Virginia Francine Martinez v. Nancy A. Berryhill, No. 2:2017cv03069 - Document 25 (C.D. Cal. 2018)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this action for calculation of benefits. (See document for further details.) (sbou)

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Virginia Francine Martinez v. Nancy A. Berryhill Doc. 25 O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 2:17-CV-03069 (VEB) 7 8 VIRGINIA FRANCINE MARTINEZ, 10 11 12 DECISION AND ORDER Plaintiff, 9 vs. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant. 13 14 15 16 17 I. INTRODUCTION In August of 2013, Plaintiff Virginia Francine Martinez applied for Disability Insurance benefits and Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the applications. 18 19 20 1 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB Dockets.Justia.com 1 Plaintiff, by and through her attorney, Joshua W. Potter, Esq., commenced this 2 action seeking judicial review of the Commissioner’s denial of benefits pursuant to 3 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 13, 14). On April 6, 2018, this case was referred to the undersigned 6 pursuant to General Order 05-07. (Docket No. 24). 7 II. BACKGROUND 8 9 Plaintiff applied for benefits on August 22, 2013, alleging disability beginning 10 July 11, 2013. (T at 14).1 11 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 12 (“ALJ”). The applications were denied initially and on 13 On March 19, 2015, a hearing was held before ALJ Michael J. Kopicki. (T at 14 41). Plaintiff appeared with her attorney and testified. (T at 45-57). A further 15 hearing was held on September 9, 2015, before ALJ Ken H. Chau. (T at 61). 16 Plaintiff appeared with her attorney and offered additional testimony. (T at 66-87). 17 The ALJ also received testimony from Elizabeth Brown-Ramos, a vocational expert. 18 (T at 87-92). 19 20 Citations to (“T”) refer to the administrative record transcript at Docket No. 18. 2 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB On October 5, 2015, ALJ Chau issued a written decision denying the 1 2 applications for benefits. (T at 11-40). The ALJ’s decision became the 3 Commissioner’s final decision on March 17, 2017, when the Appeals Council 4 denied Plaintiff’s request for review. (T at 1-7). 5 On April 24, 2017, Plaintiff, acting by and through her counsel, filed this 6 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 7 1). The Commissioner interposed an Answer on September 6, 2017. (Docket No. 8 12). The parties filed a Joint Stipulation on February 20, 2018. (Docket No. 23). 9 After reviewing the pleadings, Joint Stipulation, and administrative record, 10 this Court finds that the Commissioner’s decision must be reversed and this case 11 remanded for calculation of benefits. 12 III. DISCUSSION 13 14 A. Sequential Evaluation Process 15 The Social Security Act (“the Act”) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which has 18 lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 3 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 claimant shall be determined to be under a disability only if any impairments are of 2 such severity that he or she is not only unable to do previous work but cannot, 3 considering his or her age, education and work experiences, engage in any other 4 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether the claimant has a 12 medically severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If the claimant does not have a severe impairment or combination of 15 impairments, the disability claim is denied. If the impairment is severe, the 16 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 17 with a number of listed impairments acknowledged by the Commissioner to be so 18 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 19 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 20 4 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 equals one of the listed impairments, the claimant is conclusively presumed to be 2 disabled. If the impairment is not one conclusively presumed to be disabling, the 3 evaluation proceeds to the fourth step, which determines whether the impairment 4 prevents the claimant from performing work which was performed in the past. If the 5 claimant is able to perform previous work, he or she is deemed not disabled. 20 6 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 7 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 8 work, the fifth and final step in the process determines whether he or she is able to 9 perform other work in the national economy in view of his or her residual functional 10 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 11 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a mental or physical impairment prevents 16 the performance of previous work. The burden then shifts, at step five, to the 17 Commissioner to show that (1) plaintiff can perform other substantial gainful 18 activity and (2) a “significant number of jobs exist in the national economy” that the 19 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 20 5 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 B. Standard of Review 2 Congress has provided a limited scope of judicial review of a Commissioner’s 3 