James Vincent Delong v. Nancy A. Berryhill, No. 2:2017cv04594 - Document 21 (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 case for calculation of benefits. (See document for details.) (sbou)

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James Vincent Delong v. Nancy A. Berryhill Doc. 21 O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Case No. 2:17-cv-04594 (VEB) JAMES VINCENT DELONG, DECISION AND ORDER Plaintiff, vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. I. INTRODUCTION In November of 2010, Plaintiff James Vincent Delong applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Irene Ruzin, Esq., commenced this action seeking judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 1 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB Dockets.Justia.com 1 The parties consented to the jurisdiction of a United States Magistrate Judge. 2 (Docket No. 10, 12). On April 6, 2018, this case was referred to the undersigned 3 pursuant to General Order 05-07. (Docket No. 20). 4 II. BACKGROUND 5 Plaintiff applied for benefits on November 3, 2010, alleging disability 6 7 beginning December 1, 2007. (T at 161-63).1 8 alleged onset date to April 1, 2010. (T at 75-76). The application was denied 9 initially and on reconsideration. Plaintiff thereafter amended the Plaintiff requested a hearing before an 10 Administrative Law Judge (“ALJ”). On December 11, 2012, a hearing was held 11 before ALJ Mary L. Everstine. (T at 46). Plaintiff appeared with his attorney and 12 testified. (T at 49-62). The ALJ also received testimony from Sharon Spaventa, a 13 vocational expert (T at 62-75). 14 On January 7, 2013, ALJ Everstine issued a written decision denying the 15 application for benefits. (T at 8-23). The Appeals Council denied Plaintiff’s request 16 for review on April 8, 2014. (T at 1-6). 17 On May 8, 2014, Plaintiff, acting by and through his counsel, filed an action 18 seeking judicial review of the Commissioner’s decision. (T at 684-91). 19 1 20 Citations to (“T”) refer to the transcript of the administrative record at Docket No. 15. 2 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB On 1 February 2, 2015, the Honorable Paul L. Abrams, United States Magistrate Judge, 2 issued a Decision and Order reversing the Commissioner’s decision and remanding 3 the case for further proceedings. (T at 692-715). The Appeals Council issued a 4 remand Order on March 18, 2015. (T at 716-20). 5 A second administrative hearing was held on October 5, 2015, before ALJ 6 Sally C. Reason. Plaintiff appeared with counsel and testified. (T at 646-653, 654- 7 56). The ALJ also received testimony from Dr. Anthony Francis, a medical expert 8 (T at 625-646), and Ronald Hatakeyama, a vocational expert. (T at 653, 656-61). 9 On October 27, 2015, ALJ Reason issued a written decision denying the 10 application for benefits. (T at 600-19). 11 Commissioner’s final decision on May 20, 2017, when the Appeals Council denied 12 Plaintiff’s request for review. (T at 594-99). 13 ALJ Reason’s decision became the On June 22, 2017, Plaintiff, acting by and through his counsel, filed this 14 action seeking judicial review of the Commissioner’s decision. (Docket No. 1). 15 The Commissioner interposed an Answer on November 8, 2017. (Docket No. 14). 16 The parties filed a Joint Stipulation on March 28, 2018. (Docket No. 18). 17 After reviewing the pleadings, Joint Stipulation, and administrative record, 18 this Court finds that the Commissioner’s decision must be reversed and this case 19 remanded for calculation of benefits. 20 3 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 claimant shall be determined to be under a disability only if any impairments are of 9 such severity that he or she is not only unable to do previous work but cannot, 10 considering his or her age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether the claimant has a 19 20 4 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 medically severe impairment or combination of impairments. 20 C.F.R. §§ 2 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 3 If the claimant does not have a severe impairment or combination of 4 impairments, the disability claim is denied. If the impairment is severe, the 5 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 6 with a number of listed impairments acknowledged by the Commissioner to be so 7 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 8 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 9 equals one of the listed impairments, the claimant is conclusively presumed to be 10 disabled. If the impairment is not one conclusively presumed to be disabling, the 11 evaluation proceeds to the fourth step, which determines whether the impairment 12 prevents the claimant from performing work which was performed in the past. If the 13 claimant is able to perform previous work, he or she is deemed not disabled. 