, at *6 (D.Or. Aug. 24, 2009) (citing, Burch v. Barnhart, 24 400 F.3d 676, 682 (9th Cir. 2005) (any error in omitting an 25 impairment from the severe impairments identified at step two was 26 harmless where that step was resolved favorably to claimant)). 27 Consequently, the court will turn to the bulk of plaintiff’s 28 arguments, directed to the ALJ’s ultimate step five finding – she -9- 1 was not under a disability. 2 V. 3 Step Five “To direct th[e] inquiry [at step five], the . . . ALJ[] must 4 determine the claimant’s residual functional capacity, a summary of 5 what the claimant is capable of doing (for example, how much weight 6 he can lift).” Valentine, 574 F.3d at 689 (citation and internal 7 quotation marks omitted); see also Moreno v. Astrue, 2009 WL 8 2711900, at *5 (C.D.Cal. Aug. 26, 2009) (citations omitted) (“A 9 claimant’s . . . RFC . . . is what he can still do despite his 10 physical, mental, nonexertional, and other limitations.”) The ALJ 11 may, as he did here, “pose to a vocational expert a hypothetical 12 incorporating the . . . RFC; the expert then opines on what kind of 13 work someone with the limitations of the claimant could 14 hypothetically do.” Id. (citation omitted). “The ALJ must then 15 determine whether, given the claimant’s RFC, age, education, and 16 work experience, [s]he actually can find some work in the national 17 economy.” Id. (citations omitted). In contrast to steps one 18 through four, at step five “the burden of proof shifts to the 19 [Commissioner] at step five to show that the claimant can do other 20 kinds of work.” Id. (citation and internal quotation marks 21 omitted). 22 Here, the ALJ found that plaintiff had the RFC to “perform 23 unskilled, light work3 with no crawling, crouching, climbing, 24 25 26 27 28 3 Under Social Security regulations, “[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. § 416.967(b). - 10 - 1 squatting, or kneeling.” Admin. R. at 31 (footnote added). As 2 part of that RFC, the ALJ further found that plaintiff was “unable 3 to use her lower extremities for pushing or pulling, or her upper 4 extremities for work above the shoulder level.” Id. Additionally, 5 the ALJ found that plaintiff “requires a sit/stand option and is 6 limited to work involving simple operations.” Id. Given that RFC, 7 plaintiff’s age at the time (36 years old) and her “high school 8 equivalency education[,]” the ALJ asked the vocational expert 9 whether “there are jobs that fit that hypothetical . . . in . . . 10 Arizona and in the national economy[.]” Id. at 426. 11 expert answered in the affirmative. See id. The vocational Thus the ALJ found, 12 based upon her RFC and “vocational factors,” that there “are a 13 significant number of jobs existing in the national economy that 14 [plaintiff] could perform.” Id. at 31. As “identified by the 15 Vocational Expert,” those jobs “are the unskilled, light jobs of 16 office helper, gate guard and cashier.” Id. Consequently, at the 17 fifth and final step of the sequential evaluation process, the ALJ 18 found that plaintiff was not under a disability. 19 Id. Plaintiff contends that the RFC determination, and resultant 20 denial of benefits, was error because there is not substantial 21 evidence in the record to support that determination. Plaintiff 22 disputes the ALJ’s findings at step five on a number of bases. 23 First, plaintiff asserts that the ALJ did not properly consider the 24 findings and opinions of her primary treating physician, Chester 25 Christianson, D.O., a family practitioner. Second, plaintiff 26 disputes the ALJ’s adverse credibility finding as to her subjective 27 pain and fatigue. Third, plaintiff challenges two aspects of her 28 RFC, which is an integral part of the disability determination at - 11 - 1 step five. In particular, plaintiff contends that the ALJ erred 2 in not including a function-by-function assessment of “the effect 3 of [her] physical restrictions[,]” and by not “adequately 4 address[ing] [her] psychological restrictions.” Memo. (doc. 18) at 5 15. 6 Next, plaintiff claims that the hypothetical question which 7 the ALJ posed to the vocational expert was “incomplete and 8 inaccurate” because it omitted “the effects of [her] pain” and her 9 “psychiatric restrictions and limitations.” Id. at 15-16. Given 10 those claimed deficiencies, plaintiff argues that the ALJ 11 improperly relied upon the vocational expert’s response to the 12 ALJ’s hypothetical. Plaintiff asserts that “additional error” 13 occurred when the ALJ “failed to identify and resolve conflicts 14 between [the] vocational consultant[’s] testimony and the DOT 15 [Dictionary of Occupational Titles].” Id. Finally, plaintiff 16 contends that “there is no reliable evidence to support the [ALJ’s] 17 conclusion[]” that “there are a significant number of ‘other’ jobs 18 that [plaintiff] can perform[.]” Id. at 17. The court will address 19 plaintiff’s contentions in turn. 20 21 22 A. Treating Physician 1. Governing Legal Standards An “ALJ must consider all medical opinion evidence.” 23 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 24 C.F.R. § 404.1527(b)). In the seminal case of Lester v. Chater, 81 25 F.3d 821 (9th Cir. 1995), the Ninth Circuit articulated a hierarchy 26 of medical opinions. “Generally, the opinions of examining 27 physicians are afforded more weight than those of non-examining 28 physicians, and the opinions of examining non-treating physicians - 12 - 1 are afforded less weight than those of treating physicians.” Orn 2 v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citations omitted). 3 Succinctly put, opinions of treating physicians are favored over 4 those of non-treating physicians.” 5 § 404.1527). Id. (citing 20 C.F.R. This deference to treating physicians’ opinions is 6 understandable in that they are “‘employed to cure and ha[ve] a 7 greater opportunity to know and observe the patient as an 8 individual[.]’” O’Neil v. Astrue, 2009 WL 1444437, at *10 (D.Or. 9 May 21, 2009) (quoting Sprague v. Brown, 812 F.2d 1226, 1230 (9th 10 Cir. 1987)). 11 There are limits to this deference though. “[A] treating 12 physician’s opinion is not conclusive as to whether or not a 13 claimant meets the statutory definition of disability, because that 14 is a legal conclusion reserved to the Commissioner.” 15 inter alia, 20 C.F.R. § 404.1527(e)). Id. (citing, However, “[a]lthough [an] 16 ALJ is not bound by an expert medical opinion on the ultimate 17 question of disability, []he must provide specific and legitimate 18 reasons for rejecting the opinion of a treating physician.” 19 Tommasetti, 533 F.3d at 1041 (citations and internal quotation 20 marks omitted). 21 “In Orn, the Ninth Circuit reiterated and expounded upon its 22 position regarding the ALJ’s acceptance of the opinion of an 23 examining physician over that of a treating physician.” Murrieta 24 v. Astrue, 2009 WL 2184550, at *7 (E.D.Cal. July 21, 2009). “If a 25 treating physician's opinion is well-supported by medically 26 acceptable clinical and laboratory diagnostic techniques and is not 27 inconsistent with the other substantial evidence in [the] case 28 record, [it will be given] controlling weight.” - 13 - Orn, 495 F.3d at 1 631 (citations omitted). Significantly, however, when an ALJ finds 2 that a treating physician’s opinion is not entitled to controlling 3 weight, that does not mean “‘that the opinion should be rejected.’” 4 Id. at 632 quoting S.S.R. 96-2p at 4 (Cum. Ed. 1996), available at 5 61 Fed.Reg. 34,490, 34,491 (July 2, 1996)). Indeed, according to 6 the Social Security Administration, “‘[i]n many cases, a treating 7 source's medical opinion will be entitled to the greatest weight 8 and should be adopted, even if it does not meet the test for 9 controlling weight.’” Id. (quoting S.S.R. 96-2p at 4 (Cum. 10 Ed.1996), available at 61 Fed.Reg. 34,490, 34,491 (July 2, 1996)) 11 (emphasis added). 12 Consistent with the foregoing, even when a treating 13 physician’s opinion is not entitled to controlling weight, such 14 “‘opinions are still entitled to deference and must be weighed 15 using all of the factors provided in 20 C.F.R. 404.1527[.]’” Id. at 16 632 (quoting S.S.R. 96-2p at 4 (Cum. Ed.1996), available at 61 17 Fed.Reg. 34,490, 34,491 (July 2, 1996)) (emphasis added). “Those 18 factors include the [l]ength of the treatment relationship and the 19 frequency of examination by the treating physician; and the nature 20 and extent of the treatment relationship between the patient and 21 the treating physician.” 22 quotation marks omitted). Id. at 631 (citations and internal “Additional factors relevant to 23 evaluating any medical opinion, not limited to the opinion of the 24 treating physician, include the amount of relevant evidence that 25 supports the opinion and the quality of the explanation provided; 26 the consistency of the medical opinion with the record as a whole; 27 the specialty of the physician providing the opinion; and [o]ther 28 factors such as the degree of understanding a physician has of the - 14 - 1 Administration's disability programs and their evidentiary 2 requirements and the degree of his or her familiarity with other 3 information in the case record.” Id. (citations and internal 4 quotation marks omitted). 5 Additionally, if a treating physician’s opinion “is not 6 contradicted by another doctor,” the ALJ may “reject[]” the 7 former’s opinion “only for clear and convincing reasons supported 8 by substantial evidence in the record.” 9 omitted). Id. at 632 (citations However, “[e]ven if the treating doctor's opinion is 10 contradicted by another doctor, the ALJ may not reject this opinion 11 without providing specific and legitimate reasons supported by 12 substantial evidence in the record.” 13 quotation marks omitted). Id. (citations and internal An ALJ satisfies that standard “by 14 setting out a detailed and thorough summary of the facts and 15 conflicting clinical evidence, stating his interpretation thereof, 16 and making findings.” Id. (citation omitted). 