Michele Ann Hurley v. Carolyn W. Colvin, No. 2:2016cv05892 - Document 29 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Michele Ann Hurley v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHELE ANN HURLEY, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 16-5892-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed May 24, 2017, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is reversed and this action is remanded 27 for further proceedings. The parties consented to the jurisdiction of For the reasons stated below, the 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1961. (Administrative Record (“AR”) 3 82.) 4 and director of operations at a health club. 5 She completed 12th grade and worked as a general manager (AR 163-64.) On August 15, 2013, Plaintiff applied for DIB, alleging that 6 she had been unable to work since August 29, 2006, because of 7 “carpal tunnel bilateral wrists and hands,” migraines, 8 depression, anxiety, “tingling and numbness” in her arms and 9 legs, incontinence, and pain in her back, neck, leg, “upper 10 extremity . . . in shoulders and arms,” “lower extremity,” and 11 knee.1 12 February 25, 2009. 13 denied initially, she requested a hearing before an 14 Administrative Law Judge. 15 held on January 26, 2015, at which Plaintiff, who was represented 16 by counsel, testified, as did a vocational expert and a medical 17 expert. 18 2, 2015, the ALJ found that Plaintiff was not disabled at any 19 time between February 25, 2009, her amended alleged onset date, 20 and December 31, 2011, her date last insured, and could have 21 performed her past relevant work during that period.2 (AR 82-83.) Plaintiff later amended her onset date to (AR 35, 147.) (See AR 32-74.) After her application was (AR 82-89, 100-01.) A hearing was In a written decision issued February (AR 15- 22 23 24 25 26 27 28 1 Plaintiff did not specify in her application whether her “lower extremity,” leg, and knee pain was on the right or left side, or both. (AR 82-83.) At the hearing, however, she noted that the pain was “mainly” on the left side of her body. (AR 49, 56.) 2 On the last page of her decision, the ALJ incorrectly used the original onset date, August 29, 2009, rather than the amended onset date. (See AR 27.) Because the ALJ used the amended onset (continued...) 2 1 31.) 2 June 10, 2016, it denied review. 3 followed. 4 III. STANDARD OF REVIEW 5 Plaintiff requested review from the Appeals Council, and on (AR 1-5.) This action Under 42 U.S.C. § 405(g), a district court may review the 6 Commissioner’s decision to deny benefits. The ALJ’s findings and 7 decision should be upheld if they are free of legal error and 8 supported by substantial evidence based on the record as a whole. 9 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 10 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 11 evidence means such evidence as a reasonable person might accept 12 as adequate to support a conclusion. 13 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 14 It is more than a scintilla but less than a preponderance. 15 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 16 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 17 substantial evidence supports a finding, the reviewing court 18 “must review the administrative record as a whole, weighing both 19 the evidence that supports and the evidence that detracts from 20 the Commissioner’s conclusion.” 21 720 (9th Cir. 1996). 22 either affirming or reversing,” the reviewing court “may not Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 23 24 25 26 27 28 2 (...continued) date throughout her opinion (see AR 18, 20), that was likely simply a scrivener’s error. 3 1 substitute its judgment” for the Commissioner’s. 2 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 3 People are “disabled” for purposes of receiving Social 4 Security benefits if they are unable to engage in any substantial 5 gainful activity owing to a physical or mental impairment that is 6 expected to result in death or has lasted, or is expected to 7 last, for a continuous period of at least 12 months. 8 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 9 1992). 42 U.S.C. 10 A. The Five-Step Evaluation Process 11 The ALJ follows a five-step evaluation process to assess 12 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); 13 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 14 amended Apr. 9, 1996). 15 determine whether the claimant is currently engaged in 16 substantial gainful activity; if so, the claimant is not disabled 17 and the claim must be denied. In the first step, the Commissioner must § 404.1520(a)(4)(i). 18 If the claimant is not engaged in substantial gainful 19 activity, the second step requires the Commissioner to determine 20 whether the claimant has a “severe” impairment or combination of 21 impairments significantly limiting her ability to do basic work 22 activities; if not, the claimant is not disabled and the claim 23 must be denied. 24 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 25 impairments, the third step requires the Commissioner to 26 determine whether the impairment or combination of impairments 27 meets or equals an impairment in the Listing of Impairments at 20 28 C.F.R. part 404, subpart P, appendix 1; if so, disability is 4 1 conclusively presumed. § 404.1520(a)(4)(iii). 