Marina E Ceja v. Carolyn W Colvin, No. 2:2012cv03513 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARINA E. CEJA, ) NO. CV 12-3513-MAN ) Plaintiff, ) ) MEMORANDUM OPINION v. ) ) AND ORDER CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) _________________________________) 17 18 19 20 21 22 23 24 25 Plaintiff filed a Complaint on April 23, 2012, seeking review of a decision by the Social Security Commissioner ( Commissioner ) that as of June 8, 2007, plaintiff ceased to be eligible for a period of disability ( POD ) and disability insurance benefits ( DIB ). On November 5, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on January 3, 2013, in which: plaintiff seeks an order reversing the Commissioner s decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. 26 27 28 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On December 17, 2001, plaintiff filed an application for a POD and DIB alleging an inability 4 to work since April 4, 2001. (Administrative Record ( A.R. ) 38.) On January 24, 2002, the Social 5 Security Administration ( SSA ) determined that plaintiff was disabled as of April 4, 2001, due to 6 anxiety related disorders that met the criteria of Medical Listing 12.06 A and B.2 (A.R. 16, 38.) 7 Plaintiff has past relevant work experience as a manager[] of food services and fast food 8 services. (A.R. 16, 85, 94.) 9 Listing 12.06 states in relevant part: 10 2 11 Anxiety Related Disorders: In these disorders anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms; for example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in both A and C are satisfied. A. Medically documented findings of at least one of the following: 1. Generalized persistent anxiety accompanied by three out of four of the following signs or symptoms: a. Motor tension; or b. Autonomic hyperactivity; or c. Apprehensive expectation; or d. Vigilance and scanning; or 2. A persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation; or 3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, terror and sense of impending doom occurring on the average of at least once a week; or 4. Recurrent obsessions or compulsions which are a source of marked distress; or 5. Recurrent and intrusive recollections of a traumatic experience, which are a source of marked distress; AND B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 The SSA conducted a continuing disability review3 of plaintiff s case and, on June 12, 2007, 2 found that plaintiff had medically improved as of June 2007. The SSA determined that her 3 benefits should cease on the last day of August 2007. 4 reconsideration of the SSA s determination. (A.R. 45.) (A.R. 41-44.) Plaintiff requested 5 6 On August 5, 2008, a Disability Hearing Officer ( DHO ) also concluded that plaintiff s 7 condition had improved since the comparison point decision (CPD) of 1/24/02 and affirmed the 8 decision to terminate her disability benefits. (A.R. 46-55.) The DHO determined that plaintiff had 9 the residual functional capacity ( RFC ) to perform light work, except that she was limited to 10 occasional[ly] reaching over head. (A.R. 53.) Further, plaintiff was moderately limited in the 11 ability to: remember, understand, and carry out detailed instructions; and interact with the 12 general public. (Id.) Plaintiff appealed this determination. (A.R. 59.) 13 14 On August 24, 2009, plaintiff, who was represented by either an attorney or a non-attorney 15 representative,4 appeared and testified at a hearing before Administrative Law Judge Sally C. 16 Reason (the ALJ ). (A.R. 441-51.) June Hagen, a vocational expert ( VE ), also testified. (Id.) 17 18 On September 14, 2009, the ALJ issued an unfavorable decision (the unfavorable subject 19 decision ), finding, inter alia, that plaintiff had medically improved as of June 8, 2007. (A.R. 16- 20 21 22 23 24 25 26 27 28 3 When a claimant has been granted benefits, her continued entitlement to such benefits must be reviewed periodically. 20 C.F.R. § 404.1594(a); see also 20 C.F.R. § 404.1589 ( After we find that you are disabled, we must evaluate your impairment(s) from time to time to determine if you are still eligible for [payments based on disability] ). To accomplish this, the SSA engages in continuing disability reviews, which vary in frequency. 20 C.F.R. § 404.1589; Flaten v. Sec y of Health and Hum. Servs., 44 F.3d 1453, 1460 (9th Cir. 1995). Because a presumption of continuing disability arises once a claimant has been identified as disabled, the Commissioner has the burden of producing evidence to meet or rebut the presumption. See Bellamy v. Sec y of Health and Hum. Servs., 755 F.2d 1380, 1381 (9th Cir. 1985). It is unclear whether plaintiff was represented by an attorney or a non-attorney representative. In the ALJ s September 14, 2009 decision, the ALJ stated that plaintiff was represented by Joe Solomon, MSW. (A.R. 16.) The transcripts from the August 24, 2009 administrative hearing, however, indicate that plaintiff was represented by Joe Solomon, [an] Attorney. (A.R. 443.) 4 3 1 24.) The Appeals Council denied plaintiff s request for review of the unfavorable subject decision. 2 (A.R. 8-10). That decision is now at issue in this action. 3 SUMMARY OF ADMINISTRATIVE DECISION 4 5 6 The ALJ found that plaintiff had not engaged in substantial gainful since June 8, 2007, the 7 cessation date ( CD ) of plaintiff s benefits. (A.R. 23.) As of the CD, the ALJ determined that 8 plaintiff had the severe impairments of sprains of the cervical and lumbar spines, obesity and 9 post traumatic stress disorder [( PTSD )] and/or adjustment disorder, but she did not have an 10 impairment or combination of impairments that me[t] or equal[ed] in severity any impairment 11 listed at Appendix 1 to Subpart P of Regulations no. 4. (Id.) The ALJ also determined that 12 [plaintiff] medically improved by the [CD] and such improvement related to her ability to work. 13 (Id.) 14 15 After reviewing the record, the ALJ determined that as of the CD, plaintiff had the RFC to 16 perform light work involving simple routine tasks and limited public contact. (A.R. 23.) The ALJ 17 also found that plaintiff was unable to perform her past relevant work ( PRW ) as a manager[] 18 of food services and fast food services (A.R. 16, 24); however, after having considered plaintiff s 19 age, education, work experience, and RFC as of the CD, the ALJ found that other jobs exist in the 20 national economy that plaintiff could perform, including cleaner/housekeeper, assembler, small 21 products, and marker (A.R. 22-24). Accordingly, the ALJ concluded that [plaintiff] s disability 22 ceased June 8, 2007[,] and that her entitlement to a [POD] and to [DIB] . . . ended August 31, 23 2007, the close of the second month following the month of cessation of disability status. (A.R. 24 24.) 25 /// 26 /// 27 /// 28 /// 4 STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to determine 4 whether it is free from legal error and supported by substantial evidence. Orn v. Astrue, 495 F.3d 5 625, 630 (9th Cir. 2007). Substantial evidence is such relevant evidence as a reasonable mind 6 might accept as adequate to support a conclusion. Id. (citation omitted). The evidence must 7 be more than a mere scintilla but not necessarily a preponderance. Connett v. Barnhart, 340 8 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial 9 evidence, only those reasonably drawn from the record will suffice. Widmark v. Barnhart, 454 10 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 11 12 Although this Court cannot substitute its discretion for that of the Commissioner, the Court 13 nonetheless must review the record as a whole, weighing both the evidence that supports and 14 the evidence that detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of Health 15 and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 16 (9th Cir. 1985). The ALJ is responsible for determining credibility, resolving conflicts in medical 17 testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 18 1995). 