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 4 made through an ALJ, when the determination is not based on legal error and is 5 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 6 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 7 “The [Commissioner’s] determination that a plaintiff is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 11 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 12 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 15 conclusions as the [Commissioner] may reasonably draw from the evidence” will 16 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 17 the Court considers the record as a whole, not just the evidence supporting the 18 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 19 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 20 6 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 It is the role of the Commissioner, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 3 interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 5 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 6 set aside if the proper legal standards were not applied in weighing the evidence and 7 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 8 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a finding 10 of either disability or non-disability, the finding of the Commissioner is conclusive. 11 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 12 C. Commissioner’s Decision 13 The ALJ determined that Plaintiff had not engaged in substantial gainful 14 activity since July 11, 2013, the alleged onset date, and met the insured status 15 requirements of the Social Security Act through June 30, 2017 (the “date last 16 insured”). (T at 18). The ALJ found that Plaintiff’s history of seizures and stroke; 17 degenerative disc disease of the lumbosacral spine with stenosis; and panic disorder 18 without agoraphobia were “severe” impairments under the Act. (Tr. 18). 19 20 7 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 However, the ALJ concluded that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled one of the impairments 3 set forth in the Listings. (T at 20). 4 The ALJ determined that Plaintiff retained the residual functional capacity 5 (“RFC”) to perform light work, as defined in 20 CFR 404.1567 (b), with the 6 following limitations: Plaintiff can stand/walk for a total of 4 hours in an 8-hour 7 workday; sit for 6 hours in an 8-hour workday; frequently operate foot controls with 8 the left lower extremity; occasionally climb ramps and stairs; never climb 9 ladders/ropes/scaffolds; occasionally balance, stop, kneel, crouch, crawl, walk on 10 uneven terrain; cannot operate motor vehicle or work at unprotected heights; and is 11 limited to simple, routine, and repetitive tasks. (T at 23). 12 The ALJ noted that Plaintiff could not perform her past relevant work as a 13 hand packager or pharmacy helper. (T at 31). Considering Plaintiff’s age (37 years 14 old on the alleged onset date), education (limited), work experience, and residual 15 functional capacity, the ALJ found that jobs exist in significant numbers in the 16 national economy that Plaintiff can perform. (T at 31-32). 17 Accordingly, the ALJ determined that Plaintiff was not disabled within the 18 meaning of the Social Security Act between July 11, 2013 (the alleged onset date) 19 and October 8, 2015 (the date of the decision) and was therefore not entitled to 20 8 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 benefits. (T at 33). As noted above, the ALJ’s decision became the Commissioner’s 2 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 3 1-7). 4 D. Disputed Issues 5 As set forth in the Joint Stipulation (Docket No. 23), Plaintiff offers four (4) 6 main arguments in support of her claim that the Commissioner’s decision should be 7 reversed. First, she argues the ALJ’s consideration of the medical opinion evidence 8 was flawed. Second, Plaintiff challenges the ALJ’s credibility determination. Third, 9 she argues that the ALJ did not properly consider lay witness testimony. Fourth, 10 Plaintiff asserts that the ALJ’s step five analysis was flawed. This Court will 11 address each argument in turn. 12 IV. ANALYSIS 13 14 A. Medical Opinion Evidence 15 In disability proceedings, a treating physician’s opinion carries more weight 16 than an examining physician’s opinion, and an examining physician’s opinion is 17 given more weight than that of a non-examining physician. Benecke v. Barnhart, 18 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 19 1995). If the treating or examining physician’s opinions are not contradicted, they 20 9 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 2 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 3 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 4 1035, 1043 (9th Cir. 1995). 