2 If the claimant’s impairment or combination of impairments 3 does not meet or equal an impairment in the Listing, the fourth 4 step requires the Commissioner to determine whether the claimant 5 has sufficient residual functional capacity (“RFC”)3 to perform 6 her past work; if so, she is not disabled and the claim must be 7 denied. 8 proving she is unable to perform past relevant work. 9 F.2d at 1257. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie 10 case of disability is established. Id. If that happens or if 11 the claimant has no past relevant work, the Commissioner then 12 bears the burden of establishing that the claimant is not 13 disabled because she can perform other substantial gainful work 14 available in the national economy. 15 966 F.2d at 1257. 16 final step in the sequential analysis. 17 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. § 404.1520(a)(4)(v); Drouin, That determination comprises the fifth and § 404.1520(a)(4)(v); 18 B. 19 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 20 substantial gainful activity between February 25, 2009, the 21 amended alleged onset date, and December 31, 2011, her date last 22 insured. 23 relevant period, Plaintiff had the severe impairments of 24 “degenerative disc disease of the cervical and lumbar spine, and 25 obesity.” (AR 20.) (Id.) At step two, she concluded that during the At step three, she determined that Plaintiff’s 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 impairments did not meet or equal a listing. 2 (AR 24.) At step four, the ALJ found that through her date last 3 insured, Plaintiff had the RFC to perform a full range of light 4 work.4 5 that Plaintiff could have performed her past work as an 6 “operations manager/health club manager” during the relevant 7 period, both as she actually performed it and as it is generally 8 performed. 9 was not disabled during that time. 10 V. 11 (Id.) Based on the VE’s testimony, the ALJ concluded (AR 26-27.) Accordingly, she found that Plaintiff (AR 27.) DISCUSSION Plaintiff alleges that the ALJ erred in assessing the 12 medical evidence,5 assessing her credibility, and determining her 13 RFC. 14 Because the ALJ erred in the first respect, the matter must be 15 remanded for further analysis and findings. 16 (See J. Stip. at 6-10, 21-27, 27-32, 38-40, 48-51, 51.) A. 17 18 The ALJ Erred in Considering Dr. Padveen’s Opinion 1. Applicable law “Acceptable medical sources” under the Social Security 19 regulations include only licensed physicians, psychologists, 20 optometrists, podiatrists, and speech pathologists. 21 22 23 24 25 26 27 28 4 “Light work” involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” § 404.1567(b). A job is considered “light” “when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” Id. 5 Plaintiff’s issue one, whether the ALJ gave appropriate weight to the opinion evidence, and her issue three, whether the ALJ properly evaluated her severe impairments, are addressed together. 6 1 § 404.1513(a).6 2 see § 404.1513(d)(1), and an ALJ may reject opinions from “other 3 sources” by giving “reasons germane to each witness for doing 4 so.” 5 (citation omitted); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 6 1224 (9th Cir. 2010) (citation omitted). 7 rejecting an opinion from an “other” source without providing a 8 germane reason, that error is harmless if the Court can “conclude 9 from the record that the ALJ would have reached the same result Chiropractors are treated as “other sources,” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) If an ALJ errs by Molina, 674 F.3d at 1115; Marsh v. Colvin, 10 absent the error.” 11 792 F.3d 1170, 1172 (9th Cir. 2015). 12 2. 13 Relevant background Plaintiff apparently suffered cumulative work-related trauma 14 between February 2001 and August 2004, when she worked as a 15 general manager and director of operations at a health club. 16 484.) 17 treated Plaintiff as part of her worker’s-compensation claim. (AR Dr. Brian K. Padveen, a chiropractor, evaluated and 18 19 6 20 21 22 23 24 25 26 27 28 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the Commissioner’s final decision, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to 20 C.F.R. § 404.1513 are to the version in effect from September 3, 2013, to March 26, 2017. 7 1 (Id.) On November 18, 2009, Dr. Padveen completed an initial 2 report. 3 hand, wrist, and back pain. 4 Plaintiff’s range of motion and muscle and grip strength (AR 490- 5 502) and ordered and reviewed four x-rays of her cervical spine 6 (AR 502). 7 rays, Dr. Padveen made a “diagnostic impression” of “[c]ervical 8 spine, herniated nucleus pulposus at C3-C4, C4-C5, C5-C6 and C6-7 9 with neuroforaminal narrowing/spondylosis at C4-C5 and C5-C6 and (AR 484-507.) Plaintiff complained of neck, shoulder, (AR 486-87.) Dr. Padveen tested Based on his physical examination and review of her x- 10 C6-C7”; “[l]umbar spine degenerative disc disease at L4-5 with 11 herniated nucleus pulposus and neuroforaminal narrowing at L4-5”; 12 “[f]acet hypertrophy at L4-5 and L5-S1”; “[r]ight shoulder 13 sprain/strain”; “[c]ervicogenic headaches”; “[t]horacic spine 14 sprain/strain”; “[b]ilateral wrists - myoligamentous 15 sprain/strain; rule out bilateral carpal tunnel syndrome”; 16 “[f]ifty-pound weight gain secondary to injury”; and 17 “[a]nxiety/stress.” 