17 for the ALJ to simply “offer his conclusion.” It is not enough Id. The ALJ “must 18 do more[;] . . . [he] must. . . explain why [his own 19 interpretations], rather than the doctors', are correct.” 20 (citations and internal quotation marks omitted). Id. As just shown, 21 in the Ninth Circuit an ALJ must adhere to strict standards to 22 justify rejecting a treating physician’s opinion. 23 24 2. ALJ’s Findings Application of those principles to the ALJ’s decision herein 25 is difficult for several reasons. First, the ALJ’s 26 characterization of the medical evidence was very general and he 27 provided only minimal cites to the relatively voluminous record. 28 Second, it is not readily apparent the weight which the ALJ - 15 - 1 accorded the opinions of plaintiff’s primary treating physician, 2 Dr. Christianson. For that matter, it also is not clear from the 3 ALJ’s decision the weight which he accorded to the opinions of the 4 other physicians, such as Dr. Cunningham. Dr. Cunningham evaluated 5 plaintiff one time at the behest of the Arizona Department of 6 Economic Security. Dr. Cunningham’s opinion, therefore, should 7 have been “given less weight than the physicians who treated her.” 8 See Benecke, 379 F.3d at 592 (citation and footnote omitted). 9 Moreover, the ALJ explained that “Dr. Cunningham indicated th[at] 10 [plaintiff’s] subjective complaints far outweighed the objective 11 findings.” Admin. R. At 26. However, “‘in light of the unique 12 evidentiary difficulties associated with the diagnosis and 13 treatment of fibromyalgia, opinions[,]’” such as Dr. Cunningham’s, 14 “‘that focus solely upon objective evidence are not particularly 15 relevant.’” Ostalaza v. Astrue, 2009 WL 3170089, at *5 (C.D.Cal. 16 Sept. 30, 2009) (quoting Rogers v. Commissioner of Social Security, 17 486 F.3d 234, 248 (6th Cir. 2007)). 18 Further muddying the waters is the ALJ’s failure to expressly 19 find that Dr. Christianson’s opinions contradicted those of any of 20 the other physicians. These omissions made this reviewing court’s 21 task unnecessarily arduous. Nonetheless, careful consideration of 22 the entire record, the ALJ’s decision, and the applicable law shows 23 that the ALJ did not properly weigh and consider Dr. Christianson’s 24 opinions. 25 Over the course of approximately two years, from at least late 26 November 2003 through some time in November 2005, Dr. Christianson 27 treated plaintiff. Admin. R. at 260-305; and at 332-335. During 28 that time he referred plaintiff to Dr. Mallace, a rheumatologist, - 16 - 1 and to Dr. Doust, a pain management specialist. 2 and 368. Admin. R. at 256; As the ALJ recognized, Dr. Christianson “opined that due 3 to her fibromyalgia, [plaintiff] was unable to sit or stand for any 4 prolonged time, and she was physically disabled from employment at 5 that time[.]” Id. at 27 (citing [Admin. R. at 272]). Dr. 6 Christianson likewise opined that plaintiff was “unable to do 7 physical labor[.]” Id. at 272. Further, as the ALJ construed Dr. 8 Christianson’s “two medical source statements[,]” the doctor also 9 opined that plaintiff “is capable of less than sedentary work 10 activity[.]” Id. (citations omitted). The ALJ did not describe the 11 contents of those two statements, although, as will be seen, 12 without explanation the ALJ appears to have agreed with Dr. 13 Christianson as to many but not all of the physical “limitations 14 and restrictions”4 set forth therein. 15 The ALJ’s decision includes an overview of the findings of 16 Drs. Cunningham, Doust and Mallace. The ALJ noted that following 17 his one-time examination of plaintiff, Dr. Cunningham diagnosed 18 plaintiff with “chronic pain syndrome with limited range of motion 19 of the cervical spine and a history of post traumatic stress 20 disorder. Id. at 26. Further, Dr. Cunningham’s “[e]xamination 21 revealed a normal gait and coordination, and normal range of motion 22 in the dorsolumbar spine, shoulders, elbows, wrists, fingers, 23 thumbs, hips, knees, and ankles.” Id. Dr. Cunningham also noted 24 that “[t]rigger points revealed” that plaintiff had “atypical 25 tender areas behind bilateral knees, the bottom of the feet and 26 27 28 4 The Medical Source Statement form speaks in terms of both restrictions and limitations. For brevity’s sake, hereinafter the court will refer simply to limitations. - 17 - 1 some tenderness at the base of the neck.” Id. As the ALJ 2 stressed, Dr. Cunningham wrote that plaintiff’s “subjective 3 complaints far outweighed the objective findings.” 4 also id. at 26. Id. at 183; see The ALJ summarized the contents of Dr. 5 Cunningham’s Medical Source Statement as “opin[ing]” that plaintiff 6 “can lift and/or carry 50 pounds occasionally and 25 pounds 7 frequently, and has no limitations in standing, walking or sitting. 8 [Dr. Cunningham] reported the [plaintiff] can occasionally crawl, 9 and frequently kneel and crouch.” Id. at 26- 27 (citing [Admin. R. 10 At 184-186]). 11 Turning to a January 20, 2005, examination by rheumatologist 12 Dr. Mallace, the ALJ noted that that doctor found plaintiff’s 13 “extremities were normal by inspection, range of motion, muscle 14 tone strength, and alignment.” Id. at 27; see also id. at 257. 15 Dr. Mallace further noted that plaintiff “had good motion of the 16 cervical and lumbar spine without paravertebral spasm.” 17 also at 257. Id.; see Dr. Mallace did find “trigger point tenderness” on 18 that date, but that plaintiff “had normal coordination, sensation 19 and reflexes[.]” Id. at 27 (citing [Admin. R. at 256-258]). The 20 ALJ then noted Dr. Mallace’s assessment several months later, on 21 May 23, 2005, of “persistent fibromyalgia[.]” 22 R. at 245). Id. (citing Admin. On July 28, 2005, at her fourth and last visit with 23 Dr. Mallace, he adhered to his diagnosis of fibromyalgia, again 24 noting that plaintiff’s “extremities move[d] well,” but that she 25 had “chronic trigger point tenderness of fibromyalgia.” Id. at 26 243; see also at 27. 27 Finally, the ALJ reviewed the medical records from four office 28 visits which plaintiff made to a pain management specialist, Dr. - 18 - 1 Doust, between late 2005 and early 2006. Dr. Doust’s first 2 examination of plaintiff revealed, as the ALJ stated, “normal 3 joint, bones and muscles of the bilateral upper and lower 4 extremities, full and symmetrical muscle strength, tone and size 5 throughout, intact sensory testing, normal and symmetrical deep 6 tendon reflexes, normal gait and station, and normal spine without 7 muscle spasm.” Id. at 27; see also id. at 367-368. Based upon 8 that exam, Dr. Doust diagnosed plaintiff with 9 “fibromyositis/myofascial pain and neuralgia, neuritis and 10 radiculitis.” Id. (citing [Admin. R. at 366-369]). Plaintiff’s 11 next appointment with Dr. Doust, a few weeks later, showed that she 12 “was within normal limits with the exception of tenderness over 13 most fibromyalgia trigger points.” Id. at 27-28 (citing [Admin. R. 14 at 339-342]). 15 The only noteworthy aspect of plaintiff’s next visit to Dr. 16 Doust, according to the ALJ, is that she “reported moderate 17 stability of her pain symptomatology[.]” Id. at 28 (citing [Admin. 18 R. at 372]). The ALJ accurately observed that on plaintiff’s last 19 visit to Dr. Doust she “indicated increased pain with radiation to 20 the left leg and foot[,]” but “examination was benign.” Id. 21 Hence, Dr. Doust “recommend[ed]” id. at 374, that plaintiff have 22 “electrodiagnostic testing of the left lower extremity[.]” Id. at 23 28 citing [Admin. R. at 373-375]). The ALJ concluded his review of 24 Dr. Doust’s records commenting that if that testing is completed, 25 it “is not part of the evidentiary record.” 26 27 3. Id. Analysis As mentioned, the well-accepted “controlling weight” standard 28 “first require[s]” the ALJ “to determine whether or not the opinion - 19 - 1 of the treating physician will be given controlling weight, which 2 in turn requires consideration of whether or not the treating 3 physician’s opinion is well-supported by medically acceptable 4 clinical and laboratory diagnostic technique and is not 5 inconsistent with the other substantial evidence in the case 6 record.” Cota v. Commissioner of Social Security, 2009 WL 900315, 7 at *8 (E.D.Cal. March 31, 2009). Here, the ALJ purported to engage 8 in that first level of inquiry when he declined to “accord 9 substantial persuasive weight to the opinions of Dr. Christianson 10 since they are not supported by his own treatment records, or the 11 medical record as a whole discussed” in the ALJ’s decision. 12 R. at 27. Admin. Even equating “substantial persuasive weight” with 13 “controlling weight,” there are several flaws with the ALJ’s 14 analysis of the record medical evidence. 15 First, according to the ALJ he did not give controlling weight 16 to the opinion of plaintiff’s treating physician because that 17 doctor’s “own treatment records . . . contain[ed] little in the way 18 of objective findings[]” regarding his “diagnoses of 19 fibromyalgia[.]”5 Id. The ALJ stressed that one of Dr. 20 Christianson’s exams of plaintiff “revealed normal cervical, 21 thoracic and lumbar spine, normal hips and knees, no arthritis or 22 degenerative joint disease, normal range of motion and no motor 23 sensory cerebellum abnormalities.” Id. at 27. Disregarding record 24 evidence of trigger point tenderness by plaintiff’s treating 25 26 27 28 5 The court is well aware that the ALJ made that same finding as to the treating physician’s other diagnoses of “degenerative disc disease with scoliosis, cervical and lumbar strain, and back pain[.]” Admin. R. at 27. However, because the ALJ did not find those other diagnoses to be “severe impairments,” at this juncture his finding as to the lack of objective findings could only have been directed to the fact that Dr. Christian diagnosed plaintiff with fibromyalgia. - 20 - 1 rheumatologist and pain management specialist, the ALJ relied upon 2 the fact that Dr. Christianson’s April 16, 2005 handwritten 3 notation does not mention “trigger point tenderness[.]6” Id. 4 (citation omitted) (footnote added). Generally citing to 50 pages 5 of Dr. Christianson’s records, the ALJ found that “the objective 6 physical findings substantiating [plaintiff’s] subjective 7 complaints [we]re minimal[.]” 