20 14 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 15 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 16 work, the fifth and final step in the process determines whether he or she is able to 17 perform other work in the national economy in view of his or her residual functional 18 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 19 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 20 5 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 The initial burden of proof rests upon the claimant to establish a prima facie 2 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 3 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 4 is met once the claimant establishes that a mental or physical impairment prevents 5 the performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a “significant number of jobs exist in the national economy” that the 8 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 B. Standard of Review 10 Congress has provided a limited scope of judicial review of a Commissioner’s 11 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 12 made through an ALJ, when the determination is not based on legal error and is 13 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 14 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 15 “The [Commissioner’s] determination that a plaintiff is not disabled will be 16 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 17 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 18 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 19 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 20 6 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 3 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 4 conclusions as the [Commissioner] may reasonably draw from the evidence” will 5 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 6 the Court considers the record as a whole, not just the evidence supporting the 7 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 8 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 9 It is the role of the Commissioner, not this Court, to resolve conflicts in 10 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 11 interpretation, the Court may not substitute its judgment for that of the 12 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 13 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 14 set aside if the proper legal standards were not applied in weighing the evidence and 15 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 16 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 17 administrative findings, or if there is conflicting evidence that will support a finding 18 of either disability or non-disability, the finding of the Commissioner is conclusive. 19 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 20 7 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 C. Commissioner’s Decision 2 The ALJ determined that Plaintiff had not engaged in substantial gainful 3 activity since April 1, 2010 (the amended alleged onset date) and met the insured 4 status requirements of the Social Security Act through December 31, 2010 (the date 5 last insured). (T at 605). The ALJ found that Plaintiff’s degenerative disc disease of 6 the cervical spine, chronic obstructive pulmonary disease, and hepatitis C were 7 “severe” impairments under the Act. (Tr. 605). 8 However, the ALJ concluded that, as of the date last insured, Plaintiff did not 9 have an impairment or combination of impairments that met or medically equaled 10 one of the impairments set forth in the Listings. (T at 606). 11 The ALJ determined that, as of the date last insured, Plaintiff retained the 12 residual functional capacity (“RFC”) to perform light work as defined in 20 CFR § 13 416.967 (b), as follows: he can frequently climb stairs and ramps, but never ladders, 14 ropes, or scaffolds; he can perform other postural components for 1/3 of the day; no 15 overhead work bilaterally; frequent reaching and handling within 18 inches of his 16 body; frequent gripping, grasping, fingering and feeling; no work at unprotected 17 heights or extreme cold; and avoid all pulmonary irritants, as well as dangerous and 18 moving machinery. (T at 607). 19 20 8 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 The ALJ found, as of the date last insured, that Plaintiff could not perform his 2 past relevant work as a stonecutter. (T at 611). However, considering Plaintiff’s age 3 (52 on the date last insured), education (at least high school), work experience, and 4 residual functional capacity, the ALJ determined that there were jobs that exist in 5 significant numbers in the national economy that Plaintiff can perform. (T at 611- 6 12). 7 As such, the ALJ found that Plaintiff was not entitled to benefits under the 8 Social Security Act because he was not disabled between April 1, 2010 (the alleged 9 onset date) and December 31, 2010 (the date last insured). (T at 613). As noted 10 above, the ALJ’s decision became the Commissioner’s final decision when the 11 Appeals Council denied Plaintiff’s request for review. (T at 594-99). 12 D. Disputed Issues 13 As set forth in the parties’ Joint Stipulation (Docket No. 18), Plaintiff offers 14 five (5) arguments in support of his claim that the Commissioner’s decision should 15 be reversed. First, Plaintiff challenges the ALJ’s credibility determination. Second, 16 he argues that the ALJ did not properly assess the medical opinion evidence. Third, 17 Plaintiff contends that the ALJ erred in rejecting lay witness evidence. Fourth, he 18 challenges the ALJ’s residual functional capacity determination. Fifth, Plaintiff 19 20 9 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 argues that the ALJ’s step five findings were flawed. This Court will address each 2 argument in turn. IV. ANALYSIS 3 4 A. