Jose Luis Barajas v. Nancy A. Berryhill, No. 2:2018cv06470 - Document 28 (C.D. Cal. 2020)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (es)

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Jose Luis Barajas v. Nancy A. Berryhill Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE B., 17 ) ) Plaintiff, ) ) v. ) ) ) ANDREW M. SAUL, Commissioner of ) Social Security Administration, ) ) Defendant. ) ) ) 18 I. 19 INTRODUCTION 12 13 14 15 16 20 Case No. CV 18-6470-SP MEMORANDUM OPINION AND ORDER On July 26, 2018, plaintiff Jose B. filed a complaint against the 21 Commissioner of the Social Security Administration (“Commissioner”), seeking a 22 review of a denial of a period of disability and disability insurance benefits 23 (“DIB”). The parties have fully briefed the matters in dispute, and the court deems 24 the matter suitable for adjudication without oral argument. 25 Plaintiff presents five issues for decision: (1) whether the Administrative 26 Law Judge (“ALJ”) properly considered the opinions of plaintiff’s treating 27 physicians; (2) whether the ALJ properly discounted plaintiff’s subjective 28 1 Dockets.Justia.com 1 complaints; (3) whether the ALJ properly considered lay witness testimony; 2 (4) whether the ALJ’s residual functional capacity (RFC) determination was 3 supported by substantial evidence; and (5) whether the ALJ properly considered 4 the vocational expert (VE) testimony. Plaintiff’s Memorandum in Support of 5 Plaintiff’s Complaint (“P. Mem.”) at 16-29; see Memorandum in Support of 6 Defendant’s Answer (“D. Mem.”) at 1-15. 7 Having carefully studied the parties’ memoranda, the Administrative Record 8 (AR), and the decision of the ALJ, the court concludes that, as detailed herein, 9 although the ALJ properly discounted plaintiff’s and the lay witness testimony, the 10 ALJ erred by failing to properly consider the opinions of plaintiff’s treating 11 physicians, and therefore must reassess plaintiff’s RFC. The court therefore 12 remands this matter to the Commissioner in accordance with the principles and 13 instructions set forth in this Memorandum Opinion and Order . 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff was 54 years old on the alleged disability onset date. AR at 101. 17 He has an eighth grade education and past relevant work as a car porter, assembly 18 press operator, and small parts assembler. Id. at 94, 270. 19 On December 30, 2013, plaintiff filed an application for a period of 20 disability and DIB alleging disability beginning November 10, 2012 due to back 21 injury, diabetes, depression, neck injury, and knee injury. Id. at 101. The 22 Commissioner denied plaintiff’s applications initially, and upon reconsideration, 23 after which he filed a request for a hearing. Id. at 112-26. 24 On February 22, 2017, plaintiff, represented by counsel, appeared and 25 testified at a hearing before the ALJ with the assistance of a Spanish language 26 interpreter. Id. at 48-50, 54-93. The ALJ also heard testimony from Sharon 27 Spaventa, a vocational expert. Id. at 93-98. On May 19, 2017, the ALJ denied 28 2 1 plaintiff’s claim for benefits. Id. at 21-42. Applying the well-known five-step 2 sequential evaluation process, the ALJ found, at step one, that plaintiff had not 3 engaged in substantial gainful activity since November 10, 2012, the alleged onset 4 date. Id. at 23. 5 At step two, the ALJ found plaintiff suffered from the following severe 6 impairments: degenerative disc disease; degenerative joint disease; and diabetes 7 mellitus. Id. at 23. 8 At step three, the ALJ found plaintiff’s impairments, whether individually or 9 in combination, did not meet or medically equal one of the listed impairments set 10 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 30. 11 The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the RFC 12 to perform light work, with the limitations that he could: frequently balance, stoop, 13 crouch, and crawl; occasionally kneel; occasionally climb stairs, ramps, ladders, 14 and scaffolds; and never climb ropes. Id. at 31-32. The ALJ also found plaintiff is 15 limited to simple, routine tasks consistent with his work history and experience. 16 Id. at 32. 17 The ALJ found, at step four, that plaintiff could perform his past relevant 18 work as a small parts assembler and assembly press operator. Id. at 41. 19 Consequently, the ALJ concluded plaintiff did not suffer from a disability as 20 defined by the Social Security Act. Id. at 42. 21 Plaintiff filed a timely request for review of the ALJ’s decision, which was 22 denied by the Appeals Council. Id. at 1-8. The ALJ’s decision stands as the final 23 decision of the Commissioner. 24 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 3 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 7 (as amended). But if the court determines the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record, the court may 9 reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 “Substantial evidence is more than a mere scintilla, but less than a 13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 14 “relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 17 finding, the reviewing court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that detracts from the 19 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 20 affirmed simply by isolating a specific quantum of supporting evidence.’” 21 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 22 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 23 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 24 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 25 1992)). 26 27 28 4 1 IV. 2 DISCUSSION 3 A. The ALJ Improperly Rejected the Opinions of Plaintiff’s Treating 4 Physicians 5 Plaintiff argues the ALJ erred by failing to properly weigh the opinions of 6 his treating physicians, Dr. Farsar and Dr. Rashti. P. Mem. at 17-22. Specifically, 7 plaintiff argues the reasons provided by the ALJ for discounting their opinions are 8 inconsistent with the medical record, and are not legally sufficient. Id. at 19. 9 In determining whether a claimant has a medically determinable impairment, 10 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 11 §§ 404.1527(b), 416.927(b).2 In evaluating medical opinions, the regulations 12 distinguish among three types of physicians: (1) treating physicians; (2) examining 13 physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 14 416.926(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). 15 “Generally, a treating physician’s opinion carries more weight than an examining 16 physician’s, and an examining physician’s opinion carries more weight than a 17 reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 18 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416. 927(c)(1)-(2). The opinion of the 19 treating physician is generally given the greatest weight because the treating 20 physician is employed to cure and has a greater opportunity to understand and 21 observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); 22 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 23 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 24 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 25 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 26 The Social Security Administration issued new regulations effective March 27 27, 2017. All regulations cited in this decision are effective for cases filed prior to 28 March 27, 2017. 