Alicia Bollinger v. Nancy A. Berryhill, No. 2:2018cv05084 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Alicia Bollinger v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 ALICIA B., ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Deputy ) Commissioner for Operations, ) Performing duties and functions not ) reserved to the Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 18-5084-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 21 judgment are denied, and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on June 8, 2018, seeking review of 27 the Commissioner’s denial of benefits. The parties consented to 28 proceed before a United States Magistrate Judge on July 19, 2018. Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on December 31, 2018. 2 Defendant filed a motion for summary judgment (titled as an opposition 3 to Plaintiff’s motion for summary judgment) on January 29, 2019. 4 Court has taken the motions under submission without oral argument. 5 See L.R. 7-15; “Order,” filed June 14, 2018. The 6 7 BACKGROUND 8 9 Plaintiff asserts disability since December 1, 2009, based on a 10 combination of alleged impairments (Administrative Record (“A.R.”) 11 496-503, 521-22)). 12 Razalan and Dr. Miguel De Perio opined that Plaintiff’s impairments 13 disable her from all employment. 14 2118-20. As detailed below, treating physicians Dr. Lee See A.R. 1885-87, 1973-74, 2055-57, 15 16 An Administrative Law Judge (“ALJ”) reviewed the record and heard 17 testimony from Plaintiff, a vocational expert and a medical expert 18 (A.R. 49-61, 406-23). 19 found that Plaintiff has the following severe impairments: obesity; 20 irritable bowel syndrome; fibromyalgia; spondylolisthesis of the 21 lumbar, cervical and thoracic spine; discogenic disease of the 22 cervical spine; and hypertension (A.R. 51). 23 found Plaintiff capable of performing a limited range of light work. 24 See A.R. 54-60 (adopting medical expert’s residual functional capacity 25 assessment at A.R. 410-11, and giving “little weight” to the opinions 26 of Drs. Razalan and De Perio). 27 Plaintiff assertedly could perform, and, on that basis, denied 28 disability benefits from August 27, 2014 (the date of Plaintiff’s In a decision dated March 24, 2017, the ALJ However, the ALJ also The ALJ identified certain light jobs 2 1 application) (A.R. 60-61 (adopting vocational expert testimony at A.R. 2 420-21)). 3 4 On April 26, 2018, the Appeals Council denied review (A.R. 1-6). 5 Plaintiff had submitted to the Appeals Council additional medical 6 records, including records from Drs. Razalan and De Perio for the 7 period from October 27, 2016 through December 11, 2017, some of which 8 the Appeals Council declined to “consider and exhibit” (A.R. 2). 9 According to the Appeals Council, the evidence pre-dating the ALJ’s 10 adverse decision did not show a reasonable possibility of changing the 11 outcome of the decision, and the evidence post-dating the ALJ’s 12 adverse decision did not relate to the period at issue (A.R. 2). 13 14 STANDARD OF REVIEW 15 16 Under 42 U.S.C. section 405(g), this Court reviews the 17 Administration’s decision to determine if: (1) the Administration’s 18 findings are supported by substantial evidence; and (2) the 19 Administration used correct legal standards. 20 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 21 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 22 682 F.3d 1157, 1161 (9th Cir. 2012). 23 relevant evidence as a reasonable mind might accept as adequate to 24 support a conclusion.” 25 (1971) (citation and quotations omitted); see also Widmark v. 26 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 27 /// 28 /// See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 3 1 If the evidence can support either outcome, the court may 2 not substitute its judgment for that of the ALJ. 3 Commissioner’s decision cannot be affirmed simply by 4 isolating a specific quantum of supporting evidence. 5 Rather, a court must consider the record as a whole weighing 6 both evidence that supports and evidence that detracts from 7 the [administrative] conclusion. But the 8 9 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 11 12 DISCUSSION 13 14 I. Summary of Relevant Evidence 15 16 A. Plaintiff’s Testimony and Statements 17 18 At the administrative hearing on December 6, 2016, Plaintiff 19 testified that she lived with her mother and her children (A.R. 412- 20 13). 21 her children did all of the housework (A.R. 413). 22 she cannot work because of severe anxiety, vertigo, a pinched nerve in 23 her right arm and shoulders, and intermittent problems with pain, 24 tingling, and tightness in differing parts of her body, including pain 25 that wakes her up (e.g., the previous week she reportedly woke up with 26 pain in the ball of her foot that prevented her from putting any 27 pressure on her foot) (A.R. 413-15). 28 taking Ativan or Lorazepam for the past 10 years for anxiety, which Plaintiff said that she did no housework and that her mother and 4 Plaintiff said that Plaintiff said she had been 1 she attributed to being sick and not understanding why (A.R. 415-18). 2 Plaintiff estimated that she could sit for an hour before getting 3 tingling and numbness in her buttocks (which can cause her to urinate 4 on herself), and said that she could stand for “not that long” and 5 walk for “not that far,” reporting she even had difficulty walking 6 from her vehicle to the hearing room (A.R. 413-14). 