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 10 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 In this case, Plaintiff testified as follows: He was assaulted in April of 2010, 2 resulting in a neck injury. (T at 649). Between the date of the assault and December 3 31, 2010 (the date last insured), he suffered from extreme pain in his neck and back, 4 numbness on the left side of his body, and radiating pain. (T at 650-51). He 5 experienced weakness and had difficulty sitting, standing, and walking. (T at 651- 6 52). During this period, Plaintiff could only lift about 10 pounds. (T at 651). 7 The ALJ concluded that Plaintiff’s medically determinable impairments could 8 reasonably be expected to cause the alleged symptoms, but found that Plaintiff’s 9 statements regarding the intensity, persistence, and limiting effects of the symptoms 10 were not fully credible. (T at 609). 11 Fundamentally, the ALJ’s credibility determination was based on her 12 assessment of the medical evidence, which the ALJ found inconsistent with 13 Plaintiff’s complaints. 14 assessment flawed and not supported by substantial evidence. For the following reasons, this Court finds the ALJ’s 15 The ALJ concluded that the “objective findings” with respect to Plaintiff’s 16 cervical spine impairment did not provide “strong support” for his claims of 17 disabling pain and limitation. (T at 608). No reasonably apparent view of the record 18 evidence supports this conclusion. 19 20 11 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 Plaintiff presented to the emergency room in April of 2010 with complaints of 2 neck pain lasting 1-2 months and worsening. (T at 448). He was described as being 3 in moderate distress, with severe neck pain. (T at 449). A CT of the spine noted disc 4 space narrowing at C6/C7, C5/C6, and C4/C5. (T at 449). Plaintiff was treated with 5 intravenous morphine and valium. (T at 449). He was described as feeling “much 6 better” after medication, but was referred for an MRI and follow-up with a spine 7 specialist. (T at 450). 8 In May of 2010, Plaintiff returned to the emergency room with complaints of 9 severe neck pain. (T at 461). Although swelling was minimal, Plaintiff was noted to 10 have left arm weakness and left posterior arm paresthesias (abnormal sensation). (T 11 at 462). 12 neurosurgeon and an MRI was ordered. (T at 461). The MRI revealed several 13 significant findings, including spinal stenosis at C4/C5 and neural foraminal 14 narrowing severe bilaterally at C6/C7 and on the right side at C5/C6. (T at 467-68). He was prescribed Perococet and Valium. He was referred to a 15 Plaintiff was seen by Thomas Jones, PA-C, his primary treating provider, in 16 October of 2010. Plaintiff was described as “wheelchair bound.” (T at 487). Mr. 17 Jones noted that Plaintiff’s orthopedic doctor and neurosurgeon had recommended 18 surgery. (T at 487). Plaintiff had decreased motor strength, especially on the left 19 side, and needed assistance to stand. (T at 488). Mr. Jones opined that Plaintiff was 20 12 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 “definitely … not able to work” and “will likely not be able to work in the future 2 ….” (T at 488). 3 Plaintiff initiated treatment with a new provider (Sierra Vista Family Care) in 4 November of 2010 and was immediately referred for follow-up with a neurosurgeon. 5 (T at 490). A December 2010 MRI revealed degenerative disc disease with posterior 6 spondylosis impressing the adjacent thecal sac, as well as central spinal canal 7 stenosis ranging from mild to moderate at C4/C5, C5/C6, and C6/7. (T at 495). 8 The ALJ summarized much of this evidence, which pre-dates the date last 9 insured, and found it inconsistent with Plaintiff’s complaints of disabling pain. (T at 10 608-609). 11 contradicted Plaintiff’s subjective complaints. This Court recognizes that under the 12 deferential standard of review applicable here it would be bound to accept such an 13 explanation, provided it was supported by substantial evidence. However, no such 14 explanation exists, with the ALJ apparently believing the contradiction was self- 15 evident. 16 17 However, the ALJ never explained why she believed the evidence However, the imaging studies, treating provider assessments, and course of treatment all appear to support claims of significant neck pain and limitation. 18 The ALJ offers the conclusory characterization of Plaintiff’s course of 19 treatment as “conservative,” but this cannot be reconciled with a record that includes 20 13 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 two hospitalizations, intravenous pain medication, and referrals to a neurosurgeon. 2 See Harvey v. Colvin, 2014 U.S. Dist. LEXIS 107607, at *28 (C.D. Cal. Aug. 5, 3 2014)(finding that ALJ erred in discounting credibility based on “conservative” 4 treatment where treatment included injections). Indeed, it is not clear from the 5 decision what additional treatment the ALJ believed Plaintiff would have been 6 expected to receive during this period other than surgery, which was recommended 7 and eventually performed in any event. 8 The ALJ’s review of the evidence from after the date last insured is likewise 9 flawed. The ALJ summarized the medical evidence following the date last insured, 10 characterized the course of treatment as “conservative,” and found it inconsistent 11 with Plaintiff’s subjective claims. (T at 609). 