2 5 1 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 2 opinions, the ALJ must provide specific and legitimate reasons supported by 3 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 4 and legitimate reasons supported by substantial evidence in rejecting the 5 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 6 non-examining physician, standing alone, cannot constitute substantial evidence. 7 Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. 8 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 9 813, 818 n.7 (9th Cir. 1993). 10 11 1. Pertinent Medical Opinions and Records a. Treating Physicians 12 Dr. Nader Farsar 13 Dr. Farsar, a chiropractor and plaintiff’s primary treating physician, treated 14 plaintiff from November 2012 through August 2016 as part of his worker’s 15 compensation claim. See AR at 350-59, 1130-76. On November 21, 2012, Dr. 16 Farsar examined plaintiff and found pain, muscle spasm, and tenderness bilaterally 17 in the upper and lower cervical and lumbar areas, and moderate pain in the knee 18 area. Id. at 356. Dr. Farsar also conducted orthopedic tests and found positive 19 cervical compression, positive straight leg raising with radiculopathy, and pain at 20 the medial aspect of the right knee joint. Id. Based on the subjective and objective 21 findings of the physical examination, Dr. Farsar diagnosed plaintiff with cephalgia, 22 posttraumatic cervical sprain/strain with myofascitis, cervical radiculopathy, 23 cervical muscle spasm, posttraumatic lumbar sprain/strain with myofascitis, lumbar 24 radiculopathy, lumbar muscle spasm, diabetes, insomnia, sexual dysfunction, and 25 stress-related condition. Id. at 357. Dr. Farsar then recommended a course of 26 physiotherapy and chiropractic care three times per week for four weeks, and 27 plaintiff was placed on temporary total disability (TTD) until December 21, 2012. 28 6 1 Id. 2 On January 21, 2013, Dr. Farsar obtained a magnetic reasoning image 3 (MRI) of plaintiff’s lumbar and cervical spine. Id. at 361-62. The MRI results of 4 plaintiff’s cervical spine revealed the following: a 4-5 mm disc protrusion at C4-C5 5 with moderate left greater than right central stenosis and moderately severe neural 6 foraminal stenosis; a 5 mm disc bulge with severe left greater than right central 7 stenosis and severe neural foraminal stenosis at C5-C6; and a 3-4 mm disc bulge 8 and moderately severe left and right neural foraminal stenosis, and moderately 9 severe central stenosis at C6-C7. Id. at 361, 1165-66. 10 The MRI results of plaintiff’s lumbar spine revealed a 4 mm disc protrusion 11 with an annular tear and moderately severe central canal stenosis and moderate 12 neural foraminal stenosis at L5-S1; a 3-4 mm right greater than left bulge with 13 moderate right greater than left neural foraminal stenosis and moderate central 14 canal stenosis at L4-L5; a 4 mm broad leftward protrusion with moderate left 15 neural foraminal stenosis and moderate central stenosis at L3-L4; and a 3-4 mm 16 right greater than left lateralizing bulge or protrusion with mild to moderate right 17 greater than left neural foraminal stenosis with an annular tear at L2-L3. Id. at 363, 18 1166. On March 12, 2013, plaintiff underwent an MRI of his right knee, and Dr. 19 Farsar found a small anterior horn of the lateral meniscus with possible tear and 20 subluxations of the portion of the menisci, and moderate joint effusion. Dr. Farsar 21 also suspected plaintiff had a high-grade ACL sprain. Id. at 1166. 22 Although Dr. Farsar remained plaintiff’s primary treating physician, he 23 referred plaintiff to several other physicians for treatment. See id. at 1159-65. On 24 February 25, 2014, Dr. Farsar issued a Permanent and Stationary Report indicating 25 plaintiff had reached maximum medical improvement. Id. at 1170. After 26 reviewing his and other physicians’ clinical findings, as well as MRI reports of 27 plaintiff’s lumbar spine, cervical spine, and right knee, Dr. Farsar opined that 28 7 1 plaintiff was unable to perform his previous usual and customary job duties, and 2 restricted him from prolonged sitting in fixed position, prolonged walking or 3 standing, repetitive bending, heavy lifting, and repetitive squatting and kneeling. 4 Id. at 1168. 5 Dr. Jalil Rashti 6 Dr. Farsar referred plaintiff to Dr. Rashti, an orthopedic surgeon, due to his 7 complaints of persistent neck pain. See id. at 388, 1169. On February 20, 2013, 8 Dr. Rashti examined plaintiff and found a slight limp favoring the right side, loss 9 of range of motion of his lumbar and cervical regions, tenderness at the cervical 10 and lumbosacral regions and right knee, a positive patellar compression test, 11 positive McCurray’s sign, atrophy and weakness at the right quadriceps, and 12 diminished sensation of the right knee. Id. at 390-92. After evaluating plaintiff 13 and reviewing Dr. Farsar’s diagnoses and the MRI results of plaintiff’s lumbar and 14 cervical spine, Dr. Rashti diagnosed plaintiff with multilevel cervical discogenic 15 disease with radiculitis, multilevel lumbar discogenic disease with radiculitis, and 16 right internal derangement. Id. at 393-94. 17 On March 27, 2013, Dr. Rashti performed electrodiagnostic testing of 18 plaintiff’s cervical and lumbar spine. Id. at 383-86. The cervical electrodiagnostic 19 testing revealed severe impairments on the left occipital nerve and right thoracic 20 nerve; mild impairment on the posterior division of the cervical nerve and first 21 thoracic nerve; marked impairment of the left cervical nerve; and very severe 22 impairments on the right suprascrapular nerve, left radial nerve medical branch, 23 right unlar nerve, and left thoracic nerve. Id. at 383. Electrodiagnostic testing of 24 the lumbar spine revealed very severe impairments of the bilateral upper lumbar 25 nerve, left femoral cutaneous nerve, bilateral femoral cutaneous nerve, right 26 saphenous nerve, and bilateral peroneal nerve; severe impairments of the bilateral 27 sural nerve and right femoral cutaneous nerve; marked impairments of the right 28 8 1 femoral cutaneous nerve; and moderate impairment of the left saphenous nerve. 2 Id. 386. 