8 Id. There is a near consensus of medical opinion as to plaintiff’s 9 diagnosis of fibromyalgia. Plaintiff’s primary treating physician, 10 as well as her pain management specialist and her rheumatologist, 11 all diagnosed her with fibromyalgia. 12 272; 303; 368; and 371-372. See e.g., Admin. R. at 243; The State’s non-treating physician, 13 Dr. Cunningham, more broadly diagnosed plaintiff with “[c]hronic 14 pain syndrome with limited range of motion of the cervical spine 15 . . . due to subjective pain.” Id. at 183. Moreover, fibromyalgia 16 was among the “impairments” which the ALJ found to be “severe in 17 combination,” and that is not disputed. See id. at 26. Thus, the 18 court is left to conclude that because the ALJ found that Dr. 19 Christianson’s records did not include objective physical findings 20 of fibromyalgia, the ALJ discounted that doctor’s opinions as to 21 some of plaintiff’s physical limitations and her overall inability 22 to work. Significantly, however, “courts have found it error for 23 an ALJ to discount a treating physician’s opinion as to resulting 24 limitations due to a lack of objective evidence for fibromyalgia.” 25 Belmont v. Astrue, 2009 WL 2591347, at *17 (E.D.Cal. Aug. 21, 2009) 26 27 28 6 As earlier noted, fibromyalgia “is diagnosed based on widespread pain with tenderness in at least eleven of eighteen sites known as trigger points.” Hanson, 2009 WL 349138, at * 1 n.4 (citations and internal quotation marks omitted). - 21 - 1 (citing cases). 2 Compounding that error and further hindering this court’s 3 review is that, despite the foregoing, the ALJ agreed with Dr. 4 Christianson as to many of plaintiff’s limitations. For example, 5 mirroring Dr. Christianson’s findings on his Medical Source 6 Statement, the ALJ found that plaintiff should not be required to 7 “crawl[], crouch[], climb[], squat[] or kneel[].” 8 see also id. at 305. Admin. R. at 29; Evidently the ALJ also gave credence to Dr. 9 Christianson’s opinion that plaintiff “need[ed] to alternate 10 standing and sitting[]” in that he found that she “requires a 11 sit/stand option[.]” Id. at 304 (emphasis omitted); and at 29. 12 Yet, by finding that plaintiff had an RFC “to perform unskilled 13 light work[,]” the ALJ implicitly rejected other aspects of Dr. 14 Christianson’s opinion such as plaintiff’s severe fatigue and her 15 limitations in walking, i.e. “[l]ess than 2 hours in an 8 hour 16 day[.]” See id. at 305; and 304. Thus, similar to Belmont, the ALJ 17 did “not explain why he accepted certain portions” of the treating 18 physician’s opinion, despite a purported lack of objective 19 findings, while electing to reject others for that same reason. 20 See Belmont, 2009 WL 2591347, at *17. Hence, the ALJ’s decision, 21 based upon the purported lack of objective findings in Dr. 22 Christianson’s records, to accept part of his opinions, but reject 23 others, is inherently inconsistent. Perhaps those internal 24 inconsistencies could have been explained adequately if the ALJ had 25 provided specific and legitimate reasons supported by substantial 26 record evidence for rejecting Dr. Christianson’s opinions. But, as 27 explained below, the ALJ did not do that. 28 Moreover, because the ALJ did not give controlling weight to - 22 - 1 Dr. Christianson’s opinions, it was incumbent upon him to weigh 2 those opinions “using all of the factors provided in 20 C.F.R. 3 § 404.1527[,]” and set forth earlier. See Orn, 495 F.3d at 632 4 (citations and internal quotation marks omitted) (emphasis 5 omitted). The ALJ did not do that either. He “did not undertake 6 to examine any factors other than the overall state of the evidence 7 of record[.]” See Cota, 2009 WL 900315. Such a cursory review does 8 not comport with 20 C.F.R. § 404.1527 and the Social Security 9 Rulings and case law construing it. This is yet another error in 10 the ALJ’s consideration of the opinions of plaintiff’s primary 11 treating physician. 12 Further, as noted at the outset, the ALJ did not make a 13 discrete determination that Dr. Christianson’s opinions 14 contradicted those of the other physicians. The record shows, 15 though, that Drs. Christianson and Cunningham contradicted each 16 other at nearly every step of the way as to plaintiff’s physical 17 limitations.7 Of equal if not more import is that the former, 18 19 20 21 22 23 24 25 26 27 28 7 These contradictions are best shown through a side-by-side comparison of Dr. Cunningham’s Medical Source Statement with that of Dr. Christianson. In addition to his general finding that plaintiff was “unable to do physical labor” and that she was “physically disabled for employment[,]” Dr. Christianson found that plaintiff had a number of physical restrictions or limitations. Admin. R. At 272. Dr. Christianson indicated that plaintiff can only “occasionally” lift/carry “less than 10 pounds[,]” but that she “frequently” can lift/carry that same weight. Id. at 303 (emphasis omitted). In contrast, Dr. Cunningham opined that plaintiff could “[o]ccasionally” lift/carry “50 pounds[,]” and that she could “[f]requently” lift/carry “25 pounds[.]” Id. at 184. Dr. Christianson also indicated that plaintiff had “limitations in standing and/or walking[,]” opining that plaintiff could do so for “[l]ess than 2 hours in an 8 hour day[.]” Id. at 304. Likewise, Dr. Christianson noted that plaintiff could sit for only half an hour in an eight hour day. Id. These opinions are markedly different from those of Dr. Cunningham who found that plaintiff had no limitations whatsoever in standing, walking or sitting. Id. at 184; and 185. Drs. Christianson and Cunningham also gave contradictory opinions as to plaintiff’s ability to kneel, crouch and crawl. The former concluded that that plaintiff could “never” kneel; only “occasionally (no more than 2 hrs/day)” crouch; and “never” crawl. Id. at 305. On the other hand, Dr. Cunningham found that plaintiff could “occasionally crawl, and frequently kneel and crouch[.]” Id. at 27; see also id. at 185. Dr. Christianson additionally found that plaintiff had a host of other - 23 - 1 plaintiff’s treating physician and the latter, the State agency’s 2 non-treating physician, gave controverting opinions as to 3 plaintiff’s disability. Basically, Dr. Christianson opined that 4 plaintiff is unable to work and Dr. Cunningham disagreed. Compare 5 Admin. R. at 181-186 with Admin. R. at 272; and 303-307. 6 One example of this contradictory evidence is particularly 7 significant in the context of fibromyalgia. The last paragraph of 8 the pre-printed Medical Source Statement states: “If your patient 9 suffers from severe fatigue and cannot complete an 8 hour day or 40 10 hour workweek, please comment on what findings you have based this 11 conclusion.” Id. at 305 (emphasis omitted). Dr. Christianson 12 agreed with that assessment of plaintiff’s condition, commenting 13 that he based that conclusion on his findings of “pain & weakness.” 14 Id. By not commenting on that pre-printed Statement, Dr. 15 Cunningham reached the opposite conclusion – plaintiff did not 16 “suffer[] from severe fatigue and [could] complete” a standard 17 workweek. 18 See id. at 186. Despite those contradictory opinions, the ALJ did not 19 “set[]out a detailed and thorough summary of the facts and 20 conflicting clinical evidence, stating his interpretation thereof, 21 and making findings.” See Orn, 495 F.3d at 632 (citation omitted). 22 Instead, the ALJ merely “offer[ed] his conclusions[,]” which is not 23 sufficient in this Circuit. See id. Absent from the ALJ’s decision 24 are “his own interpretations and explain[ations] why they, rather 25 26 27 28 restrictions or limitations regarding other activities, such as climbing, stooping and reaching, whereas Dr. Cunningham found just the opposite – plaintiff had no limitations. Compare id. at 185 with id. at 305. Thus, although the ALJ did not identify any conflicts in the medical evidence, the record is replete with contradictions between plaintiff’s treating physician and Dr. Cunningham. - 24 - 1 than the doctors’, are correct.” See id. These deficiencies are 2 magnified here because, to reiterate, despite agreeing with 3 plaintiff’s primary treating physician that she had numerous 4 physical limitations, the ALJ found that plaintiff was not disabled 5 and had the RFC “to perform unskilled light work[.]” Admin. R. at 6 29. 7 The court recognizes “that a determination of a claimant’s 8 ultimate disability is reserved to the Commissioner, and that a 9 physician’s opinion is not determinative.” See Belmont, 2009 WL 10 2591347, at *18 (citing 20 C.F.R. § 404.1527(e)). At the same time 11 though, “the Ninth Circuit has commented that it does not 12 distinguish between a medical opinion as to physical condition and 13 a medical opinion on the ultimate issue of disability.” 14 (citation omitted). Id. Indeed, according to the Social Security 15 Administration: 16 17 18 19 ‘[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.’ 20 Id. (quoting SSR 96-5p) (emphasis added). Thus, the fact that Dr. 21 Christianson’s opined, as the ALJ reiterated, that plaintiff “was 22 physically disabled from employment[,]” as she had a significant 23 number of physical limitations, see Admin. R. at 27 (citation 24 omitted), did “not relieve the ALJ of the burden of offering 25 specific and legitimate reasons for rejecting the opinion.” See 26 id.; see also Detwiler v. Astrue, 2009 WL 4624979, at *4 (C.D.Cal. 27 Dec. 7, 2009) (citing, inter alia, Lester, 81 F.3d at 830)) (“If 28 the treating physician’s opinion on the issue of disability is - 25 - 1 controverted, the ALJ must still provide ‘specific and legitimate 2 reasons’ supported by substantial evidence in the record in order 3 to reject the treating physician’s opinion.”) Again, the ALJ did 4 not do that here. 5 To be sure, the ALJ was not overtly dismissive of plaintiff’s 6 fibromyalgia diagnosis and attendant functional limitations. 