Martha O Villalobos v. Carolyn W Colvin, No. 2:2013cv01119 - Document 19 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge Jean P. Rosenbluth. IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on all parties or their counsel. (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 MARTHA O. VILLALOBOS, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-1119-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ) and supplemental security income benefits 21 ( SSI ). The parties consented to the jurisdiction of the 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This 23 matter is before the Court on the parties Joint Stipulation, 24 filed February 24, 2014, which the Court has taken under 25 submission without oral argument. For the reasons discussed 26 below, the Commissioner s decision is reversed and this action is 27 remanded for further proceedings. 28 1 1 II. BACKGROUND 2 Plaintiff was born on April 25, 1957. 3 Record ( AR ) 146.) (Administrative She has a sixth-grade education1 (AR 30) and 4 worked for more than 20 years as a packager in a manufacturing 5 plant (AR 30-31, 170, 180). 6 On July 19, 2010, Plaintiff filed applications for DIB and 7 SSI, alleging she had been disabled since March 18, 2010, because 8 of whiplash from neck to lower back, spinal arthritis, severe 9 neck pain, degenerative disc disease, and lumbar spondylosis. 10 (AR 44-47, 146-52, 179.) After Plaintiff s applications were 11 denied, she requested a hearing before an Administrative Law 12 Judge. (AR 75-78.) A hearing was held on December 22, 2011, at 13 which Plaintiff, who was represented by counsel, testified, as 14 did a vocational expert ( VE ). (AR 26-43.) On January 5, 2012, 15 the ALJ issued a written decision finding Plaintiff not disabled. 16 (AR 15-20.) On February 29, 2012, Plaintiff requested review of 17 the ALJ s decision (AR 8), and she subsequently submitted 18 additional evidence in support of her claims (AR 508-77). On 19 December 14, 2012, after considering the new evidence, the 20 Appeals Council denied review. (AR 1-5.) This action followed. 21 III. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. The ALJ s findings and 24 decision should be upheld if they are free of legal error and 25 26 27 28 1 Plaintiff stated in a disability report that she completed only the first grade (AR 180), but that appears to have been a mistake because she testified at the hearing that she had received a primary education in Mexico, which was equivalent to completing the sixth grade (AR 30). 2 1 supported by substantial evidence based on the record as a whole. 2 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 3 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 4 means such evidence as a reasonable person might accept as 5 adequate to support a conclusion. Richardson, 402 U.S. at 401; 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 7 is more than a scintilla but less than a preponderance. 8 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 10 substantial evidence supports a finding, the reviewing court 11 must review the administrative record as a whole, weighing both 12 the evidence that supports and the evidence that detracts from 13 the Commissioner s conclusion. 14 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 15 either affirming or reversing, the reviewing court may not 16 substitute its judgment for that of the Commissioner. Id. at 17 720-21. 18 IV. THE EVALUATION OF DISABILITY 19 People are disabled for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted, or is expected 23 to last, for a continuous period of at least 12 months. 42 24 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 25 (9th Cir. 1992). 26 A. 27 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 28 assessing whether a claimant is disabled. 3 20 C.F.R. 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 3 step, the Commissioner must determine whether the claimant is 4 currently engaged in substantial gainful activity; if so, the 5 claimant is not disabled and the claim must be denied. 6 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not 7 engaged in substantial gainful activity, the second step requires 8 the Commissioner to determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting 10 her ability to do basic work activities; if not, a finding of not 11 disabled is made and the claim must be denied. 12 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 13 severe impairment or combination of impairments, the third step 14 requires the Commissioner to determine whether the impairment or 15 combination of impairments meets or equals an impairment in the 16 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 17 404, Subpart P, Appendix 1; if so, disability is conclusively 18 presumed and benefits are awarded. 