3 On May 15, 2013, Dr. Rashti examined plaintiff and issued a final 4 orthopedic evaluation with impairment ratings. Id. at 371. Dr. Rashti examined 5 plaintiff and reiterated the clinical findings of his initial examination. Id. at 3736 79. Again for worker’s compensation purposes, Dr. Rashti opined that plaintiff 7 should avoid: staying in one position such as prolonged sitting, standing, and 8 walking; repeat bending and stooping; and lifting, pushing, and pulling heavy 9 objects. Id. at 377. With respect to plaintiff’s right knee, Dr. Rashti opined that 10 plaintiff should avoid repetitive kneeling, squatting, stair climbing, walking on 11 uneven ground, and prolonged walking and standing. Id. In making his 12 determination, Dr. Rashti specified he relied on subjective and objective factors of 13 disability including the MRI findings and his clinical findings which revealed a 14 loss of range of motion of the cervical and lumbosacral regions, limp favoring the 15 right side, weakness of the right quadriceps, and tenderness at the cervical and 16 lumbosacral regions and right knee. Id. 17 Dr. Marvin Pietruszka 18 On December 17, 2013, Dr. Farsar referred plaintiff to Dr. Pietruszka, an 19 occupational medicine specialist, for reevaluation relating to his various 20 conditions, including diabetes, irritable bowel syndrome, gastritis, and 21 hypertension. Id. at 497. Dr. Pietruszka conducted a physical examination of 22 plaintiff and found myopasm, tenderness, and a moderate reduction in range of 23 motion in the posterior cervical and lumbar paraspinal musculature, as well as a 24 significant decrease in flexion. Id. A radiograph of the lumbar spine revealed 25 osteroarthritic changes throughout the cervical vertebrae, and the lumbar spine 26 revealed degenerative arthritic changes. Id. at 498. Based on his subjective and 27 objective findings, Dr. Peitruszka diagnosed plaintiff with musculoligamentous 28 9 1 sprain/strain cervical spine, cervical disc protrusion, strain lumbar spine, lumbar 2 disc protrusion, diabetes mellitus accelerated by work injury, sleep disorder, 3 depressive disorder, erectile dysfunction, osteoarthritis in the cervical and lumbar 4 spine, early osteoarthritis in the right knee, irritable bowel syndrome, gastritis, 5 hyperlipidemia, hypertension, and bleeding internal hemorrhoids. Id. at 499. Dr. 6 Peitruszka also determined that plaintiff was to continue on TTD for a month. Id. 7 On January 14, 2014, Dr. Pietruszka issued a Permanent and Stationary Report 8 reiterating the objective findings and diagnoses of his physical examination. See 9 id. at 565-66. Dr. Pietruszka also determined that plaintiff was permanent and 10 stationary, and should be precluded from heavy lifting and avoid undue 11 psychological stress. Id. at 569. 12 Dr. Jonathan Kohan 13 Dr. Kohan, a pain management physician, treated plaintiff from April 2013 14 through July 2016 due to his complaints of neck and low back pain. See id. at 50215 49, 1077-1129. On April 2, 2013, Dr. Kohan examined plaintiff and found 16 moderate spasm and decreased range of motion of the cervical and lumbar spine, 17 and positive straight leg raising on the right. Id. at 509-11. Based on a review of 18 the January 21, 2013 MRIs of plaintiff’s cervical and lumbar spine, Dr. Kohan 19 indicated that he found lumbar disc herniation, lumbar radiculopathy, multiple 20 level cervical disc protrusion, cervical radiculopathy, and right knee tendinosis. Id. 21 at 512. Dr. Kohan indicated that plaintiff had elected not to proceed with cervical 22 surgery. Id. at 535. 23 During follow-up physical examination in 2016, Dr. Kohan noted spasm and 24 tenderness in plaintiff’s cervical spine and lumbar spine with decreased range of 25 motion on flexion and extension. See id. at 1084, 1087, 1094, 1096, 1099, 1103, 26 1113. Dr. Kohan prescribed plaintiff with Elavil, an antidepressant, and Tylenol 27 with codeine number 4 as pain medication, and recommended that plaintiff stop 28 10 1 using Tramadol to prevent a synergistic effect. Id. at 1084. Dr. Kohan 2 administered three cervical epidural injections, and a lumbar epidural injection. 3 See id. at 534, 542, 1077-78, 1096-97, 1128-29. Plaintiff demonstrated significant 4 improvement with the cervical epidural injections. Id. at 1080. 5 Dr. Richard Hubbard 6 On August 21, 2013, Dr. Hubbard evaluated plaintiff for a sleep disorder, 7 and found plaintiff had insomnia, night-time awakening, difficulty going to sleep, 8 pain during the night, and daytime fatigue and tiredness. Id. at 602. Dr. Hubbard 9 also performed a general evaluation and noted plaintiff had visual loss, muscle 10 weakness in the right leg, difficulty walking, right leg weakness, joint pain in the 11 right knee, emotional distress, depression, agitation, and irritability. Id. at 602-03. 12 Dr. Hubbard also indicated plaintiff had cervical and lumbar tenderness, and 13 plaintiff was wearing a right knee brace. Id. at 603. 14 Other Medical Treatment 15 On October 15, 2013, Dr. Steven Silbert evaluated plaintiff in the capacity of 16 an Agreed Medical Examiner to address plaintiff’s complaints of neck and back 17 pain. See id. at 772-826. Dr. Silbert examined plaintiff and found tenderness and 18 decreased range of motion in his cervical spine and decreased range of motion, 19 tenderness, and positive straight leg raising in his lumbar spine. Id. at 795. On 20 February 7, 2014, Dr. Silbert issued a final report and opined that plaintiff was not 21 capable of performing his usual and customary job duties and that he should avoid 22 heavy lifting, repetitive bending, and stooping. Id. at 824-826. 23 On March 24, 2014, Dr. Bernard Monderer, an ophthalmologist, performed 24 an Agreed Medical Evaluation related to plaintiff’s vision. Id. at 718-26. Plaintiff 25 complained of visual blurring with the use of his glasses. Id. at 719. Visual field 26 testing noted diffuse and severely depressed fields of vision, but the result was 27 questionable since there were multiple fixation losses in the test for both eyes. Id. 28 11 1 Dr. Monderer indicated that there were no work restrictions from an ophthalmic 2 standpoint and a change of eye glasses would completely resolve patient’s 3 complaints. Id. at 722. On January 29, 2016, Dr. Leonard Liang, a urologist, 4 performed a Panel Qualified Medical Evaluation in the specialty of urology. Id. at 5 827-961. Dr. Liang noted poor diabetic control, and determined plaintiff’s 6 complaints were credible but unrelated to the work accident. Id. at 960. 7 8 b. Examining Physician Dr. Helen Rostamloo On February 5, 2015, Dr. Rostamloo, a consulting physician, completed an 9 internal medicine evaluation of plaintiff. Id. at 589-93. Plaintiff complained of 10 pain in his low back, neck, and right knee. Id. at 589. Plaintiff also complained of 11 blurred vision, but Dr. Rostamloo indicated plaintiff had no glasses. Id. Plaintiff 12 had previously used Tramadol until January 2015, and thereafter he reported taking 13 over-the-counter medication for his pain. Id. Dr. Rostamloo indicated she 14 reviewed medical records that included at least his MRI results from January 2013. 