19 20 The Court will uphold the Commissioner s decision when the evidence is susceptible to 21 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 22 However, the Court may review only the reasons stated by the ALJ in his decision and may not 23 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d at 630; see also Connett, 24 340 F.3d at 874. The Court will not reverse the Commissioner s decision if it is based on harmless 25 error, which exists only when it is clear from the record that an ALJ s error was inconsequential 26 to the ultimate nondisability determination. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 27 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 28 F.3d at 679. 5 DISCUSSION 1 2 3 Plaintiff alleges the following issues: (1) whether the ALJ properly determined the onset 4 date and duration of plaintiff s disability; (2) whether the ALJ fully and properly developed the 5 record; (3) whether the ALJ properly assessed plaintiff s RFC and posed a proper hypothetical 6 question to the VE; and (4) whether the ALJ properly considered plaintiff s subjective complaints 7 and her husband s statements regarding her limitations. (Joint Stipulation ( Joint Stip. ) at 4.) 8 9 I. Remand Is Warranted, Because The Favorable Subsequent Decision Awarding Benefits May Be Material To The Instant Proceeding. 10 11 12 As noted supra, in the unfavorable subject decision dated September 14, 2009, the ALJ 13 determined that plaintiff was not disabled as of June 8, 2007. (A.R. 16-24.) While appeal of that 14 decision was pending, plaintiff was awarded benefits in connection with her second application 15 for disability benefits, in which she sought benefits commencing on April 4, 2001 (the favorable 16 subsequent decision ). (Joint Stip. at Attachment ( Att. ) A.) Specifically, by the favorable 17 subsequent decision, plaintiff was found to be disabled and eligible to receive disability payments 18 as of September 11, 2009.5 (Id.) 19 20 In view of the close proximity -- indeed, the three day overlap -- between the unfavorable 21 subject decision dated September 14, 2009, and the favorable subsequent decision finding plaintiff 22 Beyond the three-day overlap between the unfavorable subject decision and the favorable subsequent decision discussed infra, the two decisions are also strikingly inconsistent in another respect. In the unfavorable subject decision, it was noted that [b]y determination dated January 24, 2002, [plaintiff] was found disabled effective April [4], 2001, based on an anxiety disorder that was found to meet Listing 12.06 A [and] B. (A.R. 16.) The ALJ found, however, that plaintiff s disability ceased on June 8, 2007. (A.R. 24.) Thus, in the unfavorable subject decision, plaintiff was found to be disabled from April 4, 2001, through June 7, 2007. Confusingly, however, in the favorable subsequent decision, it was noted that, notwithstanding plaintiff s allegations of disability commencing on April 4, 2001, due to [a]nxiety[,] depression[,] [PTSD,] memory loss[,] neck[,] shoulder[,] headaches[, and] heart, the medical evidence of record show[ed] that [her] condition did not prevent all work activity until [September 11, 2009]. (Joint Stip. at Att. A; emphasis added.) 5 23 24 25 26 27 28 6 1 disabled as of September 11, 2009, plaintiff contends that the Appeals Council should have 2 engaged the services of a medical expert to properly assess: the onset date and duration of 3 plaintiff s disability; and whether plaintiff met Listing 12.06 for the approximately two years from 4 the CD until September 11, 2009. (Joint Stip. at 4-7, 10-12.) Put differently, it appears that 5 plaintiff argues this case should be remanded to consider the impact of the favorable subsequent 6 decision on the unfavorable subject decision and its finding that the payment of benefits to 7 plaintiff should be ceased on the last day of August 2007. (Joint Stip. at 3 4, 8.) The Court 8 agrees and finds that remand is appropriate for further consideration of the factual issues, 9 particularly with respect to plaintiff s mental limitations, to determine the propriety of the 10 unfavorable subject decision in view of the subsequent favorable decision. 11 12 The Ninth Circuit has provided guidance as to when a case should be remanded to reconcile 13 two different disability determinations. In Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001), the 14 plaintiff s initial disability application was denied on April 9, 1996, but a subsequent application for 15 benefits was granted on February 26, 1999, finding plaintiff to be disabled as of April 10, 1996. 16 Id. at 826-27. The court held that the district court did not err in denying the plaintiff s motion 17 to remand and found that the differing outcomes were not inconsistent, because the plaintiff s 18 second application involved different medical evidence, a different time period, and a different 19 age classification. Id. at 827. 20 21 In Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010), the plaintiff s first disability application 22 was denied on January 27, 2006, but a subsequent application for benefits was granted on August 23 20, 2007, and the plaintiff was found to be disabled as of January 28, 2006, which is one day 24 after the date [the plaintiff] was found not to be disabled based on her first application. Id. at 25 1034. 26 Commissioner to conduct further administrative proceedings to reconcile the different disability 27 outcomes. 28 circumstances, an award based on an onset date coming in immediate proximity to an earlier The Ninth Circuit affirmed the district court s remand of the case to permit the Id. at 1033. The Ninth Circuit agreed with the proposition that, in certain 7 1 denial of benefits is worthy of further administrative scrutiny to determine whether the favorable 2 event should alter the initial, negative outcome on the claim. Id. at 1034 (citing Bradley v. 3 Barnhart, 463 F. Supp. 2d 577, 580 81 (S.D. W. Va. 2006)). The Ninth Circuit found that because 4 [t]here was only one day between the denial of [the plaintiff] s first application and the disability 5 onset date specified in the award for her successful second application, and there was 6 uncertainty as to the medical evidence considered by the ALJ in the different decisions, remand 7 for further factual proceedings was an appropriate remedy. Id. at 1035. 8 9 The question presently before this Court is whether remand is appropriate to reconcile the 10 different disability outcomes in this case. In both Luna and Bruton, there was a close proximity -- 11 to wit, one day -- between the date through which the ALJ found the plaintiff to be not disabled 12 based on her/his first application and the disability onset date specified in the second, successful 13 application. Here, like Luna and Bruton, the date of the unfavorable subject decision not only lies 14 in close proximity but also overlaps the disability onset date specified in the favorable subsequent 15 decision. However, unlike the Luna and Bruton cases, in her unfavorable subject decision dated 16 September 14, 2009, the ALJ specifically did not make any finding[s] or decision[s] . . . 17 concerning [plaintiff] s disability status for the period after [the CD of] June 8, 2007 (A.R. 24); 18 thus, there is more than a two year difference between the two different disability determinations. 19 As such, this case is distinguishable from both Luna and Bruton. 20 21 The Court next considers whether the favorable subsequent decision was based upon 22 different medical evidence than that presented in connection with the unfavorable subject 23 decision. In connection with the favorable subsequent decision, the record contains the SSA s 24 letter awarding plaintiff disability benefits; however, the medical evidence that formed the basis 25 of that grant of benefits was not submitted in this case. (See Joint Stip. at Att. A.) As relevant 26 here, the SSA letter notes that, in determining plaintiff s disability, it relied on five reports from 27 four different medical sources. (See id., reports received from Thomas Grogan, M.D., George 28 Kline, M.D., Burg and Brock, and Izzi Medical Associates.) 