19 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 20 of impairments does not meet or equal an impairment in the 21 Listing, the fourth step requires the Commissioner to determine 22 whether the claimant has sufficient residual functional capacity 23 ( RFC )2 to perform her past work; if so, the claimant is not 24 disabled and the claim must be denied. 25 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving she is 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 unable to perform past relevant work. Drouin, 966 F.2d at 1257. 2 If the claimant meets that burden, a prima facie case of 3 disability is established. Id. If that happens or if the 4 claimant has no past relevant work, the Commissioner then bears 5 the burden of establishing that the claimant is not disabled 6 because she can perform other substantial gainful work available 7 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 That determination comprises the fifth and final step in the 9 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 10 828 n.5; Drouin, 966 F.2d at 1257. 11 B. 12 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 13 substantial gainful activity since March 18, 2010, the alleged 14 onset date. (AR 17.) At step two, the ALJ concluded that 15 Plaintiff had the severe impairment of chronic body pain. 16 (Id.) At step three, the ALJ determined that Plaintiff s 17 impairments did not meet or equal any of the impairments in the 18 Listing. (AR 18-19.) At step four, the ALJ found that Plaintiff 19 had the RFC to perform the full range of medium work. 3 20 20.) (AR 19- Based on the VE s testimony, the ALJ concluded that 21 Plaintiff could perform her past relevant work as a packager, as 22 both generally and actually performed. (AR 20.) Accordingly, 23 the ALJ determined that Plaintiff was not disabled. (Id.) 24 25 26 27 28 3 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. §§ 404.1567(c), 416.967(c). 5 1 V. DISCUSSION 2 Substantial Evidence Does Not Support the ALJ s RFC 3 Assessment 4 Plaintiff alleges that evidence submitted to the Appeals 5 Council renders the ALJ s finding that Plaintiff can perform the 6 full range of medium work unsupported by substantial evidence. 7 (J. Stip. at 4-10, 15-16.) 8 A. 9 A district court must uphold an ALJ s RFC assessment when Applicable law 10 the ALJ has applied the proper legal standard and substantial 11 evidence in the record as a whole supports the decision. 12 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 13 consider all the medical evidence in the record and explain in 14 [his] decision the weight given to . . . [the] opinions from 15 treating sources, nontreating sources, and other nonexamining 16 sources. 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii); 17 see also §§ 404.1545(a)(1), 416.945(a)(1) ( We will assess your 18 residual functional capacity based on all the relevant evidence 19 in your case record. ); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 20 1996) (RFC must be based on all of the relevant evidence in the 21 case record ). In making an RFC determination, the ALJ may 22 consider those limitations for which there is support in the 23 record and need not consider properly rejected evidence or 24 subjective complaints. See Bayliss, 427 F.3d at 1217 (upholding 25 ALJ s RFC determination because the ALJ took into account those 26 limitations for which there was record support that did not 27 depend on [claimant s] subjective complaints ); Batson v. Comm r 28 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 6 1 required to incorporate into RFC evidence from treating-physician 2 opinions that were permissibly discounted ). 3 Moreover, Social Security Administration regulations permit 4 claimants to submit new and material evidence to the Appeals 5 Council and require the Council to consider that evidence in 6 determining whether to review the ALJ s decision, so long as the 7 evidence relates to the period on or before the ALJ s decision. 8 Brewes v. Comm r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th 9 Cir. 2012); see also 20 C.F.R. §§ 404.970(b), 416.1470(b). 