12 13 Again, however, the evidence is strongly supportive of Plaintiff’s claims. The ALJ did not explain why she reached a different result. 14 Plaintiff was seen by Dr. Abirami Muthukumaran, a treating neurologist, in 15 February of 2011. Dr. Muthukumaran referenced MRI findings of “severe neural 16 foraminal stenosis,” recommended physical therapy and epidural injections, and 17 increased the dosage of Plaintiff’s pain medication. (T at 513). On examination, Dr. 18 Muthukumaran reported limited range of motion of the cervical spine, dermatomal 19 20 14 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 sensory loss in the upper extremities bilaterally, diminished sensation in the right 2 lower leg, and antalgic gait. (T at 512-13). 3 Dr. Muthukumaran described the results of a nerve conduction study as 4 “abnormal” and showing “electrophysiological evidence of a chronic bilateral multi- 5 level C5-C8 radiculopathies, subacute to chronic of moderate severity affecting 6 bilateral upper extremities.” (T at 521). Dr. Muthukumaran opined that, based on 7 the MRI results (which he also described as “abnormal”) and nerve conduction 8 study, Plaintiff needed to be evaluated by a neurosurgeon. (T at 521). 9 In June of 2011, Dr. Muthukumaran explained that Plaintiff had “cervical 10 spinal stenosis with severe radiculoptahy affecting bilateral upper extremities and 11 neck.” Dr. Muthukumaran referenced the imaging studies and clinical exam, as well 12 as noting that Plaintiff was awaiting surgery. He described Plaintiff as “100 % 13 disabled.” (T at 577). 14 Plaintiff was examined by Dr. Kofi Kessey, a neurosurgeon, in July of 2011. 15 Dr. Kessey confirmed the diagnosis of cervical stenosis and stated that some of 16 Plaintiff’s symptoms were attributable to this condition. He described surgery as an 17 option, but explained that the procedure would be intended to prevent or slow down 18 symptom progression, with the possibility it might not alleviate or improve 19 Plaintiff’s pain. (T at 579). Plaintiff was noted to have full strength and was able to 20 15 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 ambulate independently. (T at 579). Dr. Kessey performed cervical spine surgery 2 (bilateral laminectomy and vertebral fusion) in September of 2011. (T at 586-88). 3 As with the evidence from prior to the date last insured, the ALJ summarized 4 most of the above evidence and stated that it contradicted Plaintiff’s complaints. (T 5 at 609). Apparently, the ALJ believed the contradiction was self-evident. This 6 Court finds this conclusion far from apparent. 7 Moreover, the ALJ’s continued characterization of Plaintiff’s course of 8 treatment as “conservative” is belied by the record, which included an increasing 9 regimen of pain medication and cervical spine surgery. Moreover, Dr. Kessey’s 10 assessment that even surgery might not alleviate Plaintiff’s pain is strong evidence 11 that there was, in fact, not any more aggressive treatment option(s) under the 12 circumstances. See Perez v. Colvin, No EDCV 14-2626, 2016 U.S. Dist. LEXIS 13 44230, at *17 (C.D. Cal. Mar. 31, 2016)(“The ALJ cannot fault Plaintiff for failing 14 to pursue nonconservative treatment options if none existed.”)(citing Lapeirre-Gutt 15 v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010)). 16 The ALJ noted that Plaintiff “acknowledged improvement in his condition and 17 surgery,” citing this as a basis for discounting his testimony. (T at 610). However, 18 Plaintiff continued to report neck pain following surgery (T at 51-52, 652) and Dr. 19 Sheila Flom, a treating physician, opined in November of 2012 (over a year after the 20 16 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 surgery) that Plaintiff was not capable of prolonged sitting, standing, or walking, and 2 would likely miss work more than three times per month due to impairments or 3 treatment. (T at 589-93). 4 The ALJ also found it significant that Plaintiff “entered[ ] and left the hearing 5 room, walking easily without the use of an assistive device.” (T at 610). While the 6 ALJ may consider observations of the claimant during the administrative hearing 7 when assessing credibility, See SSR 96-7p, reliance on such observations has rightly 8 been disfavored as “‘sit and squirm’ jurisprudence.” See Perminter v. Heckler, 765 9 F.2d 870, 872 (9th Cir. 1985); see also Gallant v. Heckler, 753 F.2d 1450, 1455 (9th 10 Cir. 1984)(“The fact that a claimant does not exhibit physical manifestations of 11 prolonged pain at the hearing provides little, if any, support for the ALJ's ultimate 12 conclusion that the claimant is not disabled or that his allegations of constant pain 13 are not credible.”). 14 For the reasons stated above, this Court finds that the ALJ’s credibility 15 assessment cannot be sustained. 16 discounting Plaintiff’s subjective complaints are supported by substantial evidence. 