8 1 In determining that plaintiff was not disabled, the ALJ considered, and rejected, the 2 following from plaintiff s treating physician Dr. George Kline: (1) a Short-Form Evaluation for 3 Mental Disorders dated January 17, 2002, indicating, inter alia, that he had seen plaintiff on a 4 monthly basis since May 19, 2001, and plaintiff suffered from PTSD and was either fair or poor 5 in certain mental work-related abilities (A.R. 178-81); (2) an April 23, 2009 Medical statement 6 concerning depression with anxiety, OCD, PTSD, or panic disorder form indicating, inter alia, that 7 plaintiff was either moderately or markedly impaired in work limitations related to her mental state 8 (A.R. 394-96); (3) a letter dated May 9 2009, indicating that plaintiff had been under his treatment 9 since April 4, 2001, for severe post traumatic stress ( PTSD ), and she continued to be under 10 treatment and remains disabled (A.R. 397); and (4) a July 9, 2009 Medical Source Statement 11 (Mental) indicating that plaintiff was moderately, markedly, or extremely limited in her mental 12 work-related abilities (A.R. 389). In denying plaintiff s request for review, the Appeals Council also 13 considered a report from Dr. Kline, dated December 29, 2009, which indicated, inter alia, that 14 plaintiff had been under his treatment for PTSD since April 4, 2001. (A.R. 412-13.) Dr. Kline also 15 noted that [p]rior to [her] 3/7/07 fall, [plaintiff] was attending one time per month. After the 16 3/7/07 fall, she had appointments three times per month. (A.R. 412.) Dr. Kline opined that 17 there has been an absence of any decrease in severity of her disability. (Id.) He also noted that 18 [m]edical evaluations of her condition indicate she has increased memory loss since the 3/7/07 19 incident, which is directly related to the fall. (Id.) He also noted that the March 7, 2007 incident 20 also resulted in aggravated [PTSD]. 6 (A.R. 413.) 21 22 23 24 25 26 27 28 Although Dr. Kline s December 29, 2009 report was not considered by the ALJ in rendering her unfavorable subject decision, the Appeals Council considered that report in its review of the decision and found that it did not provide a basis for changing the [ALJ s] decision and, thus denied plaintiff s request for review. (See A.R. 5, 8-9.) Because the Appeals Council considered the newly submitted evidence in deciding whether to review the ALJ s decision, this Court also must consider such evidence in determining whether the ALJ s decision was supported by substantial evidence and free from legal error. See Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)(holding that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner s final decision for substantial evidence ). 6 9 1 In determining that plaintiff was disabled, the SSA also considered a report from Dr. Kline 2 that was received on December 18, 2009, which the second ALJ likely found persuasive in 3 finding plaintiff disabled. (Joint Stip. at Att. A.) Significantly, it appears that the substance of all 4 Dr. Kline s reports have generally indicated that he has had a longstanding treating relationship 5 with plaintiff (since 2001) and that her symptoms are of longstanding duration and are ongoing. 6 (A.R. 397, 412-13.) Further, there does not appear to be an acute event that might reasonably 7 be expected to have precipitated a change of disability between 2007 and 2009. Rather, based 8 on Dr. Kline s December 29, 2009 report, it appears that plaintiff s condition worsened soon after 9 her fall on March 7, 2007, a date merely two months prior to the CD on which the ALJ s 10 unfavorable subject decision found plaintiff to have made sufficient medical improvement to 11 warrant a finding of non-disability. (A.R. 412.) 12 13 Given that one of the key grounds in the ALJ s unfavorable subject decision for rejecting 14 Dr. Kline s opinion was his limited treatment notes (A.R. 16-17), the report before the second ALJ 15 could have been a more complete record, and there may be a reasonable possibility that the 16 subsequent grant of benefits was based on new evidence not considered by the ALJ as part of the 17 first application. Luna, 623 F.3d at 1035 (quoting Booz v. Sec y of Health & Hum. Servs., 734 18 F.2d 1378, 1380-81 (9th Cir. 1984)). Further, both the unfavorable subject decision and the 19 favorable subsequent decision place plaintiff in the same age classification at the time they were 20 rendered, which also weighs in favor of remand under Luna and Bruton. (A.R. 22.) 21 22 On the record before it, the Court is unable to easily reconcil[e] the two decisions or to 23 assess the records on which they were based. Luna, 623 F.3d at 1035. Instead, the record 24 indicates that further consideration of the factual issues is appropriate to determine whether the 25 outcome of the first application should be different. Id. This matter should, therefore, be 26 remanded for further proceedings.7 Harman v. Apfel, 211 F.3d 1172, 1175 78 (9th Cir. 27 The Court notes that the Appeals Council also had the benefit of the subsequent decision granting benefits as of September 11, 2009, but found that it would not warrant a 7 28 10 1 2000)(where there are outstanding issues that must be resolved before a determination of 2 disability can be made, and it is not clear from the record that the ALJ would be required to find 3 the claimant disabled if all the evidence were properly evaluated, remand is appropriate). 4 5 Plaintiff asserts as other issues that the ALJ failed: to find that her mental impairments met 6 or equaled Listing 12.06; to fully and fairly develop the record with respect to plaintiff s mental 7 limitations by failing to obtain additional treatments notes from treating physicians Dr. Kline and 8 Dr. David Mohamadi; and to properly assess plaintiff s mental RFC. (Joint Stip. at 6-7, 12-15, 28- 9 31.) As noted above, the additional report that the SSA received from Dr. Kline could undermine 10 the ALJ s criticism regarding Dr. Kline s lack of treatment notes and could change the weight she 11 gave to this treating physician s opinion.8 Further, after fully developing the record, the ALJ s 12 13 14 15 16 17 18 19 20 21 22 23 change in the [ALJ s] decision. (A.R. 9.) The Appeals Council chose to consider the benefit grant but then failed to provide any explanation or to supplement the record to make it possible for this Court to review the correctness of the Appeals Council s discounting of the subsequent benefit grant. That plainly was error under Luna. See Luna, 623 F.3d at 1035; see also Daniel v. Astrue, 2011 WL 3501759, at *6 (C.D. Cal. Aug. 9, 2011)(finding need for remand based, in part, on Appeals Council s failure to explain why subsequent evidence, including subsequent grant of benefits, did not warrant changing initial decision). The Court also finds that the ALJ failed to fully develop the record with respect to both Dr. Kline and Dr. David Mohamadi, because it was evident that plaintiff s existing record did not contain treating medical evidence referenced elsewhere in the record. Thus, the ALJ should have made additional, reasonable efforts to develop the evidence or, at the very least, kept the record open for supplementation. The medical evidence submitted by Dr. Kline indicates that there was an earlier treatment relationship dating back to April 4, 2001, yet the record does not contain any treatment records from Dr. Kline. (A.R. 397, 412.) Further, in his August 21, 2009 letter, Dr. Mohamadi notes that plaintiff has been under his treatment since October 2005, for [a] history of repeated recent severe [PTSD] and head trauma. (A.R. 410.) Yet, there are only treatment records from Dr. Mohamadi in the record for what appears to be physical complaints of when coughs green mucous, tonsil pain, throat head pain/cough, chest pain [and] cough and pap smear. (A.R. 256-69.) 