7 8 9 In a “Function Report - Adult” form prepared more than two years before the hearing, Plaintiff reported that she had an anxiety problem 10 that caused her body to ache and limited how much she could be around 11 other people, sciatic nerve compressions that caused her to lie down 12 and limit how long she could sit or stand, lumbar spine pain with 13 radiculopathy, numbness and tingling throughout her whole body, and 14 depression (A.R. 527). 15 reportedly could take her kids to and from school, feed and shower 16 them, “start” dinner, prepare meals ranging from sandwiches to frozen 17 dinners to other meals with the help of her then 12 year old child, do 18 dishes, sweep, mop, and vacuum (every other day with rest between 19 activities), and shop for groceries twice a week for 10 to 30 minutes 20 (A.R. 528-30). 21 bending, standing, walking and sitting (A.R. 532). At that time (October of 2014), Plaintiff Plaintiff indicated limitations in lifting, squatting, 22 23 B. Records from Plaintiff’s Treating Physicians 24 25 There exist treating records from Drs. Razalan and De Perio for 26 the period from January of 2014 through December of 2017. 27 1831-2148 (treatment records through October of 2016 submitted to the 28 ALJ); see also A.R. 73-103, 118-23 (treatment records from October of 5 See A.R. 1 2016 through December of 2017 submitted to the Appeals Council). Dr. 2 Razalan had treated Plaintiff since May of 2006 (A.R. 1931). 3 record before the ALJ, the doctors had diagnosed a number of 4 conditions, including anxiety/depression, chest pain 5 (musculoskeletal), persistent neck pain, ovarian cysts, chronic lumbar 6 spine pain, vertigo, high blood pressure, H. Pylori bacteria, cervical 7 radiculopathy, degenerative joint disease in the lower extremities, 8 acute tendonitis in the right leg, gastritis, peripheral neuropathy, 9 “GERD” (gastro-esophageal reflux disease), cervical disc disease, In the 10 lumbar disc disease, irritable bowel syndrome, arthralgia and myalgia 11 (A.R. 1866, 1894, 1899, 1905, 1922, 1928, 1930, 1958, 1997, 2007, 12 2032, 2067, 2070-71, 2074, 2077, 2083, 2084, 2088, 2093, 2095, 2100, 13 2123, 2143, 2148). 14 15 Plaintiff consulted with Dr. Kenneth Bradley on March 9, 2015, 16 for pain management including epidural steroid injections (A.R. 1979, 17 1981). 18 and wanes” with activity, radiating to the hips and down the legs, 19 with dysesthesia, numbness, tingling, dull achy sensations and spasms 20 (A.R. 1979). 21 points in Plaintiff’s lumbosacral area (A.R. 1979). 22 Plaintiff a lumbar epidural steroid injection and three trigger point 23 injections of Toradol (A.R. 1979, 1981). Plaintiff reported a history of lumbar back pain which “waxes Dr. Bradley observed obvious myofascial plain trigger Dr. Bradley gave 24 25 When Plaintiff returned to Dr. Bradley on September 12, 2016, she 26 reportedly had tenderness and spasm throughout her spine and decreased 27 sensation at L4-L5-S1, sensory dysesthesias at C4-C5, C5-C6 and C6-C7, 28 hip, shoulder and knee tenderness, and positive straight leg raising 6 1 tests (A.R. 1821-22). Dr. Bradley diagnosed low back pain with 2 radiculopathy, lumbosacral spondylolisthesis, chronic pain syndrome 3 and fibromyalgia (A.R. 1822). 4 lumbar epidural steroid injection and three trigger point injections 5 of Toradol (A.R. 1822-24). Dr. Bradley again gave Plaintiff a 6 7 Dr. Razalan’s and Dr. De Perio’s subsequent treatment notes, 8 which were submitted for the first time to the Appeals Council, 9 reflect additional diagnoses of fibromyalgia, lumbosacral 10 spondylolisthesis, generalized pain, scoliosis and sciatica (A.R. 77, 11 82, 88, 96, 118, 121-23). 12 2016 (also submitted for the first time to the Appeals Council), 13 consulting rheumatologist Dr. Gilbert Gelfand confirmed Plaintiff’s 14 fibromyalgia based on diffuse myofascial pain above and below the 15 diaphragm, tenderness to touch, and reported joint paint with 16 intermittent swelling (A.R. 105-07). 17 polyarthralgia (id.). In a treatment note dated in December of Dr. Gelfand also diagnosed 18 19 According to the available treatment records, Plaintiff 20 complained of various body pains, swelling, numbness and weakness, for 21 which Plaintiff was treated with, inter alia, steroid injections, 22 Gabapentin, Norco and Flexeril for pain, Lorazepam for accompanying 23 anxiety, and a referral to an orthopedist (although the referral was 24 not approved). 25 1866, 1871-73, 1894, 1905-07, 1922, 1928, 1930, 1958, 1979, 1997, 26 2007, 2058, 2071, 2074, 2077, 2083, 2088, 2092-93, 2095, 2099-2101, 27 2105, 2121, 2128, 2130, 2137-39, 2143, 2147-48). 28 /// See A.R. 88, 91-92, 101, 106, 122, 1821, 1850, 1865, 7 1 The record contains a “Medical Opinion Re: Ability to Do Work- 2 Related Activities (Physical)” form “co-signed” by Dr. Razalan and 3 dated May 12, 2015 (prior to any diagnosis of fibromyalgia) (A.R. 4 2055-57). 5 than 10 pounds, stand and walk less than two hours in an eight-hour 6 day, and sit less than two hours in an eight-hour day (A.R. 2055). 