5 The courts have recognized several types of evidence that may constitute a 6 specific, legitimate reason for discounting a treating or examining physician’s 7 medical opinion. For example, an opinion may be discounted if it is contradicted by 8 the medical evidence, inconsistent with a conservative treatment history, and/or is 9 based primarily upon the claimant’s subjective complaints, as opposed to clinical 10 findings and objective observations. See Flaten v. Secretary of Health and Human 11 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 12 An ALJ satisfies the “substantial evidence” requirement by “setting out a 13 detailed and thorough summary of the facts and conflicting clinical evidence, stating 14 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 15 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 16 “The ALJ must do more than state conclusions. He must set forth his own 17 interpretations and explain why they, rather than the doctors’, are correct.” Id. 18 In October of 2013, Dr. Paul Chiu, a pain management specialist and one of 19 Plaintiff’s treating physicians, opined that Plaintiff was “unable to work in any 20 10 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 capacity.” (T at 568). Dr. Chiu completed a “Physicians Source Statement” in 2 August of 2015. Dr. Chiu reported that Plaintiff would be “off task” approximately 3 30% of each work day due to her pain and limitations. (T at 790). He stated that 4 Plaintiff was likely to absent from work 5 days or more per month due to pain or 5 treatment, would be unable to complete 6 days or more of work per month, and 6 could efficiently perform a job for a full-day less than 50% of the time. (T at 790). 7 Dr. Nagasamudra Ashok, an internist and another treating physician, reported 8 in March of 2015 that Plaintiff was experiencing 3-4 epileptic seizures per week. (T 9 at 739). Dr. Ashok completed a Medical Source Statement in September of 2015. 10 Dr. Ashok opined that Plaintiff could occasionally lift/carry less than 5 pounds, sit 11 for 90 minutes in an 8-hour workday, and stand/walk for 2 hours in an 8-hour 12 workday. (T at 792). He reported that Plaintiff needed a cane to ambulate. (T at 13 792). Dr. Ashok stated that Plaintiff could never push/pull with her right hand. (T at 14 793). He opined that Plaintiff could occasionally climb stairs and ramps, but never 15 stoop, kneel, crouch, or crawl. (T at 794). 16 suffered from frequent muscle spasms that caused “excruciating pain” radiating from 17 the legs to the feet. (T at 793). Dr. Ashok explained that Plaintiff 18 19 20 11 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 The ALJ discounted these treating physician opinions, finding them not “well 2 supported” by the objective record and contradicted by other medical evidence, 3 including assessments from examining and reviewing physicians. (T at 25). 4 5 This Court finds the ALJ’s consideration of the treating physician opinions not supported by substantial evidence. 6 The ALJ stated that the treating sources’ opinions “appear[ed] to be tainted” 7 by Plaintiff’s efforts to obtain benefits. (T at 26-27). The ALJ explained that the 8 treating physicians “appear[ed] to be actively assisting [Plaintiff’s] attempt to obtain 9 benefits, rather than simply treating her or offering an objective opinion 10 corroborated by the treatment notes.” (T at 27). As such, the ALJ concluded that the 11 opinions “lack[ed] neutrality and reliability.” (T at 27). 12 However, “[t]he purpose for which medical reports are obtained does not 13 provide a legitimate basis for rejecting them,” unless there is additional evidence 14 demonstrating impropriety. The ALJ identified no such evidence here. Lester v. 15 Chater, 81 F.3d 821, 832 (9th Cir. 1995); see also Reddick v. Chater, 157 F.3d 715, 16 726 (9th Cir. 1998); Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993) 17 (“The Secretary may not assume that doctors routinely lie in order to help their 18 patients collect disability benefits.”). 19 20 12 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 The ALJ also found that the treating physician opinions were contradicted by 2 the medical record, which, the ALJ believed, showed that Plaintiff’s “conditions 3 have generally been managed with mainly conservative measures ….” (T at 25). 4 However, Plaintiff was treated with powerful prescription medication (e.g., Xanax, 5 OxyContin, Ambien, Cymbalta, Medzine, Norvase, and Gabapentin) (T at 547-49) 6 and epidural steroid injections. (T at 627-33). She required the use of a walker to 7 ambulate, which was prescribed. (T at 739). This cannot reasonably be characterized 8 as “limited” or “conservative” treatment. See Harvey v. Colvin, 2014 U.S. Dist. 9 LEXIS 107607, at *28 (C.D. Cal. Aug. 5, 2014)(finding that ALJ erred in 10 discounting credibility based on “conservative” treatment where treatment included 11 injections); Yang v. Barnhart, 2006 U.S. Dist. LEXIS 90358, at *12-14 (C.D. Cal. 12 Dec. 12, 2006)(concluding that physical therapy, neck surgery, prescription 13 medication, and epidural injections were not “conservative” treatments). In addition, 14 surgery was discussed and recommended, but apparently not pursued because of 15 insurance issues. (T at 624-25, 738). 16 The ALJ also relied on several examining and reviewing physician opinions, 17 finding them more persuasive than the treating physicians’ assessments. However, 18 the ALJ’s consideration of the non-treating physician opinions was flawed. Some of 19 the non-examining State Agency review physicians did render opinions consistent 20 13 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 with the ALJ’s RFC determination. (T at 27, 101-103, 103-105, 134-36, 136-38). 