8 27 Thus, the conclusory forms submitted by plaintiff, particularly in view of the absence of other treating records, strongly suggest that further development of the record would aid the ALJ in making a proper determination of whether plaintiff has an impairment or combination of impairments that preclude(s) her from gainful employment. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(noting that an ALJ has an independent duty to fully and fairly develop the record and to assure that the claimant s interests are considered )(citations and internal quotations omitted); see Widmark, 454 F.3d at 1069 (ALJ has a duty to develop the record where there is a gap in the medical evidence). 28 Further, the ALJ relied primarily on the opinion of a one-time examining physician, 24 25 26 11 1 conclusion regarding plaintiff s mental RFC assessment and whether plaintiff met or equaled 2 Listing 12.06 may change. Therefore, the Court does not reach plaintiff s claims that the ALJ 3 failed to assess her mental RFC properly and, therefore, failed to properly find that she 4 met/equaled Listing 12.06. 5 6 To properly review and reconsider these issues, the ALJ needs to develop the record 7 regarding plaintiff s mental limitations. Once this issue is clarified, the ALJ can determine what 8 impact, if any, this has on her assessment of plaintiff s mental RFC and whether plaintiff s 9 limitations met or equaled Listing 12.06. 10 11 12 II. On Remand, The ALJ Should Reassess Plaintiff s Physical RFC, Specifically With Respect To Her Right Upper Extremity. 13 14 Plaintiff contends that the ALJ did not properly assess her RFC, because the ALJ failed to 15 include limitations involving her right upper extremity, postural and neck motion limitations, the 16 side effects of her medications, and the impact of her obesity. (Joint Stip. at 20.) 17 18 It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical 19 testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician 20 opinions considered in assessing a social security claim, [g]enerally, a treating physician s opinion 21 carries more weight than an examining physician s, and an examining physician s opinion carries 22 more weight than a reviewing physician s. Holohan, 246 F.3d at 1202; 20 C.F.R. § 404.1527(d). 23 24 In determining a claimant s RFC, an ALJ will consider all the relevant evidence in the record. 25 20 C.F.R. § 404.1545(a). In so doing, the ALJ will consider all claimant s medically determinable 26 27 28 Dr. Makhani, in assessing plaintiff s mental RFC. (A.R. 18.) Additional evidence obtained from plaintiff s treating physicians could impact the decision, because the opinions of treating physicians are generally entitled to the greatest weight. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). 12 1 impairments, including those that are not severe. Id. 2 A. 3 The ALJ Failed To Properly Consider Plaintiff s Right Upper Extremity Limitations. 4 5 6 In a May 5, 2007 orthopaedic evaluation of plaintiff, Dr. Eytan Alpern, M.D. opined that 7 plaintiff could push, pull, lift, and carry up to 20 pounds occasionally and 10 pounds frequently. 8 (A.R. 314.) Plaintiff had no walking, standing, or sitting restrictions. (Id.) Plaintiff cannot climb 9 ladders due to the loss of function of the right upper extremity and no overhead range of motion 10 of the right shoulder. (Id.) Finally, manipulative activities on the right side below, but never 11 above, shoulder level can be done occasionally. (Id.) Dr. Alpern did not assess any limitations 12 on plaintiff s left upper extremity. (Id.) 13 14 In assessing plaintiff s physical RFC, the ALJ afforded Dr. Alpern s opinion the greatest 15 weight. (A.R. 21.) The ALJ concurred with Dr. Alpern s lifting/carrying assessment and, 16 essentially, with his sit, stand and walk assessments. (Id.) However, the ALJ rejected all of Dr. 17 Alpern s limitations regarding plaintiff s use of her right upper extremity ( RUE ), because Dr. 18 Alpern related plaintiff s RUE deficits to poor efforts, minimal pathology [wa]s identified in the 19 right shoulder, and plaintiff s then exhibited deficits (e.g., motor loss, decreased sensation) were 20 countered by normal findings from other source(s) and/or were assessed by Dr. Alpern as being 21 in a non-dermatomal distribution. (Id.) While the ALJ need not believe everything a physician 22 sets forth, and may accept all, some, or none of the physician s opinions, he must still set forth 23 specific and legitimate reasons supported by substantial evidence for rejecting Dr. Alpern s 24 contradicted opinion. Magallanes, 881 F.2d at 753-54. The Court finds that the ALJ s reasons for 25 rejecting Dr. Alpern s RUE limitations for plaintiff were not supported by substantial evidence. 26 27 First, the ALJ s findings -- that Dr. Alpern s RUE limitations were not supported, because 28 Dr. Alpern himself noted that (1) there were no studies today providing any pathological basis 13 1 for [plaintiff] s presentation and (2) plaintiff s diffuse weakness and numbness and paresthesias 2 in the [RUE] have a non[-]dermatormal distribution -- are not legitimate reasons for rejecting 3 Dr. Alpern s RUE limitations. (A.R. 313.) Despite his statement that there were no studies that 4 day providing a pathological basis for plaintiff s RUE limitations and his assessment that the 5 deficits in plaintiff s RUE had a nondermatomal distribution, Dr. Alpern still assessed plaintiff with 6 several specific RUE limitations. (A.R. 313-14.) Further, the ALJ does not explain why her own 7 interpretation, rather than that of Dr. Alpern, was correct. See Reddick v. Chater, 157 F.3d 715, 8 725 (9th Cir. 1998). 9 10 The ALJ s next reason, i.e., that Dr. Alpern noted that plaintiff s weakness in her RUE was 11 felt to be effort related, is also unpersuasive. Here, despite noting plaintiff s poor effort, Dr. 12 Alpern cites Dr. Jagvinder Singh s May 1, 2006 evaluation of plaintiff. (A.R. 313-14.) Specifically, 13 Dr. Alpern states, Of note, [plaintiff] had [an] exam on May 15, 2006 by Dr. Jagvinder Singh, 14 Internal Medicine who noted that [plaintiff s] cervical spine range of motion was full and her 15 shoulder range of motion was limited on the right to 80 degrees of abduction, 90 degrees of 16 forward flexion, external rotation of 60 degrees, and internal rotation of 60 degrees. (A.R. 313- 17 14.) This suggests that, despite plaintiff s poor effort, there was other evidence of record that 18 plaintiff did have RUE limitations. 19 20 The ALJ s last reason, i.e., that Dr. Alpern s RUE limitations were countered by normal 21 findings from other source(s), is also unavailing. (A.R. 21.) It appears that the ALJ relies on an 22 x-ray taken of plaintiff s shoulder on June 20, 2007, indicating mild AC joint hypertrophy 23 bilaterally. (A.R. 34.) First, while the ALJ considered a mild AC joint hypertrophy bilaterally to 24 be a normal finding, the ALJ fails to mention other findings in the record that supported Dr. 25 Alpern s opinion. Again, as noted above, Dr. Singh found that plaintiff s shoulder range of motion 26 was limited on the right to 80 degrees of abduction and 90 degrees of forward flexion. (A.R. 313- 27 14.) Dr. Thomas J. Grogan also noted that, on physical examination, plaintiff exhibited a full 28 range of motion of the shoulders with the exception of forward flexion on right side to 110 14 1 degrees and abduction on the right to 120 degrees and noted pain with these activities and pain 2 with impingement maneuvers bilaterally. (A.R. 348.) Accordingly, evidence of record supported 3 Dr. Alpern s opinion. See Reddick, 157 F.3d at 723 (reversing and remanding case, because ALJ s 4 characterization of the record was not entirely accurate regarding the content or tone ); see also 5 Gallant v. Heckler, 743 F.2d 1450, 1456 (9th Cir. 1984)(holding that it was error for an ALJ to 6 ignore or misstate competent evidence in the record to justify his conclusion). Thus, the ALJ s 7 reasoning does not constitute a specific and legitimate reason for discrediting Dr. Alpern s opinion 8 regarding plaintiff s RUE limitations. 