7 Nonetheless, because the ALJ failed to provide specific, legitimate 8 reasons for his conclusions as to the opinions of plaintiff’s 9 primary treating physician. Therefore, “[p]laintiff is entitled to 10 summary judgment on [her] claim that the ALJ failed to properly 11 credit the opinions of [her] treating physician.” See Ballard v. 12 Astrue, 2009 WL 3126282, at *8 (E.D.Cal. Sept. 23, 2009). 13 B. 14 Next, plaintiff challenges the ALJ’s finding that her Adverse Credibility Determination 15 “allegations” as to “the severity and extent of her pain [were] not 16 entirely credible.” Admin. R. at 29. From plaintiff’s standpoint, 17 “[t]he ALJ’s failure to set forth sufficient reasons for rejecting 18 [her] subjective complaint testimony warrants a remand for an award 19 of benefits.” Reply (doc. 35) at 15 (citation omitted). Asserting 20 that the record “is replete with inconsistencies[,]” the 21 Commissioner retorts that the ALJ properly evaluated plaintiff’s 22 credibility and the court should not second-guess the ALJ’s 23 negative credibility finding. 24 Cross-Mot. Memo. (doc. 27) at 11:1. “Pain of sufficient severity caused by medically diagnosed 25 ‘anatomical, physiological, or psychological abnormalit[y]’ 26 may serve as the basis for a finding of disability.” Cisneros v. 27 Astrue, 2008 WL 2977459, at *5 (C.D.Cal. 2008) (quoting 42 U.S.C. 28 § 423(d)(5)(A)) (other citation omitted). - 26 - Indeed, “[i]n 1 determining a claimant’s RFC, an ALJ must consider all relevant 2 evidence in the record, including, inter alia, medical records, 3 . . . , and ‘the effects of symptoms, including pain, that are 4 reasonably attributed to a medically determinable impairment.’” 5 Robbins, 466 F.3d at 883 (quoting SSR 96-8p, 1996 WL 374184, at *5) 6 (other citations omitted). “Moreover, SSR 96-8p directs that 7 ‘[c]areful consideration’ be given to any evidence about symptoms 8 ‘because subjective descriptions may indicate more severe 9 limitations or restrictions than can be shown by medical evidence 10 alone.’” Id. (quoting SSR 96-8p, 1996 WL 374184, at *5). That 11 said, “[a]n ALJ is not required to believe every allegation of 12 disabling pain or other non-exertional impairment.” Orn, 495 F.3d 13 at 635 (citation and internal quotation marks omitted). At the 14 same time though, the court recognizes that “pain is a highly 15 idiosyncratic phenomenon, varying according to the pain threshold 16 and stamina of the individual[.]” Howard v. Heckler, 782 F.2d 17 1484, 1488 (9th Cir. 1986) (citation omitted). 18 “In evaluating the credibility of a claimant’s testimony 19 regarding subjective pain,” an ALJ must “engage in a two-step 20 analysis.” Vasquez, 572 F.3d at 591 (citation omitted). In the 21 first step, the ALJ must “determine whether the claimant has 22 presented objective medical evidence of an underlying impairment 23 which could reasonably be expected to produce the pain or other 24 symptoms alleged.” 25 omitted). Id. (citation and internal quotation marks This does not require the claimant “to show that her 26 impairment could reasonably be expected to cause the severity of 27 the symptom she has alleged; she need only show that it could 28 reasonably have caused some degree of the symptom.” - 27 - Id. (internal 1 quotation marks and citations omitted). Consequently, “the ALJ may 2 not reject subjective symptom testimony . . . simply because there 3 is no showing that the impairment can reasonably produce the degree 4 of symptom alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 5 (9th Cir. 2007) (citations and internal quotation marks omitted) 6 (emphasis added by Lingenfelter Court). 7 If the claimant meets this threshold, and there is no evidence 8 of malingering, at step two “the ALJ can reject the claimant’s 9 testimony about the severity of the symptoms only if she gives 10 specific, clear and convincing reasons for the rejection.” Id. 11 (citation and internal quotation marks omitted) (emphasis added). 12 That standard, “the most demanding required in Social Security 13 cases[,]” Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 14 (9th Cir. 2002), mandates that the ALJ “cit[e] the reasons why the 15 [claimant’s] testimony is unpersuasive.” Orn, 495 F.3d at 635 16 (citation and internal quotation marks omitted). “‘General 17 findings are insufficient; rather, the ALJ must identify what 18 testimony is not credible and what evidence undermines the 19 claimant’s complaints.’” Jimenez v. Astrue, 2009 WL 2589780, at * 3 20 (C.D.Cal. Aug. 21, 2009) (quoting Reddick, 157 F.3d at 722) (other 21 citation omitted); see also Smolen, 80 F.3d at 1284 (“The ALJ must 22 state specifically which symptom testimony is not credible and what 23 facts in the record lead to that conclusion.”) 24 To illustrate, the Ninth Circuit in Vasquez held that the ALJ 25 did not satisfy the clear and convincing standard because she “made 26 no specific findings in support of her conclusion that Vasquez’s 27 claims were not credible, other than the vague allegation that they 28 were ‘not consistent with the objective medical evidence.’” - 28 - 1 Vasquez, 572 F.3d at 592 (footnote omitted). As Vasquez clearly 2 shows, an ALJ’s “credibility determination” must be based upon 3 “findings sufficiently specific to permit the court to conclude 4 that the ALJ did not arbitrarily discredit claimant’s testimony.” 5 Tommasetti, 533 F.3d at 1039 (citation and internal quotation marks 6 omitted). 7 The Ninth Circuit has identified a number of legitimate 8 factors an ALJ can employ in weighing a claimant’s credibility as 9 to symptoms. Those factors “includ[e] (1) ordinary techniques of 10 credibility evaluation, such as the claimant’s reputation for 11 lying, prior inconsistent statements concerning the symptoms, and 12 other testimony by the claimant that appears less than candid; (2) 13 unexplained or inadequately explained failure to seek treatment or 14 to follow a prescribed course of treatment; and (3) the claimant’s 15 daily activities.” 16 omitted). Id. (citations and internal quotation marks “[T]he ALJ must also consider the factors set out in SSR 17 88-13[,]” which “include the claimant’s work record and 18 observations of treating and examining physicians and other third 19 parties regarding, among other matters, the nature, onset, 20 duration, and frequency of the claimant’s symptom; precipitating 21 and aggravating factors; functional restrictions caused by the 22 symptoms; and the claimant’s daily activities.” Smolen, 80 F.3d at 23 1284 (citation and footnote omitted) (emphasis added); see 24 generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 25 88-13. 26 Before considering the legal sufficiency of the ALJ’s stated 27 reasons for discrediting plaintiff Santiago’s pain allegations, the 28 court is compelled to address the ALJ’s initial, broader finding. - 29 - 1 More particularly, the ALJ found that “the allegations of 2 [plaintiff], with regard to the severity and extent of her pain, 3 are not entirely credible.” Admin. R. at 29 (emphasis added). 4 This “phrase implies that the ALJ found some of plaintiff’s 5 statements credible or that he found some or all of her statements 6 credible to some degree.” See Stutter v. Astrue, 2009 WL 2824740, 7 at *5 (E.D.Cal. Sept. 1, 2009) (footnote omitted). Nowhere, 8 however, did the ALJ “specify any statements [by plaintiff] that he 9 found to be not credible, either in whole or in part. See id. 10 The court is thus left to guess exactly what parts of plaintiff’s 11 pain allegations the ALJ credited and what he rejected in order to 12 determine her RFC. See id. at *5 n. 3. The ALJ’s rejection of 13 plaintiff Santiago’s subjective pain allegations is certainly not 14 specific and clear, as this Circuit requires. 15 In the present case, the ALJ identified three specific 16 “facts[,]” discussed below, as justification for partially 17 discounting plaintiff’s pain allegations. Admin. R. at 29. The 18 ALJ did not, however, discuss plaintiff’s subjective complaint 19 testimony in terms of the Ninth Circuit’s two-step analysis 20 outlined earlier. Nevertheless, the court is able to infer that 21 step one is met here. That inference arises from “the ALJ’s 22 finding (at step two of the sequential evaluation process) that 23 Plaintiff suffered from a medically determinable impairment[.]” 24 See Coleman v. Astrue, 2009 WL 2424676, at * 8 (N.D.Cal. Aug. 7, 25 2009). That step two finding “leads the Court to infer that the 26 ALJ concluded that Plaintiff had presented medical evidence that 27 [s]he suffered an underlying impairment that might cause the kinds 28 of symptoms about which Plaintiff testified.” - 30 - See id.; see also 1 Cisneros, 2008 WL 2977459, at *6 (citing Smolen, 80 F.3d at 1282) 2 (“[I]mplicit in the ALJ’s acceptance of plaintiff’s allegations 3 regarding her symptoms and limitations . . . , is a determination 4 that plaintiff’s underlying impairments could reasonably produce 5 some degree of the symptom alleged by plaintiff.”) Indeed, 6 evidently the parties have come to the same conclusion as they 7 agree that the first step in analyzing plaintiff’s credibility is 8 satisfied here. See Cross-Mot. Memo. (doc. 27) at 8-9; Reply (doc. 9 33) at 9:23-28. 10 Given that implicit finding, and because he did not cite to 11 any evidence of malingering,8 the issue becomes whether the ALJ 12 provided “specific, clear and convincing reasons” for his adverse 13 credibility finding as to plaintiff Santiago. See Vasquez, 572 14 F.3d at 591 (citation and internal quotation marks omitted). 