15 Id. at 592. Dr. Rostamloo completed a physical examination, and found plaintiff 16 had normal gait and balance. Id. at 590. On exam, the cervical spine was tender to 17 percussion, and there was pain with full range of motion. Id. The lumbar spine 18 was also tender. Id. at 591. There was positive straight leg raising bilaterally, and 19 limited range of motion. Id. There was right knee pain and crepitus with full range 20 of motion. Id. 21 Based on these findings, Dr. Rostamloo provided a functional assessment, 22 opining that plaintiff could: lift and carry 20 pounds occasionally and 10 pounds 23 frequently; stand and walk no more than six hours out of an eight-hour day; climb, 24 balance, kneel, and crawl frequently; and walk on uneven terrain, climb ladders, 25 and work at heights occasionally. Id. at 593. Dr. Rostamloo opined that there 26 were no limitations for pushing and pulling, sitting, hearing, fingering, handling, 27 feeling, and reaching, but plaintiff had a bilateral visual limitation. Id. 28 12 c. 1 2 State Agency Physician P.N. Ligot State agency physician Ligot reviewed various medical records available 3 prior to the date of his report in March 2014. Id. at 102-04. Dr. Ligot opined 4 plaintiff could: lift and carry 20 pounds occasionally and 10 points frequently; 5 stand, walk, and sit for about six hours in an eight-hour workday; perform 6 unlimited pushing and pulling other than as shown for lifting and carrying; 7 occasionally climb, balance, stoop, kneel, crouch, and crawl; and occasionally 8 climb ladders, ropes, and scaffolds; and had no manipulative, visual, 9 communicative, or environmental limitations. Id. at 109-10. 10 2. The ALJ’s Findings 11 The ALJ determined plaintiff had the RFC to perform light work with the 12 limitations that he could: frequently balance, stoop, crouch, and crawl; 13 occasionally kneel; and occasionally climb stairs, ramps, ladders, and scaffolds. 14 Id. at 31-32. The ALJ precluded plaintiff from climbing ropes, and limited him to 15 simple, routine tasks consistent with his work history and experience. Id. at 32. In 16 reaching his RFC determination, with respect to the opinions at issue, the ALJ gave 17 the greatest weight to the opinion of Dr. Rostamloo, finding her opinion was based 18 on detailed clinical evaluations and consistent with the medical record. Id. at 4019 41. The ALJ gave only some weight to the state agency physicians because 20 additional medical evidence was received into the record after their assessments. 21 Id. at 39. 22 The ALJ gave minimal weight to the opinions of plaintiff’s treating 23 physicians, which were provided as part of his workers’ compensation case, based 24 on the following reasons: (1) a disability finding in the workers’ compensation 25 context is not binding on a disability determination under the Social Security Act, 26 and it relies on different criteria than that used in determining disability in the 27 social security context, making the conclusions and observations of limited 28 13 1 probative value; (2) there was insufficient objective support for their opinions, and 2 their diagnoses appeared to rely on plaintiff’s self-reported complaints rather than 3 objective evidence; and (3) there was no functional assessment regarding plaintiff’s 4 residual capacity. Id. 3. 5 The ALJ Failed to Properly Consider the Opinions of the Treating Physicians 6 7 To reject a treating physician’s opinion that is contradicted by other 8 opinions, the ALJ must provide specific and legitimate reasons supported by 9 substantial evidence for rejecting it. Lester, 81 F.3d at 830. Here, Drs. Rashti and 10 Farsar restricted plaintiff from prolonged sitting, standing, and walking, as well as 11 repetitive bending, stooping, squatting and kneeling. See AR at 377, 1168. By 12 contrast, Dr. Rostamloo opined that plaintiff could stand and walk for six hours out 13 of an eight-hour day; climb, balance, kneel, and crawl frequently; and had no 14 sitting limitations. See id. at 593. Thus, the ALJ was required to provide specific 15 and legitimate reasons supported by substantial evidence for rejecting the opinions 16 of plaintiff’s treating physicians.3 17 The ALJ’s first reason for rejecting the opinions of plaintiff’s treating 18 19 20 21 22 23 24 25 26 27 28 In stating his reasons for giving minimal weight to the treating physicians, the ALJ did not distinguish among them or their opinions, and perhaps for that reason failed to note that plaintiff’s primary treating physician, Dr. Farsar, is a chiropractor and therefore an “other source” rather than an “acceptable medical source.” See 20 C.F.R. § 404.1513(d)(1) (chiropractors are not acceptable medical sources). As an other source, Dr. Farsar’s opinions could be accorded less weight than opinions from acceptable medical sources. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996), superseded by regulation on other grounds. Nevertheless, the ALJ was still required to consider Dr. Farsar’s opinion and only reject it if there was a germane reason. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Moreover, Dr. Rashti, an orthopedic surgeon, is an acceptable medical source and opined substantially the same restrictions. Accordingly, the court simply considers whether the ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting the treating physicians’ opinions. 3 14 1 physicians Drs. Rashti and Farsar was that a determination of disability provided 2 for a workers’ compensation claim is not binding with regard to a disability 3 determination under the Social Security Act, and conclusions and observations 4 made using worker’s compensation criteria are of limited probative value. AR at 5 39. An ALJ is not bound to accept or apply a workers’ compensation physician’s 6 status designation, such as temporary total disability, because such terms of art are 7 “not equivalent to Social Security disability terminology.” Dawson v. Colvin, 8 2014 WL 5420178, at *5 (C.D. Cal. Oct. 23, 2014) (citing Desrosiers v. Sec’y of 9 Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988)); Macri v. Chater, 93 10 F.3d 530, 544 (9th Cir. 1996); Booth, 181 F. Supp. 2d at 1104; see also 20 C.F.R. 11 § 404.1504. Thus, insofar as the ALJ disregarded Drs. Rashti’s and Farsar’s 12 ultimate disability determinations, he did not err. 13 Nonetheless, an “ALJ may not disregard a physician’s medical opinion 14 simply because it was initially elicited in a state workers’ compensation 15 proceeding, or because it is couched in the terminology used in such proceedings.” 16 Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (citation omitted). 17 Yet the ALJ indicated he did just that in finding Drs. Rashti’s and Farsar’s 18 conclusions and observations of “limited probative value” because they relied on 19 worker’s compensation criteria. See Dawson, 2014 WL 5420178, at *5 (“The ALJ 20 need not be concerned with a physician’s conclusions as to disability for worker’s 21 compensation but cannot disregard a physician’s findings . . .”) (internal citation 22 omitted); Booth, 181 F. Supp. 2d at 1105. 23 The ALJ is correct that the terminology is different, and therefore an ALJ 24 must consider the distinctions between workers’ compensation and social security 25 disability terminology. See Desrosiers, 846 F.2d at 576; Booth, 181 F. Supp. 2d at 26 1109 (ALJ erred when he failed to adequately translate physician’s workers’ 27 compensation terms into Social Security terms); Payan v. Chater, 959 F. Supp. 28 15 1 1197, 1204 (C.D. Cal. 1996). “While the ALJ’s decision need not contain an 2 explicit ‘translation,’ it should at least indicate that the ALJ recognized the 3 difference between the relevant state workers’ compensation terminology, on the 4 one hand, and the relevant Social Security disability terminology, on the other 5 hand,” and take those differences into account. Booth, 181 F. Supp. 2d at 1106. 