18 splints” for her wrists, noting that her symptoms were 19 “consistent with carpal tunnel syndrome.” 20 examined Plaintiff again on January 6, 2010, noting generally the 21 same diagnoses as those in his November 2009 report. (Id.) He ordered “bilateral cock-up (AR 503, 531-32.) He (AR 526.) 22 On April 7, 2010, after reviewing a report by a consulting 23 orthopaedic doctor, Dr. Padveen noted that “[h]erniated nucleus 24 pulposus C3-7 with neural foraminal narrowing, herniated nucleus 25 pulposus L4-5 with neural foraminal narrowing, facet hypertrophy 26 L4-S1 and right wrist carpal tunnel syndrome” were diagnosed by 27 the orthopaedist, who had recommended that Plaintiff undergo 28 right-wrist surgery. (AR 527.) On April 12, 2010, Dr. Padveen 8 1 examined Plaintiff and confirmed his earlier diagnoses, including 2 that her carpal tunnel syndrome was “clinical.” 3 added “C6 [r]adiculopathy,” recommended that “gastro esophageal 4 reflux disease and gastritis be amended to [her] claim,” and 5 recommended referral to a psychologist for “consultation and 6 treatment of her anxiety and stress.” 7 that Plaintiff had declined the right-wrist surgery recommended 8 by the orthopaedist. 9 Plaintiff and reviewing a consulting psychologist’s recent (Id.) (Id.) (AR 535.) He Dr. Padveen noted On May 17, 2010, after examining 10 opinion, Dr. Padveen confirmed his April 2010 diagnoses. 11 542.) 12 (AR On June 11, 2010, in a supplemental report for her worker’s- 13 compensation case, Dr. Padveen noted that a consulting pain- 14 management doctor had examined Plaintiff and diagnosed “[r]ule 15 out bilateral carpal tunnel syndrome, [r]ule out de Quervain’s 16 syndrome, [c]ervical spine spondylosis with radiculopathy, [and] 17 [i]nsomnia.” 18 “reasonable” and incorporated them into his report. (AR 545.) Dr. Padveen found those diagnoses (Id.) 19 Dr. Padveen completed a “primary treating physician’s 20 permanent and stationary report” for Plaintiff’s worker’s- 21 compensation case on July 12, 2010. 22 noted that his “final” “diagnostic impression” was “[r]ight 23 carpal tunnel syndrome,” “[c]ervical trapezial regional 24 myofascial pain syndrome vs. fibromyalgia,” “[a] 50 pound weight 25 gain,” and “[s]uspect[ed] sleep apnea secondary to psychological 26 factors and 50 pound weight gain”; he added that the consulting 27 psychologist had diagnosed “depressive disorder” and “[a]nxiety 28 disorder.” (AR 555.) (AR 549-75.) In it, he His examination of Plaintiff confirmed 9 1 loss of range of motion and “[p]ositive orthopedic testing” in 2 her cervical, thoracic, and lumbar spines. 3 noted “[p]ositive orthopedic testing” and “[h]ypoesthesia over 4 the median innervation” in her right wrist and hand. 5 He assessed various “work restrictions” related to her spine and 6 wrist conditions. 7 August 2010, following a physical examination. He (AR 557.) He confirmed his “final” diagnoses in (AR 577.) On January 12, 2011, Dr. Padveen completed a supplemental 8 9 (Id.) (AR 556-57.) (See AR 578- report for Plaintiff’s worker’s-compensation case. 10 94.) 11 Plaintiff’s consulting orthopaedic doctor and psychologist. 12 578-82.) 13 psychologist into his opinion, noting that she should be “seen by 14 a sleep specialist” to determine if she “has developed sleep 15 apnea.” 16 doctor had “essentially noted symptoms compatible with [Dr. 17 Padveen’s] own examination and treatment course.” 18 In it, he summarized recent medical records from (AR He incorporated the findings of Plaintiff’s (AR 582-83.) He noted that Plaintiff’s orthopaedic (AR 583.) Dr. John W. Axline, a specialist in orthopaedic surgery, 19 testified by videoconference as a medical expert at Plaintiff’s 20 January 26, 2015 hearing. 21 review of her medical records, Dr. Axline opined that Plaintiff 22 had degenerative disc disease of the lumbar and cervical spines 23 (AR 37) and recommended that “lifting and carrying limits be 24 imposed” because of those conditions (AR 39). 25 Plaintiff had not been diagnosed with, nor did the medical record 26 support, any other conditions or work restrictions. 27 When asked by Plaintiff’s counsel to discuss Dr. Padveen’s 28 opinions, Dr. Axline stated: (AR 32-34, 36-45, 135.) 10 Based on a He opined that (AR 38-40.) 1 Those are chiropractic notes, ma’am. 2 They are not useful for my purposes today. 3 (AR 40-41.) 4 diagnosis of carpal tunnel syndrome, noting that “she may have 5 it, but it’s not established in the files.” 6 Plaintiff’s counsel asked Dr. Axline a second time to comment on 7 Dr. Padveen’s opinions; he responded only that “[a]s we know, 8 it’s a chiropractic.” 9 3. Dr. Axline opined that the record did not support a (AR 41.) (AR 42.) Analysis 10 The ALJ found that during the relevant period Plaintiff had 11 severe impairments of “degenerative disc disease of the cervical 12 and lumbar spine, and obesity,” and was capable of performing a 13 full range of light work. 14 opinions of Plaintiff’s treating doctors and chiropractor Dr. 15 Padveen, the consulting examiners, and medical expert Dr. Axline. 16 (AR 20-26.) 17 findings because “he is not a qualified medical source.” 18 20.) 