Tina Martinez v. Carolyn W. Colvin, No. 2:2016cv07701 - Document 23 (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 Further Details) (kl)
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Tina Martinez v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TINA MARTINEZ, 12 Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 19 I. ) Case No. CV 16-7701-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income benefits 21 (“SSI”). 22 Magistrate Judge under 28 U.S.C. § 636(c). 23 the Court on the parties’ Joint Stipulation, filed May 25, 2017, 24 which the Court has taken under submission without oral argument. 25 For the reasons stated below, the Commissioner’s decision is The parties consented to the jurisdiction of a U.S. The matter is before 26 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 Dockets.Justia.com 1 reversed and this action is remanded for further proceedings. 2 II. 3 BACKGROUND Plaintiff was born in 1978. (Administrative Record (“AR”) She attended school at least until high school2 and worked 4 146.) 5 briefly in clothing and shoe stores. 6 (AR 85, 90, 167, 226.) On November 9, 2012, Plaintiff filed an application for SSI, 7 alleging that she had been unable to work since January 1, 2005 8 (AR 70, 146), because of severe back and leg pain, muscle spasms, 9 nerve problems, depression, and stage-three precancer in the 10 cervix (AR 70). 11 93-97) and on reconsideration (AR 98-104), she requested a 12 hearing before an Administrative Law Judge (AR 105). 13 was held on October 27, 2014, at which Plaintiff testified, as 14 did a vocational expert. 15 issued February 26, 2015, the ALJ found Plaintiff not disabled. 16 (AR 17-30.) 17 Council denied on August 22, 2016. 18 followed. 19 III. STANDARD OF REVIEW 20 After her application was denied initially (AR (AR 37-69.) A hearing In a written decision Plaintiff requested review, which the Appeals (AR 1-4.) This action Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra The ALJ’s findings and 25 26 27 28 2 There is some discrepancy about whether Plaintiff attended school through eighth or 10th grade. (Compare AR 44-45 (Plaintiff testifying that highest grade she passed was eighth), with AR 85, 167 (showing that Plaintiff completed 10th grade).) 2 1 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 2 evidence means such evidence as a reasonable person might accept 3 as adequate to support a conclusion. 4 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 5 It is more than a scintilla but less than a preponderance. 6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 8 substantial evidence supports a finding, the reviewing court 9 “must review the administrative record as a whole, weighing both Richardson, 402 U.S. at To determine whether 10 the evidence that supports and the evidence that detracts from 11 the Commissioner’s conclusion.” 12 720 (9th Cir. 1998). 13 either affirming or reversing,” the reviewing court “may not 14 substitute its judgment” for the Commissioner’s. 15 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 16 People are “disabled” for purposes of receiving Social 17 Security benefits if they are unable to engage in any substantial 18 gainful activity owing to a physical or mental impairment that is 19 expected to result in death or has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 21 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 22 1992). 42 U.S.C. 23 A. 24 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 25 assess whether a claimant is disabled. 26 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 27 1995) (as amended Apr. 9, 1996). 28 Commissioner must determine whether the claimant is currently 20 C.F.R. In the first step, the 3 1 engaged in substantial gainful activity; if so, the claimant is 2 not disabled and the claim must be denied. § 416.920(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting her ability to do basic work 7 activities; if not, the claimant is not disabled and the claim 8 must be denied. 9 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments 13 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 14 1; if so, disability is conclusively presumed. 15 § 416.920(a)(4)(iii). 16 If the claimant’s impairment or combination of impairments 17 does not meet or equal an impairment in the Listing, the fourth 18 step requires the Commissioner to determine whether the claimant 19 has sufficient residual functional capacity (“RFC”)3 to perform 20 her past work; if so, she is not disabled and the claim must be 21 denied. 22 proving she is unable to perform past relevant work. 23 F.2d at 1257. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 case of disability is established. 2 the claimant has no past relevant work, the Commissioner then 3 bears the burden of establishing that the claimant is not 4 disabled because she can perform other substantial gainful work 5 available in the national economy. 6 966 F.2d at 1257. 7 final step in the sequential analysis. 8 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 9 10 B. Id. If that happens or if § 416.920(a)(4)(v); Drouin, That determination comprises the fifth and § 416.920(a)(4)(v); The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since November 9, 2012, the 12 application date. 13 Plaintiff had severe impairments of “fibromyalgia, rheumatoid 14 arthritis, headaches, tendonitis of the left wrist, left arm 15 tremor, peripheral neuropathy, degenerative changes in the lumbar 16 spine and disc herniation, lumbar and cervical radiculopathy, 17 cervical strain, tricompartmental osteoarthritis of the left 18 knee, hyperlipidemia, and obesity.” 19 determined that Plaintiff’s impairments did not meet or equal a 20 listing. 