10 [W]hen the Appeals Council considers new evidence in deciding 11 whether to review a decision of the ALJ, that evidence becomes 12 part of the administrative record, which the district court must 13 consider when reviewing the Commissioner s final decision for 14 substantial evidence. Brewes, 682 F.3d at 1163; accord Taylor 15 v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 16 2011); see also Borrelli v. Comm r of Soc. Sec., __ F. App x __, 17 2014 WL 1492736, at *1 (Apr. 17, 2014) (remand necessary when 18 reasonable possibility exists that the new evidence might 19 change the outcome of the administrative hearing ). Relevant facts4 20 B. 21 On December 29, 2010, Dr. Anh Tat Hoang performed a complete 22 orthopedic evaluation of Plaintiff at the request of the Social 23 Security Administration.5 (AR 403-06.) Dr. Hoang found that 24 25 26 27 4 Because the parties are familiar with the facts, they are summarized here only to the extent relevant to the contested issue. 5 Dr. Hoang wrote that his practice was limited to (AR 406.) 28 Orthopedics. 7 1 Plaintiff had a normal gait, could squat and heel-toe walk, sat 2 comfortably in a chair, and could get on and off the examination 3 table without difficulty. (AR 404.) She had tenderness over her 4 paracervical muscles but full range of motion of the cervical 5 spine and no tenderness, spasm, or deformity of the thoracic 6 spine. (Id.) She had tenderness over the right paraspinal 7 muscles without spasm and reduced range of motion of the lumbar 8 spine. (Id.) Straight-leg raising was negative. (Id.) 9 Plaintiff had tenderness over the right shoulder joint but full 10 range of motion, and she had tenderness over the lateral aspect 11 of her right elbow but an otherwise normal elbow examination. 12 (AR 405.) 13 (Id.) Testing showed [m]ild tendinitis of both wrists. Tests for hip pathology were mildly positive in the 14 right hip but normal in the left. (Id. (emphasis omitted).) 15 Plaintiff s knees were tender upon palpation, but Dr. Hoang found 16 [n]o signs of internal derangement. (Id.) Plaintiff had [n]o 17 grip strength loss and no atrophy of the extremities and intact 18 motor strength, sensation, and reflexes. 19 (AR 406.) Dr. Hoang diagnosed [c]ervico-thoracic sprain/strain 20 without radiculopathy; right-shoulder, right-hip, and bilateral 21 knee sprain or strain; right-wrist tendinitis; history of left22 wrist operation with residual tendinitis; and right-elbow sprain 23 or strain. (Id.) Dr. Hoang believed Plaintiff could lift and 24 carry 50 pounds occasionally and 25 pounds frequently, stand and 25 walk for six hours in an eight-hour workday with changes in 26 position and normal breaks, and sit for six hours in an eight27 hour workday. 28 (Id.) On February 6, 2011, Dr. Craig Billinghurst, who specialized 8 1 in internal medicine, reviewed Plaintiff s medical records and 2 completed a physical-residual-functional-capacity assessment.6 3 (AR 417-24.) He listed Plaintiff s diagnoses as disorder of the 4 spine and carpal tunnel syndrome. (AR 417.) Dr. Billinghurst 5 believed Plaintiff could lift 50 pounds occasionally and 25 6 pounds frequently, stand and walk for about six hours in an 7 eight-hour workday, sit for about six hours in an eight-hour 8 workday, perform unlimited pushing and pulling, and perform 9 frequent fine manipulation with both hands. (AR 418, 420.) On 10 May 10, 2011, Dr. F. Wilson, a general practitioner, reviewed 11 Plaintiff s medical records and affirmed Dr. Billinghurst s RFC 12 assessment.7 13 (AR 443-44.) On October 22, 2011, Plaintiff saw Dr. Yi Lang at the 14 Arthritis and Osteoporosis Center, apparently for the first time, 15 for a consult. (AR 479-84.) Dr. Yang noted that Plaintiff had 16 complained of shoulder, heel, hip, and low-back pain for the 17 18 19 20 21 22 23 24 25 26 27 28 6 Dr. Billinghurst s electronic signature includes a medical specialty code of 19, indicating internal medicine. (AR 424); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms. nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 7 Dr. Wilson s electronic signature includes a medical specialty code of 12, indicating Family or General Practice. (AR 444); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy. ssa.gov/poms.nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/ lnx/0426510090. 9 1 previous 16 years and was taking the medication naproxen.8 2 479.) (AR Upon examination, Dr. Yang found that Plaintiff had 3 tenderness on palpation and abnormal motion of both shoulders 4 and hips, tenderness on palpation of the cervical and lumbar 5 spine, spasm of the muscles of the thoracic and lumbar spine, 6 positive straight-leg tests on the right and left, tenderness but 7 normal motion of the knee, and 16 positive trigger points out 8 of 18.9 (AR 482.) Plaintiff had normal motor strength, 9 sensation, reflexes, gait, and stance. (Id.) Dr. Yang assessed 10 [l]ocalized primary osteoarthritis of the right foot, 11 trochanteric bursitis,10 subacromial bursitis,11 possible 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Naproxen is an NSAID used to relieve pain, tenderness, swelling, and stiffness caused by various types of