9 10 Finally, it is not entirely clear upon whose medical opinion(s) the ALJ relied in assessing 11 that plaintiff did not have any RUE limitations, and therefore, the ALJ s decision is not supported 12 by substantial evidence. It appears that only one physician, Dr. Todd H. Katzman, in a July 16, 13 2009 Medical Source Statement (Physical), did not assess plaintiff with any upper extremity 14 limitations. (A.R. 403.) Dr. Katzman nevertheless assessed plaintiff with a more restrictive RFC 15 than that assessed by the ALJ, because he limited plaintiff to frequent lift/carry/upward pull of less 16 than 10 pounds, stand/walk less than two hours, and sit continuously less than six hours in an 17 eight-hour workday. (Id.) However, the ALJ appears to have rejected Dr. Katzman s opinion in 18 its entirety9 (A.R. 22), and all the treating, examining, and state agency physicians of record, 19 The ALJ rejected Dr. Katzman s July 16, 2009 opinion, because he did not exam[ine] [plaintiff] until nearly two years after the proposed cessation date and his medical source statement . . . does not match with his examination in February 2009. (A.R. 22; internal citation omitted.) 9 20 21 22 27 The ALJ s first reason constitutes a specific and legitimate reason for discrediting Dr. Katzman s opinion. Dr. Katzman did not provide treatment at any time during the relevant period. (A.R. 401-03.) Thus, the ALJ was entitled to give little or no weight to Dr. Katzman s opinion to the extent that opinion was inconsistent with other substantial evidence in the record from within the relevant period (e.g., the opinions of examining physicians Drs. Alpern and Singh and the State Agency reviewing physician who found plaintiff could perform at least light work (A.R. 314, 302, 329)), and could properly disregard such opinion without detailed explanation. See Freeman v. Apfel, 208 F.3d 687, 691 (8th Cir. 2000)(Where treating physician s evidence did not pertain to [claimant s] condition during the relevant period [of disability] and was inconsistent with other substantial evidence that did pertain to the relevant period, the ALJ was under no obligation to give [the treating physician s] opinion controlling weight. )(citations omitted). 28 The ALJ s second reason for rejecting Dr. Katzman s opinion is also sufficient. The 23 24 25 26 15 1 except Dr. Katzman, limited plaintiff s RUE in some regard. 2 3 On May 15, 2006, examining physician Dr. Jagvinder Singh opined that plaintiff is able to 4 stand and walk for six hours with no sitting restrictions. (A.R. 301-02.) Plaintiff would be able 5 to occasionally lift and carry 25 pounds and 10 pounds frequently. (A.R. 302.) Dr. Singh did not 6 assess any postural and environmental limitations, but he did note that plaintiff would have 7 problems lifting her right arm above shoulder level. (Id.) 8 9 On May 18, 2007, a non-examining state agency physician found that plaintiff could do light 10 work with limited manipulative abilities. (A.R. 328-335.) Specifically, plaintiff could not do right 11 overhead reaching but could do occasional gross and fine manipulations with the RUE. (A.R. 331.) 12 13 On July 8, 2008, non-examining state agency physician A. Ahmed, agreed with and gave 14 great weight to Dr. Alpern s assessment. (A.R. 368.) He opined that plaintiff could do light work 15 with occasional climbing of ladder/rope/scaffolds. 16 manipulative abilities, specifically she could occasionally reach overhead with both upper 17 extremities and occasionally do gross and fine manipulations with the RUE. (Id.)10 (A.R. 364-68.) Plaintiff had limited 18 25 only treatment note of record from Dr. Katzman is dated February 5, 2009, in which Dr. Katzman notes that plaintiff s cervical spine revealed minimal tenderness with no spasm and lacked 10 degrees of flexion and extension of the cervical spine. (A.R. 401.) Examination of her cervical spine also revealed mild tenderness with a minimal spasm and a straight leg raising test was negative. (Id.) Dr. Katzman diagnosed plaintiff with musculoligamentous strain, cervical spine and musculoligamentous strain, cervical spine. (Id.) Accordingly, because Dr. Katzman s very restrictive July 16, 2009 assessment does not appear to be well-supported and/or consistent with his mild February 5, 2009 treatment note, the ALJ provided a specific and legitimate reason for rejecting Dr. Katzman s opinion. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996)(ALJ properly disregarded treating doctor s report where it varied from his treatment notes); Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986)(treating doctor s conclusory opinion that claimant was disabled was properly rejected by the ALJ when it was internally inconsistent and not consistent with doctor s prior medical reports). 26 Treating physician, Thomas Grogan, M.D., also assessed plaintiff with several RUE limitations. However, the ALJ properly rejected his opinion. 19 20 21 22 23 24 10 27 28 On June 20, 2007, Dr. Grogan completed a Physical Capacities Evaluation. and opined that plaintiff could: sit for three hours, stand for two hours, and walk for one hour in an eight-hour workday; occasionally lift and carry up to five pounds; do simple grasping of the left 16 1 Accordingly, that plaintiff did not suffer from RUE limitations is a medical opinion the ALJ 2 is not qualified to make. The ALJ may not substitute her lay opinion for those of the medical 3 sources in the record. See generally, Tackett v. Apfel, 180 F.3d 1094, 1102 03 (9th Cir. 4 1999)(ALJ may not substitute his own interpretation of the medical evidence for the opinion of 5 medical professionals); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006)(noting that 6 an ALJ must not succumb to the temptation to play doctor and make [his] own independent 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hand only; do no pushing and pulling or fine manipulation; and occasionally bend, squat, crawl, climb, and reach. (A.R. 341.) Plaintiff was also moderately restricted from activities involving unprotected heights, moving machinery, and driving automotive equipment. (Id.) Dr. Grogan completed the same Physical Capacities Evaluation form on September 8, 2008, assessing plaintiff with the same limitations with which he had assessed her in June 2007, except that in September 2008, he opined that plaintiff could do simple grasping with both her left and right hands. (A.R. 387-88.) The ALJ rejected Dr. Grogan s opinion, because it did not correlate with his own report of June 2007, and the September 2008 assessment of plaintiff was not within the relevant time period. (A.R. 21.) The ALJ s reasons were specific and legitimate. The ALJ s finding that Dr. Grogan s opinions were inconsistent with his own treatment notes is a proper ground for rejecting a treating physician s opinion. See Connett, 340 F.3d at 873 (holding that a treating doctor s opinion regarding patient s RFC can be discounted if it is unsupported by doctor s own treatment notes); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)(discrepancies between a doctor s own notes and conclusions constitute a clear and convincing reason to reject that doctor s opinion). In both the June 2007 and September 2008 Physical Capacities Evaluation forms, Dr. Grogan opined that plaintiff could perform work at less than the sedentary level. (A.R. 341, 387.) However, on June 20, 2007, on physical examination of plaintiff, Dr. Grogan noted that plaintiff had full range of motion ( ROM ) of the shoulders, elbows, wrists, and hands bilaterally