7 Dr. Razalan opined that Plaintiff could sit five minutes and stand 8 five minutes before needing to change positions, she must walk around 9 every five minutes for five to 10 minutes at a time, and she needs the Dr. Razalan opined that Plaintiff could lift and carry less 10 ability to shift at will and to lie down at unpredictable intervals 11 one to three times during the day due to her peripheral neuropathy, 12 swelling and pain (A.R. 2055-56). 13 could occasionally perform certain postural activities, except she 14 could never climb ladders, has limits in reaching, handling, 15 fingering, feeling, pushing and pulling because of pain, and Dr. 16 Razalan also opined that Plaintiff has environmental limitations (A.R. 17 2056-57). 18 approximately twice a month (A.R. 2057).1 Dr. Razalan opined that Plaintiff Dr. Razalan further opined that Plaintiff would miss work 19 1 20 21 22 23 24 25 26 27 28 The record also contains CalWORKs forms signed by Dr. De Perio dated September 11, 2014 and September 16, 2015 (prior to Plaintiff’s fibromyalgia diagnosis) (A.R. 1972-74, 2118-20). Dr. De Perio opined that Plaintiff could stand/walk for 0-2 hours at one time for a total of 0-2 or 2-4 hours standing/walking out of an eight-hour day, and could sit for 0-2 hours at one time for a total of 2-4 hours sitting out of an eight-hour day due to Plaintiff’s sciatic nerve compression, lumbar spine pain with radiculopathy and obesity (A.R. 1973, 2119). In the most recent form, Dr. De Perio opined that Plaintiff is restricted from: (1) using her hands/fingers and feet for repetitive motion/movement due to neuropathy and muscle spasms; (2) working in cold weather due to pain; (3) lifting 10 pounds or more due to her lumbar and cervical disc disease, radiculopathy and nerve damage; (4) climbing, stooping, kneeling crouching, crawling, or reaching (continued...) 8 1 Dr. Razalan provided another “Medical Opinion Re: Ability to Do 2 Work-Related Activities (Physical)” form dated September 7, 2016 (also 3 prior to Plaintiff’s fibromyalgia diagnosis) (A.R. 1885-87). 4 form, Dr. Razalan expressed similar opinions. 5 alia, that Plaintiff could lift less than 10 pounds, stand and walk 6 less than two hours in an eight-hour day, sit less than two hours in 7 an eight-hour day, would need to lie down at unpredicted intervals 8 during a work shift, and would miss more than three days of work per 9 month).2 In this See id. (opining, inter 10 11 The record contains no treating source statements post-dating 12 Plaintiff’s fibromyalgia diagnosis which address Plaintiff’s 13 functional limitations or abilities. 14 December 11, 2017, from Dr. Razalan to “Physical Medicine” (Dr. Ziyad 15 Ayyoub) to complete functional capacity assessment “paperwork” for 16 social security (A.R. 73). 17 fill out paper work, as [patient] needs functional capacity 18 test/assessment, referring [patient] to be evaluated for possible 19 [treatment] with physical medicine” (A.R. 73). 20 indicated that Plaintiff had suffered fibromyalgia and generalized 21 body pain for the past 24 months (i.e., since December of 2015) There is a referral dated This referral states, “we are unable to Dr. Razalan then 22 1 23 24 25 26 27 28 (...continued) below the knees, from her waist to knees, from her waist to chest or from her chest to shoulders; and (5) more than occasionally balancing or reaching above the shoulder (A.R. 1973-74). Dr. De Perio opined that Plaintiff is unable to bend side to side, or sit or stand for “even a short period of time” due to her severe low back and cervical pain with neuropathy (A.R. 1974). 2 The vocational expert testified that a person absent more than three days per month could not sustain any employment (A.R. 421). 9 1 (A.R. 73). 2 3 C. Emergency Room and Hospital Records 4 5 There are records concerning many emergency room visits and one 6 hospitalization. See A.R. 589-708 (Gardena Hospital records); A.R. 7 713-942 (Long Beach Memorial Hospital records); A.R. 2407-19 (St. 8 Francis Medical Center records). 9 2013-16. These records span the years 10 11 Plaintiff presented on September 15, 2013, complaining of back 12 pain radiating down her left leg (A.R. 852). On examination, 13 Plaintiff reportedly had paraspinal tenderness, decreased range of 14 motion secondary to pain, and positive straight leg raising tests 15 (A.R. 853-54). 16 radiculopathy, given Norco and prescribed ibuprofen, Vicodin and 17 Flexeril (A.R. 854, 861, 866). Plaintiff was diagnosed with low back pain with 18 19 Plaintiff presented on December 29, 2014, complaining of anxiety, 20 numbness in her extremities, chronic neck pain and chronic back pain 21 (A.R. 946). 22 tenderness and decreased range of motion secondary to pain (A.R. 949). 23 X-rays of her cervical spine and right shoulder were normal (A.R. 949- 24 50). 25 Toradol injection and prescribed Norco (A.R. 950-51, 960). On examination, Plaintiff reportedly had paraspinal She was diagnosed with anxiety and chronic back pain, given a 26 27 28 Plaintiff presented on June 22, 2015, complaining of weakness with intermittent chest pain (A.R. 1047). 10 On examination, she 1 reportedly appeared anxious and she had some chest wall tenderness to 2 palpation but an “unremarkable” EKG (A.R. 1048-49, 1052). 3 diagnosed with atypical chest pain and ordered to follow up with her 4 regular doctor (A.R. 1052). She was 5 6 Plaintiff presented on July 21, 2015, complaining of numbness in 7 her extremities and chronic pain in the right side of her neck (A.R. 8 1090). 