17 A remand is required, with the nature of the remand to be discussed below. None of the reasons cited by the ALJ for 18 19 20 17 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 B. Medical Opinion Evidence 2 In disability proceedings, a treating physician’s opinion carries more weight 3 than an examining physician’s opinion, and an examining physician’s opinion is 4 given more weight than that of a non-examining physician. Benecke v. Barnhart, 5 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1995). If the treating or examining physician’s opinions are not contradicted, they 7 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 8 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 9 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 10 1035, 1043 (9th Cir. 1995). Historically, the courts have recognized conflicting 11 medical evidence, and/or the absence of regular medical treatment during the alleged 12 period of disability, and/or the lack of medical support for doctors’ reports based 13 substantially on a claimant’s subjective complaints of pain, as specific, legitimate 14 reasons for disregarding a treating or examining physician’s opinion. Flaten v. 15 Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 16 An ALJ satisfies the “substantial evidence” requirement by “setting out a 17 detailed and thorough summary of the facts and conflicting clinical evidence, stating 18 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 19 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 20 18 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 “The ALJ must do more than state conclusions. He must set forth his own 2 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 3 In this case, the ALJ afforded “great weight” to the opinions of Dr. Anthony 4 Francis, a non-examining medical expert who testified at the administrative hearing 5 and Dr. S. Garcia, a non-examining State Agency review consultant. (T at 610). The 6 ALJ gave “little weight” to the opinions of two (2) treating physicians, Dr. Flom and 7 Dr. Muthukumaran. The ALJ’s assessment of the medical opinion evidence is not 8 supported by substantial evidence. 9 1. Dr. Flom 10 In November of 2012, Dr. Sheila Flom reported that she was Plaintiff’s 11 primary care physician and had been seeing him monthly for 2-3 years. (T at 590). 12 Dr. Flom concluded that Plaintiff could occasionally lift less than 10 pounds, 13 stand/walk for less than 2 hours in an 8-hour workday, and sit for less than 6 hours 14 in an 8-hour workday. (T at 591). She explained that Plaintiff would need to take 15 unscheduled breaks every 30-60 minutes and would be absent from work due to 16 impairments or treatment more than 3 times per month. (T at 591). 17 The ALJ offered three reasons for giving little weight to Dr. Flom’s opinion. 18 First, the ALJ stated that Dr. Flom’s assessment was “inconsistent with the medical 19 evidence of record that indicated [Plaintiff] was able to ambulate without the use of 20 19 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 an assistive device.” (T at 610). It is not clear why the ALJ believed this justified 2 discounting Dr. Flom’s assessment, as she also found that Plaintiff could ambulate 3 without an assistive device. (T at 591). 4 Second, the ALJ found Dr. Flom’s opinion contradicted by evidence that 5 Plaintiff’s “condition largely improved after surgery in 2011 ….” (T at 610). The 6 ALJ does not explain what evidence she is referring to in reaching this conclusion. 7 Moreover, the most persuasive evidence relative to Plaintiff’s level of improvement 8 following surgery would be the assessment of a physician who regularly treated 9 Plaintiff before and after surgery – i.e., Dr. Flom. 10 Third, the ALJ characterized Dr. Flom’s opinion as “remote in time.” (T at 11 610). The ALJ does not say whether “remoteness” is measured from the date of her 12 decision (October 27, 2015) or from the date last insured (December 31, 2010). If 13 the former, this is a strange conclusion, since the ALJ simultaneously gave “great 14 weight” to the assessment of Dr. Garcia, a non-examining physician, which was 15 offered in February of 2011, more than a year and a half before Dr. Flom’s opinion. 16 On the other hand, if the ALJ meant that Dr. Flom’s opinion was “remote in time” 17 from the date last insured, this finding is likewise flawed. 18 Medical reports “containing observations made after the period for disability 19 are relevant to assess the claimant's disability.” Smith v. Bowen, 849 F.2d 1222, 1225 20 20 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 (9th Cir. 1988) (citing Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975)); see 2 also Lingenfelter v. Astrue, 504 F.3d 1028, 1034 n.3 (9th Cir. 2007) (noting that 3 “reports containing observations made after the period for disability are relevant to 4 assess the claimant’s disability”). 5 Further, Dr. Flom stated that she had been treating Plaintiff monthly for at 6 least two years (T at 590), which would mean she began treating him no later than 7 November of 2010, which is prior to the date last insured. Thus, she was perfectly 8 capable of opining as to his limitations during the relevant time period. 9 2. Dr. Muthukumaran 10 In June of 2011, Dr. Muthukumaran, Plaintiff’s treating neurologist, explained 11 that Plaintiff had “cervical spinal stenosis with severe radiculopathy affecting 12 bilateral upper extremities and neck.” He described Plaintiff’s neurological exam, 13 spine MRI, and electromagnetic testing as abnormal and opined that Plaintiff was 14 “100 % disabled.” (T at 577). 