21 22 (AR 19.) At step two, he concluded that (Id.) At step three, he (AR 20.) At step four, the ALJ found that Plaintiff had the RFC to perform light work with the following limitations: 23 she can occasionally climb ramps and stairs, but never 24 climb ladders, ropes, and scaffolds; she can occasionally 25 balance, 26 occasionally push/pull with the upper extremities; she 27 can use the bilateral upper extremities for frequent 28 handling and fingering; and she should avoid working stoop, kneel, crouch, 5 and crawl; she can 1 around unprotected heights. 2 (Id.) 3 evaluate against this RFC. 4 testimony, he found that Plaintiff could perform jobs existing in 5 significant numbers in the national economy. (AR 24-25.) 6 Accordingly, he found Plaintiff not disabled. (AR 25.) 7 V. 8 9 Plaintiff had no past relevant work for the ALJ to (AR 24.) Based on the VE’s DISCUSSION Plaintiff alleges that the ALJ erred by rejecting the opinions of two of her treating physicians (J. Stip. at 32-34, 10 37-38) and in assessing her credibility (id. at 10-12, 16-20, 21- 11 25, 27-28, 29-30, 32).4 12 doctors, the matter must be remanded for further analysis and 13 findings. 14 A. 15 16 Because the ALJ erred as to one of the The ALJ Erred in Rejecting Dr. Calleros’s Opinion But Not Dr. Romano’s Plaintiff contends that the ALJ did not cite “substantial 17 evidence allowing [the ALJ] to reject” the opinions of treating 18 physicians Gustavo Calleros and Thomas Romano. (J. Stip. at 34.) 19 20 21 22 23 24 25 26 27 28 4 Plaintiff’s first five contentions (arguing that the ALJ erred by “basing his adverse credibility determinations on intentional mischaracterization and/or omission of relevant evidence” (J. Stip. at 10); “making credibility judgments based on his own opinions as a layperson as to Plaintiff’s treatment” (id. at 18); “improperly bas[ing] an adverse credibility determination on Plaintiff’s purported activities of daily living” (id. at 22); “improperly bas[ing] an adverse credibility determination on cherry picked references to ‘improvement’” (id. at 27); and “fail[ing] to show substantial evidence to support ignoring Plaintiff’s testimony as to her impairments” (id. at 30)) essentially boil down to a challenge to the ALJ’s adverse credibility finding, and the Court has discussed them as one. 6 1 2 1. Applicable law Three types of physicians may offer opinions in Social 3 Security cases: those who directly treated the plaintiff, those 4 who examined but did not treat the plaintiff, and those who did 5 neither. 6 is generally entitled to more weight than an examining 7 physician’s, and an examining physician’s opinion is generally 8 entitled to more weight than a nonexamining physician’s. 9 Lester, 81 F.3d at 830. A treating physician’s opinion Id. This is true because treating physicians are employed to 10 cure and have a greater opportunity to know and observe the 11 claimant. 12 If a treating physician’s opinion is well supported by medically 13 acceptable clinical and laboratory diagnostic techniques and is 14 not inconsistent with the other substantial evidence in the 15 record, it should be given controlling weight. 16 If a treating physician’s opinion is not given controlling 17 weight, its weight is determined by length of the treatment Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). § 416.927(c)(2).5 18 19 5 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 final decision of the Commissioner, 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. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 7 1 relationship, frequency of examination, nature and extent of the 2 treatment relationship, amount of evidence supporting the 3 opinion, consistency with the record as a whole, the doctor’s 4 area of specialization, and other factors. 5 § 416.927(c)(2)-(6). When a physician’s opinion is not contradicted by other 6 evidence in the record, it may be rejected only for “clear and 7 convincing” reasons. 8 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 9 830-31). See Carmickle v. Comm’r, Soc. Sec. Admin., When it is contradicted, the ALJ must provide only 10 “specific and legitimate reasons” for discounting it. 11 (quoting Lester, 81 F.3d at 830-31). 12 examining physician’s opinion, moreover, depends on whether it is 13 consistent with the record and accompanied by adequate 14 explanation, among other things. 15 factors also determine the weight afforded the opinions of 16 nonexamining physicians. 17 Id. The weight given an § 416.927(c)(3)-(6). These § 416.927(e). The ALJ’s findings and decision should be upheld if they are 18 free of legal error and supported by substantial evidence based 19 on the record as a whole. 20 402 U.S. at 401; Parra, 481 F.3d at 746. 21 all the medical opinions “together with the rest of the relevant 22 evidence.” 23 susceptible to more than one rational interpretation,’ the ALJ’s 24 decision should be upheld.” 25 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). See 42 U.S.C. § 405(g); Richardson, 20 C.F.R. § 416.927(b). The ALJ must consider If the “‘evidence is Ryan v. Comm’r of Soc. Sec., 528 26 27 28 8 1 2. 2 Relevant facts Plaintiff began treatment with Dr. Calleros, her primary- 3 care physician, on October 31, 2012. 4 with hyperlipidemia, hyperglycemia, and back pain, claiming that 5 she had experienced the back pain “on [and] off for [a] decade” 6 and that her leg would “get . . . restless” in the evening. 7 352.) 8 diagnostic examination of Plaintiff’s lumbar spine, which showed 9 “curvature” but was “otherwise [a] normal study.” (AR 352-53.) She presented (AR On December 14, 2012, Dr. Calleros ordered a general (AR 450.) On 10 February 6, 2013, Plaintiff saw Dr. Calleros for a pap smear 11 related to her irregular menses. 12 was essentially “normal,” though her pap smear found “atypical 13 squamous cells of undetermined significance.” 14 March 6, 2013, Plaintiff reported back pain and “frequent” 15 headaches. 