2 However, the opinion of a non-examining, State Agency physician does not, without 3 more, justify the rejection of a treating physician’s opinion. Lester v. Chater, 81 F.3d 4 821, 831 (9th Cir. 1995)(citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 5 1990)). 6 The ALJ also relied on the assessments of three consultative examiners, but 7 the analysis of these opinions was both poorly-articulated and insufficiently 8 reasoned. (T at 27-28). Dr. Ulin Sargeant performed a consultative examination in 9 October of 2013. Dr. Sargeant noted that Plaintiff had “very weak and poor 10 balance” of the left lower extremity and needed a walker to ambulate and for 11 balance. (T at 612, 614). This finding, which was consistent with the treating 12 physicians’ opinions and one of the State Agency review assessments, was rejected 13 by the ALJ for the vague reason that it was “not supported by the objective findings 14 and other medical evidence.” (T at 27). 15 Dr. Sarah Maze performed a consultative examination in April of 2015. 16 However, Plaintiff’s counsel raised serious questions as to Dr. Maze’s qualifications 17 and credibility.2 The ALJ appeared to acknowledge the validity of these concerns (T 18 19 In sum, Dr. Maze identified herself as a “Board Eligible, Neurologist.” (T at 743). Plaintiff’s counsel argued that this was not a proper designation and, in fact, is a designation forbidden by the American Board of Neurology. (T at 64). 20 14 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 at 28), but still afforded some unspecific amount of weight to Dr. Maze’s opinion, 2 while stating that he was relying “primarily” on the “longitudinal treatment records.” 3 (T at 28). However, the ALJ expressly relied on Dr. Maze’s assessment when 4 justifying his decision to discount the treating physicians’ opinion. (T at 25). Given 5 the issues related to Dr. Maze’s qualifications and credibility, which the ALJ 6 acknowledged and made no effort to resolve, this was error. 7 The ALJ also offered conflicting and confused analysis regarding the opinion 8 of Dr. Nina Kapitanski, an examining psychiatrist. Dr. Kapitanski performed a 9 consultative psychiatric evaluation in October of 2013. She diagnosed panic 10 disorder without agoraphobia, along with a history of alcohol and amphetamine 11 abuse in full sustained remission. (T at 608). 12 Dr. Kapitanski assigned a Global Assessment of Functioning (“GAF”) score3 13 of 55 (T at 608), which is indicative of moderate symptoms or difficulty in social, 14 occupational or educational functioning. Metcalfe v. Astrue, No. EDCV 07-1039, 15 2008 US. Dist. LEXIS 83095, at *9 (Cal. CD Sep’t 29, 2008). Dr. Kapitanski 16 opined that Plaintiff would have “moderate limitations completing a normal 17 workday or work week due to her mental condition.” (T at 608). She also stated that 18 “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 15 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 Plaintiff would have “moderate difficulties” handling the usual stresses, changes, 2 and demands of gainful employment. (T at 608). 3 These findings are consistent with the assessment of Dr. Chiu, one of the 4 treating physicians, who likewise believed that Plaintiff’s ability to sustain work 5 activities throughout a workday and over the course of a workweek was impaired. (T 6 at 790). Dr. Schumacher, one of the State Agency review physicians, also found 7 Plaintiff moderately limited with regard to responding appropriately to changes in 8 the work setting and noted a need for “reduced interpersonal contact.” (T at 105). 9 After initially citing Dr. Kapitanski’s evaluation in support of his decision to 10 discount the treating physicians’ opinions (T at 25), the ALJ opted not to accept Dr. 11 Kapitanski’s assessment of Plaintiff’s limitations, finding the assessment 12 insufficiently specific and inadequately supported. (T at 28). However, the only 13 reason articulated for this result was that Dr. Kapitanski did not explicitly define the 14 term “moderate” in her assessment. (T at 28). 15 particularly since his RFC determination did not include any limitation with regard 16 to Plaintiff’s ability to sustain work over the course of a workweek or handle work 17 stress. (T at 23). Stress is “highly individualized” and a person with a mental health 18 impairment “may have difficulty meeting the requirements of even so-called ‘low- 19 stress' jobs.” SSR 85-15. As such, the issue of stress must be carefully considered 20 16 The ALJ’s rationale is weak, DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 and “[a]ny impairment-related limitations created by an individual’s response to 2 demands of work . . . must be reflected in the RFC assessment.” Id.; see also Perkins 3 v. Astrue, No. CV 12-0634, 2012 U.S. Dist. LEXIS 144871, at *5 (C.D.Ca. Oct. 5, 4 2012). The ALJ’s consideration of the psychiatric evidence, including in particular, 5 Dr. Kapitanski’s report, was insufficient for the reasons outlined above. 