19 noting that he “reviewed the medical records prior to the hearing 20 and personally observed [Plaintiff] at the hearing.” (AR 20, 24.) She summarized the She gave “no weight” to chiropractor Padveen’s (AR She gave the “greatest weight” to Dr. Axline’s opinion, (AR 26.) To reject Dr. Padveen’s opinion, the ALJ had to give only a 21 22 germane reason; she failed to do so. In assessing the opinion, 23 the ALJ stated that she gave “no weight” to his “diagnostic 24 impressions” because he “is not a qualified medical source.” 25 20.) 26 chiropractic notes were not useful for assessing” Plaintiff’s 27 RFC. 28 counsel to comment on Dr. Padveen’s opinions, Dr. Axline She noted Dr. Axline’s view that “Dr. Padveen’s (AR 20-21.) At the hearing, when asked by Plaintiff’s 11 (AR 1 disregarded them as “chiropractic notes” and stated that “[t]hey 2 are not useful for my purposes today.” 3 again about Dr. Padveen’s opinions, Dr. Axline simply dismissed 4 them as “chiropractic.” 5 (AR 40-41.) When asked (AR 42.) The ALJ’s only stated reason for rejecting Dr. Padveen’s 6 opinion was that he was not a “qualified medical source.” 7 20.) 8 App’x 800, 802 (9th Cir. 2016) (finding that ALJ failed to 9 provide germane reason for rejecting opinion of claimant’s nurse That is not sufficient. (AR See Haagenson v. Colvin, 656 F. 10 and counselor because “[t]he only reason that the ALJ offered for 11 rejecting their opinions is that they are not ‘acceptable medical 12 sources’ within the meaning of the federal regulation”). 13 And although inconsistency with other objective evidence is 14 a germane reason to reject other-source evidence, see Molina, 674 15 F.3d at 1111–12, and Dr. Axline’s opinion is generally at odds 16 with Dr. Padveen’s assessment, the ALJ did not cite that 17 inconsistency as a reason for rejecting Dr. Padveen’s opinion. 18 Further, Dr. Axline also dismissed Dr. Padveen’s opinion solely 19 because he was a chiropractor. 20 the ALJ cited any specific inconsistencies between the two 21 doctors’ opinions or between Dr. Padveen’s opinion and any other 22 medical-opinion evidence. 23 3:16-cv-01665-LB, 2017 WL 1196800, at *14-15 (N.D. Cal. Mar. 31, 24 2017) (finding ALJ’s reason for rejecting other- source opinion 25 “insufficient” because ALJ failed to “cite specific 26 inconsistencies” with objective evidence); see also Bruce v. 27 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (reasons for 28 rejecting other-source testimony must be “germane” and Indeed, neither Dr. Axline nor See Nguyen v. Berryhill, No. 12 1 “specific”). 2 Defendant suggests that any error in failing to incorporate 3 Dr. Padveen’s opinion into Plaintiff’s RFC was harmless because 4 the ALJ “did find degenerative disc disease to be a severe 5 impairment, and Plaintiff’s back condition was considered, along 6 with Plaintiff’s other severe and not severe impairments.” 7 Stip. at 46-47.) 8 tunnel syndrome and radiculopathy, suspected that she had sleep 9 apnea, and confirmed a diagnosis of anxiety disorder. (J. But Dr. Padveen diagnosed Plaintiff with carpal (AR 545, 10 555.) 11 of those conditions into Plaintiff’s RFC, and she specifically 12 found that no “definitive diagnos[is]” of carpal tunnel existed 13 in the record (see AR 21), apparently ignoring Dr. Padveen’s such 14 diagnosis (see AR 555). 15 consistent with at least three other sources of medical-opinion 16 evidence. 17 consulting orthopaedist), 555, 582 (noting agreement with 18 consulting psychologist), 583 (noting consistency with pain- 19 management doctor).) 20 record that the ALJ would have reached the same result absent the 21 error.” Further, Dr. Padveen’s assessment was (See AR 527 (noting consistency with opinion of Thus, the Court cannot “conclude from the Molina, 674 F.3d at 1115. Because the ALJ failed to provide a germane reason for 22 23 The ALJ did not incorporate limitations stemming from any giving no weight to Dr. Padveen’s opinion, remand is warranted. B. 24 The ALJ Did Not Err in Considering the Other Medical Opinions 25 Plaintiff asserts that the ALJ failed to properly evaluate 26 27 other medical-opinion evidence. 28 48.) (J. Stip. at 6-10, 21-27, 41-43, Specifically, she contests the ALJ’s assessment of Dr. 13 1 Henry Tang’s and Dr. Bal Grewal’s opinions.7 2 reasons discussed below, the ALJ did not err. 3 1. (Id.) For the Applicable law 4 Three types of physicians may offer opinions in Social 5 Security cases: (1) those who directly treated the plaintiff, (2) 6 those who examined but did not treat the plaintiff, and (3) those 7 who did neither. 8 opinion is generally entitled to more weight than an examining 9 physician’s, and an examining physician’s opinion is generally 10 Lester, 81 F.3d at 830. A treating physician’s entitled to more weight than a nonexamining physician’s. Id. 11 This is so because treating physicians are employed to cure 12 and have a greater opportunity to know and observe the claimant. 13 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 14 treating physician’s opinion is well supported by medically 15 acceptable clinical and laboratory diagnostic techniques and is 16 not inconsistent with the other substantial evidence in the 17 record, it should be given controlling weight. 