6 An ALJ is also “entitled to draw inferences ‘logically flowing from the evidence.’” 7 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (quoting Sample v. Schweiker, 8 694 F.2d 639, 642 (9th Cir. 1982)). 9 Plaintiff contends the ALJ failed to translate and consider the language in 10 the opinions of Drs. Farsar and Rashti precluding him from prolonged sitting, 11 standing, and walking into functional limitations in plaintiff’s RFC. See P. Mem. 12 at 20-22. Both parties acknowledge that the prohibition against “prolonged sitting” 13 is not defined in the workers’ compensation context.4 See P. Mem. at 21; D. Mem. 14 at 4. But plaintiff relies on a Ninth Circuit case interpreting the prohibition against 15 “prolonged sitting” as being unable to perform any type of sedentary work, which 16 requires the ability to sit or stand for six to eight hours a day. See P. Mem. at 21 17 (citing Vertigan v. Halter, 260 F.3d 1044, 1048-52 (9th Cir. 2001)). The instant 18 case is distinguishable, however, because the ALJ here relied on the VE’s 19 testimony in finding that plaintiff could perform light work as a small parts 20 assembler and assembly press operator, and the VE testified that these combined 21 22 23 24 25 26 27 28 In workers’ compensation parlance, the preclusion from prolonged weight bearing contemplates the ability to do work approximately 75% of the time in standing or walking position. 1997 Schedule for Rating Permanent Disabilities at 2-19. But prolonged sitting is not defined. The courts in this circuit have applied different definitions to prolonged sitting. See Argueta v. Colvin, 2016 WL 4138577, at *10-*11 (E.D. Cal. Aug. 3, 2016) (the ability to sit for one hour at a time up to six hours was a reasonable interpretation of “no prolonged sitting”); Booth, 181 F. Supp. 2d at 1108 (“It is logical to assume that [the workers’ compensation physician’s] reference to ‘prolonged’ sitting means sitting at least half of the work day.”). 4 16 1 jobs require four and a half hours of sitting and four and a half hours of standing. 2 See AR at 41-42, 96. As such, the ALJ’s determination that plaintiff was capable 3 of performing his past relevant work as a small parts assembler and assembly press 4 operator appears to be consistent with the opinions of Drs. Farsar and Rashti 5 precluding plaintiff from “prolonged” sitting, standing, or walking. Thus, 6 assuming the ALJ was required to consider the treating physicians’ preclusion of 7 plaintiff from “prolonged” sitting, standing, and walking, the ALJ’s failure to do so 8 appears to be harmless error. See Molina, 674 F.3d at 1115 (“[A]n error is 9 harmless so long as there remains substantial evidence supporting the ALJ’s 10 decision and the error does not negate the validity of the ultimate conclusion.”). 11 But the same is not true of the ALJ’s failure to translate and consider Dr. 12 Rashti’s opinion precluding plaintiff from “repetitive” bending, stooping, kneeling, 13 and squatting. See AR at 377. Specifically, plaintiff argues that Dr. Rashti’s 14 opinion precluding him from repetitive bending, stooping, kneeling, and squatting 15 is inconsistent with the ALJ’s determination that plaintiff has the RFC to 16 “frequently balance, stoop, crouch, and crawl.” See id. at 31-32; Reply at 7. As 17 plaintiff points out, “a preclusion from repetitive activity for California’s workers’ 18 compensation purposes contemplates a 50% reduction in capacity.” Baltazar v. 19 Astrue, 2012 WL 2319263, *5 (C.D. Cal. June 19, 2012). By contrast,“frequent” 20 for Social Security purposes means having the capacity to perform an activity up to 21 two-thirds of the time. See Social Security Ruling (SSR) 83-10; Alvarez v. 22 Comm’r of Soc. Sec., 2018 WL 4616344, at *5 (C.D. Cal. Sep. 24, 2018) (adopting 23 plaintiff’s argument that “a restriction from ‘repetitive’ motion indicates a 50% 24 loss of pre-injury capacity,” and remanding because the ALJ’s determination that 25 plaintiff could perform tasks frequently was not necessarily consistent with the 26 treating physicians’ finding that plaintiff was restricted from performing those acts 27 repetitively). Thus, the ALJ should have translated Dr. Rashti’s opinion because 28 17 1 his determination that plaintiff has the RFC to “frequently balance, stoop, crouch, 2 and crawl” appears inconsistent with Dr. Rashti’s opinion precluding plaintiff from 3 “repetitive” bending, stooping, kneeling, and squatting. See AR 31-32, 377. As 4 such, the ALJ’s disregard of Dr. Rashti’s opinion as of limited probative value 5 because it relied on worker’s compensation criteria was not a specific and 6 legitimate reason. 7 The ALJ’s second reason for rejecting the opinions of Drs. Farsar and Rashti 8 was that there was insufficient objective evidence in support of their opinions and 9 diagnoses. Id. at 39. But the record indicates that the opinions and diagnoses of 10 Drs. Farsar and Rashti were based on various forms of objective evidence 11 including clinical findings, MRI reports, and electrodiagnostic testing. See id. at 12 356-57, 361-62, 383-86, 1165-66. Indeed, the ALJ recounted much of this 13 evidence himself (see id. at 24-27), making his finding that their diagnoses did not 14 rely on imaging or other objective evidence somewhat perplexing. 15 On February 14, 2014, Dr. Farsar issued a Permanent and Stationary Report 16 indicating plaintiff’s work restrictions were based on subjective and objective 17 factors, including his clinical findings as well as the MRI results described above 18 regarding plaintiff’s cervical spine, lumbar spine, and right knee. See id. at 356-57, 19 361-62, 1158-75. Similarly, Dr. Rashti issued a Final Orthopaedic Evaluation 20 Report explicitly stating plaintiff’s work restrictions were based on various 21 objective factors including MRI findings, positive clinical findings, and 22 electrodiagnostic testing. See id. at 371-80. In addition to reviewing plaintiff’s 23 MRI results, Dr. Rashti also performed electrodiagnostic testing of plaintiff’s 24 cervical and lumbar spine, which contributed to the basis of his opinion. See id. at 25 376-77, 383-86. The cervical electrodiagnostic testing revealed very severe 26 impairments on the right suprascrapular nerve, left radial nerve medial branch, 27 right unlar nerve, and left thoracic nerve; severe impairments on the left occipital 28 18 1 nerve and right thoracic nerve; marked impairment of the left cervical nerve; 2 moderate impairments on the left thoracic nerve; and mild impairments on the 3 posterior division of the right cervical nerve and right first thoracic nerve. Id. at 4 383. The lumbar spine electrodiagnostic testing revealed very severe impairment 5 of the bilateral upper lumbar nerve, left femoral cutaneous nerve, bilateral femoral 6 cutaneous nerve, right saphenous nerve, bilateral peroneal nerve; severe 7 impairment of the bilateral sural nerve and right femoral cutaneous nerve; marked 8 impairment of the right femoral cutaneous nerve; and moderate impairment of the 9 left saphenous nerve. Id. 386. Additionally, in determining plaintiff’s work 10 restrictions, Dr. Rashti relied on his clinical findings which revealed loss of range 11 of motion in plaintiff’s cervical and lumbosacral regions, a limp favoring on the 12 right side, weakness of the right quadriceps, and tenderness at the cervical and 13 lumbosacral regions, and right knee. Id. at 373-77. 