15 “‘[G]iven the nature of fibromyalgia, . . . subjective pain 16 complaints play an important role in the diagnosis and treatment of 17 the condition[.]’” See Hardt v. Astrue, 2008 WL 349003, at *4 18 (D.Ariz. Feb. 6, 2008) (quoting Rogers, 486 F.3d at 248). Thus, 19 “‘providing justification for discounting a claimant’s statements 20 [of subjective pain] is particularly important[]’” where, as here, 21 a claimant has been diagnosed with fibromyalgia. See id. (quoting 22 Rogers, 486 F.3d at 248). 23 In the present case, the ALJ offered three specific “facts” as 24 the basis for discounting plaintiff’s pain testimony: (1) lack of 25 “obvious pain behavior[;]” (2) lack of ongoing treatment for pain; 26 27 28 8 The ALJ did not make any specific finding of malingering by plaintiff; perhaps that is because there is no record evidence suggesting that she was doing so. - 31 - 1 and (3) her ability to perform certain activities of daily living. 2 Admin. R. at 29 (citation omitted). The court will address each in 3 turn to decide whether individually or collectively they meet the 4 clear and convincing standard for discrediting plaintiff’s 5 subjective pain testimony. 6 7 1. Lack of “Obvious Pain Behavior” In discrediting plaintiff’s pain allegations, the ALJ relied 8 upon Dr. Watkins “indicat[ion] during his evaluation that no obvious 9 pain behavior was noted[.]” Admin. R. at 29 (citing [Admin. R. at 10 187]). It is possible, as does the plaintiff, to construe this 11 aspect of the ALJ’s decision as discrediting her testimony “because 12 it is not substantiated affirmatively by objective medical 13 evidence.” See Robbins, 466 F.3d at 883 (citations omitted). That 14 is an impermissible basis for discrediting plaintiff’s testimony, 15 however. See id.; see also Shehan v. Astrue, 2009 WL 2524573, at *2 16 (C.D.Cal. 2009) (citing, inter alia, Lingenfelter, 504 F.3d at 17 1035-36) (“[O]nce a claimant has presented medical evidence of an 18 underlying impairment, the ALJ may not discredit the claimant’s 19 testimony regarding subjective pain and other symptoms merely 20 because the symptoms, as opposed to the impairments, are unsupported 21 by objective medical evidence.”) That is especially so where, as 22 here, the ALJ “effectively requir[ed] objective evidence for a 23 disease that eludes such measurement[]” – namely, fibromyalgia. See 24 Benecke, 379 F.3d at 594 (citation and internal quotation marks 25 omitted). Indeed, the Ninth Circuit in Benecke held that the ALJ 26 erred by imposing that requirement on a claimant with fibromyalgia, 27 pointedly noting that “[s]heer disbelief is no substitute for 28 substantial evidence.” Id. - 32 - 1 There is another equally compelling reason why the ALJ’s cite 2 to Dr. Watkin’s isolated comment is not an adequate basis for 3 discrediting plaintiff’s credibility. 4 psychology. 5 doctor. Dr. Watkins has a Ph.D. in PSOF (doc. 17) at 9, ¶ 17:13-14. He is not a medical Consistent with his area of specialization, and as his 6 report and follow-up documentation for the state of Arizona show, 7 Dr. Watkins was evaluating “[p]laintiff’s mental functioning[,]” as 8 opposed to her physical symptoms. See PSOF (doc. 17) at 9, ¶ 27 9 (emphasis added); and DSOF (doc. 26) at 8, ¶ 20; and AR at 187-196. 10 Understandably then, Dr. Watkins did not conduct a physical 11 examination of plaintiff. Thus, Dr. Watkin’s passing observation as 12 to plaintiff’s lack of “obvious pain behavior” at his one-time 13 evaluation of her “mental functioning” is not a specific, clear and 14 convincing reason for rejecting plaintiff’s subjective complaints of 15 pain. 16 17 2. Pain Treatment The second reason the ALJ proffered for discounting plaintiff’s 18 pain testimony is that she was “not currently involved in any 19 ongoing modality for chronic pain, such as epidural injections, 20 biofeedback, acupuncture, or the use of a TENS [transcutaneous 21 electrical nerve stimulation] unit.” Admin. R. at 29. In a similar 22 vein, the ALJ mentioned plaintiff’s “self-discharge[] from physical 23 therapy after five visits[.]” Id. (citation omitted). From the 24 ALJ’s perspective, “if [plaintiff] had pain at the level alleged, 25 she would be seeking some method of pain relief.”9 Id. The ALJ 26 27 28 9 At this point, the ALJ did not specify the level of pain which plaintiff allegedly had. Evidently the ALJ was referring to his earlier summation of plaintiff’s testimony where he noted that plaintiff “stated that she has constant pain in her whole body, including pain throughout her spine.” Admin. R. - 33 - 1 made this last observation despite his awareness that plaintiff was 2 “taking prescribed pain medications, and “ha[d] undergone some 3 manipulative therapy[.]” Id. Thus, as the court construes the 4 ALJ’s decision, he rejected plaintiff’s pain testimony because in 5 his view her treatment was conservative10, consisting primarily of 6 pain medication. 7 Dr. Doust, with The Pain Center of Arizona, recounts that 8 plaintiff “tried numerous medications to address her fibromyalgia 9 including Vicodin, Percocet, Robaxin, tramadol, Flexeril, Neurontin, 10 numerous non steroidal anti[-]inflammatory drugs and other muscle 11 relaxants with little to no change in her pain symptoms.” 12 368. Additionally, Dr. Doust prescribed OxyContin. Id. at Id. at 369. 13 The record corroborates plaintiff’s ongoing management of her pain 14 with medication, as Dr. Doust noted. 15 278; 281; 366; and 368-69. See, e.g., id.. at 253; 276; The record also shows that to alleviate 16 her pain plaintiff “tried physical therapy and osteopathic 17 manipulation which helped temporarily.” Id. at 368; see also id. at 18 374-375. 19 Despite the foregoing, when reporting to Dr. Doust, plaintiff 20 uniformly rated her pain level as ten on a scale of one to ten. 21 at 340; 366; 370; and 373. Id. During her visits to Dr. Doust plaintiff 22 further reported that her pain had “been occurring more 23 frequently[,]” with “[t]ypical episodes . . . longer than before.” 24 25 26 27 28 at 25. 10 “The Ninth Circuit has characterized ‘conservative treatment’ as, for example, ‘treat[ment] with an over-the-counter pain medication[,]’ Parra v. Astrue, 481 F.3d 472, 751 (9th Cir. 2007), or a physician’s failure ‘to prescribe . . . any serious medical treatment for [a claimant’s] supposedly excruciating pain.’” Huerta v. Astrue, 2009 WL 2241797, at *4 n.2 (C.D.Cal. July 22, 2009) (quoting Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999)). - 34 - 1 Id. 370 and 373. Viewing the record as a whole shows that plaintiff 2 was in continuous treatment for her pain for at least two years with 3 her primary treating physician. See id. at 260-305. During that 4 time, on several occasions plaintiff also consulted a rheumatologist 5 and a pain specialist about her pain. 6 342; and at 366-375. Id. at 240-259; and at 339- Plaintiff’s pain symptoms were never 7 completely alleviated however, and, at best, she would have 8 temporary moments with some reprieve from pain. As Dr. Doust 9 described it, plaintiff reported that her “pain is constant, 10 increasing with activity and improving somewhat with rest and her 11 current medications” which included OxyContin and Percocet. Id. at 12 3642 and 369 13 “Failure to seek relief from pain is probative of credibility 14 because ‘a person’s normal reaction is to seek relief from pain, and 15 because modern medicine is often successful in providing some 16 relief.’” O’Neil, 2009 WL 1444437, at *8 (quoting Orn, 495 F.3d at 17 638) (other citation omitted). Hence, when a “claimant complains 18 about disabling pain but fails to seek treatment, or fails to follow 19 prescribed treatment for the pain, an ALJ may use such failure as a 20 basis for finding the complaint unjustified or exaggerated.” 21 495 F.3d at 638 (citation omitted). Orn, Additionally, “a conservative 22 course of treatment can undermine allegations of debilitating pain,” 23 but that “fact is not a proper basis for rejecting the claimant’s 24 credibility where the claimant has a good reason for not seeking 25 more aggressive treatment.” Carmickle, 533 F.3d at 1162 (citation 26 omitted). 27 Plaintiff claims that the ALJ improperly discredited her pain 28 testimony because she was not receiving pain treatment with any of - 35 - 1 the modalities which the ALJ identified. The court agrees although 2 for different reasons than plaintiff advances.11 3 When plaintiff’s treatment is assessed in the context of 4 fibromyalgia, which the ALJ did not do, it is apparent that although 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11 Plaintiff asserts that the ALJ’s finding as to her lack of current pain treatment “is not supported in law or fact.” Mot. (doc. 18) at 12:4. Somewhat ironically, the same could be said of plaintiff’s arguments on that point. The parts of the administrative record to which plaintiff cites do not support the broad assertions in her motion. To illustrate, plaintiff explicitly states that on the hearing date, April 10, 2006, she was “in active treatment with the Pain Center of AZ and was receiving narcotic pain medications of Oxycontin and Percocet[.]” Id. at 12:9-11 (citing AR at 366) (emphasis added). The cited page and, indeed, the other Pain Center records, belie this assertion. Page 366 relates solely to plaintiff’s December 5, 2005, visit to the Pain Center - a visit which preceded the hearing date by four months. See Admin. R. at 366. Thus, despite plaintiff’s urging, it cannot be said, based upon page 366 of the record, that at the time of the hearing, April 10, 2006, she was in “active treatment” at the Pain Center of Arizona. In terms of a time frame, based upon the Pain Center documentation in the record, the most that can be said is that the last of plaintiff’s four office visits was February 3, 2006 – two months prior to her hearing. See id. at 373-375. Plaintiff mischaracterizes the record in other ways, but the foregoing sufficiently makes the point. Besides factual mischaracterizations, plaintiff’s reliance upon Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996), is misplaced. Citing to Sarchet, plaintiff claims that because “[t]he modalities referenced by the ALJ (e.g., epidural injections) are not widely