9 palpation of the trapezius muscle (A.R. 1093). On examination, Plaintiff reportedly had tenderness to Plaintiff was 10 diagnosed with musculoskeletal pain, given a Toradol injection and 11 ordered to follow up with her regular doctor (A.R. 1093-94, 1104). 12 13 Plaintiff presented on August 12, 2015, complaining of anxiety 14 and neck and jaw pain (A.R. 1121). On examination, there were no 15 noted abnormalities and an x-ray of Plaintiff’s chest showed no acute 16 cardiopulmonary disease (A.R. 1125-26). 17 acute/chronic back pain, stress and anxiety, given a Toradol 18 injection, Norco, Ativan and a “GI cocktail,” and was ordered to 19 follow up with her regular doctor (A.R. 1126). Plaintiff was diagnosed with 20 21 Plaintiff presented on September 1, 2015, complaining of central 22 chest pain, headache, face pain on the right side, and neck pain on 23 the left side (A.R. 691). 24 chronic pain for which she was seeing a pain management specialist, 25 lumbar disk disease with associated chronic back pain, gastritis, a 26 neurological problem causing intermittent right-sided weakness, 27 nonstop menstrual bleeding, and anxiety disorder (A.R. 691). 28 Examination findings reportedly were normal except for a slightly Plaintiff reportedly had a history of 11 1 elevated blood pressure and anxious mood (A.R. 691-92). Plaintiff was 2 diagnosed with chronic pain syndrome and given a Toradol injection and 3 Ativan (A.R. 692, 695). 4 Norco, Flexeril, Mobic and Gabapentin, she was referred for follow up 5 with her primary care physician, neurologist and her pain management 6 specialist(A.R. 692). Since Plaintiff already had prescriptions for 7 8 9 Plaintiff presented on September 9, 2015, complaining of pain and numbness from her neck radiating down to her right arm and fingers 10 (A.R. 1197). On examination, she reportedly had tenderness on passive 11 range of motion in the right shoulder, pain radiating down the right 12 extremity, and tenderness to the right paracervical muscles (A.R. 13 1199-1200). 14 the right upper extremity, given a Toradol injection and Norco, and 15 prescribed a sling, Norco, Flexeril and Motrin (A.R. 1200, 1210). Plaintiff was diagnosed with cervical radiculopathy to 16 17 Plaintiff presented on January 7, 2016, complaining of anxiety, 18 heart palpitations with pressure, shortness of breath, epigastric 19 discomfort and bilateral leg pain (A.R. 1392-93). 20 Plaintiff reportedly had left upper quadrant tenderness and epigastric 21 discomfort, but a normal EKG (A.R. 1395-97). 22 gastritis and anxiety, given Valium and a GI cocktail, and ordered to 23 follow up with her regular doctor (A.R. 1398, 1409-10). On examination, She was diagnosed with 24 25 Plaintiff presented on March 3, 2016, complaining of chest pain 26 radiating to the left arm, left calf pain and left calf swelling (A.R. 27 1478-79). 28 tenderness and low grade tachycardia consistent with dehydration (A.R. On examination, she reportedly had left chest wall 12 1 1481-84). She was diagnosed with chest pain, epigastric abdominal 2 pain, calf pain and dehydration, and referred to her regular doctor 3 (A.R. 1485). 4 5 Plaintiff presented on April 4, 2016, complaining of vaginal 6 bleeding and abdominal pain, nausea and vomiting (A.R. 605). 7 Plaintiff was diagnosed with possible gastritis or gastroenteritis, 8 uterine fibroids, anemia, transaminitis probably from ethyl alcohol 9 abuse, and a urinary tract infection, and she was given a shot of 10 morphine (A.R. 605-06, 614). 11 12 Plaintiff presented on April 6, 2016, complaining of heavy 13 vaginal bleeding and abdominal pain not relieved by Norco (A.R. 655). 14 Plaintiff was diagnosed with fibroids and abdominal pain and given a 15 Toradol injection (A.R. 655-56, 662). 16 gynecologist for further evaluation of her fibroids, with a note that 17 she was due to have a hysterectomy (A.R. 655).3 Plaintiff was referred to her 18 19 Plaintiff presented on July 3, 2016, complaining of neck pain 20 radiating to the jaw, chest and arm (A.R. 1524). On examination, 21 Plaintiff reportedly had tenderness to palpation and limited range of 22 motion in her neck (A.R. 1527-28). 23 cervical radiculopathy, given Toradol and Medrol injections and Valium 24 (A.R. 1529, 1537-38, 1540). 25 /// 26 /// Plaintiff was diagnosed with 27 3 28 Plaintiff underwent an inpatient hysterectomy at the St. Francis Medical Center on April 13, 2016 (A.R. 2528-2640). 13 1 Plaintiff presented to Long Beach Memorial Hospital on July 19, 2 2016, complaining of chronic neck pain radiating to her jaw and the 3 back of her head, preventing her from holding her head up (for which 4 she was placed in a C-collar), generalized weakness and chest pain 5 (A.R. 1560-61). 6 (A.R. 1565, 1574, 1634). 7 suspect for a “dural AV fistula” (A.R. 1582). 8 to the hospital, a dural AV fistula was ruled out, and her neck pain 9 was stabilized with Percocet, Morphine and Tylenol (A.R. 1566, 1569, Cervical spine MRI and CT scans were unremarkable A MRI of Plaintiff’s thoracic spine was 10 1574-75, 1580-82, 1585-90). 11 (A.R. 1588). 