6 The ALJ also found the underlying treatment record inconsistent with the 7 treating physicians’ assessments. (T at 24-25). In part, this was based on the ALJ’s 8 conclusion that Plaintiff’s treatment regimen was “conservative,” a conclusion this 9 Court finds flawed for the reasons stated above. Moreover, the contemporaneous 10 records consistently documented decreased range of motion, tenderness and pain, 11 and significant symptoms, including seizures, anxiety, and depression. (T 405-515, 12 621-23, 671-86, 687-92). 13 Further, the ALJ missed a critical piece related to Plaintiff’s ability to sustain 14 work activities over an extended period under stress. Even if one adopts the ALJ’s 15 reading of the record to the effect that Plaintiff’s symptoms were relatively well 16 managed with medication and injections, that does not speak to the concern raised 17 by Dr. Chiu and Dr. Kapitanski regarding her ability to sustain work activities under 18 stress. 19 structured to minimize stress and reduce their signs and symptoms.” Courneya v. 20 17 Individuals with chronic health problems “commonly have their lives DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 Colvin, No. CV-12-5044, 2013 U.S. Dist. LEXIS 161332, at *13-14 (E.D.W.A. 2 Nov. 12, 2013)(quoting 20 C.F.R. Pt. 404, Subp't P, App. 1 § 12.00(D)); see also 3 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The treating 4 physician's] statements must be read in context of the overall diagnostic picture he 5 draws. That a person who suffers from severe panic attacks, anxiety, and depression 6 makes some improvement does not mean that the person's impairments no longer 7 seriously affect her ability to function in a workplace.”). 8 In light of the foregoing, this Court finds that the ALJ’s decision to discount 9 the treating physicians’ opinions is not supported by substantial evidence and cannot 10 be sustained. 11 B. Credibility 12 A claimant’s subjective complaints concerning his or her limitations are an 13 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 14 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 15 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 16 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 17 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 18 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 19 findings are insufficient: rather the ALJ must identify what testimony is not credible 20 18 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 2 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 3 However, subjective symptomatology by itself cannot be the basis for a 4 finding of disability. A claimant must present medical evidence or findings that the 5 existence of an underlying condition could reasonably be expected to produce the 6 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 7 § 404.1529(b), 416.929; SSR 96-7p. 8 In this case, Plaintiff reported biweekly seizures and severe back pain. She 9 used a walker daily. She had difficulty sleeping and needed help with hygiene and 10 taking her medications. She can follow written instructions, but not verbal 11 instructions. (T at 348-56). Plaintiff lives with three of her children. (T at 46). 12 During seizures she sometimes loses control of her bowels and bladder. (T at 53-55). 13 She might be able to walk 15 feet without her walker but is afraid to try. (T at 71-72, 14 85). 15 The ALJ concluded that Plaintiff’s medically determinable impairments could 16 reasonably be expected to cause the alleged symptoms, but found her statements 17 regarding the intensity, persistence, and limiting effects of the symptoms not fully 18 credible. (T at 24). 19 20 19 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 First, the ALJ found Plaintiff’s subjective statements inconsistent with the 2 objective medical evidence. (T at 24). However, the ALJ’s analysis of the objective 3 medical evidence was flawed. As discussed above, the ALJ improperly discounted 4 the treating physicians’ assessments, failed to adequately account for Plaintiff’s need 5 for a walker (as acknowledged by treating and examining physicians), and did not 6 appropriately address Plaintiff’s difficulties in sustaining work activities over time 7 under stress (as assessed by treating and examining physicians). This failure of 8 analysis likewise impacted the assessment of Plaintiff’s credibility in that many of 9 her subjective statements are, in fact, supported by objective evidence, when 10 properly considered. 11 Second, the ALJ placed undue emphasis on Plaintiff’s rather limited activities 12 of daily living, which included preparing simple meals and some shopping. (T at 13 29). Again, the ALJ failed to account for the documented concern that Plaintiff 14 would not be able to sustain activities when faced with the stress demands of work. 15 The Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff has 16 carried on certain daily activities ... does not in any way detract from her credibility 17 as to her overall disability." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 18 (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). “The Social 19 Security Act does not require that claimants be utterly incapacitated to be eligible for 20 20 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 benefits, and many home activities are not easily transferable to what may be the 2 more grueling environment of the workplace, where it might be impossible to 3 periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 4 1989). 