prescribed for Fibromyalgia[,] . . . , the absence of such treatment is not relevant[.]” Mot. (doc. 18) at 12:12-14. There is no mention in Sarchet, however, of any of “the modalities” referenced by the ALJ, let alone support for the view that such modalities “are not widely prescribed for Fibromyalgia[.]” See id. The foregoing demonstrates the lack of relevant legal support for plaintiff’s position. Additionally, plaintiff improperly attempts to offer post hoc rationalization for the treatment she underwent, by questioning the efficacy of a TENS unit for treating fibromyalgia - one of the ALJ’s suggested treatment modalities. To support this argument, plaintiff cites to a Mayo Clinic website. Reply (doc. 35) at 11-12 (citing http://www.mayoclinic.com/health/tens/AN01946). She also cites to that website to show that “medication,” which plaintiff did receive, “is the most widely at 11 (citing used treatment for Fibromyalgia.” Id. http://www.mayoclinic.com/health/Fibromyalgia/DS00079/DSECTION=treatments-anddrugs). In accordance with the Commissioner’s Rule 96-7p, the foregoing may be “other information . . . , that may explain” plaintiff’s “failure to seek medical treatment[]” of the type which the ALJ mentioned. See SSR 96-7p, 1996 WL 374186, at *7. Significantly, the court cannot resort to that “other information” from the Mayo Clinic website, however, because it is not “in the case record[.]” See id. These websites, upon which plaintiff relies for the first time in her Reply, are an impermissible expansion of the record which the court may not consider. See Liaga v. Astrue, 2009 WL 2355762, at *1 (C.D.Cal. July 20, 2009) (citing, inter alia, 42 U.S.C. § 405(g)) (“[T]he court lacks jurisdiction to reverse the Commissioner’s decision based on evidence that is not part of the administrative record.”); see also Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (“Section 405(g) generally precludes consideration on review of evidence outside the record before the Commissioner during the administrative proceedings.”) 28 - 36 - 1 she was not undergoing any of the treatments listed by the ALJ, that 2 is not a valid reason for discounting her pain allegations. As 3 noted earlier, as the court reads the ALJ’s decision, he rejected 4 plaintiff’s subject pain complaint in part because she followed a 5 conservative treatment approach for her fibromyalgia. That it is 6 not a clear and convincing reason for discrediting plaintiff’s pain 7 allegations. 8 In Cota, as here, “[t]he ALJ characterized Plaintiff’s 9 treatment as conservative, consisting of only medications, and as 10 inconsistent with the type of treatment one would expect for a 11 totally disabled individual.” Cota, 2009 WL 900315, at *8. 12 Explaining that “the adequacy of the ALJ’s reasoning must be 13 assessed in the context of . . . fibromyalgia[,]” the court soundly 14 reasoned that “given the nature of fibromyalgia and the absence of 15 any cure for the disease, it is difficult to imagine what treatment, 16 if any, that is less conservative and that Plaintiff neglected to 17 seek or undertake.” Id. at *9. The court thus found that the 18 “ALJ’s reasoning in th[at] regard was not clear and convincing.” 19 Id. 20 The ALJ in Olguin v. Astrue, 2009 WL 4641728 (C.D.Cal. Dec. 2, 21 2009), similarly “question[ed] Plaintiff’s credibility because she 22 never received more than conservative treatment and no treating or 23 examining source recommended surgery.” Id. at *11. The court found 24 those to be “legally inadequate reasons to find Plaintiff not 25 credible[]” with respect to her fibromyalgia induced pain. Id. As 26 did the Cota court, in Olguin the court emphasized the lack of a 27 “cure or known surgical treatment[]” for fibromyalgia. Id. The 28 court also found persuasive the fact that “[t]reating sources . . . - 37 - 1 made clear that conservative treatment had not been effective.” 2 (citation omitted). Id. Succinctly put, the court found that it was 3 “not Plaintiff’s fault [that] there is no accepted, aggressive 4 treatment protocol that could be expected to relieve her pain.” Id. 5 Adopting the reasoning of the Cota and Olguin courts, this court, 6 too, finds that on the record as presently constituted plaintiff’s 7 “conservative” treatment approach, primarily in the form of pain 8 medications, is not a sufficient reason to reject her pain 9 allegations. 10 There is another flaw in the ALJ’s assessment of plaintiff’s 11 credibility vis-a-vis her medical treatments. Aside from 12 injections, the court is not aware of any record evidence, nor did 13 the ALJ cite to any, showing that the other treatments which he 14 listed, i.e., biofeedback, acupuncture or a TENS unit, were ever 15 suggested, must less prescribed, for plaintiff. 16 the present case is similar to Werle. In that respect, There, the court persuasively 17 explained that “[t]o the extent that the ALJ discounted Plaintiff’s 18 credibility because a TENS unit was not prescribed, there is no 19 medical evidence in the record suggesting that such treatment would 20 alleviate Plaintiff’s symptoms and/or was appropriate treatment in 21 Plaintiff’s case.” Werle, 633 F.Supp.2d at 888-89. Thus, the Werle 22 court held that it was “improper for the ALJ to discount Plaintiff’s 23 credibility because [her] treating physicians did not provide some 24 other treatment.” 25 Id. at 889. For the most part, the same is true here. Apart from 26 injections, there is no record evidence suggesting that the other 27 treatment modalities the ALJ suggested would alleviate plaintiff’s 28 pain or was otherwise appropriate treatment for her. - 38 - This reasoning 1 becomes even more compelling under the particular facts of this case 2 because, as explained above, to date fibromyalgia has alluded the 3 medical community both in terms of a cause and a cure. See Benecke, 4 379 F.3d at 590. 5 Turning briefly to injections as a treatment method, at her 6 first two appointments with Dr. Doust he did “discuss[]” with 7 plaintiff “alternative treatments including . . . trigger point 8 injection-based therapy.12” 9 added). Admin. R. at 342 and 369 (footnote Dr. Doust noted that plaintiff will “think about” that 10 “option[],” among others. Id. at 342 and 369. Medical records from 11 plaintiff’s two subsequent Pain Center visits do not again mention 12 the possibility of any kind of injection therapy, however. Perhaps 13 that is because on a follow-up Pain Center visit Dr. Doust “noted 14 report of moderate stability of [plaintiff’s] pain symptomatology[]” 15 on her “current[] . . . analgesic regimen for . . . pain[.]” Id. at 16 372. The fact that plaintiff was contemplating other treatment 17 options does not undermine her credibility, particularly where her 18 treating pain specialist did not again broach the subject of any 19 kind of injection therapy. On this record, the court is left to 20 conclude that the ALJ did not meet the demanding specific clear and 21 convincing standard when he discredited plaintiff’s pain allegations 22 because she did not employ certain treatment modalities such as 23 biofeedback and acupuncture. 24 Plaintiff also takes issue with the ALJ’s finding that she 25 “self-discharged from physical therapy after five visits” as a basis 26 27 28 12 For the sake of argument, the court is equating epidural and trigger point injections, even though there may well be a medically significant distinction. - 39 - 1 for discrediting her pain testimony. 2 [Admin. R. at 343]). See Admin. R. at 29 (citing Plaintiff contends that that “self-discharge” 3 was “medical[ly] justifi[ed][,]” and thus does not support the ALJ’s 4 adverse credibility finding. 5 omitted). Reply (doc. 35) at 12:4-5 (citations More specifically, plaintiff explains that she was “five 6 months pregnant[]” at the time, and “was concerned that physical 7 therapy would be harmful to her baby.” Mot. (doc. 18) at 12:25-26. 8 Plaintiff also supposedly “reported this to the physical therapist 9 and followed up with her primary care physician, who prescribed 10 narcotic pain medications[.]” Id. at 12:27-13:1 (citing Admin. R. at 11 344). 12 Although somewhat persuasive on its face, close examination of 13 the record shows the weaknesses in plaintiff’s position. First, the 14 “discharge summary” to which the ALJ cites does not give any 15 indication as to why, when she was contacted on April 20, 2004, 16 plaintiff advised that she was “not returning” to physical therapy, 17 much less mention her pregnancy and her supposed concerns about harm 18 to the baby. See Admin. R. at 343. Therefore if, as plaintiff 19 contends, she did not return to physical therapy because she was 20 pregnant, the ALJ would have no way of ascertaining that fact from 21 the particular discharge summary. Indeed, none of plaintiff’s 22 physical therapy records from NovaCare Rehabilitation offer any 23 explanation as to why she did not return for more physical therapy. 24 See id. at 344-365. Second, although the parts of the record to 25 which plaintiff cites confirm that she was roughly five months 26 pregnant in April 2004, when she “self-discharged” from physical 27 therapy, see id. at 343, the cited records do not explain the reason 28 for her discharge. See id. at 151-153. - 40 - Perhaps that is because 1 those records are from an unrelated July 2004 emergency room 2 hospitalization. Id. at 151. Thus, in contrast to plaintiff’s 3 approach to treatment, her self-discharge from physical therapy 4 after five visits is a specific, clear and convincing reason for 5 discrediting her pain allegations. 6 7 3. Activities of Daily Living “‘The Social Security Act does not require that claimants be 8 utterly incapacitated to be eligible for benefits and many home 9 activities are not easily transferrable to what may be the more 10 grueling environment of the workplace.’” O’Neil, 2009 WL 1444437, at 11 * 5 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 12 Accordingly, the Ninth Circuit has “repeatedly asserted that the 13 mere fact that a plaintiff has carried on certain daily activities, 14 such as grocery shopping, driving a car, or limited walking for 15 exercise, does not in any way detract from her credibility as to her 16 overall disability.” 