18 If a treating physician’s opinion is not given controlling 19 weight, its weight is determined by length of the treatment 20 relationship, frequency of examination, nature and extent of the 21 treatment relationship, amount of evidence supporting the 22 opinion, consistency with the record as a whole, the doctor’s 23 area of specialization, and other factors. If a § 404.1527(c)(2). § 404.1527(c)(2)-(6). 24 25 26 27 28 7 Plaintiff also argues that the ALJ erred in giving substantial weight to the opinion of medical-expert Dr. Axline. (J. Stip. at 9.) Because the ALJ must reconsider Dr. Padveen’s opinion on remand, she will also have to reassess Dr. Axline’s opinion, which relied on the same faulty reasoning to dismiss Dr. Padveen’s opinion. 14 1 When a treating physician’s opinion is not contradicted by other 2 evidence in the record, it may be rejected only for “clear and 3 convincing” reasons. 4 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 5 830-31). 6 “specific and legitimate reasons” for discounting it. 7 (citing Lester, 81 F.3d at 830-31). 8 not accept the opinion of any physician, including a treating 9 physician, if that opinion is brief, conclusory, and inadequately See Carmickle v. Comm’r, Soc. Sec. Admin., When it is contradicted, the ALJ must provide only Id. Furthermore, “[t]he ALJ need 10 supported by clinical findings.” 11 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 12 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 13 Thomas v. Barnhart, 278 F.3d “[T]he findings of a nontreating, nonexamining physician can 14 amount to substantial evidence, so long as other evidence in the 15 record supports those findings.” 16 522 (9th Cir. 1996) (per curiam). 17 given to a nonexamining doctor who testifies at a hearing and is 18 subject to cross-examination. 19 1042 (9th Cir. 1995). 20 21 2. Saelee v. Chater, 94 F.3d 520, Further, greater weight may be Andrews v. Shalala, 53 F.3d 1035, Relevant background Dr. Tang, a neurologist, first examined Plaintiff on March 22 18, 2013.8 23 [u]pper [e]xtremity [p]ain and [t]ingling [s]ensation,” 24 “intermittent left hand tingling sensation,” “persistent neck (AR 437, 448, 623.) Plaintiff complained of “[l]eft 25 26 27 28 8 As indicated by the “D.O.” following his name, Dr. Tang is also an osteopathic doctor. (AR 437.) Osteopathic doctors are considered acceptable medical sources under the regulations. See § 404.1513(a)(1). 15 1 pain,” and “mild weakness” in her left shoulder, bicep, and 2 tricep. 3 2012, when she apparently “hyperextended her left shoulder and 4 arm” while reaching for her phone. 5 “essentially normal” left-elbow MRI from December 31, 2012 (see 6 AR 447), and “[n]o evidence for bicep tear” (AR 437). 7 examination, Dr. Tang noted normal lower-extremity strength. 8 438.) 9 revealed “[c]hronic mild to moderate left C7 [c]ervical (AR 437.) She traced the pain to an incident in March (Id.) Dr. Tang noted an He ordered an EMG, which was “abnormal.” On (AR (AR 437-38.) It 10 [r]adiculopathy” and “[m]ild left [u]lnar [n]europathy at the 11 [e]lbow.” 12 Plaintiff’s cervical spine and advised her to wear a sleeve on 13 her left elbow. 14 (AR 439, 440-44.) He recommended an MRI of (AR 439.) In an office visit on April 18, 2013, Plaintiff complained 15 of “left hand tingling and numbness” and “persistent neck pain 16 and mild weakness” in her “left upper extremity.” 17 physical examination, Dr. Tang observed “5/5 [strength] in right 18 upper and bilateral lower extremities.” 19 MRI of her cervical spine, which revealed “[m]ultilevel 20 degenerative disc changes.” 21 mild-to-moderate left C7 [c]ervical [r]adiculopathy” and 22 “[m]ultiple cervical disc protrusions effacing the ventral 23 surface of the spinal cord most notably at C3-4 and C5-6.” 24 446-48.) 25 specialist. 26 (AR 446.) (Id.) (AR 445.) On He reviewed an He assessed “[c]hronic (AR He recommended referral to another doctor, presumably a (AR 446.) Dr. Tang completed a “cervical spine residual functional 27 capacity questionnaire” on April 18, 2013. 28 he noted diagnoses of “cervical spine stenosis” and “cervical 16 (AR 623-27.) In it, 1 radiculopathy.” (AR 623.) He described Plaintiff as suffering 2 from “neck pain, [left] upper extremity weakness, numbness.” 3 (Id.) 4 weakness, sensory and reflex changes, reduced grip strength, and 5 “drop[ping] things.” 6 that she had “significant limitation of motion” but did not 7 specify where or by how much. 8 indicate that Plaintiff had “daily” “severe headache pain 9 associated with impairment of the cervical spine,” which caused 10 an inability to concentrate, impaired sleep, and exhaustion and 11 could be made “better” by taking medication and going to a “quiet 12 place” or “dark room.” 13 “not primarily seeing [Plaintiff] for headaches.” 14 checked boxes to indicate that Plaintiff’s “impairments lasted or 15 can . . . be expected to last at least twelve months” and that 16 she was not a “malingerer.” 17 were “reasonably consistent” with her symptoms and the functional 18 limitations he had assessed. 19 indicate that “during a typical workday,” Plaintiff’s pain would 20 “frequently” interfere with the “attention and concentration 21 needed to perform even simple work tasks” and that she would be 22 able to tolerate only “low stress jobs.” 23 that Plaintiff would be able to walk only one city block “without 24 rest or severe pain,” could sit for only 10 minutes before 25 needing to stand, could stand for only 15 minutes before needing 26 to sit or walk around, and could “sit and stand/walk” for “less 27 than 2 hours” in an eight-hour workday. 