12 1575). Plaintiff was admitted No clear underlying pathology was found Plaintiff was referred for chronic pain management (A.R. 13 14 Plaintiff then went to the St. Francis Medical Center emergency 15 room on July 22, 2016, complaining of back pain and headache and 16 seeking a second opinion after having been admitted to Long Beach 17 Memorial Hospital where she had been told there were no acute causes 18 found (A.R. 2407). 19 significant findings, so she was ordered to follow up with her primary 20 doctor, neurologist and pain management specialist (A.R. 2408-09, 21 2419). On examination, Plaintiff reportedly had no 22 23 Plaintiff presented on September 22, 2016, complaining of chest 24 pain (A.R. 1724, 1730-31). Testing reportedly was “unremarkable,” and 25 Plaintiff was prescribed Naprosyn and Carafate and ordered to follow 26 up with her primary care physician (A.R. 1724, 1730-31). 27 /// 28 /// 14 1 D. 2 Opinions of Consultative Examiners and State Agency Physicians 3 4 The consultative examiners and state agency physicians all 5 evaluated Plaintiff’s condition in December of 2014, which was prior 6 to the time Plaintiff was diagnosed with fibromyalgia, and also prior 7 to the time of most of the treatment summarized above. 8 9 Consultative examiner Dr. Carlos Murales prepared a 10 “Comprehensive Psychiatric Evaluation” dated December 11, 2014 (A.R. 11 565-69). 12 Plaintiff reportedly complained of anxiety and depression (A.R. 565). 13 Plaintiff was taking Lorazepam, Tramadol, Pantoprazole, Meclizine and 14 Flexeril (A.R. 566). 15 disorder and chronic dysthymic disorder (A.R. 568). 16 stated that Plaintiff has a “prominent medical condition that hinders 17 her capability to work or function,” and she has an anxiety disorder 18 that “contributes to this incapacity but not to the point that she is 19 not able to perform either with others or at work” (A.R. 569). 20 Murales opined that Plaintiff has no functional limitations from a 21 psychiatric standpoint (A.R. 569). Dr. Murales reviewed no psychiatric records (A.R. 565). Dr. Murales diagnosed generalized anxiety Dr. Murales Dr. 22 23 Consultative examiner Dr. Michael Wallack prepared a “Complete 24 Internal Medicine Evaluation” dated December 23, 2014 (A.R. 573-79). 25 Dr. Wallack reviewed no medical records (A.R. 574). 26 reportedly complained of low back pain for several years that radiated 27 down her left leg, pain in her mid and upper back, buttocks, and neck 28 that radiated to both hips, arms, and legs, and chest pain related to 15 Plaintiff 1 her anxiety (A.R. 573-74). Dr. Wallack stated that Plaintiff had not 2 been given any injections, but had been prescribed Vicodin and had 3 used a heating pad for her pain (A.R. 573). 4 her symptoms increased with sitting, standing, walking, lifting and 5 bending, and she cannot climb stairs (A.R. 573). 6 two sentences, Dr. Wallack stated both that Plaintiff is a “poor 7 historian” and that Plaintiff “appears to be a reliable historian” 8 (A.R. 573). Plaintiff reportedly said Within the space of 9 10 On examination, Plaintiff reportedly had an inconsistent, 11 intermittent limp favoring the left leg (which Dr. Wallack suggested 12 may represent “exaggeration”), no other reported abnormalities, and an 13 unremarkable lumbar spine x-ray (A.R. 575-78, 580). 14 diagnosed low back pain, chest pain, controlled GERD, acne and 15 obesity, and assessed no limitations (A.R. 577-78).4 Dr. Wallack 16 17 18 State agency physicians reviewed the record as of December of 2014, and opined that Plaintiff would have no limitations 19 20 21 22 23 24 25 26 27 28 4 The record contains a treatment note from Dr. Salvatore Danna dated June 8, 2015, also suggesting that Plaintiff may have been embellishing her symptoms. See A.R. 1976-77. Dr. Danna indicated that Plaintiff has a history of pain throughout her body without a “well-documented diagnosis” (A.R. 1976). On examination, Plaintiff reportedly had depression, pressured speech, some psychomotor retardation, moderate spasm and decreased range of motion in the low back, sensory loss, and gait with some stiffness of her back and protection of her low back with small steps and gentle movements (A.R. 1976). Dr. Danna opined that Plaintiff had carpal tunnel syndrome and early discogenic disease of the lumbosacral spine (A.R. 1976). Dr. Danna ordered EMG and nerve conduction studies (A.R. 1977). Dr. Danna prescribed Mobic, Neurontin and Plavix (A.R. 1977). There are no later records from Dr. Danna. 16 1 (A.R. 424-31). 2 3 4 II. The ALJ’s Erred in the Evaluation of the Medical Opinion Evidence. 5 6 In assessing Plaintiff’s physical residual functional capacity, 7 the ALJ gave “little” weight to Dr. Razalan’s and Dr. De Perio’s 8 opinions (A.R. 57-58). 9 (1) appeared “excessive and inconsistent with the weight of the The ALJ asserted that these doctors’ opinions: 10 medical evidence”; (2) were contradicted by the opinion of the non- 11 examining medical expert;5 and (3) appeared to have been based on 12 Plaintiff’s subjective allegations of pain, taken “at face value” 13 (A.R. 57-58). 14 15 A treating physician’s conclusions “must be given substantial 16 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 17 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 18 give sufficient weight to the subjective aspects of a doctor’s 19 opinion. . . . 20 treating physician”) (citation omitted); see also Garrison v. Colvin, 21 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the 22 opinions of treating and examining physicians). 