16 revealed that her “[l]umbar spine has tenderness” and her deep 17 tendon reflexes were “preserved and symmetric.” 18 prescribed Plaintiff Norco6 and diclofenac,7 ordered an MRI of 19 her lumbar spine, and referred her to an orthopedic doctor. 20 (Id.) (AR 486.) (AR 484-85.) Her physical exam (AR 485.) On Dr. Calleros’s physical exam of Plaintiff (AR 487.) He 21 22 23 24 25 26 27 28 6 Norco is an opioid pain medication used to relieve moderate to moderately severe pain. See Norco, Drugs.com, https://www.drugs.com/norco.html (last updated Sept. 29, 2016). It contains a combination of acetaminophen and hydrocodone. Id. 7 Diclofenac is a nonsteroidal antiinflammatory drug that reduces substances in the body that cause pain and inflammation. See Diclofenac, Drugs.com, https://www.drugs.com/diclofenac.html (last updated Mar. 23, 2017). It is used to treat mild to moderate pain or signs and symptoms of osteoarthritis and rheumatoid arthritis. Id. 9 1 On June 12, 2013, Plaintiff reported arm pain at a “4/10” 2 and a tremor on her left side “radiating up [her] arm.” (AR 628- 3 29.) 4 musculoskeletal exam revealed “moderate pain [with] motion.” 5 (Id.) 6 “[p]ain in joint involving hand.” 7 Plaintiff reported that her left arm “still shakes,” the 8 prednisone provided only “mild help,” and the Norco “gave [her] 9 insomnia” and was “[n]ot helpful.” She was “positive for [j]oint pain,” and her Dr. Calleros prescribed prednisone8 for Plaintiff’s (AR 629.) (AR 630.) On August 22, 2013, She still 10 experienced back pain. 11 “tremors,” referred her to neurology for further assessment, and 12 ordered x-rays of her “neck spine” and wrist. 13 prescribed primidone9 and gabapentin10 for her tremor and 14 Percocet11 for her back pain. 15 Plaintiff followed up with Dr. Calleros about her tremor and also 16 complained of “upper neck muscle spasms.” 17 Calleros noted that her wrist x-ray was “normal” and her neck (Id.) Dr. Calleros noted Plaintiff’s (Id.) (AR 631.) He On October 10, 2013, (AR 633.) Dr. 18 19 20 21 22 23 24 8 Prednisone is a corticosteroid that prevents the release of substances in the body that cause inflammation. See Prednisone, Drugs.com, https://www.drugs.com/prednisone.html (last updated Feb. 13, 2013). 9 Primidone is a barbiturate anticonvulsant used to control and reduce seizures. See Primidone, WebMD.com, http:// www.webmd.com/drugs/2/drug-8696/primidone-oral/details (last visited Oct. 4, 2017). 10 25 26 27 28 Gapapentin is an antiepileptic medication used to treat neuropathic pain. See Gabapentin, Drugs.com, https:// www.drugs.com/gabapentin.html (last updated Nov. 9, 2015). 11 Percocet is an opioid pain medication used to relieve moderate to severe pain. See Percocet, Drugs.com, https:// www.drugs.com/percocet.html (last updated May 6, 2017). 10 1 showed “loss of cervical lordosis.” 2 and Robaxin12 for the muscle spasms in her neck. 3 (Id.) He prescribed Norco (AR 634.) On January 2, 2014, Plaintiff complained of headaches, 4 tremors, back pain, and joint pain. 5 she also reported knee pain and symptoms of carpal tunnel 6 syndrome, and Dr. Calleros ordered an x-ray of her knees. 7 643-45.) 8 tricompartmental osteoarthritis.” 9 Plaintiff experienced joint pain, joint swelling, numbness in her (AR 636.) On March 6, 2014, (AR The results showed an impression of “minimal (AR 546.) On April 3, 2014, 10 extremities, abdominal distension, heartburn, and knee pain. 11 647.) 12 “[l]eft knee.” 13 (AR Dr. Calleros’s physical exam showed “tenderness” in her (AR 648.) On June 12, 2014, Plaintiff complained of back and joint 14 pain. 15 “tenderness” in her “[l]eft hand” and “wrist.” 16 diagnosed her with “[w]rist tendonitis” and ordered followups 17 with “Ortho and Neuro.” 18 therapy and suggested she continue taking Norco for her back 19 pain. 20 (AR 650.) Dr. Calleros’s physical exam revealed (Id.) (AR 651.) He He also prescribed physical (Id.) On October 16, 2014, Dr. Calleros filled out a “Medical 21 Statement regarding pain for Social Security disability claim” 22 for Plaintiff. 23 following were present: neuroanatomic distribution of pain, 24 limitation of motion of the spine, sensory or reflex loss, 25 positive straight-leg-raising test, severe burning or painful (AR 670-71.) He checked boxes indicating the 26 27 28 12 Robaxin is a muscle relaxant used with rest and physical therapy to treat skeletal muscle pain. See Robaxin, Drugs.com, https://www.drugs.com/robaxin.html (last updated July 28, 2011). 11 1 dysesthesia,13 need to change position more than once every two 2 hours, and inability to ambulate effectively. 3 opined that Plaintiff suffered from “severe” pain, could sit for 4 one hour a day for 30 minutes at a time, and could stand or walk 5 for one hour a day for 30 minutes at a time. 6 could lift five pounds occasionally, no weight frequently, and 7 could never bend or stoop. 8 her neck to the left and right, frequently elevate her chin, and 9 occasionally bring her chin to her neck. 10 (Id.) (AR 670.) (AR 671.) He She She could frequently rotate (Id.) Plaintiff first saw Dr. Luigi Galloni, an orthopedic surgeon 11 referred by Dr. Calleros (see AR 623), on June 3, 2013 (AR 539- 12 40). 13 17 years” that was “constant [but] vary[ing] in intensity.” 14 539.) 15 over the L4-L5 and mostly the L5-S1 facets, more on the left than 16 on the right.” 17 test,” but her “[s]traight leg raising [was] negative” and her 18 “[d]eep tendon reflexes and motor functions [were] intact.” 