5 Recognizing that “disability claimants should not be penalized for attempting 6 to lead normal lives in the face of their limitations,” the Ninth Circuit has held that 7 “[o]nly if [her] level of activity were inconsistent with [a claimant’s] claimed 8 limitations would these activities have any bearing on [her] credibility.” Reddick v. 9 Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citations omitted); see also Bjornson v. 10 Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(“The critical differences between 11 activities of daily living and activities in a full-time job are that a person has more 12 flexibility in scheduling the former than the latter, can get help from other persons..., 13 and is not held to a minimum standard of performance, as she would be by an 14 employer. The failure to recognize these differences is a recurrent, and deplorable, 15 feature of opinions by administrative law judges in social security disability 16 cases.”)(cited with approval in Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 17 2014)). 18 19 20 21 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 Third, Plaintiff has an excellent work record (T at 48-49, 306-28), which 2 provides another reason for crediting her claims. Pazos v. Astrue, No. 08-6882, 2009 3 U.S. Dist. LEXIS 33970, at *29 (Cal. C.D. Mar. 30, 2009). 4 Fourth, the ALJ discounted Plaintiff’s credibility for failing to see specialists 5 recommended by primary care providers, while recognizing that Plaintiff’s financial 6 difficulties created a barrier that limited her health care access. (T at 29). This was 7 error. 8 claimant's failure to seek or pursue treatment “without first considering any 9 explanations that the individual may provide, or other information in the case record, 10 that may explain infrequent or irregular medical visits or failure to seek medical 11 treatment.” Id.; see also Dean v. Astrue, No. CV-08-3042, 2009 U.S. Dist. LEXIS 12 62789, at *14-15 (E.D. Wash. July 22, 2009). Indeed, “financial concerns [might] 13 prevent the claimant from seeking treatment [or] . . . . the claimant [may] structure[] 14 his daily activities so as to minimize symptoms to a tolerable level or eliminate them 15 entirely.” Id. 16 17 Under SSR 96-7p, an ALJ must not draw an adverse inference from a For the foregoing reasons, this Court finds the ALJ’s credibility determination flawed. 18 19 20 22 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 C. Lay Testimony 2 “Testimony by a lay witness provides an important source of information 3 about a claimant’s impairments, and an ALJ can reject it only by giving specific 4 reasons germane to each witness.” Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th 5 Cir. 1999). 6 In this case, Margaret Robinson, a friend of Plaintiff, submitted a function 7 report in October 2013. Ms. Robinson had known Plaintiff for 24 years and visited 8 her 2 to 3 times a week. (T at 360). According to Ms. Robinson, Plaintiff can 9 “barely walk” and uses a walker. (T at 360). She reported that Plaintiff needs help 10 with basic activities of daily living, including dressing, bathing, and cleaning her 11 home. (T at 361). Plaintiff needs reminders to take her medication. (T at 362). Ms. 12 Robinson stated that Plaintiff had mood swings and depressive symptoms, with 13 limited social activities and a limited attention span. (T at 365). She reported that 14 Plaintiff has difficulty handling stress and changes in routine. (T at 366). 15 The ALJ discounted Ms. Robinson’s statements. He noted that Ms. Robinson 16 was not an expert, could only record her personal observations, and was likely 17 influenced by her affinity for Plaintiff. (T at 31). However, this amounts to re- 18 stating the definition of a lay witness – a non-expert connected to the claimant who 19 offers his/her personal observations regarding the claimant’s activities and 20 23 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 limitations. In other words, the ALJ faulted the lay witness for being a lay witness. 2 This was error. If these are valid reasons for rejecting lay testimony, then all such 3 testimony would be ipso facto rejected, which is clearly not the correct result. See 4 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family 5 members in a position to observe a claimant's symptoms and daily activities are 6 competent to testify as to her condition.”). To the extent the ALJ discounted the lay 7 testimony as inconsistent with the objective medical evidence, that finding is 8 undermined by the ALJ’s errors in assessing the medical evidence, as outlined 9 above. 10 D. Step Five Analysis 11 At step five of the sequential evaluation, the burden is on the Commissioner to 12 show that (1) the claimant can perform other substantial gainful activity and (2) a 13 “significant number of jobs exist in the national economy” which the claimant can 14 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 15 return to his previous job, the Commissioner must identify specific jobs existing in 16 substantial numbers in the national economy that the claimant can perform. See 17 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). The Commissioner may 18 carry this burden by “eliciting the testimony of a vocational expert in response to a 19 hypothetical that sets out all the limitations and restrictions of the claimant.” 