with the exception of limited forward flexion and abduction on both sides. (A.R. 348.) Motor and sensation examinations were unremarkable. (Id.) Plaintiff s gait is normal to heel and toe without crutch, cane or orthoses. (Id.) On spine examination, plaintiff had limited ROM, but her lumbar spine had full ROM. (Id.) On lower extremity examination, plaintiff had full ROM of the hips, right knee, ankles and subtalar joints bilaterally. (A.R. 349.) However, straight leg raising was positive for reproduction of back pain only bilaterally. (A.R. 349.) Her lumbar and cervical spine x-rays were unremarkable, however, x-rays of both shoulders indicated mild AC joint hypertrophy bilaterally. (Id.) Dr. Grogan diagnosed plaintiff with [b]ilateral shoulder impingement syndrome with AC joint hypertrophy, [m]usculoligamentous sprain/strain, cervical spine, and [h]istory of chronic depression. (A.R. 349.) He opined that plaintiff was incapable of returning to work as a waitress and should be precluded from that type of activity. (Id.) Thus, Dr. Grogan s very restrictive functional limitations of plaintiff was unsupported by his own treatment notes or other evidence in the record. The ALJ s rejection of Dr. Grogan s September 2008 evaluation, because it was not within the relevant time period and was not supported by other evidence in the record, also constitutes a specific and legitimate reason for discrediting Dr. Grogan s 2008 opinion. See Freeman, 208 F.3d at 691. Accordingly, the ALJ properly declined to give full credit to Dr. Grogan s opinion. 17 1 medical findings )(citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)); Stairs v. Astrue, No. 2 CV 10 0132 DLB, 2011 WL 318330, at *12 (E.D. Cal. Feb.1, 2011)( When an ALJ rejects all 3 medical opinions in favor of his own, a finding that the RFC is supported by substantial evidence 4 is less likely. ). 5 6 For the aforementioned reasons, the ALJ improperly rejected the RUE limitations that Dr. 7 Alpern assessed. On remand, the ALJ must provide reasons in accordance with the requisite legal 8 standards, if they exist, for discrediting this physician s opinion.11 9 B. 10 The ALJ Did Not Err In Failing To Include Postural Limitations Due To Plaintiff s Back And Neck Impairments in Plaintiff s RFC. 11 12 13 Plaintiff next contends that the ALJ failed to assess properly the impact of her cervical and 14 lumbar impairments on her ability to perform postural activities such as climbing, balancing, 15 bending, stooping, crouching, crawling, holding the head in a static position or rotating the neck. 16 (Joint Stip. at 25-26.) Contrary to plaintiff s contention, Dr. Alpern and the State Agency reviewing 17 physicians did not assess plaintiff with any postural limitations as a result of her back and neck 18 19 20 There is no evidence that the ALJ properly considered, weighed, or had appropriate reasons for rejecting the opinions of Dr. Singh and the state agency reviewing physicians. This constitutes error. As this case is being remanded for the reasons set forth supra, the ALJ should revisit his consideration of the various medical opinions on remand. The Commissioner argues that the ALJ implicitly rejected the opinions of Dr. Singh and the state agency physicians by rejecting Dr. Alpern s finding regarding plaintiff s overhead reaching. (Joint Stip. at 33.) However, the ALJ s implicit rejection of Dr. Singh s opinion does not meet the specific and legitimate standard contemplated by Ninth Circuit precedent. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990)(mere summarization and implicit rejection of physician s opinion does not suffice). Unless a treating source s opinion is given controlling weight, the [ALJ] must explain in the decision the weight given to the opinions of a State agency [consultant]. 20 C.F.R. § 404.1527(e)(2)(ii). Further, in evaluating opinion evidence, an ALJ is required to consider the opinions and findings of state agency reviewing physicians. 20 C .F.R. § 404.1527(e)(2)(I); see Social Security Ruling ( SSR ) 96 6p (1996), 1996 SSR LEXIS 3, at * 5, 1996 WL 374180, at *2 (stating that ALJs may not ignore the opinions of state agency medical consultants and must explain the weight given to these opinions in their decision ). 11 21 22 23 24 25 26 27 28 18 1 pain.12 (Joint Stip. at 25-26; A.R. 314, 330, 366.) 2 3 Plaintiff further contends that Drs. Grogan and Katzman each assessed the impact of her 4 neck and back impairments on functioning and both opined that plaintiff could not even perform 5 sedentary work. However, as discussed above, the ALJ properly rejected both Drs. Grogan and 6 Katzman s opinions. (See, supra, footnotes 9 and 10.) Thus, substantial evidence supported the 7 ALJ s determination not to include any postural limitations due to plaintiff s back and neck 8 impairments. 9 C. 10 The ALJ Properly Considered The Side Effects Of Plaintiff s Medications. 11 12 13 Plaintiff contends that the ALJ failed to consider the side effects of her medications. (Joint 14 Stip. at 26-27.) Under Ninth Circuit law, the ALJ must consider all factors that might have a 15 significant impact on an individual s ability to work. Erickson v. Shalala, 9 F.3d 813, 817 (9th 16 Cir. 1993)(citation omitted). Such factors may include side effects of medications as well as 17 subjective evidence of pain. Id. at 818. When the ALJ discounts the claimant s testimony as to 18 subjective limitations of side effects, he or she must support that decision with specific findings 19 similar to those required for excess pain testimony, as long as the side effects are in fact 20 associated with the claimant s medications. See Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 21 1988). 22 23 However, medication side effects must be medically documented to be considered. See 24 Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). Despite plaintiff s contentions, the objective 25 medical record does not support the existence of medication side effects in this case. While 26 27 28 Dr. Alpern and state agency physician Dr. Ahmed opined that plaintiff should not climb ladders, but this limitation was due to a loss of function of [plaintiff s] right upper extremity. (A.R. 314, 366, 368.) 12 19 1 plaintiff indicated in her Disability Report - Appeal dated March 26, 2008 and testified at the 2 August 24, 2009 administrative hearing that her medications cause her drowsiness, sleepiness 3 and tiredness (A.R. 153, 448), there is no evidence that she reported any side effects from her 4 medications to her physicians or that her physicians reported any functional limitations due to the 5 side effects of her medications. Further, plaintiff fails to cite any medical evidence demonstrating 6 that the alleged side effects of her medications caused her any functional limitations. See 7 Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001)(noting that side effects not severe 8 enough to interfere with [plaintiff s] ability to work are properly excluded from consideration). 9 Thus, there was no reason for the ALJ to consider any potential side effects. 10 11 D. The ALJ Properly Considered Plaintiff s Obesity. 12 13 Although obesity was removed from the Listing of Impairments in 1999, the condition may 14 still factor into a multiple impairments analysis by virtue of its interactive effect on a claimant s 15 other impairments, but only by dint of its impact upon the claimant s musculoskeletal, respiratory, 16 or cardiovascular system. Celaya v. Halter, 332 F.3d 1177, 1181 n.1 (9th Cir. 2003). In Celaya, 17 the ALJ s failure to consider evidence of the claimant s obesity in a multiple impairments analysis 18 was reversible error because: (1) it was raised implicitly in the claimant s report of symptoms; 19 (2) it was clear from the record that the claimant s obesity was at least close to the listing criterion 20 and was a condition that could exacerbate her reported illnesses; and (3) in view of the claimant s 21 pro se status, the ALJ s observation of the claimant and the information on the record should have 22 alerted him to the need to develop the record with respect to her obesity. Id. at 1182. 