19 (Id.) 20 sprain/strain” and “Lumbar facet arthropathy,” and he prescribed 21 a “physical therapy program two to three times a week for two to 22 three weeks for stretching and strengthening.” He noted that she was “referred for low back pain” “of over (AR His physical examination revealed “tenderness localized (AR 540.) She had a “positive facet loading His impression of her ailments was “Lumbar myoligamentous (Id.) An MRI of 23 24 25 26 27 28 13 Dysesthesia is caused by lesions of the peripheral or central sensory pathways and results in a disagreeable sensation produced by ordinary stimuli. Stedman’s Medical Dictionary 551 (27th ed. 2000). This pain, often associated with multiple sclerosis, usually manifests in a burning, prickling, or aching feeling. See What Is Dysesthesia (Multiple Sclerosis Pain)?, http://www.webmd.com/multiple-sclerosis/dysesthesia-pain#1 (last updated Mar. 30, 2017). 12 1 her lumbar spine on July 26, 2013, showed “[d]egenerative disk 2 disease” at the “L5-S1 level” and a “0.52-cm posterior bulging of 3 the disk at the L5-S1 level which causes compression of the 4 thecal sac anteriorly and narrowing of both the left and right 5 sided neural foramina, worse on the left side.” 6 (AR 535-36.) Dr. Galloni referred Plaintiff to Ryan Kishimoto, a physical 7 therapist. 8 July 3, 2013, at Plaintiff’s first appointment with Kishimoto, 9 she reported that her “pain makes it difficult to walk, sleep, (See AR 574-76, 580-81, 586-90, 603-06, 611-16). On 10 and clean around the house” and that she “has help from [her] 11 husband and daughter.” 12 “compliant with [the] home exercise program, but continue[d] to 13 [complain of] low back pain.” 14 In” as “8/10” and her “Pain Out” as “6/10.” 15 29, 2013, at the beginning of the appointment she “continue[d] to 16 [complain of] low back pain,” but after treatment she had “no 17 [complaints of] pain in [the] low back [and she] stat[ed] that 18 the pain meds she took [that] morning were helping”; her “Pain 19 In” was “4/10” and her “Pain Out” was “1/10.” 20 September 4 and 30, 2013, she similarly had “increased low back 21 pain” at the beginning of the session and after treatment “stated 22 decreased pain in low back, increased mobility with flexion and 23 sidebending,” and was “able [to] perform activities of daily 24 living and ambulate longer than 10 min with less pain.” 25 90.) 26 Plaintiff stated that she had “constant unrelenting pain in her 27 lower back.” 28 with Kishimoto, Plaintiff stated that she was “doing well, (AR 611.) On August 8, 2013, she was (AR 605.) She reported her “Pain (AR 606.) On August (AR 603-04.) On (AR 586- In an October 7, 2013 appointment with Dr. Galloni, (AR 541.) At an October 18, 2013 therapy session 13 1 [experiencing] less pain in low back.” 2 was “4/10” and her “Pain Out” was “3/10.” 3 notes from the visit show that at that point only a “home 4 exercise program” was available to her “until [she] receive[d] 5 more authorized visits” from insurance. 6 (AR 580.) Her “Pain In” (AR 581.) Treatment (Id.) On December 23, 2013, Dr. Galloni encouraged Plaintiff to 7 schedule an appointment with a “pain management doctor for 8 medications and epidurals as soon as possible.” 9 advised that “if conservative treatment fails she may need to be (AR 544.) He 10 referred to a spine surgeon.” 11 Kishimoto “discharged Plaintiff from physical therapy due to 12 failure to make scheduled appointments or failure to make any 13 follow up appointments.” 14 had been to five treatments and missed none. 15 (Id.) (AR 575.) On March 20, 2014, Her chart stated that she (AR 574.) Dr. Jessica Meir, a neurologist, saw Plaintiff on October 16 23, 2013, and ordered MRIs of her cervical and lumbar spine. 17 653-55.) 18 peripheral neuropathy, lumbar radiculopathy, and cervical 19 radiculopathy. 20 MRI results were essentially normal (AR 660), but the lumbar- 21 spine MRI showed “[m]ild degenerative changes on the left side”: 22 “[d]esiccation of the disc matrices,” “a 3 mm focal left 23 posterolateral protrusion extending into the ipsilateral neural 24 foramen[] underneath the exiting left L5 nerve root,” and “mildly 25 bulky” “facet complexes” (AR 661). 26 noted that the “point tenderness” in Plaintiff’s hands was 27 “suspicious for tendonitis” and referred her to a rheumatologist. 28 (AR 657-59.) (AR On March 13, 2014, Dr. Meir assessed Plaintiff with (AR 656.) On March 14, 2014, the cervical-spine 14 On April 8, 2014, Dr. Meir 1 Plaintiff first saw Dr. Thomas Romano, a rheumatologist, on 2 August 20, 2014. (AR 662.) Her “complaints include[d] joint 3 stiffness, ‘gelling’ of joints after periods of inactivity, 4 swelling, redness, warmth, crepitation, deformity and effusions.” 5 (Id.) 6 Romano’s objective musculoskeletal exam showed “normal gait; 7 grossly normal tone and muscle strength; full, painless range of 8 motion of all major muscle groups and joints[; and] no masses, 9 effusions, misalignment, crepitus, or tenderness in major Her symptoms were “progressive[ly] worsening.” (Id.) 10 joints.” 11 (See generally AR 662, 665.) 12 “multiple sites” and rheumatoid arthritis. 13 2, 2014, Plaintiff presented with the same complaints and Dr. 14 Romano’s physical exam produced the same results. 15 He also diagnosed her with fibromyalgia. Dr. 16 (AR 665.) She exhibited no other symptoms of any kind. He diagnosed her with joint pain in (AR 665.) On October (AR 663-64.) (AR 664.) That same day, Dr. Romano filled out a check-box “Medical 17 Statement regarding diabetes for Social Security disability 18 claim” about Plaintiff’s symptoms. 19 boxes indicating the following were present: history of joint 20 pain, history of joint swelling, history of joint tenderness, 21 morning stiffness, synovial inflammation, limitation of motion in 22 joints, radiographic changes typical of arthritis, inability to 23 ambulate effectively, and inability to perform fine and gross 24 movements effectively. 25 wrists, and ankles exhibited inflammation. 26 fatigue and malaise were “extreme,” and her activities of daily 27 living were “severely” limited. 28 could sit for one hour a day, 30 minutes at a time; couldn’t (AR 666.) (AR 666-69.) The joints of both hands, (AR 668.) 