23 treating physician’s opinions are contradicted, as here, “if the ALJ 24 wishes to disregard the opinion[s] of the treating physician he . . . 25 must make findings setting forth specific, legitimate reasons for This is especially true when the opinion is that of a Even where the 26 27 28 5 The record variously references the non-examining medical expert as Dr. Ostrow, Dr. Arstrow, Dr. Astrow and Dr. Ostarin (A.R. 49, 57, 58, 406-09). 17 1 doing so that are based on substantial evidence in the record.” 2 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, 3 quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 4 762 (“The ALJ may disregard the treating physician’s opinion, but only 5 by setting forth specific, legitimate reasons for doing so, and this 6 decision must itself be based on substantial evidence”) (citation and 7 quotations omitted). 8 9 The reasons the ALJ stated for rejecting Dr. Razalan’s and Dr. De 10 Perio’s opinions do not comport with these authorities. First, with 11 regard to the weight of the medical evidence, the ALJ stated that the 12 “medical records do not indicate that [Plaintiff’s] pain in [sic] 13 symptoms consistently have limited her mobility, strength, or 14 sensation” (A.R. 55). 15 reported feeling well with no complaints and no findings of 16 abnormalities on examination, and at other times there was evidence of 17 diminished motion in the spine, positive straight leg raising tests 18 and neurological deficits. 19 Plaintiff reported that her symptoms wax and wane). 20 observed that, while Drs. Razalan and De Perio opined that Plaintiff 21 has significant limits, Dr. Wallack stated that, when he examined 22 Plaintiff, she was “reasonably agile and walking without an assistive 23 device,” “got on and off the examination table without difficulty,” 24 had no tenderness on palpation of the back in the midline and 25 paraspinal areas and otherwise had largely normal examination findings 26 (A.R. 56). 27 not suggest that Plaintiff’s pain causes significant limitations, 28 particularly in the areas of standing and walking, because: (1) there The ALJ also observed that Plaintiff sometimes See A.R. 55-58 (acknowledging that The ALJ also According to the ALJ, the objective clinical findings did 18 1 reportedly were no reported gait abnormalities (but see A.R. 575 (Dr. 2 Wallack noting that Plaintiff walked with an inconsistent limp) and 3 A.R. 1976 (Dr. Danna noting a stiff gait with small steps and gentle 4 movements)); (2) Plaintiff reportedly was ambulatory without 5 assistance; and (3) Plaintiff did not have documented “persistent 6 restrictions in motion,” ongoing neurological abnormalities, 7 significant disuse atrophy, or reports of constant tender points as 8 one might expect to find with the limitations Drs. Razalan and De 9 Perio suggested (A.R. 58). 10 11 An ALJ properly may discount a treating physician’s opinions that 12 are in conflict with treatment records or are unsupported by objective 13 clinical findings. 14 Cir. 2005) (conflict between treating physician’s assessment and the 15 treating physician’s own clinical notes can justify rejection of 16 assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 17 2004) (“an ALJ may discredit treating physicians’ opinions that are 18 conclusory, brief, and unsupported by the record as a whole . . . or 19 by objective medical findings”); Connett v. Barnhart, 340 F.3d 871, 20 875 (9th Cir. 2003) (treating physician’s opinion properly rejected 21 where physician’s treatment notes “provide no basis for the functional 22 restrictions he opined should be imposed on [the claimant]”); see also 23 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly 24 may reject treating physician’s opinions that “were so extreme as to 25 be implausible and were not supported by any findings made by any 26 doctor . . .”); 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to 27 consider in weighing treating source opinion include the 28 supportability of the opinion by medical signs and laboratory findings See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 19 1 as well as the opinion’s consistency with the record as a whole). 2 3 In the present case, however, no doctor discerned and identified 4 any specific inconsistency between the treating physicians’ opinions 5 and the medical record. 6 expert whether there was any inconsistency between the treating 7 physicians’ opinions and the medical record. 8 apparently had reviewed some of the opinions of Dr. Razalan and Dr. De 9 Perio. The ALJ never asked the non-examining medical The medical expert See A.R. 409 (medical expert confirming reviewing medical 10 evidence through exhibit “15F” (i.e., A.R. 2402)). However, the 11 medical expert did not discuss any opinion evidence (other than his 12 own), did not discuss the medical record in any detail and did not 13 even attempt to explain why the record supposedly supported his own 14 opinion (A.R. 409-12). 15 opinions of Dr. Razalan or Dr. De Perio. 16 lay discernment of an asserted inconsistency between medical record 17 findings and the treating physicians’ opinions cannot constitute 18 substantial evidence. 