14 Notably, the ALJ did not find the treating physicians’ opinions were not 15 supported by the objective evidence they cited; he found they failed to cite 16 sufficient objective evidence at all. But that was not the case. Dr. Rashti’s 17 evaluation report reflects that he relied on clinical findings, MRIs, and 18 electrodiagnostic testing in forming his opinion. For the same reason, the ALJ’s 19 assertion that the diagnoses of plaintiff’s treating physicians appear to rely on self20 reported symptoms rather than on objective evidence (see AR at 39) is contrary to 21 the record. See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (“[A]n ALJ must 22 evaluate the physician’s assessment using the grounds on which it is based.”). 23 Thus, the ALJ’s conclusory statement that the diagnoses of plaintiff’s treating 24 physicians failed to cite sufficient objective evidence in support and instead appear 25 to rely on self-reported symptoms rather than objective evidence is not a specific 26 and legitimate reason supported by substantial evidence for rejecting their 27 opinions. 28 19 1 The ALJ’s third reason for rejecting the opinions of plaintiff’s treating 2 physicians was that they did not include a functional assessment regarding 3 plaintiff’s residual capacity. AR at 39. It is true, as discussed, that plaintiff’s 4 treating physicians did not assess his functional capacity in social security terms. 5 But they did, as also discussed, opine regarding his ability to do such things as 6 walk, sit, stoop, kneel, and lift. See id. at 377, 1168. Thus, while the opinions of 7 Drs. Farsar and Rashti regarding plaintiff’s work restrictions may be different than 8 the typical functional assessment provided in a Social Security disability case, that 9 is not a specific and legitimate reason to reject their opinions. See Booth, 181 F. 10 Supp. 2d at 1105. 11 Accordingly, the ALJ failed to cite specific and legitimate reasons supported 12 by substantial evidence for rejecting the opinions of plaintiffs’ treating physicians. 13 B. The ALJ Provided Clear and Convincing Reasons for Discounting 14 Plaintiff’s Testimony 15 Plaintiff argues the ALJ erred by rejecting plaintiff’s subjective testimony on 16 the ground that there were several inconsistencies in the record. See P. Mem. at 17 22-25. Plaintiff contends the ALJ did not accurately represent his testimony in his 18 decision. Id. 19 The ALJ must clearly articulate specific reasons for the weight given to a 20 claimant’s alleged symptoms, supported by the record. SSR 16-3p. To determine 21 whether testimony concerning symptoms is credible, the ALJ engages in a two-step 22 analysis. Trevizo v. Berryhill, 862 F.3d 987, 1000 (9th Cir. 2017) (citing Garrison 23 v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). First, the ALJ must determine 24 whether a claimant produced objective medical evidence of an underlying 25 impairment that could reasonably be expected to produce the symptoms alleged. 26 Id. Second, “[i]f such evidence exists and there is no evidence of malingering, the 27 ALJ can reject the claimant’s testimony about the severity of [his] symptoms only 28 20 1 by offering specific, clear and convincing reasons for doing so,” and those reasons 2 must be supported by substantial evidence in the record. Id.; Carmickle v. Comm’r 3 of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008). 4 An ALJ may consider several factors in weighing a claimant’s testimony at 5 the second step, including: ordinary techniques of credibility evaluation such as a 6 claimant’s reputation for lying; the failure to seek treatment or follow a prescribed 7 course of treatment; and inconsistencies with the claimant’s testimony or between 8 the testimony and claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 9 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 10 Ynzunza v. Astrue, 2010 WL 3270975, at *3 (C.D. Cal. Aug. 17, 2010). But 11 “subjective pain testimony cannot be rejected on the sole ground that it is not fully 12 corroborated by objective medical evidence.” Rollins v. Massanari, 261 F.3d 853, 13 857 (9th Cir. 2001) (citation omitted). The ALJ must also “specifically identify the 14 testimony [from the claimant] that she or he finds not to be credible and . . . explain 15 what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 16 F.3d 1090, 1102 (9th Cir. 2014) (quoting Holohan, 246 F.3d at 1208). 17 At the first step, the ALJ here found plaintiff’s medically determinable 18 impairments could reasonably be expected to cause the symptoms alleged. AR at 19 35. At the second step, because the ALJ did not find any evidence of malingering, 20 the ALJ was required to provide clear and convincing reasons for discounting 21 plaintiff’s testimony. The ALJ discounted plaintiff’s testimony because plaintiff’s 22 statements concerning the intensity, persistence, and limiting effects of his 23 symptoms were not entirely consistent with the medical evidence and other 24 evidence of the record. Id. Specifically, the ALJ discounted plaintiff’s subjective 25 testimony based on several inconsistencies in his testimony, daily activities, and 26 the objective medical evidence. Id. at 35-38. 27 Inconsistency between a claimant’s alleged symptoms and his daily 28 21 1 activities may be a clear and convincing reason to find a claimant less credible. 2 Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346. But “the mere fact a 3 plaintiff has carried on certain daily activities, such as grocery shopping, driving a 4 car, or limited walking for exercise, does not in any way detract from her 5 credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 6 (9th Cir. 2001). A claimant does not need to be “utterly incapacitated.” Fair v. 7 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 8 Here, the ALJ found that despite plaintiff’s allegation that he was “always in 9 pain,” plaintiff admitted that he was able to drive short distances, sweep, mop, 10 shop for groceries with his family, prepare simple meals every day, water the 11 garden, do laundry, and manage self-care without assistance. See AR at 36, 29012 95. Additionally, although plaintiff indicated that he has a difficult time getting 13 along with others (see id. at 294), in the same report plaintiff stated that he gets 14 along “very well” with authority figures, attends church every week, takes public 15 transportation, and attends family functions. Id. at 36, 290-95. The court also 16 notes plaintiff similarly reported that he does not have any problems getting along 17 with family friends, neighbors, or others. Id. at 294. While performing normal 18 daily activities is not necessarily inconsistent with plaintiff’s claim of disability, 19 the inconsistency between plaintiff’s testimony regarding his difficulty getting 20 along with others and his daily activities involving social interaction is a clear and 21 convincing reason to discount his testimony. See id. at 294, 303, 923; Molina, 647 22 F.3d at 1112 (finding plaintiff’s ability to walk grandchildren to and from school, 23 attend church, go shopping, and take walks undermined her claims that she was 24 incapable of being around others without suffering debilitating panic attacks). 