17 Cir. 2001). Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Put differently, “an ALJ may not reject a claimant’s 18 testimony simply because she engages in minimal daily activities 19 despite her impairments.” 20 (citations omitted). Jimenez, 2009 WL 2589780, at *4 That is so because, as the Ninth Circuit has 21 so picturesquely stated, “‘[d]isability does not mean that a 22 claimant must vegetate in a dark room excluded from all forms of 23 human and social activity.’” Bui v. Astrue, 2009 WL 2629491, at *5 24 (D.Or. Aug. 25, 2009) (quoting Cooper v. Bowen, 815 F.2d 556, 561 25 (9th Cir. 1987)) (other citation omitted). 26 Rather, “[i]t is only where the level of activity is 27 inconsistent with a claimed limitation that the activity has any 28 bearing on credibility.” Id. (citing Reddick, 157 F.3d at 722). - 41 - 1 Daily activities, therefore “may be grounds for an adverse 2 credibility finding if a claimant is able to spend a substantial 3 part of h[er] day engaged in pursuits involving the performance of 4 physical functions that are transferable to a work setting.” Orn, 5 495 F.3d at 639 (citations and internal quotation marks omitted) 6 (emphasis omitted by Orn Court). “[T]o conclude that a claimant’s 7 daily activities warrant an adverse credibility determination[,]” 8 however, “[t]he ALJ must make specific findings relating to [the 9 daily] activities and their transferability[.]” Id. (citation and 10 internal quotation marks omitted) (emphasis added). 11 The ALJ did neither here. Plaintiff’s “ability to take care of 12 her small children suggest[ed]” to the ALJ that she “is not as 13 disabled by her pain as she . . . allege[s][.]” 14 (emphasis added). Admin. R. at 29 The ALJ did not elaborate at all. Instead, he 15 merely noted that plaintiff “reported to Dr. Watkins that she takes 16 care of her children and does light housework[.]” Id. (citing [AR at 17 189]). Plainly, the ALJ’s findings regarding plaintiff’s daily 18 activities were minimal and his transferability analysis non19 existent. Thus, the court agrees with plaintiff that the foregoing 20 is not sufficient justification for the ALJ’s adverse credibility 21 finding. 22 In discrediting plaintiff’s pain allegations based upon her 23 ability to care for her small children, the ALJ mischaracterized the 24 record. To support that view, the ALJ cited to page three of Dr. 25 Watkins’ evaluation. Admin. R. at 29 (citing [Admin. R. at 189]). 26 Dr. Watkins did note that plaintiff “does the childcare[,]” but the 27 ALJ disregarded the doctor’s further notation that plaintiff’s 28 “boyfriend and her older children help[] with the housework.” - 42 - Id. 1 at 189-90. That additional notation is consistent with plaintiff’s 2 description of her daily activities in her “Function Report[,]” 3 which the ALJ also disregarded. In that Report, when asked inter 4 alia, whether she has “help” in caring for “other people[,]” 5 plaintiff wrote that “[s]ometimes [her] my older kids help out with 6 housework (chores) and they also help w[ith] younger sibilings 7 [sic]” in terms of homework and babysitting. Id. at 108. 8 Plaintiff’s hearing testimony corroborates this Report in that she 9 testified that her son, who was 19 years old at the time and was not 10 in school, “help[ed] [her] at home[,]” such as with meal 11 preparation. Id. at 417; at 111. Thus, the ALJ’s apparent 12 assumption that plaintiff takes care of her children and does light 13 housework with no assistance, is not based upon substantial evidence 14 in the record. Indeed, as just shown, the record evidence is to the 15 contrary. 16 Even if the record did support the ALJ’s perception that 17 plaintiff cared for her children and did light housework on her own, 18 that would not be “inherently inconsistent with her complaints of 19 pain.” See Jimenez, 2009 WL 2589780, at *4 (citation omitted). The 20 Ninth Circuit has repeatedly recognized that “an ALJ may not reject 21 a claimant’s testimony simply because she engages in minimal daily 22 activities despite her impairments.” Id. (citations omitted). 23 Thus, as in Jimenez, “[p]laintiff’s ability to perform some 24 household chores” and care for her children with assistance is not a 25 sufficient basis for rejecting her allegations of pain. 26 See id. Further, rather than “consider[ing] the totality of the 27 evidence bearing on [plaintiff’s] ability to perform” housework and 28 care for her children, as the ALJ was required to do, see O’Neil, - 43 - 1 2009 WL 1444437, at *6 (citing Redick, 157 F.3d at 722), the ALJ 2 selectively read from the record and relied upon one isolated 3 partial comment from the State’s examining psychologist who saw the 4 plaintiff once. The ALJ did not take into account, for example, 5 record evidence as to “how pain affected [plaintiff’s] abilities to” 6 care for her children and do housework. See id. The ALJ 7 conveniently overlooked plaintiff’s “Function Report” explaining 8 that her ability to care for her children and to do housework 9 depends upon her level of pain. If plaintiff “feels up to[] it[,]” 10 she “do[es] [her] housework[.]” Admin. R. at 107. Otherwise, she 11 “wait[s] for help” from the “oldest children” when they return from 12 school. 13 Id. Reviewing the record as a whole demonstrates that plaintiff’s 14 daily activities were relatively limited and carried out with a fair 15 amount of difficulty due to pain. Thus, the totality of the 16 evidence as to plaintiff’s activity level, does “not seem to be 17 enough to conclude that [she] could work a full time job,” or that 18 her pain allegations are false. See Valdez v. Astrue, 2008 WL 19 4814913, at *4 (C.D.Cal. Oct. 30, 2008); see also Jimenez, 2009 WL 20 2589780, at *4 (“Plaintiff’s ability to perform some household 21 chores was not sufficient to support . . . rejecti[ng] . . . 22 Plaintiff’s pain testimony.”) 23 Not only that, but the ALJ did not, as he must, “evaluate the 24 claimant’s ability to work on a sustained basis.” See Cota, 2009 WL 25 900315, at *8 n.5 (citations and internal quotation marks omitted) 26 (emphasis added). “The process involves an assessment of physical 27 abilities and then of the nature and extent of physical limitations 28 with respect to the ability to engage in work activity on a regular - 44 - 1 and continuing basis.” Id. (citing 20 C.F.R. § 404.154(b)). “A 2 regular and continuing basis means eight hours a day, five days a 3 week, or an equivalent work schedule.” 4 1, 2). Id. (citing S.S.R. 96-8p at The ALJ did mention that plaintiff “naps for one to two 5 hours twice a day[.]” Admin. R. at 25. Significantly, though, the 6 ALJ did not consider how plaintiff’s fatigue would impact her 7 ability to perform in “the more grueling environment of the 8 workplace.” See Fair, 885 F.2d at 603. It is difficult, if not 9 impossible to conceive of how napping for between one and two hours 10 a day, twice daily, is compatible with working on a “sustained 11 basis.” See Cota, 2009 WL 900315, at *8 n.5 (citing, inter alia, 20 12 C.F.R. § 404.1512(a)) (other citations and internal quotation marks 13 omitted). 14 Perhaps the most critical defect, however, is the ALJ’s failure 15 to consider whether plaintiff’s daily activities “meet the threshold 16 for transferable work skills[.]” See Orn, 495 F.3d at 693 (citation 17 omitted). Conspicuously absent from the ALJ’s decision is any 18 mention as to how plaintiff’s limited daily activities, such as 19 childcare and light housework, are transferrable to a work setting. 20 Admittedly the record shows that plaintiff could do more than 21 plaintiff Orn, who could only read, watch television and color in 22 coloring books. But here, as in Orn, the ALJ did not make “specific 23 findings relating to [the daily] activities and their 24 transferability[.]” See Orn, 495 F.3d at 639 (citation and internal 25 quotation marks omitted). The ALJ did not explain how plaintiff’s 26 relatively limited daily activities “established that [she] could 27 work.” See Hamblin v. Astrue, 2009 WL 113858, at *5 (C.D.Cal. Jan. 28 14, 2009). This court may not “guess[;] [t]he ALJ must explain with - 45 - 1 particularity which activity he is referring to and how it is 2 inconsistent with Plaintiff’s claims of severe pain.” 3 (emphasis added). See id. Without that explanation, the court has no choice 4 but to reject the ALJ’s reliance upon plaintiff’s daily activities 5 as a basis for negating her pain testimony. The ALJ’s decision to 6 discredit plaintiff based upon her limited daily activities was not 7 sufficiently specific nor sufficiently clear and convincing. 8 In sum, three of the reasons for the ALJ’s adverse 9 credibility finding do not satisfy the demanding specific, clear and 10 convincing standard. One of the ALJ’s articulated reasons does 11 satisfy that standard though – plaintiff’s self-discharge from 12 physical therapy. The court’s focus thus necessarily shifts to 13 whether the ALJ’s negative credibility finding can stand based upon 14 that single legally sufficient reason. Put differently, was it 15 harmless error for the ALJ to rely upon three legally improper 16 reasons to support his adverse credibility finding. See Carmickle 17 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) 18 (engaging in harmless error analysis where “two of the ALJ’s [four] 19 reasons supporting his adverse credibility finding [were] invalid”). 