15 He checked (AR 667.) Her He opined that she 1 stand or walk at all “per day” but could stand or walk for 15 2 minutes “at one time”; and could lift 10 pounds occasionally and 3 five pounds frequently. 4 “never” bend, stoop, finely or grossly manipulate either hand or 5 raise either arm above shoulder level. 6 (Id.) Finally, he found that she could (Id.) On December 28, 2014, Dr. Thomas Keller saw Plaintiff for 7 the orthopedic consultation ordered by the ALJ. 8 She presented with “low back pain,” “stat[ing] the pain is worse 9 with bending forward or backward or extending her back”; she “has (AR 62, 672-76.) 10 difficulty ambulating for prolonged periods of time,” and 11 “increase[d] activity causes increased pain.” 12 claimed that “physical therapy . . . has not helped at all.” 13 (Id.) 14 tenderness to palpation,” a range of motion limited to “30 15 degrees of forward flexion and 10 degrees of extension,” and 16 lateral bending “limited to 10 degrees either way.” 17 Dr. Keller noted that Plaintiff “walked with a mildly shuffled 18 gait,” she “declined performing squat and stand,” and she “was 19 unable to perform a heel or toe stance without the use of a 20 support from the examination table.” 21 of her lower extremities showed “signs of sacroiliitis14 in 22 [Plaintiff’s] left hip,” and “[t]here was tenderness to palpation 23 over the trochanteric bursa on the left side.” (AR 672.) She Dr. Keller’s lumbar-spine inspection revealed “significant (AR 673.) (AR 674.) His inspection (AR 674.) An x- 24 14 25 26 27 28 Sacroiliitis is an inflammation of one or both sacroiliac joints — situated where the lower spine and pelvis connect. See Sacroiliitis, Mayo Clinic, http://www.mayoclinic.org/ diseases-conditions/sacroiliitis/home/ovc-20166357 (last updated Aug. 4, 2017). Sacroiliitis can cause pain in the lower back extending down one or both legs. Id. Prolonged standing or stair climbing can worsen the pain. Id. 16 1 ray of Plaintiff’s “lumbar spine demonstrate[d] mild degenerative 2 disc disease at the L5-S1 junction.” 3 opined that Plaintiff was “able to lift and carry 50 pounds 4 occasionally and 25 pounds frequently,” “push and pull on a 5 frequent basis,” “walk and stand six hours out of an eight-hour 6 day,” “walk on uneven terrain, climb ladders, and work at heights 7 frequently,” “sit six hours out of an eight-hour day,” and “bend, 8 crouch, stoop, and crawl frequently.” 9 found “no limitations for fingering, handling, feeling, and 10 reaching.” 11 (AR 675.) Dr. Keller (AR 675-76.) He also (AR 676.) Plaintiff and her husband filled out function reports on 12 November 20, 2012.15 13 “can’t stand or walk for a long time or sit down because [she] . 14 . . get[s] shrap [sic] pains in the back and down [her] leg.” 15 (AR 184.) 16 instructions . . . well and she can’t bend or squat[] and if she 17 try’s [sic] to it ends up hurting her after really bad.” 18 174.) 19 time because it make[s] her sleepy and can’t function so she 20 takes it at night time and she is in really bad pain by that 21 time.” 22 daughter to school and did not go outside on the weekends. 23 187.) 24 accompanied by someone — was going to the market about two or 25 three times a month. (AR 174-92.) Plaintiff wrote that she Her husband stated that “she doesn’t understand (AR He added that “she can’t take her medication in the day (Id.) She left her house during the week to take her (AR Other than that, the only errand she ran — usually (AR 177, 187.) During the day, she cleaned 26 27 15 28 The ALJ mentioned Plaintiff’s husband’s function report only in passing (AR 21) and did not expressly discredit it. 17 1 and did laundry; it took her “all day” to clean, and she did the 2 laundry “once a week with help.” 3 dinner in the evenings, though sometimes her husband would do the 4 cooking. 5 cook dinner, and she had to “seat [sic] down often” during that 6 time. (AR 176, 186.) (AR 175, 186.) She cooked It took her 30 minutes to an hour to 7 (Id.) At her October 27, 2014 hearing, Plaintiff testified that 8 her daughter, mother-in-law, and sister-in-law “help[ed]” her “do 9 the cleaning [and] . . . the cooking” because she was “in bed all 10 day.” (AR 43.) 11 (Id.) She rarely drove herself anywhere and usually relied on 12 her sister-in-law to accompany her to doctor’s appointments or go 13 to the market. 14 numerous medications to treat her pain, and she was waiting for 15 insurance authorization for aquatherapy, physical therapy, and 16 pain-management treatment. 17 3. They also “help[ed] [her] go to the rest room.” (See AR 43-44.) Her doctors had prescribed (AR 46-48, 55, 61-62.) Analysis 18 The ALJ found that Plaintiff had severe impairments of 19 “fibromyalgia, rheumatoid arthritis, headaches, tendonitis of the 20 left wrist, left arm tremor, peripheral neuropathy, degenerative 21 changes in the lumbar spine and disc herniation, lumbar and 22 cervical radiculopathy, cervical strain, tricompartmental 23 osteoarthritis of the left knee, hyperlipidemia, and obesity” and 24 was capable of performing “less than the full range of ‘light’ 25 work.” 26 give “any weight” to the “medical source statements from treating 27 physicians, Drs. Calleros and Romano,” which assessed Plaintiff 28 “as capable of less than sedentary work.” (AR 19, 23.) In so finding, he considered but did not 18 (AR 23-24.) Because 1 Drs. Calleros’s and Romano’s opinions were contradicted by other 2 medical opinions in the record, the ALJ had to give only specific 3 and legitimate reasons for discounting all or part of them. 4 Carmickle, 533 F.3d at 1164. 5 did so for Dr. Romano’s opinion, he did not for Dr. Calleros’s. 6 The ALJ gave identical reasons for rejecting the two See As discussed below, though the ALJ 7 treating physicians’ opinions. 