25 The ALJ also noted that plaintiff made several inconsistent statements 26 regarding his inability to drive due to his alleged impairments. Id. at 36. In his 27 Function Report to the State Agency dated January 30, 2014, plaintiff alleged he 28 22 1 was limited in his ability to drive due to his poor eyesight. Id. at 292. During the 2 hearing, plaintiff testified that he did not drive because he gets sleepy sometimes 3 and would end up falling asleep, and that he stopped driving when he “lost his 4 eyesight” due to diabetes. Id. at 66-67. Plaintiff also testified that he was able to 5 drive up until 2014, but that he stopped because his knee bothered him. Id. at 67. 6 Despite plaintiff’s alleged impairments, he indicated that he still continued to drive 7 throughout 2014. See id. at 301, 643. Additionally, plaintiff later testified that he 8 repeatedly tried to take the driving test to obtain his license up until a month prior 9 to the February 22, 2017 hearing, but was unable to pass the written exam. Id. at 10 87-88. These inconsistencies in plaintiff’s allegations regarding his inability to 11 drive due to his alleged impairments are also a clear and convincing reason for 12 discounting plaintiff’s testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th 13 Cir. 2014) (citing Smolen, 80 F.3d at 1284) (“An ALJ may consider a range of 14 factors in assessing credibility, including . . . prior inconsistent statements 15 concerning the symptoms, and other testimony by the claimant that appears less 16 than candid.”). 17 In addition, the ALJ indicates that there is an inconsistency as to whether 18 Margarita Barajas is plaintiff’s wife, friend, or neighbor. AR 37. The ALJ notes 19 that while Mrs. Barajas was referred to as plaintiff’s wife during the hearing and in 20 plaintiff’s Function Report dated February 2, 2014 (see id. at 65, 298), she was 21 referred to as plaintiff’s friend or neighbor in plaintiff’s Disability Report dated 22 May 5, 2015. Id. at 37, 317. Plaintiff somewhat oddly does not offer any 23 explanation to clarify this inconsistency. Nonetheless, this appears a likely error in 24 completing a category in the Disability Report, and seems to have little bearing on 25 the credibility of plaintiff’s subjective complaints. This is not is a clear and 26 convincing reason to discount his testimony. 27 The ALJ additionally found plaintiff made inconsistent statements regarding 28 23 1 the date on which he stopped working. Id. at 37. Plaintiff alleged that he has been 2 unable to work since November 2012, the alleged onset date. See id. at 61-62, 101, 3 269. But in November 2012, during an examination by his treating physician Dr. 4 Farsar, plaintiff reported he was still working 9 hours per day, 11 days out of 15 5 days with work restrictions precluding lifting. Id. at 351. By contrast, in February 6 2015, plaintiff reported to Dr. Rostamloo that he had stopped working in 2011. Id. 7 at 590. Further, although plaintiff testified he was unable to work since 2012, 8 plaintiff later testified he was still looking for work, even up until a few months 9 before the February 22, 2017 hearing. See id. at 61-62, 78-80. The inconsistencies 10 regarding when plaintiff stopped working and why he continued to look for work 11 after representing that he was unable to work are a clear and convincing reason for 12 discounting plaintiff’s testimony. 13 Moreover, the ALJ found inconsistencies regarding plaintiff’s use of 14 medication. Id. at 35-36. The ALJ noted plaintiff did not list any prescribed pain 15 medication in his Disability Report from January 2014, although he listed other 16 medications. See id. at 35-36, 271. The record indicates that plaintiff was 17 prescribed with Tramadol for his moderate to severe pain. See id. at 296, 311, 394, 18 460, 476, 486, 492, 497. In 2014, plaintiff indicated he was taking Tramadol only 19 every other day due to gastrointestinal distress. Id. at 645. But in 2015, plaintiff 20 indicated he stopped taking Tramadol for a month, and only used over-the-counter 21 medication for his pain. Id. at 589. Although plaintiff previously indicated that 22 Tramadol caused him gastrointestinal distress, he did not provide that as the reason 23 for suspending his use of Tramadol. See id. at 589. As such, although not 24 particularly compelling by itself, the inconsistency regarding plaintiff’s allegations 25 of pain and his suspended use of Tramadol without an explanation is a further clear 26 and convincing reason to discount his testimony. See Parra v. Astrue, 481 F.3d 27 742, 750-51 (9th Cir. 2007) (the ALJ noted in assessing plaintiff’s subjective 28 24 1 allegations that plaintiff’s physical ailments were treated with an over-the-counter 2 medication). 3 The ALJ found there were also inconsistencies in plaintiff’s testimony 4 regarding his use of medication for mental health. AR at 37. Although plaintiff 5 initially indicated that he did not take any “drugs” for mental health, plaintiff 6 appeared to be confused about the term “drugs” since he stated, “I don’t know 7 drugs.” Id. at 71. Once the ALJ clarified that he was asking if plaintiff took 8 “prescribed medications for mental health,” plaintiff clearly stated that he did. Id. 9 Plaintiff indicated that he took Amitriptyline and Buspirone for depression and 10 anxiety, and his use of medication for his mental health is substantiated by the 11 record. Id. at 74-75, 311, 401, 404. As such, plaintiff’s initial inconsistency 12 regarding his use of medication for mental health is not a clear and convincing 13 reason to discount his testimony regarding his use of medication for mental health. 14 Lastly, the ALJ also noted that plaintiff made inconsistent statements 15 regarding whether his workers’ compensation case had been resolved. Id. at 38. 16 Although during the hearing plaintiff indicated that his worker’s compensation 17 case had not been resolved (see id. at 64-65), the record indicates some payment of 18 benefits. Id. at 352-53, 423, 625. Thus, the apparent inconsistency between 19 plaintiff’s testimony and the record regarding whether plaintiff’s workers’ 20 compensation case had been resolved is a further clear and convincing reason to 21 discount his testimony. 22 Accordingly, although not all the inconsistencies found by the ALJ were 23 clear and convincing, the other inconsistencies cited between plaintiff’s testimony, 24 daily activities, and the evidence of record, taken together, amount to clear and 25 convincing reasons for the ALJ to reject plaintiff’s subjective testimony. 26 C. The ALJ Properly Considered the Lay Testimony 27 Plaintiff argues the ALJ failed to properly evaluate the statements of 28 25 1 plaintiff’s lay witness, Margarita Barajas. See P. Mem. at 26-27. 2 “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 3 ability to work is competent evidence and therefore cannot be disregarded without 4 comment.