19 1998) (an “ALJ cannot arbitrarily substitute his own judgment for 20 competent medical opinion”) (internal quotation and citation omitted); 21 Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not 22 succumb to the temptation to play doctor and make their own 23 independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 24 (9th Cir. 1975) (an ALJ is forbidden from making his or her own 25 medical assessment beyond that demonstrated by the record). The state agency physicians did not review the See A.R. 424-32. The ALJ’s See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 26 27 28 Moreover, as stated in Social Security Ruling (“SSR”) 12-2p, fibromyalgia involves pain in all quadrants of the body which 20 1 “fluctuate[s] in intensity and may not always be present.” See SSR 2 12-2p, 2012 WL 3104869, at *2 (July 25, 2012) (following American 3 College of Rheumatology Criteria for the Classification of 4 Fibromyalgia); see also Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 5 (9th Cir. 1990) (SSRs are binding on the Administration). 6 there are no laboratory tests to confirm the diagnosis [of 7 fibromyalgia].” 8 2004); see also Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017) 9 (“Revels”) (observing that fibromyalgia is diagnosed in part by “[T]o date Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 10 evidence showing that another condition does not account for a 11 patient’s symptoms). 12 fibromyalgia sufferer will often display normal muscle strength and 13 unremarkable neurological and musculoskeletal results on examination. 14 See Revels 874 F.3d at 656 (“What is unusual about the disease is that 15 those suffering from it have muscle strength, sensory functions, and 16 reflexes that are normal. 17 musculoskeletal examination indicates no objective joint swelling. 18 Indeed, there is an absence of symptoms that a lay person may 19 ordinarily associate with joint and muscle pain.”) (internal 20 citations, quotations, and brackets omitted). The ALJ did not acknowledge the fact that a Their joints appear normal, and further 21 22 Neither the ALJ nor this Court possesses the medical expertise to 23 know whether the objective medical evidence is inconsistent with the 24 limitations Plaintiff’s treating physicians found to exist. 25 lay inferences from Plaintiff’s “normal” examinations and reports 26 (which conflict with other examinations and reports reflecting 27 allegedly debilitating pain) cannot properly impugn the medical 28 opinions in this case. The ALJ’s See Revels 874 F.3d at 656-57; cf. Coleman v. 21 1 Astrue, 423 Fed. App’x 754, 755 (9th Cir. 2011) (ALJ erred by 2 “rel[ying] on the absence of objective physical symptoms of severe 3 pain as a basis for disbelieving [claimant’s] testimony regarding” 4 effects of fibromyalgia). 5 6 7 The ALJ also questioned Plaintiff’s treatment, stating that Plaintiff: 8 9 was never prescribed particularly potent medication to 10 control her pain levels (e.g., Fentanyl and Methadone). 11 Rather, pain management records suggest that, primarily, she 12 was only prescribed Hydrocodone - Acetaminophen or some 13 variation, which is not a particularly potent opioid. 14 15 (A.R. 56). As the ALJ elsewhere admitted, however, Plaintiff did 16 receive trigger point injections (Toradol) on multiple occasions (A.R. 17 55). 18 for pain. 19 nature of Plaintiff’s impairments, the pain treatment actually 20 received by Plaintiff does not furnish a legitimate reason for 21 rejecting the treating physicians’ opinions. Plaintiff also received two lumbar epidural steroid injections (A.R. 1979, 1981, 1822-24). Given these facts, and the 22 23 With regard to the contradiction of the treating physicians’ 24 opinions with the non-examining medical expert’s opinion, the 25 contradiction of a treating physician’s opinion triggers rather than 26 satisfies the requirement of stating specific, legitimate reasons for 27 discounting such an opinion. 28 574 F.3d 685, 692 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631-33 See, e.g., Valentine v. Commissioner, 22 1 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 2 2007). 3 cannot by itself constitute substantial evidence that justifies 4 rejection of the opinion of . . . a treating physician. 5 Chater, 81 F.3d at 831. In any event, “[t]he opinion of a nonexamining physician Lester v. 6 7 Finally, the ALJ’s speculation that the treating physicians 8 uncritically accepted at “face value” all of Plaintiff’s subjective 9 allegations of pain is not a specific and legitimate reason for 10 rejecting the treating physicians’ opinions. An ALJ may not reject a 11 treating physician’s opinion based on mere speculation concerning the 12 basis for the physician’s opinion. 13 In particular, an ALJ may not properly speculate that a treating 14 physician’s opinion was based simply on an uncritical acceptance of a 15 claimant’s subjective complaints. 16 1116, 1120-21 (10th Cir. 2004) (ALJ “improperly rejected” treating 17 physician’s opinion in reliance on, inter alia, the ALJ’s “speculative 18 conclusion” that the physician’s opinion was “based on the claimant’s 19 subjective complaints”); Overby v. Colvin, 2016 WL 1178951, at *5 20 (W.D. Wash. March 8, 2016), adopted, 2016 WL 1170362 (W.D. Wash. 21 March 25, 2016) (“The Court agrees with Plaintiff that the ALJ’s 22 speculation as to the reasons why [the treating physician] opined as 23 he did is not a legitimate reason to discount the opinion . . .”) 