8 reasons were specific, legitimate, and supported by substantial 9 evidence in the record. As to Dr. Romano’s opinion, those The ALJ noted that the “record fails to 10 support such extensive work limitations,” and he found “little 11 evidence in support of a less than sedentary residual functional 12 capacity.” 13 (AR 24.) Dr. Romano’s brief relationship with Plaintiff and his 14 contradictory treatment notes provided substantial evidence for 15 rejecting his opinion. 16 filling out the medical-source statement. 17 indicates that he reviewed any of her medical records. 18 generally id.) 19 Plaintiff exhibited “normal gait; grossly normal tone and muscle 20 strength; full, painless range of motion of all major muscle 21 groups and joints[; and] no masses, effusions, misalignment, 22 crepitus, or tenderness in major joints.” 23 exhibited no other symptoms of any kind. 24 65.) 25 boxes on the medical-source statement explicitly contradicting 26 his treatment notes. 27 Plaintiff had “full, painless range of motion of all major muscle 28 groups,” he checked that she had an “inability to ambulate” or Dr. Romano saw Plaintiff twice before (AR 662-65.) Nothing (See His treatment notes for both visits show that (AR 664-65.) She (See generally AR 662- Despite these observations, however, Dr. Romano checked For example, though his notes state that 19 1 “perform fine and gross movements effectively.” (Compare AR 664- 2 65, with AR 666.) 3 assessed were not supported by any of his examination findings. 4 (See generally AR 662-65.) 5 provided in the comments section of the form stated little more 6 than his diagnoses of “Rheumatoid Arthritis” and “Fibromyalgia” 7 and his opinion that “[b]oth conditions are disabling . . . 8 [patient] not capable of any gainful employment.” 9 ALJ properly rejected Dr. Romano’s assessment because it was Moreover, the extreme limitations Dr. Romano The brief explanation Dr. Romano (AR 669.) The 10 inconsistent with his own treatment notes, which did not support 11 the assessed extreme limitations.16 12 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly 13 rejected physician’s opinion when it was contradicted by or 14 inconsistent with treatment reports); Connett v. Barnhart, 340 15 F.3d 871, 875 (9th Cir. 2003) (physician’s opinion properly 16 rejected when treatment notes “provide[d] no basis for the 17 functional restrictions he opined should be imposed on (AR 24, 669); see Rollins v. 18 19 20 21 22 23 24 25 26 27 28 16 Although the ALJ did not so find, he could also have rejected Dr. Romano’s conclusion that Plaintiff’s condition was “disabling . . . [causing her to be] incapable of any gainful employment” because it was an opinion on an issue reserved to the Commissioner. Indeed, that statement (AR 669) was essentially an opinion on Plaintiff’s ultimate disability status, which the ALJ was not obligated to accept. See § 416.927(d)(1) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you are disabled.”); SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996) (treating-source opinions that person is disabled or unable to work “can never be entitled to controlling weight or given special significance”); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (as amended) (“A disability is an administrative determination of how an impairment, in relation to education, age, technological, economic, and social factors, affects ability to engage in gainful activity.”). 20 1 [plaintiff]”); see also Thomas v. Barnhart, 278 F.3d 947, 957 2 (9th Cir. 2002) (ALJ need not accept doctor’s opinion that “is 3 brief, conclusory, and inadequately supported by clinical 4 findings”). 5 In contrast, the ALJ’s reasons for rejecting Dr. Calleros’s 6 opinion were not supported by substantial evidence in the record. 7 Dr. Calleros’s opinion was based on extensive treatment notes 8 showing Plaintiff’s complaints of pain and associated diagnoses 9 as well as the results of his physical examinations of her. Dr. 10 Calleros saw Plaintiff regularly over the course of almost two 11 years, and the medical-source statement he filled out is 12 consistent with the objective observations and physical exams of 13 Plaintiff reflected in his treatment notes. 14 631 (neurological physical exam showing “tremors”), with AR 670 15 (report checking “Neuro-anatomic distribution of pain”).) 16 complaints and medical issues are also reflected throughout the 17 record. 18 (Compare, e.g., AR These In rejecting the doctors’ opinions, the ALJ noted that 19 Plaintiff’s “history of treatment for lumbar spine and other 20 musculoskeletal problems has been intermittent and sparse.” 21 24.) 22 complaints of pain date back as early as 2004. 23 (Sept. 21, 2004 referral to USC Pain Clinic for back pain).) 24 began consistently complaining of and seeking treatment for back 25 pain in 2008 with her primary-care physician at the time, Dr. 26 Rodolfo Arevalo. 27 reporting worsening lower-back pain with spine “positive for 28 posterior tenderness”), 304 (Nov. 17, 2008: persistent back pain This assertion is not supported by the record. (AR Plaintiff’s (See AR 240 She (See, e.g., AR 299-301 (Aug. 15, 2008: 21 1 “[n]ot improving”), 311 (Oct. 19, 2009: lower-back pain 2 “worsening”), 323 (June 28, 2010: lower-back pain “has radiated 3 to the left calf and left thigh,” described as “burning, deep, 4 discomforting and shooting”), 329-30 (Mar. 14, 2011: reporting 5 left-arm numbness and positive for back pain), 333 (Sept. 16, 6 2011: “severe” symptoms occurring “daily,” “limiting house work, 7 pain pills not working”), 346 (Apr. 23, 2012: positive for back 8 pain, joint pain, joint swelling, and neck pain).) 9 she first saw Dr. Calleros, in October 2012, Dr. Arevalo had By the time 10 already prescribed Plaintiff Flexeril,17 Vicodin,18 tramadol,19 11 gabapentin, and Toradol20 to treat her back pain. 12 325, 335.) 13 prednisone, primidone, Percocet, and Robaxin to treat her pain. 14 (AR 487, 629, 631, 634, 651.) 