23 24 The fact that a claimant has obesity does not by itself trigger a duty to perform the 25 interactive analysis. See Burch, 400 F.3d at 682. A multiple impairments analysis with obesity is 26 not required where, for example, the record does not indicate that obesity exacerbates the 27 claimant s other impairments, or the claimant is represented by counsel who fails to help develop 28 the record. Id. at 682-83 (distinguishing Celaya when the record did not indicate exacerbation 20 1 of the claimant s other impairments by obesity, claimant was represented by counsel, and no 2 evidence or theory of disability on the basis of obesity was set forth). 3 4 During an Orthopaedic Consultation performed in May 2007, by Dr. Alpern, plaintiff was 5 measured at sixty-two inches tall and 188 pounds. (A.R. 311.) The ALJ determined that her 6 obesity was a severe impairment (A.R. 23) and found that limiting plaintiff to the light exertional 7 level would recognize the role of obesity in complicating [plaintiff s] back and neck pain (A.R. 8 21). 9 10 Plaintiff makes a general argument that the ALJ failed to integrate any obesity-related 11 limitations into the RFC finding. (Joint Stip. at 27.) However, plaintiff cites no evidence, and the 12 record does not suggest, that plaintiff s obesity exacerbated her other impairments to a degree 13 greater than the ALJ s RFC finding. Burch, 400 F.3d at 684 (finding proper consideration of 14 evidence of claimant s obesity where ALJ noted evidence of claimant s weight in consideration of 15 plaintiff s remaining maximum ability to do sustained work and claimant did not set forth, and 16 there is no evidence in the record, of any functional limitations as a result of her obesity that the 17 ALJ failed to consider ). Thus, the ALJ properly considered [plaintiff s] obesity to the extent 18 required based on the record, and this claim is without merit. Id. 19 20 E. Until The ALJ Has Properly Considered The Medical Opinion 21 Evidence, The Court Cannot Assess The Adequacy Of The 22 Hypothetical Posed To The VE. 23 24 25 Plaintiff contends that the ALJ failed to pose a proper hypothetical to the VE, because her hypothetical did not include all of plaintiff s impairments. (Joint Stip. at 31-32.) 26 27 In posing a hypothetical to a vocational expert, the ALJ must accurately reflect all of the 28 claimant s limitations. Embrey v. Bowen, 849 F.2d 418, 422-24 (9th Cir. 1988). For the vocational 21 1 expert s testimony to constitute substantial evidence, the hypothetical question posed must 2 consider all of the claimant s limitations. Andrews, 53 F.3d at 1044 (holding that hypothetical 3 questions that do not include all of the plaintiff s limitations are insufficient and warrant remand). 4 5 Here, the hypothetical may be incomplete to the extent that it does not reflect 6 appropriately, in whole or in part, the medical opinion evidence of record with respect to plaintiff s 7 mental and RUE limitations. On remand, the ALJ should either properly reject the opinions of 8 plaintiff s treating physicians and the state agency physician in accordance with the appropriate 9 legal standards, or the ALJ must incorporate all of plaintiff s limitations that are not properly 10 rejected into the hypothetical posed to the vocational expert. 11 12 13 III. The ALJ Failed To Consider Properly Plaintiff s Subjective Complaints and Plaintiff s Husband s Statements. 14 15 A. Plaintiff s Subjective Complaints. 16 17 Once a disability claimant produces objective medical evidence of an underlying impairment 18 that is reasonably likely to be the source of claimant s subjective symptom(s), all subjective 19 testimony as to the severity of the claimant s symptoms must be considered. Moisa v. Barnhart, 20 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 21 20 C.F.R. § 404.1529(a) (explaining how pain and other symptoms are evaluated). [U]nless an 22 ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find 23 an applicant not credible by making specific findings as to credibility and stating clear and 24 convincing reasons for each. Robbins, 466 F.3d at 883. The factors to be considered in weighing 25 a claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) inconsistencies 26 either in the claimant s testimony or between the claimant s testimony and her conduct; (3) the 27 claimant s daily activities; (4) the claimant s work record; and (5) testimony from physicians and 28 third parties concerning the nature, severity, and effect of the symptoms of which the claimant 22 1 complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 2 404.1529(c). 3 4 Here, the ALJ noted that she considered plaintiff s allegations of pain and other symptoms; 5 however, she concluded that plaintiff does not present as fully credible or reliable through 6 testimony or documents. (A.R. 19.) Significantly, the ALJ cited no evidence of malingering by 7 plaintiff. Accordingly, the ALJ s reasons for finding that plaintiff was not credible with respect to 8 her subjective symptom and pain testimony must be clear and convincing. 9 10 As noted by the ALJ, plaintiff testified at the hearing that she was unable to work, because 11 she has constant pain involving her neck, back, and shoulders, as well as tingling, numbness, and 12 burning in her hands and feet. (A.R. 19, 446.) She testified that she suffers from PTSD and 13 cannot concentrate or focus. (A.R. 19, 446-47.) She also testified that her medication causes dry 14 mouth, drowsiness, and sleepiness. (A.R. 19, 448.) She described napping many times a day 15 because of her medication. (A.R. 448.) She also does breathing exercise[s], put[s] [on] heat 16 pads and cold pads, and tries to take walks. (A.R. 19, 448.) 17 18 The ALJ discounted plaintiff s testimony and credibility for the following reasons: (1) 19 plaintiff presents with inconsistencies between examinations ; (2) plaintiff s reports of daily 20 activities appear to conflict with her testimony; and (3) the lack of reports of medication side 21 effects by plaintiff. (A.R. 20.) 22 23 First, the ALJ noted inconsistencies between plaintiff s medical examinations. (A.R. 21.) 24 For example, the ALJ cites to the different gait testing results in May 2006, May 2007, and June 25 2007. (A.R. 20.) Different positive straight leg raising tests and cervical spine range of motion 26 results were assessed by various physicians. (Id.) The treating and examining doctors also differ 27 in their opinions as to plaintiff s limitations based on their own independent examinations and 28 clinical findings. The ALJ does not clearly identify how any of these inconsistencies undermine 23 1 plaintiff s testimony regarding her symptoms. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 2 1995)(noting that the ALJ must identify what testimony is not credible and what evidence 3 undermines the claimant s complaints ); see also Bunnell, 947 F.2d at 347 (noting that [i]f an 4 adjudicator could reject a claim of disability simple because [plaintiff] fails to produce evidence 5 supporting the severity of the pain, there would be no reason for an adjudicator to consider 6 anything other than medical findings ). 