28 that she would “need a job that permits shifting positions at Her symptoms included tenderness, muscle spasm and (Id.) Dr. Tang checked a box to indicate (Id.) (AR 624.) (Id.) He checked boxes to Dr. Tang noted that he was He He found that her impairments (AR 625.) 17 (Id.) He checked boxes to (Id.) Dr. Tang opined (AR 625-26.) He opined 1 will from sitting, standing, or walking” and would need to walk 2 for five minutes every 15 during the workday. 3 a workday, Plaintiff would need to take three or four 4 “unscheduled breaks,” resting her head on a “high-back chair” for 5 15 to 20 minutes each time. 6 lift 10 pounds, “rarely” lift 20, and “never” lift 50 pounds. 7 (Id.) 8 left, look up, hold her head in a static position, twist, or 9 stoop. (AR 626.) (AR 626.) In half She could “occasionally” She could “occasionally” look down, turn her head right or (AR 626-27.) She could “rarely” crouch or squat or climb 10 ladders or stairs. 11 impairments were “likely to produce ‘good days’ and ‘bad days’” 12 and cause her to be absent from work “[m]ore than four days per 13 month.” 14 (AR 627.) Dr. Tang opined that Plaintiff’s (Id.) On April 29, 2010, Dr. Grewal, a qualified medical examiner 15 and psychologist, examined Plaintiff as part of a 16 “[p]sychological [p]ain [c]onsultation” for her worker’s- 17 compensation case. 18 examination, Plaintiff appeared to be in “moderate” psychological 19 distress, presented an “anxious, and depressed & tearful” mood, 20 had “slightly impaired” attention and concentration skills and 21 “mild deficits” in immediate memory, and was of “average” 22 intelligence. 23 “consistent with her background and intellectual level,” and she 24 had “normal” abstracting ability and “below normal” computational 25 skills. 26 coherent.” 27 elaborating or exaggerating her symptoms. 28 prognosis was “good,” and Dr. Grewal “anticipated that [her] (See AR 382-419.) (AR 386.) (AR 386-87.) (AR 387.) In a mental-status Her “fund of information” was Her thought processes were “logical and Dr. Grewal opined that Plaintiff was not 18 (AR 388-89.) Her 1 period of recovery will continue over a period of 3-6 months.” 2 (AR 389.) 3 Plaintiff “exhibited difficulty with concentration and attention” 4 (AR 387), “experience[d] distress, depression and anxiety 5 symptoms in response to coping with [her] chronic pain” (AR 389), 6 had “a moderate level” of depression (AR 390) and anxiety (AR 7 392), “does not adapt well to the pain” (id.), had no 8 “neurological or psychomotor impairment” (id.), and manifested 9 “depression, hopelessness, anxiety and social withdrawal” (id.). A series of psychological tests revealed that 10 He diagnosed Plaintiff with depressive and anxiety disorders. 11 (AR 393-94.) 12 function impairment. 13 impairment in several areas, such as work or school, family 14 relations, judgment, thinking, or mood.” 15 that Plaintiff had at most a “mild” impairment in “activities of 16 daily living,” “social functioning,” “concentration, persistence, 17 and pace,” and “adaptation, decompensation in work or work-like 18 settings.” 19 neuromuscular reeducation, individual psychotherapy, and 20 chiropractic or physical therapy. 21 He assessed “slight” and “moderate” levels of work- (AR 398.) (AR 395-96.) He noted that she had “some (AR 396.) He opined He recommended medication management, (AR 401-02.) Dr. Grewal completed a “Psychological Permanent and 22 Stationary Evaluation” on October 12, 2010, for Plaintiff’s 23 worker’s-compensation case. 24 psychological tests, Plaintiff “exhibited difficulty with 25 concentration and attention” (AR 417), “experience[d] distress, 26 depression and anxiety symptoms in response to coping with her 27 chronic pain” (AR 418), “struggle[d] with pain on a daily basis” 28 (AR 419), reported experiencing pain that was “very disruptive to (See AR 411-31.) 19 In a series of 1 her life” (id.), and had an “impaired ability to focus and 2 concentrate” (id.). 3 anxiety disorders. 4 work-function impairments (AR 422-23) and at most “moderate” 5 impairment in Plaintiff’s “activities of daily living,” “social 6 functioning,” “concentration, persistence, and pace,” and 7 “adaptation, decompensation in work or work-like settings” (AR 8 424-25). 9 activities that would be required for day-to-day functioning.” Dr. Grewal again diagnosed depressive and (AR 421.) He noted “slight” to “moderate” He noted that Plaintiff does not “perform most of the 10 (AR 428.) 11 60.9 12 opined that Plaintiff would need “additional orthopedic 13 consultation and chiropractic/physical therapy for flare-ups” and 14 a “brief period of biofeedback training and supportive 15 psychotherapeutic treatment in order to help her maintain her 16 level of functioning and reenter gainful employment or vocational 17 rehabilitation.” 18 psychological perspective,” Plaintiff suffered from difficulties 19 that “would interfere with her ability to perform essential 20 functions of her usual and customary occupation.” (Id.) He assessed a global assessment functioning score of For her “[f]uture [m]edical [c]are,” Dr. Grewal (AR 430.) He opined that “[f]rom a (AR 431.) 