15 The ALJ correctly noted that the ultimate disability determination is reserved 16 to the Commissioner (T at 610), and then offered three reasons for giving “little 17 weight” to Dr. Muthukumaran’s opinion. 18 First, the ALJ described Dr. Muthukumaran’s opinion as “remote in time.” (T 19 at 610). The ALJ again does not make clear what time period “remoteness” is 20 21 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 measured from. Presumably in this instance, the ALJ did not mean “remote” from 2 the date last insured, as Dr. Muthukumaran’s opinion was rendered in June of 2011, 3 less than 6 months after that date (December 31, 2010). If the ALJ means “remote” 4 from the date of her decision in October of 2015, she offers no reason why the 5 opinion of Dr. Garcia, who never examined Plaintiff, should not likewise be 6 dismissed as “remote,” given that it was rendered 4 months before Dr. 7 Muthukumaran’s assessment. Instead, the ALJ gave Dr. Garcia’s more “remote” 8 opinion “great weight.” (T at 610-11). 9 Second, the ALJ discounted Dr. Muthukumaran’s assessment because it was 10 rendered “prior to Plaintiff’s successful surgery.” (T at 610). The ALJ provides no 11 basis for the characterization of Plaintiff’s surgery as “successful” and no 12 explanation as to what metric she used to assess in what respect or on what 13 dimension the surgery was a “success.” Indeed, the most persuasive evidence, from 14 a physician who treated Plaintiff regularly before and after the surgery (Dr. Flom), is 15 that the surgery was not successful at least insofar as it might have been intended to 16 restore Plaintiff’s ability to perform even sedentary work. This is not surprising 17 given the neurosurgeon’s pre-surgery explanation that the procedure was primarily 18 intended to prevent or slow down symptom progression, with the possibility it might 19 not alleviate or improve Plaintiff’s pain. (T at 579). 20 22 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 Third, the ALJ noted that during the time period at issue Plaintiff “maintained 2 the ability to ambulate and care for himself.” (T at 610). The ALJ does not explain 3 how Plaintiff’s ability to ambulate and attend to self-care somehow ipso facto 4 contradicts Dr. Muthukumaran’s assessments of significant limitation with regard to 5 the ability to perform work. The receipt of disability insurance benefits is not 6 conditioned upon an inability to ambulate and/or attend to self-care. 7 Dr. Muthukumaran is a treating physician. He is a neurologist and thus has 8 specialized knowledge in the area of most concern. His opinion was based on 9 imaging studies and his clinical exam. The ALJ’s reasons for giving “little weight” 10 to this assessment were insufficient for the reasons outlined above. 11 3. Non-Treating Physicians 12 In February of 2011, Dr. S. Garcia, a non-examining State Agency review 13 consultant, opined that Plaintiff could perform a full range of light work, while being 14 limited to occasional balancing, stooping, kneeling, crouching, and crawling and 15 only performing occasional overhead reaching with the left upper extremity. (T at 16 555-60). The ALJ gave this opinion “great weight.” (T at 610). 17 However, as noted by Judge Abrams in his decision remanding this case from 18 District Court the first time, Dr. Garcia did not even mention the December 2010 19 MRI and did not have the benefit of reviewing any treatment notes after January 3, 20 23 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 2011, which would have included the highly significant assessments of Dr. 2 Muthukumaran (treating neurologist) and Dr. Kessey (treating neurosurgeon). (T at 3 704-705). The ALJ did not recognize, let alone address, the concerns identified by 4 Judge Abrams. 5 Moreover, the opinion of a non-examining State Agency review physician 6 cannot, without more, constitute substantial evidence sufficient to sustain a denial of 7 benefits. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer v. 8 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)). 9 Dr. Anthony Francis, a non-examining orthopedic surgeon, testified at the 10 second administrative hearing. The ALJ described Dr. Francis’s assessment as 11 follows: “Dr. Francis opined that [Plaintiff] would be capable of performing a full 12 range of light work except only occasionally perform[ing] postural [activities], no 13 overhead lifting and [he] should not be exposed to unprotected heights, excessive 14 temperatures, vibrations, dust, odors, pulmonary irritants or dangerous moving 15 machinery.” (T at 610). The ALJ gave Dr. Francis’s opinion, thus described, “great 16 weight.” (T at 610). 17 Dr. Francis’s actual testimony was much less clear and far more equivocal 18 that the ALJ recognizes. 19 functional capacity (“RFC”), Dr. Francis explained that: “I’m going to go with the 20 24 Before offering his assessment of Plaintiff’s residual DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 light RFC restriction and, you know, if that doesn’t satisfy, we can do something 2 else.” (T at 630). He also testified that the medical evidence, including the imaging 3 studies, “possibly” and “potentially” suggested a Listing level impairment. (T at 4 628-29). Dr. Francis opined that Plaintiff was limited to sedentary work as of the 5 date of the administrative hearing (October 2, 2015), but was hesitant to express an 6 opinion about Plaintiff’s limitation as of the date last insured. (T at 637-38). 