arthritis. Naproxen, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a681029.html (last updated Feb. 19, 2014). Nonprescription naproxen is used to reduce fever and relieve mild pain. Id. 9 Trigger points, or tender points, are pain points or localized areas of tenderness around joints, but not the joints themselves, that hurt when pressed with a finger. Fibromyalgia Tender Points, WebMD, http://www.webmd.com/ fibromyalgia/guide/fibromyalgia-tender-points-trigger-points (last updated May 24, 2014). In the past, a fibromyalgia diagnosis was based on whether a person had pain when tender points were pressed firmly, but [n]ewer guidelines don t require a tender point exam ; [i]nstead, a fibromyalgia diagnosis can be made if a person has had widespread pain for more than three months with no underlying medical condition that could cause the pain. Fibromyalgia, Mayo Clinic, http://www.mayoclinic.org /diseases-conditions/fibromyalgia/basics/tests-diagnosis/con-2001 9243 (last updated Feb. 20, 2014). Plaintiff mistakenly states that Dr. Yang found that Plaintiff had 18 positive trigger points, rather than 16, at several of her examinations. (See J. Stip. at 4-5.) 10 Bursitis is an inflammation of the small sacs of fluid (bursae) that cushion and lubricate the areas between tendons and bones. Trochanteric Bursitis - Topic Overview, WebMD, 10 1 fibromyalgia, insomnia, and chronic lower-back pain. (AR 483.) 2 Her treatment plan included physical therapy, hip and shoulder 3 steroid injections, and x-rays; the medications baclofen and 4 amitriptyline;12 and exercise and weight loss. 5 (AR 483-84.) On November 5, 2011, Dr. Yang s examination findings and 6 assessment were consistent with her findings on October 22. 7 AR 475-76.) (See She administered steroid injections in Plaintiff s 8 right hip and shoulder and recommended that she continue taking 9 baclofen and amitriptyline. 10 (AR 477.) On January 5, 2012, the ALJ found Plaintiff not disabled. 11 (AR 15-20.) In doing so, the ALJ summarized the opinions of the 12 consulting doctors and examining physician Hoang. (AR 18.) He 13 gave significant weight to Dr. Hoang s assessment because he 14 examined [Plaintiff] and his conclusions are not rebutted by any 15 treating source. (Id.) The ALJ did not address Dr. Yang s 16 17 http://www.webmd.com/pain-management/tc/trochanteric-bursitis-top The trochanteric bursa is a large sac separating the greater trochanter of the hip and the muscles and tendons of the thighs and buttock. Id. 18 ic-overview (last updated Aug. 2, 2012). 19 20 21 22 23 11 The subacromial bursa is a sac of fluid that separates the acromion from the rotator cuff in the shoulder. See What is subacromial bursitis?, UNC School of Medicine, http://www.med. unc.edu/fammed/fammedcenter/about-us/services/sportsmedicine/ (last accessed June 12, 2014). 12 Baclofen acts on the spinal cord nerves and decreases the 24 number and severity of muscle spasms caused by multiple sclerosis 25 or spinal cord diseases; it also relieves pain and improves 26 27 28 muscle movement. Baclofen Oral, MedlinePlus, http://www.nlm.nih. gov/medlineplus/druginfo/meds/a682530.html (last updated Sept. 1, 2010). Amitriptyline is a tricyclic antidepressant used to treat symptoms of depression. Amitriptyline, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682388.html (last updated Aug. 1, 2010). 11 1 treatment notes (see AR 15-20), which were already in the record 2 (AR 25, 472-84). 3 Plaintiff requested review of the ALJ s decision and 4 submitted several additional medical records to the Appeals 5 Council. (AR 8, 508-77.) The council reviewed the new evidence 6 and ordered that it be made part of the administrative record but 7 concluded that it d[id] not provide a basis for changing the 8 [ALJ s] decision. (AR 1-5.) The new evidence included, among 9 other things, additional treatment records and a Physical 10 Residual Functional Capacity Questionnaire from Dr. Yang. 11 AR 508-77.) (See The treatment records show that Dr. Yang saw 12 Plaintiff on December 29, 2011, and March 8, April 5, and May 17, 13 2012. (AR 525-48.) On those dates, physical exams revealed 14 tenderness and abnormal range of motion of both shoulders (AR 15 527, 533, 539, 546), tenderness on palpation of the cervical and 16 lumbar spine (AR 527-28, 533-34, 539, 546), spasm of the 17 thoracic- and lumbar-spine muscles (AR 527-28, 533-34, 539, 546), 18 positive straight-leg-raising tests bilaterally (AR 528, 534, 19 539, 546), tenderness on palpation and abnormal range of motion 20 of the hips (AR 528, 534, 539, 546), tenderness on palpation of 21 the right foot (AR 528, 534, 540, 546), and positive findings at 22 16 of 18 trigger points (AR 528, 534, 540, 546). Plaintiff had 23 normal sensation, motor strength, gait, stance, and reflexes. 