15 (AR 301, 316, Dr. Calleros also prescribed Norco, diclofenac, The ALJ further stated that “[d]espite [Plaintiff’s] 16 complaints of significant pain, she has not provided a cogent 17 answer for why her treatment has been so limited.” 18 cites as support her “apparent[] declin[ing]” of pain-management (AR 24.) He 19 20 21 22 23 24 17 Flexeril is a muscle relaxant used to treat such skeletal muscle conditions as pain and injury. See Flexeril, Drugs.com, https://www.drugs.com/flexeril.html (last updated Apr. 12, 2009). 18 Vicodin is an opioid pain medication used for the relief of moderate to moderately severe pain. See Vicodin, Drugs.com, https://www.drugs.com/vicodin.html (last updated Sept. 29, 2016). 19 25 26 27 28 Tramadol is a narcoticlike pain reliever used to treat moderate to severe pain. See Tramadol, Drugs.com, https:// www.drugs.com/tramadol.html (last updated July 2, 2017). 20 Toradol is a nonsteroidal antiinflammatory drug used to treat moderate to severe pain. See Toradol, Drugs.com, https:// www.drugs.com/toradol.html (last updated July 22, 2016). 22 1 treatment and “fail[ure] to properly follow-up” on physical 2 therapy. 3 treatment, Plaintiff did provide a reason: insurance change. 4 46-47.) 5 authorization” for her physical therapy, her primary doctor had 6 to resubmit for authorization for pain management because of 7 “insurance changes,” and she was “waiting for the authorization” 8 for treatment for her fibromyalgia and rheumatoid arthritis.21 9 (AR 46-47, 49.) (Id.) Yet to the extent there were any gaps in (AR She testified that she had “to wait for [insurance] The record documents Plaintiff’s insurance 10 struggles, suggesting legitimate difficulty obtaining 11 authorization from her insurance in a timely manner. 12 one point she “received authorization for the pain management 13 doctor” (AR 544 (Dec. 13, 2013)) and was “waiting to see pain 14 management” (AR 635 (Jan. 2, 2014)), her “insurance changed” so 15 she had to resubmit “the papers to the new insurance and then 16 wait for authorization” to get her appointment (AR 224 (Feb. 18, 17 2014)). 18 appointment show she couldn’t attend more sessions “until [she] 19 receive[d] more authorized visits.” 20 summary from her physical therapist also confirms the need for Though at Treatment notes from Plaintiff’s last physical-therapy (AR 581.) The discharge 21 22 23 24 25 26 27 28 21 The ALJ also states that “[w]hile [Plaintiff] has been given diagnoses of rheumatoid arthritis and fibromyalgia, there is no evidence that she has undergone significant evaluation or treatment for such conditions.” (AR 24.) Dr. Meir referred Plaintiff to a rheumatologist on April 8, 2014. (AR 658-59.) Dr. Romano diagnosed Plaintiff with fibromyalgia and rheumatoid arthritis on October 2, 2014 (AR 664), only three weeks before her October 27 hearing (AR 39). His February 26, 2015 decision was less than five months after her diagnosis, giving her little time to establish “significant evaluation or treatment for such conditions,” particularly given her insurance issues. 23 1 further authorization. (AR 576.) Plaintiff averred to this at 2 her hearing, testifying that she “didn’t make follow-up 3 appointments” because “they changed [her] insurance” and her 4 “doctor would have to resubmit it to the new insurance.” 5 62.) 6 not a specific or legitimate reason to discount a treating 7 physician’s opinion. 8 2016 WL 6991194, at *9 (C.D. Cal. Nov. 29, 2016). 9 insurance issues are a valid reason for limited treatment, see (AR 61- Failure to seek treatment because of insurance issues is See Folsom v. Colvin, No. ED CV 16-291-PLA, Indeed, 10 Quinones v. Colvin, No. CV 12-3017 AN, 2013 WL 990767, at *6 11 (C.D. Cal. Mar. 13, 2013); Napier v. Colvin, No. EDCV 14-1886- 12 KLS, 2015 WL 6159464, at *4 (C.D. Cal. Oct. 20, 2015) 13 (plaintiff’s failure to pursue epidural injections or pain- 14 management program while waiting for insurance approval not 15 proper basis for discrediting her subjective symptom testimony); 16 see also Smolen, 80 F.3d at 1284 (Plaintiff “had not sought 17 treatment” because “she had no insurance and could not afford 18 treatment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) 19 (holding that benefits cannot be denied when Plaintiff’s failure 20 to obtain treatment arises from lack of medical insurance), and 21 there is substantial evidence in the record showing that any gaps 22 in treatment for her back pain stemmed from issues with insurance 23 authorization. 24 Further, the ALJ stated that Plaintiff’s “treatment has 25 consisted of no more than very conservative care, including pain 26 medications, muscle relaxants, hot packs, home exercises, and 27 some physical therapy.” 28 regimen cannot properly be categorized as “very conservative,” (AR 24.) 24 Plaintiff’s pain-management 1 however. See Soltero De Rodriguez v. Colvin, No. CV 14-05765- 2 RAO, 2015 WL 5545038, at *4 (C.D. Cal. Sept. 18, 2015) 3 (management of pain through medicine, NMS/TENS unit, and spinal 4 injections not conservative). 5 counter pain medication, “the use of narcotic medication in 6 conjunction with other treatments is generally viewed as non- 7 conservative treatment.” 8 were treated with prescription narcotic opioid, antiepileptic, 9 barbiturate anticonvulsant, muscle-relaxant, and antiinflammatory Id. Unlike conservative over-the- Plaintiff’s medical conditions 10 pain medications. 11 631, 634, 651.) 12 aquatherapy, was prescribed a TENS unit for home use, and was 13 awaiting insurance authorization for more intensive pain- 14 management treatment. 15 pain medications helped relieve some of her pain, Plaintiff did 16 not take to them well. 17 “Norco gave insomnia”), 633 (complaining that Percocet caused 18 mania).) 