7 Plaintiff’s counsel attempted to elicit more information on these subjects during 8 cross-examination, but was rebuffed by the ALJ, who frequently interrupted 9 counsel’s examination and prevented her from pursing further clarifications. (T at 10 638-40, 642-46). 11 The ALJ’s reliance on the opinions of these two non-examining physicians to 12 discount the well-founded assessments of two treating physicians was misplaced. 13 This was error requiring remand. See Ghokassian v. Shalala, 41 F.3d 1300, 1303 14 (9th Cir. Cal. 1994)(“[W]e also hold that the ALJ committed a legal error when he 15 failed to grant deference to the conclusions [of claimant’s treating physician]…[The 16 courts have] ‘accorded deference to treating physicians precisely because they are 17 the doctors with ‘greater opportunity to observe and know the patient.’”)(emphasis 18 in original)(quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1993)). 19 20 25 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 C. Lay Witness Evidence 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 Janiece Lackey, Plaintiff’s sister, submitted a statement supporting and 7 corroborating limitations attested to by her brother with regard to lifting, standing, 8 walking, sitting, kneeling, and climbing. (T at 212-19). The ALJ assigned “little 9 weight” to Ms. Lackey’s opinion. (T at 608). The ALJ characterized the “accuracy” 10 of Ms. Lackey’s information as “questionable” because Ms. Lackey was “not 11 medically trained to make exacting observations as to dates, frequencies, types and 12 degrees of medical signs and symptoms.” (T at 608). The ALJ likewise referenced 13 the fact that Ms. Lackey might be expected to be “colored by affection” for Plaintiff 14 and would have a “natural tendency” to accept his complaints as credible. (T at 608). 15 These reasons are not sufficient. A family lay witness has valuable insights to 16 offer precisely because of their frequency of contact with the claimant. See Dodrill v. 17 Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in a 18 position to observe a claimant's symptoms and daily activities are competent to 19 testify as to her condition.”). 20 26 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 It is thus improper to discount such evidence purely because the witness is (a) 2 lay person and (b) a family member. In other words, the ALJ’s decision to reject 3 Ms. Lackey’s statement because she is related to Plaintiff and not a medical 4 professional begs the question. Lay evidence is, by very its nature, evidence from a 5 non-medical professional with some sort of personal relationship with the claimant. 6 To describe as such is not a reason to reject it. If it was, all evidence of this type 7 would be rejected ipso facto, which is clearly contrary to the Regulations. See 20 8 CFR § 404.1513 (e)(2); SSR 88-13; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 9 2009); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)(“The fact that a lay 10 witness is a family member cannot be a ground for rejecting his or her testimony.”). 11 The ALJ also found that Ms. Lackey’s statement, like Plaintiff’s testimony, 12 was contradicted by the “preponderance of the opinions and observations by the 13 medical doctors in this case.” (T at 608). This is an odd finding for the ALJ to make 14 in this particular case, given that she rejected the opinions of two treating physicians 15 who actually observed Plaintiff, while accepting the views of two physicians who 16 never treated or examined him. In other words, the ALJ found it significant that Ms. 17 Lackey was not “medically trained to make exacting observations,” but then rejected 18 the exacting observations of two physicians who had such medical training. 19 20 27 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB The ALJ’s consideration of the lay evidence was flawed and cannot be 1 2 sustained. 3 D. RFC Determination 4 An ALJ’s assessment of the claimant’s residual functional capacity (“RFC”) 5 must be upheld if the ALJ has applied the proper legal standard and substantial 6 evidence in the record supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 7 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record 8 and “explain in [her] decision the weight given to . . . [the] opinions from treating 9 sources, nontreating sources, and other nonexamining sources.” 20 C.F.R. § 10 404.1527(e)(2)(ii); see also § 404.1545(a)(1). 11 The ALJ determined that, as of the date last insured, Plaintiff retained the 12 RFC to perform light work as defined in 20 CFR § 416.967 (b), as follows: he can 13 frequently climb stairs and ramps, but never ladders, ropes, or scaffolds; he can 14 perform other postural components for 1/3 of the day; no overhead work bilaterally; 15 frequent reaching and handling within 18 inches of his body; frequent gripping, 16 grasping, fingering and feeling; no work at unprotected heights or extreme cold; and 17 avoid all pulmonary irritants, as well as dangerous and moving machinery. (T at 18 607). 