24 (AR 528, 534, 540, 546.) Dr. Yang also noted the results of a 25 January 12, 2012 lumbar-spine MRI, which showed multiple disc 26 protrusions, worse in L4-L5, and mild to mod[erate] facet joint 27 effusion in L3-4 and L2-3. (AR 529, 535; see also AR 575-77 28 (MRI report).) 12 1 Dr. Yang recommended that Plaintiff continue physical 2 therapy (AR 536, 541, 548) and prescribed additional medications, 3 including a Lidoderm patch13 (AR 548), Neurontin for lower back 4 pain and [fibromyalgia] 14 (id.), and Cymbalta for fibromyalgia15 5 (AR 535). She also administered an additional steroid injection 6 (AR 529, 536) and noted that Plaintiff should have an ortho 7 spine consult if her back pain persists (AR 541, 536) and would 8 be refer[red] to epidural inj[ection] if her back pain persists 9 after physical therapy (AR 530). 10 Dr. Yang s physical-RFC questionnaire, dated April 5, 2012, 11 listed Plaintiff s diagnoses as degenerative disc disease of the 12 lumbar spine, fibromyalgia, and b. trochanteric bursitis. 13 517.) (AR She noted that her assessment was supported by trigger 14 point 18/18, tenderness on palpation of the trochanteric bursa, 15 tenderness in the lumbar spine, and positive straight-leg-raising 16 tests. (Id.) She believed Plaintiff could walk two blocks 17 without resting, sit for 30 minutes and stand for 15 minutes at a 18 13 Lidoderm, or lidocaine, is a local anesthetic used to 19 relieve the pain of postherpetic neuralgia. Lidocaine 20 Transdermal Patch, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a603026.html (last updated June 13, 21 2013). 22 23 24 25 26 27 28 14 Neurontin, or gabapentin, is an anticonvulsant used to treat seizures, postherpetic neuralgia, and restless leg syndrome. Gabapentin, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a694007.html (last updated July 15, 2011). 15 Cymbalta, or duloxetine, is a selective serotonin and norepinephrine reuptake inhibitor used to treat depression, generalized anxiety disorder, bone and muscle pain, and pain and tingling caused by diabetic neuropathy and fibromyalgia. Duloxetine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a604030.html (last updated Feb. 15, 2013). 13 1 time, sit for four hours and stand for four hours total in an 2 eight-hour day, lift and carry less than 10 pounds frequently and 3 10 to 20 pounds occasionally, and never lift or carry 50 pounds. 4 (AR 519-20.) Dr. Yang believed that in an eight-hour workday, 5 Plaintiff would need to walk five minutes every 30 minutes; shift 6 at will from sitting, standing, or walking; and take unscheduled 7 15-minute breaks every two hours. (Id.) She believed Plaintiff 8 could reach, perform fine manipulations, and grasp or turn 9 objects each for only 20 percent of the workday and could bend or 10 twist at the waist each for only 10 percent of the workday. 11 520.) (AR Dr. Yang believed that Plaintiff s pain and other symptoms 12 would [c]onstantly interfere with her attention and 13 concentration (AR 518) and that her impairments or treatment 14 would cause her to be absent from work about three times a month 15 (AR 521). She stated that her description of Plaintiff s 16 symptoms and limitations applied as early as 2 years ago. 17 (Id.) 18 C. 19 Remand is necessary because Dr. Yang s questionnaire renders Discussion 20 the ALJ s RFC assessment unsupported by substantial evidence. 21 See Brewes, 682 F.3d at 1163. The ALJ credited the opinion of 22 examining physician Hoang for two reasons: he had examined 23 Plaintiff and his conclusions were not rebutted by any treating 24 source. (AR 18.) Dr. Yang, however, also examined Plaintiff, 25 and her opinion differed in material respects from Dr. Hoang s. 26 Because the ALJ explicitly relied on an absence of any contrary 27 treating-physician opinion in adopting Dr. Hoang s opinion, Dr. 28 Yang s findings might have changed the outcome of the case. 14 See 1 Borrelli, 2014 WL 1492736, at *1 (remanding when ALJ explicitly 2 based his decision on the absence of recent medical records and 3 thus new records that reflect consistent and ongoing efforts to 4 resolve [plaintiff s] symptoms . . . might have changed the 5 outcome of the case ). 