7 convincing reason for discrediting plaintiff s testimony. Thus, this reason does not establish a clear and 8 9 The ALJ s second reason for discrediting plaintiff -- to wit, that the daily activities plaintiff 10 reported to Dr. Makhani conflict with her testimony at the hearing before the ALJ -- also is not a 11 clear and convincing reason for finding plaintiff to be not credible. (A.R. 20.) Plaintiff reported 12 to Dr. Makhani, in April 2007, that she does light household chores, handles the family funds and 13 pays bills, relies on others for transportation, and has adequate self-care skills. (A.R. 304.) At 14 the hearing, plaintiff reported that her daily activities consist of taking her medication, doing 15 breathing exercises, putting on hot and cold pads, and trying to walk, but that she sleeps most 16 of the day due to her medication. (A.R. 448.) However, the Court finds that these statements 17 are not necessarily inconsistent, particularly given that the ALJ made no specific inquiries of 18 plaintiff during the November 2, 2009 administrative hearing regarding the extent of plaintiff s 19 ability to engage in daily activities; rather, the ALJ merely asked plaintiff, What do you do in a 20 typical day? (A.R. 448.) Furthermore, the ALJ did not explain how plaintiff s ability to engage 21 in minimal daily activities, such as light household chores, is inconsistent with the intensity, 22 persistence, and limiting effects of the symptoms she claims. Nor did the ALJ indicate how 23 plaintiff s ability to perform these daily activities translates into an ability to do activities that are 24 transferrable to a work setting. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990)(ALJ 25 erred in failing to make a finding to the effect that the ability to perform those daily activities 26 translated into the ability to perform appropriate work ). As such, the ALJ s reasoning is neither 27 clear nor convincing. 28 24 1 The ALJ also questioned plaintiff s credibility based on the fact that she had not reported 2 to physicians any adverse side effects from her medications. (A.R. 20.) This is a valid reasons 3 for questioning a claimant s testimony. See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 4 1995)(holding ALJ was permitted to consider the lack of evidence of side effects from prescription 5 medication in discrediting claimant s testimony). Moreover, as discussed above, the record is 6 devoid of any instances in which plaintiff complained of the medication side effects of which she 7 complained at the hearing. However, plaintiff testified that she does not believe she is able to 8 work because of pain and functional limitations, rather than due to the side effects of her 9 medications. Id. at 48. Given this testimony, the Court finds this reason for discrediting plaintiff s 10 testimony to be misguided. 11 12 For the aforementioned reasons, the ALJ failed to give clear and convincing reasons for 13 discrediting plaintiff s testimony. On remand, the ALJ should inquire further into plaintiff s 14 activities and medication side effects as they may affect her ability to work, and then reassess 15 plaintiff s credibility. 16 17 B. The Testimony Of Plaintiff s Husband. 18 19 Plaintiff also contends that the ALJ failed to properly take into consideration the lay witness 20 testimony of her husband. (Joint Stip. at 44-46.) In evaluating the credibility of a claimant s 21 assertions of functional limitations, the ALJ must consider lay witnesses reported observations of 22 the claimant. Stout, 454 F.3d at 1053. [F]riends and family members in a position to observe 23 a claimant s symptoms and daily activities are competent to testify as to [the claimant s] 24 condition. Dodrill v. Shalala, 12 F.3d 915, 918 19 (9th Cir. 1993); 20 C.F.R. § 404. 1513(d) 25 ( [W]e may also use evidence from other sources to show the severity of your impairment(s) and 26 how it affects your ability to work. Other sources include, but are not limited to . . . spouses, 27 parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy. ). If an ALJ 28 disregards the testimony of a lay witness, the ALJ must provide reasons that are germane to each 25 1 witness. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)(citation omitted). Additionally, 2 the reasons germane to each witness must be specific. Stout, 454 F.3d at 1054. 3 4 Here, the ALJ stated she had reviewed statements by plaintiff s husband, but afforded 5 them minimal weight in assessing [plaintiff s] status as of June 2007, because these 6 [observations] predate the proposed cessation [of plaintiff s disability] by more than one year and 7 appear [to be] inconsistent with the medical evidence. (A.R. 20.) 8 9 On April 4, 2006, plaintiff s husband, Jose Luis A. Morales, completed a Function Report- 10 Adult-Third Party describing plaintiff s daily activities and other functions. (A.R. 134-41.) He 11 noted that plaintiff listens to audio cassettes to relax, does breathing exercises, and exercises her 12 arm. (A.R. 134.) He also noted that plaintiff cannot do many activities due to the pain from her 13 shoulder to her wrist. (A.R. 134-41.) He also noted that plaintiff tends to forget and gets 14 confused. (Id.) 15 16 The ALJ s first reason for rejecting plaintiff s husband s statements, i.e., that they predated 17 the CD of plaintiff s disability by more than one year, was not a germane reason for discounting 18 his testimony. 19 limitations, and daily activities is quite similar to plaintiff s 2009 testimony regarding her 20 symptoms, limitations, and activities. For example, plaintiff s husband noted that plaintiff s daily 21 activities consist of listening to audio cassettes to relax, breathing exercises, and exercising her 22 arm. (A.R. 134.) He also noted that plaintiff cannot undertake many activities due to the pain 23 she experiences from her shoulder to her wrist. (A.R. 134-41.) He also noted that plaintiff tends 24 to be forgetful and confused. (Id.) At the hearing, plaintiff also testified she does breathing 25 exercise, put[s] [on] h[o]t pads and cold pads, and tries to take walks. (A.R. 448.) Further, 26 she testified that she cannot concentrate or focus and has tingling, numbness, and burning in her 27 hands and feet. (A.R. 446.) Thus, considering that plaintiff s symptoms and activities in 2006 and 28 2009 were similar, this was not a germane reason for discounting plaintiff s husband s statements. Significantly, her husband s 2006 report of plaintiff s symptoms, functional 26 1 The ALJ also discredited the observations of plaintiff s husband regarding her limitations, 2 because the ALJ found his lay observations to be inconsistent with the medical evidence of record. 3 (A.R. 20.) However, as this Court has determined that this matter must be reversed and 4 remanded for correction of errors in the evaluation of the medical evidence, the lay observations 5 of plaintiff s husband should also be reevaluated. 6 IV. 7 Remand Is Required. 8 9 The decision whether to remand for further proceedings or order an immediate award of 10 benefits is within the district court s discretion. Harman, 211 F.3d at 1175-78. Where no useful 11 purpose would be served by further administrative proceedings, or where the record has been 12 fully developed, it is appropriate to exercise this discretion to direct an immediate award of 13 benefits. Id. at 1179 ( [T]he decision of whether to remand for further proceedings turns upon 14 the likely utility of such proceedings. ). However, where there are outstanding issues that must 15 be resolved before a determination of disability can be made, and it is not clear from the record 16 that the ALJ would be required to find the claimant disabled if all the evidence were properly 17 evaluated, remand is appropriate. Id. at 1179-81. 18 19 Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above- 20 mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 21 2004)(remand for further proceedings is appropriate if enhancement of the record would be 22 useful). On remand, the ALJ must correct the above-mentioned deficiencies and errors. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 27 CONCLUSION 1 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the 4 Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with 5 this Memorandum Opinion and Order. 6 7 8 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: September 30, 2013 13 14 15 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 28

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