20 An ALJ’s err is harmless “[s]o long as there remains 21 substantial evidence supporting the ALJ’s conclusions on credibility 22 and the error does not negate the validity of the ALJ’s ultimate 23 [credibility] conclusion[.]” Id. (citations and internal quotation 24 marks omitted). “[T]he relevant inquiry . . . is not whether the 25 AlJ would have made a different decision absent any error,” but 26 “whether the ALJ’s decision remains legally valid, despite such 27 error.” Id. The ALJ’s adverse credibility finding here does not 28 satisfy that standard. The only valid reason supporting that - 46 - 1 finding is plaintiff’s self-discharge from physical therapy after 2 five appointments. That reason alone does not rise to the level of 3 substantial evidence to support the ALJ’s finding that plaintiff’s 4 allegations “with regard to the severity and extent of her pain[] 5 are not entirely credible.” See Admin. R. at 29. Thus at the end 6 of the day, the court is left to conclude that the ALJ did not 7 provide the requisite specific, clear and convincing reasons for 8 rejecting plaintiff’s pain allegations. 9 VI. 10 Remand At this juncture, the court has found two fundamental errors in 11 the ALJ’s decision. The first is his failure to properly weigh and 12 evaluate the medical opinion evidence. The most glaring deficiency 13 is the ALJ’s failure to provide specific and legitimate reasons 14 supported by substantial evidence in the record for rejecting the 15 opinions of plaintiff’s primary treating physician, Dr. 16 Christianson. The second error is that the ALJ’s reasons for 17 discrediting plaintiff’s pain allegations were not specific, clear 18 and convincing. 19 In light of these errors, the issue becomes the scope and 20 nature of the remand here. In turn, that remand issue implicates 21 what the Ninth Circuit refers to as the “credit-as-true” rule. That 22 rule, compels the Commissioner to “accept, as a matter of law, a 23 claimant’s subjective pain testimony if the ALJ fails to articulate 24 sufficient reasons for refusing to credit it.” 25 593 (citation omitted). Vasquez, 572 F.3d at The credit-as-true rule has the same effect 26 when an ALJ fails to properly evaluate medical opinion evidence. 27 See Lester, 81 F.3d at 834 (citations and internal quotation marks 28 omitted) (emphasis added) (“Where the Commissioner fails to provide - 47 - 1 adequate reasons for rejecting the opinion of a treating or 2 examining physician, we credit that opinion as a matter of law.”) 3 In the present case, plaintiff contends that the court should 4 apply the credit-as-true rule to both her subjective pain 5 allegations and to the opinions of her primary treating physician. 6 When that is done, plaintiff Santiago asserts that remand for an 7 immediate award of benefits is warranted. Wholly disregarding the 8 credit-as-true rule, the Commissioner is taking the position that if 9 the court finds that the ALJ erred in any respect, remand for 10 further proceedings – not for payment of benefits – is the proper 11 remedy. 12 Generally, the Ninth Circuit “credit[s] evidence and remand[s] 13 for an award of benefits where (1) the ALJ has failed to provide 14 legally sufficient reasons for rejecting such evidence, (2) there 15 are no outstanding issues that must be resolved before a 16 determination of disability can be made, and (3) it is clear from 17 the record that the ALJ would be required to find the claimant 18 disabled were such evidence credited.” Smolen, 80 F.3d at 1292. 19 Despite the strong suggestion in Lester and other cases that that 20 application of the credit-as-true rule is mandatory, in Connett v. 21 Barnhart, 340 F.3d 871 (9th Cir. 2003), the Court concluded that 22 “[i]nstead of being a mandatory rule, [a court] ha[s] some 23 flexibility in applying the ‘credit as true’ theory[.]” Id. at 876. 24 Adopting that flexible approach, in Connett the Ninth Circuit held 25 that remand for further proceeding was appropriate because there 26 were “insufficient findings as to whether [the claimant’s] testimony 27 should be credited as true.” Id. “These and other Ninth Circuit 28 decisions have created what the dissent in Vasquez described as a - 48 - 1 “morass” in this Circuit's “crediting-as-true jurisprudence.” 2 Crismore v. Astrue, 2009 WL 3712593, at *7 (quoting Vasquez, 572 3 F.3d [at 605]). 4 The Vasquez Court avoided resolving the “split in authority” 5 which has “developed [in this Circuit] over whether the [credit-as6 true] rule is mandatory or discretionary.” 7 (citing cases). Vasquez, 572 F.3d at 593 The Vasquez Court was able to sidestep that issue 8 because there were “outstanding issues that [had to] be resolved 9 before a proper disability determination c[ould] be made.” 10 593 (footnote and citations omitted). Id. at Nonetheless, on remand the 11 Court “instructed” the ALJ to “credit[] Vasquez’s symptom pain 12 testimony and tak[e] into account the evidence of her mental 13 impairment[.]” Id. at 598. After that, the Ninth Circuit further 14 instructed the ALJ to “make a determination as to Vasquez’s residual 15 functioning capacity and [her] entitl[ement] to benefits in the 16 first instance.” 17 Id. The court has scrutinized the entire record in this case; read 18 and reread the ALJ’s opinion; and carefully considered the parties’ 19 arguments, even when they missed the mark due to lack of legal 20 support or mischaracterization of the record. 21 mindful of the credit-as-true rule. The court is also After careful consideration, 22 the court finds that it is necessary to remand this matter for 23 further proceedings. On remand, however, the ALJ will not be 24 required to credit-as-true plaintiff’s pain allegations or the 25 opinions of her primary treating physician. 26 Several reasons compel this result. In the first place, it is 27 not “clear from the record that the ALJ would be required to find 28 [plaintiff] disabled were such evidence credited.” - 49 - See Smolen, 80 1 F.3d at 1292 (citation omitted). Moreover, insofar as the medical 2 evidence is concerned, “[t]he ALJ is in a better position than this 3 Court to evaluate” that evidence in the first instance. 4 Crismore, 2009 WL 3712593, at *7. See “As the Ninth Circuit explained 5 when reaching a similar assessment in McAllister, “[t]here may be 6 evidence in the record to which the [Commissioner] can point to 7 provide the requisite specific and legitimate [or clear and 8 convincing] reasons for disregarding the testimony of [the 9 claimant's] treating physician. Then again, there may not be. In 10 any event, the [Commissioner] is in a better position than this 11 court to perform this task.” Id. (quoting McAllister v. Sullivan, 12 888 F.2d 599, 603 (9th Cir. 1989)) and citing Anderson v. Barnhart, 13 2004 WL 725373, *10 (N.D.Cal.2004) (remanding for reconsideration 14 where “the ALJ failed to adequately explain his reasons for 15 rejecting [treating physician's] conclusions as to work restrictions 16 and [Claimant's] testimony with respect to the extent and effect of 17 his pain....”); Perry v. Astrue, 2009 WL 435123 (S.D.Cal.2009) 18 (remanding for further proceedings where the ALJ failed to cite 19 sufficient reasons for rejecting the treating physician's opinion)). 20 Similarly, on remand the ALJ must adequately explain his 21 “treatment of” the opinions of Drs. Christianson and Cunningham, and 22 “where the record is unclear, [or incomplete] gather additional 23 information.” See Belmont, 2009 WL 2591347, at *20; see also 24 Benecke, 379 F.3d at 593 (“Remand for further administrative 25 proceedings is appropriate if enhancement of the record would be 26 useful.”) “Remand is [also] appropriate to allow the ALJ the 27 opportunity to discuss the medical evidence regarding Plaintiff’s 28 fibromyalgia in accordance with the proper legal standards.” - 50 - See 1 Ostalaza, 2009 WL 3170089, at *6. 2 In addition, as thoroughly discussed above, only one of the 3 ALJ’s stated reasons for discrediting plaintiff’s pain allegations 4 is legally sufficient. However, from the court’s review of the 5 record it is “unable to ascertain whether the ALJ would still find 6 Plaintiff not credible without relying on the improper reasons 7 addressed” herein. See Green v. Astrue, 2009 WL 310284, at *6 8 (D.Ariz. Feb. 6, 2009). 9 In conclusion, the court finds that the ALJ did not properly 10 weigh and evaluate. And because it is unclear as to whether an 11 award of benefits should result after the ALJ properly considers the 12 evidence and develops the record as necessary, the court will remand 13 this matter for further administrative proceedings and a new hearing 14 decision. Because the court is unable to make a disability 15 determination without further proceedings, it will not decide 16 “whether the remaining issues raised by Plaintiff would 17 independently require reversal.” See Shehan, 2009 WL 2524573, at *4 18 n. 2 (citing Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 19 2003) (where there are outstanding issues that must be resolved 20 before a determination of disability can be made, and it is not 21 clear from the record that the ALJ would be required to find the 22 claimant disabled if all the evidence were properly evaluated, 23 remand is appropriate).) “The court recommends, however, that all 24 of Plaintiff’s arguments be considered when determining the merits 25 of her case on remand[,]” especially her contention that the ALJ 26 “fail[ed] to include [her] significant mental limitations” in his 27 RFC Assessment. 28 See Reply (doc. 33) at 15 (emphasis omitted). For the reasons set forth herein, the court hereby ORDERS that: - 51 - 1 2 (1) the motion for summary judgment by plaintiff Jennifer L. Santiago (16) is GRANTED with respect to error in the ALJ’s disability determination, but DENIED to the extent that she seeks a remand for an award of benefits; 3 4 (2) the cross-motion for summary judgment by defendant Michael J. Astrue, Commissioner of Social Security (doc. 24) is DENIED; 5 6 7 8 (3) the defendant Commissioner’s decision denying benefits is VACATED; and (4) this matter is remanded pursuant to 42 U.S.C. § 405(g) to the defendant Commissioner for further proceedings consistent with this Order. 9 DATED this 9th day of February, 2010. 10 11 12 13 14 15 16 17 18 19 Copies to counsel of record 20 21 22 23 24 25 26 27 28 - 52 -

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