19 20 28 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 As discussed in detail above, the ALJ’s RFC determination is inconsistent 2 with Plaintiff’s testimony, which was not properly weighed, and with the treating 3 provider opinions, which were not properly assessed. As such, this Court finds the 4 ALJ’s RFC determination not supported by substantial evidence. 5 E. Step Five Analysis 6 At step five of the sequential evaluation, the burden is on the Commissioner to 7 show that (1) the claimant can perform other substantial gainful activity and (2) a 8 “significant number of jobs exist in the national economy” which the claimant can 9 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). If a claimant cannot 10 return to his previous job, the Commissioner must identify specific jobs existing in 11 substantial numbers in the national economy that the claimant can perform. See 12 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). 13 The Commissioner may carry this burden by “eliciting the testimony of a 14 vocational expert in response to a hypothetical that sets out all the limitations and 15 restrictions of the claimant.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). 16 The ALJ's depiction of the claimant's disability must be accurate, detailed, and 17 supported by the medical record. Gamer v. Secretary of Health and Human Servs., 18 815 F.2d 1275, 1279 (9th Cir.1987). 19 20 29 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 “If the assumptions in the hypothetical are not supported by the record, the 2 opinion of the vocational expert that claimant has a residual working capacity has no 3 evidentiary value.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 4 Here, the ALJ relied on vocational expert testimony to conclude at step five 5 that there were jobs that existed in significant numbers in the national economy that 6 Plaintiff can perform. (T at 611). The hypothetical presented to the vocational 7 expert was based on the ALJ’s RFC determination. (T at 657-59). As discussed 8 above, the ALJ’s RFC determination was not supported by the record. As such the 9 vocational expert’s opinion has no evidentiary value and the step five analysis 10 cannot be sustained. 11 F. Remand 12 In a case where the ALJ's determination is not supported by substantial 13 evidence or is tainted by legal error, the court may remand for additional 14 proceedings or an immediate award of benefits. Remand for additional proceedings 15 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 16 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 17 F.3d 587, 593 (9th Cir. 2004). 18 In contrast, an award of benefits may be directed where the record has been 19 fully developed and where further administrative proceedings would serve no useful 20 30 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Courts have 2 remanded for an award of benefits where (1) the ALJ has failed to provide legally 3 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 4 must be resolved before a determination of disability can be made, and (3) it is clear 5 from the record that the ALJ would be required to find the claimant disabled were 6 such evidence credited. Id. (citing Rodriguez v. Bowen, 876 F.2d 759, 763 (9th 7 Cir.1989); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989); Varney v. Sec'y of 8 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir.1988)). 9 Here, the ALJ failed to provide legally sufficient reasons for rejecting 10 Plaintiff’s testimony and the opinions of two treating physicians. There are no 11 outstanding issues that must be resolved before a disability determination can be 12 made. It is clear from the record that a finding of disability would be required if the 13 evidence was credited. 14 appropriate remedy. As such, a remand for calculation of benefits is the 15 The Commissioner argues in conclusory fashion that a remand for further 16 proceedings would be the appropriate remedy if this Court were to find the ALJ’s 17 decision not supported by substantial evidence. 18 purpose such a remand would serve in this case. The Ninth Circuit has held that it is 19 not appropriate to “remand for the purpose of allowing the ALJ to have a mulligan.” 20 31 However, it is not clear what DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB 1 Garrison v. Colvin, 759 F.3d 995, 1012, 1021 (9th Cir. 2014). Indeed, “[a]llowing 2 the Commissioner to decide the issue again would create an unfair ‘heads we win; 3 tails, let's play again’ system of disability benefits adjudication.” Benecke v. 4 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 5 Plaintiff applied for benefits in November of 2010, nearly eight (8) years ago. 6 This matter was already remanded once due to the Commissioner’s failure to 7 properly assess the evidence. 8 justified. Further proceedings are neither necessary nor 9 10 V. ORDERS 11 IT IS THEREFORE ORDERED that: 12 Judgment be entered REVERSING the Commissioner’s decision and 13 REMANDING this case for calculation of benefits; and 14 The Clerk of the Court shall file this Decision and Order, serve copies upon 15 counsel for the parties, and CLOSE this case without prejudice to a timely 16 application for attorneys’ fees and costs. 17 18 19 20 DATED this 27h day of September 2018, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 32 DECISION AND ORDER – DELONG v BERRYHILL 2:17-CV-04594-VEB

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