19 can’t take her medication in the day time because it make[s] her 20 sleepy and can’t function so she takes it at night time and she 21 is in really bad pain by that time.” 22 pain medication, in conjunction with her therapies and Dr. 23 Galloni’s referral for further treatment, cannot be characterized 24 as conservative. 25 664 (9th Cir. 2010) (holding “copious amounts of narcotic pain 26 medication as well as occipital nerve blocks and trigger point 27 injections” not conservative); Huerta v. Astrue, No. EDCV 07- 28 1617-RC, 2009 WL 2241797, at *4 (C.D. Cal. July 22, 2009) (See, e.g., AR 301, 316, 325, 335, 487, 629, She also received physical therapy and (See AR 47, 541.) Though the narcotic (See, e.g., AR 630 (complaining that Her husband reported in his function report that “she (AR 174.) This serious See Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 25 1 (treatment of narcotic pain medications, including Vicodin and 2 Robaxin, epidural steroid injections, and neck surgery not 3 conservative). 4 Though Dr. Galloni described Plaintiff’s physical therapy 5 without spine surgery as “conservative” (AR 544), Plaintiff did 6 not need to undergo “the most aggressive available” treatment, 7 see Christie v. Astrue, No. CV 10-3448-PJW, 2011 WL 4368189, at 8 *4 (C.D. Cal. Sept. 16, 2011) (narcotic pain medication, 9 injections, epidural shots, and cervical traction not categorized 10 as conservative despite no surgery). 11 above, Plaintiff had been prescribed more aggressive treatment, 12 such as epidurals, but did not yet have the insurance to cover 13 it. 14 caused by circumstances outside her control and should not be 15 viewed as a failure to seek treatment. 16 Moreover, as described This delay in pursuing more intensive pain management was See Orn, 495 F.3d at 638. Finally, the ALJ noted that “physical therapy helped to 17 increase her mobility and allowed her to perform her activities 18 of daily living, inconsistent with her hearing testimony that she 19 mostly lies around all day.” 20 improved by the time of the ALJ’s decision, he did not explain 21 how any “increase[d] . . . mobility” and ability “to perform her 22 activities of daily living” (id.) would “translate to an ability 23 to [perform] work activities,” see Soltero De Rodriguez, 2015 WL 24 5545038, at *4; see also Trevizo v. Berryhill, __ F.3d __, No. 25 15-16277, 2017 WL 4053751, at *12 (9th Cir. Sept. 14, 2017) (as 26 amended) (“[M]any home activities are not easily transferable to 27 what may be the more grueling environment of the workplace, where 28 it might be impossible to periodically rest or take medication.” (AR 24.) 26 Even assuming she had 1 (citation omitted)). “[I]mpairments that . . . preclude work and 2 all the pressures of a workplace environment will often be 3 consistent with doing more than merely resting in bed all day.” 4 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citation 5 omitted) (holding that “ability to talk on the phone, prepare 6 meals once or twice a day, occasionally clean one’s room, and 7 . . . care for one’s daughter, all while taking frequent hours- 8 long rests, avoiding any heavy lifting, and lying in bed” was 9 “consistent with an inability to function in a workplace 10 environment”). 11 for attempting to lead normal lives in the face of their 12 limitations.” “[D]isability claimants should not be penalized Reddick, 157 F.3d at 722 (citations omitted). 13 Because the ALJ failed to provide a specific and legitimate 14 reason for giving no weight to Dr. Calleros’s opinion, remand is 15 warranted. 16 B. 17 Plaintiff asserts that the ALJ erred in assessing her Remaining Issues 18 credibility. 19 32.) 20 credibility after he reassesses Dr. Calleros’s opinion, so the 21 Court does not address those arguments. 22 No. EDCV 08-0737 RNB, 2009 WL 2208088, at *2 (C.D. Cal. July 21, 23 2009) (finding it unnecessary to address further disputed issues 24 when court found that ALJ failed to properly consider treating 25 doctor’s opinion and laywitness testimony). (J. Stip. at 10-12, 16-20, 21-25, 27-28, 29-30, The ALJ may have to reevaluate Plaintiff’s statements’ 26 27 28 27 See Negrette v. Astrue, 1 C. Remand for Further Proceedings Is Appropriate 2 Plaintiff contends that “the ALJ’s failure to credit 3 Plaintiff’s treating physicians means those opinions must be 4 credited as a matter of law.” 5 always the case. 6 has discretion to remand for further proceedings. 7 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended); 8 Connett, 340 F.3d at 876 (“credit as true” doctrine is not 9 mandatory). (J. Stip. at 32.) But that is not When, as here, an ALJ errs, the Court generally See Harman v. When no useful purpose would be served by further 10 administrative proceedings, however, or when the record has been 11 fully developed, it is appropriate under the “credit as true” 12 rule to direct an immediate award of benefits. 13 F.3d at 1179 (noting that “the decision of whether to remand for 14 further proceedings turns upon the likely utility of such 15 proceedings”); Garrison, 759 F.3d at 1019-20. See Harman, 211 16 Here, further administrative proceedings would serve the 17 useful purpose of allowing the ALJ to reassess Dr. Calleros’s 18 opinion, and if he again finds that it is deserving of no weight, 19 provide a specific and legitimate reason for that finding. 20 may also reassess his evaluation of the credibility of 21 Plaintiff’s symptom statements and reevaluate Plaintiff’s RFC in 22 light of the evidence he did not previously consider or did not 23 adequately explain his consideration of. 24 appropriate. Thus, remand is See Garrison, 759 F.3d at 1020 n.26. 25 26 27 28 28 He 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),22 IT IS ORDERED that judgment be entered 4 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this memorandum decision. 7 8 DATED: 10/06/2017 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 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.” 29