24 (dicta); Gordon v. Colvin, 2015 WL 685396, at *4 (C.D. Cal. Feb. 17, 25 2015) (“the ALJ’s conclusion that [the treating physician] relied 26 wholly and uncritically on plaintiff’s subjective complaints is 27 unsupported in the record”; the court observed that the treating 28 physician had tested, interviewed and monitored the claimant’s Lester v. Chater, 81 F.3d at 832. See Langley v. Barnhart, 373 F.3d 23 1 treatment for years); Hill v. Astrue, 2011 WL 4587688, at *3 (E.D. 2 Okla. Sept. 30, 2011) (“the ALJ’s speculation that [the treating 3 counsellor’s] opinions were the result of complete acceptance of and 4 reliance on claimant’s subjective complaints was inappropriate”); 5 Moore v. Astrue, 2009 WL 724056, at *7 (D. Colo. March 18, 2009) 6 (reversing ALJ’s rejection of treating physician’s opinion, finding 7 that the ALJ’s stated reason that “it appears [the physician] relied 8 on [the claimant’s] subjective complaints” was “improperly based on 9 the ALJ’s speculation”); cf. Mayes v. Massanari, 276 F.3d 453, 459-60 10 (9th Cir. 2001) (ALJ’s duty to develop the record further is triggered 11 “when there is ambiguous evidence or when the record is inadequate to 12 allow for the proper evaluation of the evidence”) (citation omitted); 13 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“[T]he ALJ has a 14 special duty to fully and fairly develop the record to assure the 15 claimant’s interests are considered. 16 claimant is represented by counsel.”). This duty exists even when the 17 18 Also significant to this analysis is the fact that the ALJ found 19 Plaintiff has severe fibromyalgia. As the Ninth Circuit recognized in 20 Revels, fibromyalgia is diagnosed “entirely on the basis of the 21 patients’ reports of pain and other symptoms.” 22 at 656 (citing Benecke v. Barnhart, 379 F.3d at 590). 23 whether a claimant’s residual functional capacity renders them [sic] 24 disabled because of fibromyalgia, the medical evidence must be 25 construed in light of fibromyalgia’s unique symptoms and diagnostic 26 methods . . .” (id.). 27 subjective complaints of a fibromyalgia sufferer inevitably will be a 28 /// See Revels, 874 F.3d “In evaluating Hence, a certain degree of reliance on the 24 1 part of any assessment of the sufferer’s residual functionality.6 2 3 4 III. The Court is Unable to Deem the ALJ’s Errors Harmless; Remand for Further Administrative Proceedings is Appropriate. 5 6 The Court is unable to conclude that the ALJ’s errors were 7 harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th 8 Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, but 9 the record is uncertain and ambiguous, the proper approach is to 10 remand the case to the agency”); see also Molina v. Astrue, 674 F.3d 11 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 12 inconsequential to the ultimate non-disability determination”) 13 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 14 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 15 determine from the ‘circumstances of the case’ that further 16 administrative review is needed to determine whether there was 17 prejudice from the error”). 18 19 Remand is appropriate because the circumstances of this case 20 suggest that further administrative review could remedy the ALJ’s 21 errors. 22 537 U.S. 12, 16 (2002) (upon reversal of an administrative 23 determination, the proper course is remand for additional agency 24 investigation or explanation, except in rare circumstances); Dominguez McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 25 26 27 28 6 In this regard, it also may be significant that the ALJ purported to rely on Dr. Wallack’s and Dr. Danna’s suggestions that Plaintiff might be embellishing her symptoms, even though these doctors made such suggestions before Plaintiff had been diagnosed with fibromyalgia (A.R. 59). 25 1 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 2 court concludes that further administrative proceedings would serve no 3 useful purpose, it may not remand with a direction to provide 4 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 5 for further administrative proceedings is the proper remedy “in all 6 but the rarest cases”); Garrison v. Colvin, 759 F.3d 995, 1020 (9th 7 Cir. 2014) (court will credit-as-true medical opinion evidence only 8 where, inter alia, “the record has been fully developed and further 9 administrative proceedings would serve no useful purpose”); Harman v. 10 Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 11 (2000) (remand for further proceedings rather than for the immediate 12 payment of benefits is appropriate where there are “sufficient 13 unanswered questions in the record”). 14 unanswered questions in the present record, particularly with regard 15 to: (1) the bases for the treating physicians’ opinions; and (2) the 16 impact of the relatively recent diagnosis of fibromyalgia, a severe 17 impairment which was not factored into most of the physicians’ 18 assessments of Plaintiff’s functional capacity. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 26 There remain significant 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 7, 2019. 10 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27
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