21 22 23 24 25 26 27 28 9 GAF scores assess a person’s overall psychological functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 30 (revised 4th ed. 2000). A GAF score of 51 to 60 indicates moderate symptoms or difficulty in social, occupational, or school functioning. See id. at 32. GAF scores have been excluded from the latest edition of DSM because of concerns about their reliability and lack of clarity, however. See DSM-V 15-16 (5th ed. 2013). 20 1 3. 2 Analysis a. Dr. Tang 3 As an initial matter, it is not clear that Dr. Tang was 4 among Plaintiff’s treating physicians or that his April 2013 5 assessment of her limitations was based on medical records from 6 the relevant period. 7 March 18, 2013 — more than a year after her date last insured — 8 when he examined her, conducted an EMG, and ordered an MRI (AR 9 623, 437-44); he saw her again on April 18 to review the MRI (AR Dr. Tang apparently first saw Plaintiff on 10 445-46, 448) and to complete a cervical-spine RFC questionnaire 11 (AR 623-27). 12 appears to be based on only two visits, an EMG, and a single MRI, 13 all of which occurred in 2013. 14 assumes Dr. Tang was a treating doctor, the length and nature of 15 the treatment relationship is relevant in assessing whether the 16 ALJ gave specific and legitimate reasons for rejecting his 17 opinion. 18 Indeed, Dr. Tang’s April 2013 RFC assessment (See id.) Even if the Court See § 404.1527(c). The ALJ gave “[n]o weight” to Dr. Tang’s RFC assessment in 19 part because it was not supported by his treatment notes.10 20 26.) 21 that listed potential symptoms and other information and provided 22 blank spaces for comments. 23 that Plaintiff had headaches that made her unable to concentrate, 24 impaired her sleep, and exhausted her (AR 624); experienced pain (AR The opinion was rendered on a preprinted check-box form (See AR 623-27.) Dr. Tang opined 25 26 27 28 10 The ALJ refers to a “Dr. Teng” (AR 26) but the questionnaire was completed by Dr. Tang. (Compare AR 627 (signature illegible but office name “Patient Focused Neurology” clear), with 440 (letterhead of Dr. Henry Tang with same office name).) 21 1 that would “frequently” interfere with the “attention and 2 concentration needed to perform even simple work tasks” (AR 625); 3 could walk only one block without having to rest or experiencing 4 severe pain (id.); could sit for only 10 minutes before needing 5 to get up and stand for only 15 minutes without needing to sit 6 down or walk around (id.); could sit for only two hours total in 7 an eight-hour workday and stand for the same amount of time (AR 8 626); would need a job that required “shifting positions at will 9 from sitting, standing, or walking” (id.); and would be absent 10 from work “more than four days per month” as a result of her 11 impairments or treatment (AR 627). 12 from Dr. Tang in the record show that he evaluated her on March 13 18, 2013, for “[l]eft [u]pper [e]xtremity [p]ain and [t]ingling 14 [s]ensation,” assessed her with “chronic mild to moderate left C7 15 [c]ervical [r]adiculopathy” and “[m]ild left [u]lnar [n]europathy 16 at the [e]lbow,” requested an MRI, and advised her to wear an 17 elbow sleeve on her left elbow (AR 437-39); during her April 18, 18 2013, follow-up appointment, he discussed the findings of 19 “[m]ultilevel degenerative disc changes” from her MRI and 20 recommended a referral to a specialist (AR 446). 21 found (AR 26), Dr. Tang’s treatment records do not reflect the 22 extreme limitations he assessed in the cervical-spine 23 questionnaire. 24 about left-elbow and -upper-extremity pain; Dr. Tang’s treatment 25 notes do not mention headaches, lower-extremity pain, an 26 inability to concentrate, or any limitations that might affect 27 her ability to stand or sit. 28 strength in her lower extremities on both visits. But the only treatment notes As the ALJ Plaintiff apparently complained to Dr. Tang only Indeed, he noted that she had full 22 (AR 438, 445.) 1 The ALJ was entitled to discount Dr. Tang’s more restrictive 2 opinion on that basis. 3 875 (9th Cir. 2003) (treating physician’s opinion properly 4 rejected when treatment notes “provide[d] no basis for the 5 functional restrictions he opined should be imposed on 6 [plaintiff]”); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) 7 (ALJ permissibly rejected psychological evaluations “because they 8 were check-off reports that did not contain any explanation of 9 the bases of their conclusions”); De Guzman v. Astrue, 343 F. See Connett v. Barnhart, 340 F.3d 871, 10 App’x 201, 209 (9th Cir. 2009) (ALJ was “free to reject” doctor’s 11 check-off report that did not explain basis for conclusions); see 12 also Batson, 359 F.3d at 1195 (“[A]n ALJ may discredit treating 13 physicians’ opinions that are conclusory, brief, and unsupported 14 by the record as a whole . . . or by objective medical 15 findings[.]”). 16 The ALJ also found that Dr. Tang’s opinion was contradicted 17 by Plaintiff’s medical records as a whole. 18 Plaintiff did not identify, nor does the record reveal, any other 19 medical-opinion evidence that assessed the extreme restrictions 20 contained in Dr. Tang’s RFC questionnaire, including his opinion 21 that she could sit for only 10 minutes at a time or stand for 22 only 15 minutes (AR 625), could sit or stand for “less than two 23 hours” total in an eight-hour workday (AR 626), and would be 24 absent from work more than four days each month (AR 627). 