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 5 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 6 also 20 C.F.R.§§ 404.1513(d)(4), 416.913(d)(4) (explaining that the Commissioner 7 will consider all evidence from “non-medical sources,” including “spouses, parents 8 and other caregivers, siblings, other relatives, friends, neighbors, and clergy”). The 9 ALJ may only discount the testimony of a lay witness if he provides specific 10 “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 11 (9th Cir. 1993); see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay 12 testimony as to a claimant’s symptoms is competent evidence that an ALJ must 13 take into account, unless he or she expressly determines to disregard such 14 testimony and give reasons germane to each witness for doing so.”). 15 Margarita Barajas, who is generally listed as plaintiff’s wife, completed a 16 Third Party Function Report on February 2, 2014. AR at 298-305. The ALJ 17 discounted Mrs. Barajas’s Third-Party Report based on inconsistencies with 18 plaintiff’s Third Party Report and her unclear status as plaintiff’s wife, friend, or 19 neighbor. See id. at 36-37. 20 In the Function Report, Mrs. Barajas stated plaintiff was anxious and 21 depressed, and she repeatedly stated he was sleeping a lot more, while also noting 22 he woke up a lot from pain. Id. at 298-99. Plaintiff reported that he did not sleep 23 well because of chronic pain. Id. at 291. Mrs. Barajas stated plaintiff was unable 24 to leave the house by himself because he would forget where he was (see id. at 25 299), but plaintiff indicated he could drive, take public transportation, take short 26 walks, and leave the house by himself without difficulty. Id. at 290-95. In 27 response to a question regarding whether plaintiff did any house work, Mrs. 28 26 1 Barajas stated only that plaintiff made lunch and walked the dog for a bit. Id. at 2 300. By contrast, plaintiff indicated he swept, mopped, did laundry, watered the 3 plants, and helped with grocery shopping. Id. at 291. Plaintiff also indicated that 4 he could handle money and pay bills (see id. at 292-93), but Mrs. Barajas reported 5 that she had to remind him to take his medication, pay bills, and “mostly 6 everything.” Id. at 300. Additionally, plaintiff reported he would prepare simple 7 meals everyday, which took ten to thirty minutes (id. at 291), but Mrs. Barajas 8 reported he prepared meals only once a week and it took him two hours. Id. at 300. 9 Although not all of these are serious inconsistencies, the ALJ did point out genuine 10 unexplained inconsistencies germane to his assessment of Mrs. Barajas’s 11 testimony. 12 Additionally, as discussed above, the ALJ noted that it is unclear whether 13 Mrs. Barajas is plaintiff’s wife, friend, or neighbor. Id. at 37, 298, 317. While this 14 discrepancy is not a convincing reason to discount plaintiff’s testimony, and even 15 as to Mrs. Barajas is likely a simple error, Mrs. Barajas’s unclear status does call 16 into question the extent to which she was able to observe plaintiff. 17 Thus, the ALJ cited germane reasons supported by substantial evidence for 18 discounting Mrs. Barajas’s statements given the multiple inconsistencies between 19 her report and plaintiff’s report. 20 D. The ALJ Must Reassess Plaintiff’s RFC and Pose a Complete 21 Hypothetical to the Vocational Expert 22 Plaintiff contends the ALJ erred in his RFC determination because it did not 23 take into account plaintiff’s subjective complaints, and failed to incorporate the 24 standing and walking limitations opined by plaintiff’s treating physicians. P. 25 Mem. at 25-26. Plaintiff additionally contends the hypothetical the ALJ posed to 26 the vocational expert was incomplete because it did not incorporate the standing 27 and walking and postural limitations opined by the treating physicians. Id. at 27. 28 27 1 For the reasons discussed above, the ALJ gave clear and convincing reasons 2 for discounting plaintiff’s testimony. As such, although the ALJ did plaintiff the 3 benefit of the doubt to the extent he accounted for some of plaintiff’s subjective 4 complaints in his RFC assessment (see AR at 38), the ALJ did not err in failing to 5 account for all of plaintiff’s subjective complaints in his RFC assessment. 6 As also discussed above, although the ALJ erred in rejecting the treating 7 physicians’ opinions, that error was harmless with respect to the standing and 8 walking limitations. But that was not the case with respect to the postural 9 limitations they opined. Consequently, on remand, the ALJ must reassess 10 plaintiff’s RFC after reconsidering all the medical opinions, and must pose a 11 complete hypothetical to the VE consistent with that RFC reassessment. 12 V. 13 REMAND IS APPROPRIATE 14 The decision whether to remand for further proceedings or reverse and 15 award benefits is within the discretion of the district court. McAllister v. Sullivan, 16 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 17 discretion to direct an immediate award of benefits where: “(1) the record has been 18 fully developed and further administrative proceedings would serve no useful 19 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 20 evidence, whether claimant testimony or medical opinions; and (3) if the 21 improperly discredited evidence were credited as true, the ALJ would be required 22 to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 (setting 23 forth three-part credit-as-true standard for remanding with instructions to calculate 24 and award benefits). But where there are outstanding issues that must be resolved 25 before a determination can be made, or it is not clear from the record that the ALJ 26 would be required to find a plaintiff disabled if all the evidence were properly 27 evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 28 28 1 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 2 (9th Cir. 2000). In addition, the court must “remand for further proceedings when, 3 even though all conditions of the credit-as-true rule are satisfied, an evaluation of 4 the record as a whole creates serious doubt that a claimant is, in fact, disabled. 5 Garrison, 759 F.3d at 1021. 6 Here, as set forth above, remand is appropriate because there are outstanding 7 issues that must be resolved before it can be determined whether plaintiff is 8 disabled. The ALJ must reconsider and appropriately assess the opinions of the 9 treating physicians, and either credit their opinions or provide specific and 10 legitimate reasons supported by substantial evidence for rejecting them. The ALJ 11 must then reassess plaintiff’s RFC and proceed through steps four and five to 12 determine what work, if any, plaintiff is capable of performing. 13 VI. 14 CONCLUSION 15 IT IS THEREFORE ORDERED that Judgment shall be entered 16 REVERSING the decision of the Commissioner denying benefits, and 17 REMANDING the matter to the Commissioner for further administrative action 18 consistent with this decision. 19 20 DATED: May 18, 2020 21 22 SHERI PYM United States Magistrate Judge 23 24 25 26 27 28 29

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