20 24 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). The ALJ's depiction of the 2 claimant's disability must be accurate, detailed, and supported by the medical record. 3 Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th 4 Cir.1987). “If the assumptions in the hypothetical are not supported by the record, 5 the opinion of the vocational expert that claimant has a residual working capacity 6 has no evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 7 Relying on the vocational expert’s testimony, the ALJ concluded in this case 8 that Plaintiff could perform work that exists in significant numbers in the national 9 economy. (T at 32-33). However, the ALJ did not incorporate all of the appropriate 10 limitations into the hypothetical on which he relied. 11 The record, including assessments from treating and examining physicians, 12 demonstrated Plaintiff’s need for a walker. (T at 614, 739). The need for a walker 13 was not included in the hypothetical relied upon by the ALJ. (T at 88-9). This was 14 significant because the vocational expert testified that the need to use a walker 15 would preclude employment due to workplace safety issues. (T at 90). In addition, 16 the hypothetical relied on by the ALJ did not contain any limitation with regard to 17 sustaining work activities over the course of workday and workweek with normal 18 work stress. (T at 88-89). As discussed above, the ALJ’s conclusion that Plaintiff 19 20 25 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 did not have any stress-related work limitations was not supported by substantial 2 evidence. As such, this is also an error with regard to the step five analysis. 3 E. Remand 4 In a case where the ALJ's determination is not supported by substantial 5 evidence or is tainted by legal error, the court may remand for additional 6 proceedings or an immediate award of benefits. Remand for additional proceedings 7 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 8 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 9 F.3d 587, 593 (9th Cir. 2004). 10 In contrast, an award of benefits may be directed where the record has been 11 fully developed and where further administrative proceedings would serve no useful 12 purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 13 remanded for an award of benefits where (1) the ALJ has failed to provide legally 14 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 15 must be resolved before a determination of disability can be made, and (3) it is clear 16 from the record that the ALJ would be required to find the claimant disabled were 17 such evidence credited. Id. (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 18 Cir.1989); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Sec'y of 19 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988)). 20 Courts have 26 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB 1 Here, the Commissioner failed to provide sufficient reasons for rejecting 2 assessments for treating and examining physicians and for discounting Plaintiff’s 3 credibility. There are no outstanding issues that must be resolved before a 4 determination of disability can be made. It is clear from the record that the ALJ 5 would be required to find the claimant disabled were such evidence credited 6 (particularly the evidence regarding the need to use a walker to ambulate and 7 Plaintiff’s limitations with regard to sustained work activity under stress). 8 The Commissioner argues in conclusory fashion that a remand for further 9 proceedings would be the appropriate remedy if this Court were to find the ALJ’s 10 decision not supported by substantial evidence. 11 purpose such a remand would serve in this particular case. The Ninth Circuit has 12 held that it is not appropriate to “remand for the purpose of allowing the ALJ to have 13 a mulligan.” Garrison v. Colvin, 759 F.3d 995, 1012, 1021 (9th Cir. 2014). Indeed, 14 “[a]llowing the Commissioner to decide the issue again would create an unfair 15 ‘heads we win; tails, let's play again’ system of disability benefits adjudication.” 16 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 17 18 However, it is not clear what As such, this Court finds that a remand for calculation of benefits is the proper result. 19 20 27 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB V. ORDERS 1 2 IT IS THEREFORE ORDERED that: 3 Judgment be entered REVERSING the Commissioner’s decision and 4 REMANDING this action for calculation of benefits, and it is further ORDERED 5 that 6 The Clerk of the Court file this Decision and Order, serve copies upon counsel 7 for the parties, and CLOSE this case without prejudice to a timely application for 8 attorneys’ fees and costs. 9 10 11 DATED this 25th day of September 2018, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 28 DECISION AND ORDER – MARTINEZ v BERRYHILL 2:17-CV-03069-VEB

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