6 Indeed, Dr. Yang s opinion of Plaintiff s functional 7 capacity such as her finding that Plaintiff could stand and 8 walk only four hours in an eight-hour day, lift and carry only 20 9 pounds occasionally and less than 10 pounds frequently, bend and 10 twist at the waist each only 10 percent of the workday, and reach 11 only 20 percent of the workday is inconsistent with the ALJ s 12 finding that Plaintiff could perform a full range of medium 13 work. See §§ 404.1567(c), 416.967(c) (medium work involves 14 lifting no more than 50 pounds at a time with frequent lifting 15 or carrying of objects weighing up to 25 pounds ); SSR 83-10, 16 1983 WL 31251, at *6 (Jan. 1, 1983) ( full range of medium work 17 requires standing or walking, off and on, for a total of 18 approximately 6 hours in an 8-hour workday and usually requires 19 frequent bending-stooping ). Such limitations, if credited, 20 could potentially lead the ALJ to find Plaintiff disabled, 21 although it is impossible to determine that for certain because 22 they were not all presented to the VE in any hypothetical. See 23 Borrelli, 2014 WL 1492736, at *1 (remanding in part because the 24 new evidence suggests that neither the judge nor the vocational 25 expert posed a hypothetical that accurately reflects 26 [plaintiff s] abilities and limitations ). 27 Moreover, as a treating physician, Dr. Yang s opinion is 28 generally entitled to more weight than the opinion of an 15 1 examining doctor, see Lester, 81 F.3d at 830; §§ 404.1527(c)(2), 2 416.927(c)(2) ( [g]enerally, we give more weight to opinions from 3 your treating sources ); further, unlike Dr. Hoang, Dr. Yang 4 reviewed several of Plaintiff s test results, including x-rays 5 and a January 12, 2012 lumbar-spine MRI, before rendering her 6 opinion (see AR 483, 534-35, 540, 547, 575; see also AR 403 (Dr. 7 Hoang s report stating REVIEW OF MEDICAL RECORDS: None )); 8 §§ 404.1527(c)(6), 416.927(c)(6) ( the extent to which an 9 acceptable medical source is familiar with the other information 10 in your case record [is a] relevant factor[] that we will 11 consider in deciding the weight to give to a medical opinion ). 12 And although Dr. Yang s assessment postdates the ALJ s decision 13 by three months, she treated Plaintiff three times before the ALJ 14 issued his decision and stated that her assessment of Plaintiff s 15 limitations applied as of two years earlier. As such, it relates 16 to the period on or before the date of the ALJ s decision.16 See 17 Taylor 659 F.3d at 1232-33 (treating physician opinion that 18 postdated ALJ decision related to the period . . . before the 19 ALJ s decision because it concerned his assessment of 20 [plaintiff s] mental health since his alleged disability onset 21 date and before expiration of disability insurance, during which 22 time physician examined plaintiff twice, supervised treating 23 16 As the Commissioner notes, Dr. Yang checked a box on the 24 RFC questionnaire indicating that Plaintiff s impairments had not 25 lasted or could not be expected to last for at least 12 months 26 27 28 (J. Stip. at 12 (citing AR 518)), but that appears to be an error because it conflicts with her express opinion that Plaintiff s limitations had existed as described for up to two years (AR 521). In any event, the ALJ can consider that contradiction when determining on remand the weight to be accorded Dr. Yang s opinion. 16 1 nurse practitioner, and approved nurse practitioner s 2 prescriptions). 3 Considering the evidence as a whole, including the evidence 4 submitted to the Appeals Council and made part of the 5 administrative record, the ALJ s RFC assessment is not supported 6 by substantial evidence. As such, remand is warranted. See 7 Bayliss, 427 F.3d at 1217. 8 VI. CONCLUSION 9 When error exists in an administrative determination, the 10 proper course, except in rare circumstances, is to remand to the 11 agency for additional investigation or explanation. INS v. 12 Ventura, 537 U.S. 12, 16 (2002) (per curiam) (internal quotation 13 marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 14 2004). Accordingly, remand, not an award of benefits, is the 15 proper course in this case. See Strauss v. Comm r of Soc. Sec. 16 Admin., 635 F.3d 1135, 1136, 1138 (9th Cir. 2011) (remand for 17 automatic payment of benefits inappropriate unless evidence 18 unequivocally establishes disability). On remand, the ALJ should 19 determine the weight to be accorded Dr. Yang s opinion and 20 reassess Plaintiff s RFC in light of the evidence made part of 21 the administrative record by order of the Appeals Council. 22 23 ORDER Accordingly, IT IS HEREBY ORDERED that (1) the decision of 24 the Commissioner is REVERSED; (2) Plaintiff s request for remand 25 is GRANTED; and (3) this action is REMANDED for further 26 proceedings consistent with this Memorandum Opinion. 27 28 17 1 IT IS FURTHER ORDERED that the Clerk of the Court serve 2 copies of this Order and the Judgment on all parties or their 3 counsel. 4 5 6 DATED: June 18, 2014 7 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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