25 ALJ could permissibly cite the lack of evidence supporting Dr. 26 Tang’s opinion. (AR 26.) See Batson, 359 F.3d at 1195. 27 28 23 Indeed, The 1 b. 2 Dr. Grewal The ALJ assigned “substantial weight” to the opinion of Dr. 3 Grewal that Plaintiff would have “no more than mild impairments 4 in mental functioning, and that her symptoms are 100% the result 5 of her emotional response to pain,” but rejected his opinion that 6 her “depression and anxiety would interfere with her ability to 7 perform her usual and customary occupation,” finding it 8 “internally inconsistent” with his own treatment notes and with 9 Plaintiff’s test scores. (AR 26.) Indeed, after administering a 10 series of psychological tests, Dr. Grewal assessed at most 11 moderate limitations in her workplace functioning: “slight” and 12 “moderate” levels of work-function impairment in April 2010 (AR 13 395-96) and “slight” or “moderate” work-function impairments (AR 14 422-43) and at most “moderate” impairment in her “activities of 15 daily living,” “social functioning,” “concentration, persistence, 16 and pace,” and “adaptation, decompensation in work or work-like 17 settings” in October 2010 (AR 424-25). 18 Plaintiff was “permanent and stationary” and needed “continued” 19 orthopedic, chiropractic, or physical therapy and a “brief” 20 period of biofeedback training and psychotherapeutic treatment, 21 which would “help her maintain her level of functioning and 22 reenter gainful employment or vocational rehabilitation.” 23 430.) 24 employment” with treatment calculated to “maintain” — not 25 increase — “her level of functioning” is indeed inconsistent with 26 an opinion that her depression and anxiety made her unable to 27 perform “her usual and customary occupation.” 28 Inconsistency with treatment notes and lack of diagnostic Dr. Grewal opined that (AR Dr. Grewal’s opinion that Plaintiff could “reenter gainful 24 (See AR 430-31.) 1 evidence are permissible reasons for the ALJ to have given 2 portions of Dr. Grewal’s opinion little or no weight. 3 Connett, 340 F.3d at 875; Thomas, 278 F.3d at 957 (ALJ need not 4 accept treating-physician opinion that is “inadequately supported 5 by clinical findings”); cf. § 404.1527(c)(3) (“The more a medical 6 source presents relevant evidence to support an opinion, 7 particularly medical signs and laboratory findings, the more 8 weight we will give that medical opinion.”). 9 10 C. See Remaining Issues Plaintiff asserts that the ALJ failed to provide clear and 11 convincing reasons to discredit her subjective symptom testimony 12 (J. Stip. t 31-32) and did not properly assess her RFC (id. at 13 48-51). 14 credibility and Plaintiff’s RFC in light of Dr. Padveen’s 15 opinion, so the Court does not address those arguments. 16 Negrette v. Astrue, No. EDCV 08-0737 RNB, 2009 WL 2208088, at *2 17 (C.D. Cal. July 21, 2009) (finding it unnecessary to address 18 further disputed issues when court found that ALJ failed to 19 properly consider treating doctor’s opinion and lay-witness 20 testimony). The ALJ may have to reevaluate Plaintiff’s statements’ 21 D. 22 See Remand for Further Proceedings Is Appropriate When, as here, an ALJ errs, the Court generally has 23 discretion to remand for further proceedings. 24 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended). 25 no useful purpose would be served by further administrative 26 proceedings, however, or when the record has been fully 27 developed, it is appropriate under the “credit as true” rule to 28 direct an immediate award of benefits. 25 See Harman v. When See id. at 1179 (noting 1 that “the decision of whether to remand for further proceedings 2 turns upon the likely utility of such proceedings”); Garrison v. 3 Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). 4 findings are so “insufficient” that a court cannot determine 5 whether the rejected testimony should be credited as true, the 6 Court has “some flexibility” in applying the credit-as-true rule. 7 Connett, 340 F.3d at 876; see also Garrison, 759 F.3d at 1020 8 (noting that Connett established that credit-as-true rule may not 9 be dispositive in all cases). When the ALJ’s Here, further administrative proceedings would serve the 10 11 useful purpose of allowing the ALJ to reassess Dr. Padveen’s 12 opinion, and if she again finds that it is deserving of no 13 weight, provide a germane reason for that finding. 14 reassess her evaluation of Dr. Axline’s opinion and the 15 credibility of Plaintiff’s symptom statements and reevaluate 16 Plaintiff’s RFC in light of the evidence she previously did not 17 consider or did not adequately explain her consideration of. 18 Thus, remand is appropriate. 19 n.26. 20 VI. 21 She may also See Garrison, 759 F.3d at 1020 CONCLUSION Consistent with the foregoing and under sentence four of 42 22 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 23 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 24 25 26 27 28 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 26 1 request for remand, and REMANDING this action for further 2 proceedings consistent with this memorandum decision. 3 4 5 DATED: August 17, 2017 _____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27