Angelica Rodriguez v. Nancy A. Berryhill, No. 2:2019cv04191 - Document 21 (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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Angelica Rodriguez v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ANGELICA R., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 19-4191-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on May 14, 2019, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on June 7, 2019. 28 Plaintiff filed a motion for summary judgment on September 19, 2019. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on October 28, 2019. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed May 16, 2019. 4 5 BACKGROUND 6 7 Plaintiff asserts disability since November 29, 2009, based on 8 allegations of, inter alia, fibromyalgia, herniated discs, anxiety, 9 depression, panic attacks, “ADHD” (attention deficit hyperactivity 10 disorder), and chronic pain in her right hand, wrists, ankles, back, 11 hips, right knee, legs and right foot (Administrative Record (“A.R.”) 12 37, 46-47, 222, 226, 246, 304). 13 Examiner (“QME”) Dr. Allen I. Salick diagnosed fibromyalgia syndrome 14 based on the 2010 American College of Rheumatology criteria for 15 diagnosis (A.R. 483). 16 more than 10-15 minutes at a time or stand/walk for more than 30 17 minutes at a time without pain, has difficulty grasping, gripping, 18 lifting, carrying, twisting, bending, stooping and squatting, and 19 cannot be in an air conditioned room (A.R. 487; see also A.R. 474-75). 20 Other workers compensation treating and examining doctors also found 21 Plaintiff incapable of performing light work. 22 (chiropractor/QME Henry Kan’s opinion); 452-53 (treating orthopedic 23 surgeon Dr. Bal Rajagopalan’s opinion); 645-46 (orthopedic surgeon/QME 24 Dr. Daniel M. Silver’s opinion); see also A.R. 573 (treating spine 25 surgeon Dr. Sam Bakshian’s opinion, which included a 25 pound lifting 26 capacity, but with profound restrictions on standing, walking and 27 other activities). 28 /// Rheumatologist and Qualified Medical Dr. Salick opined that Plaintiff cannot sit for 2 See A.R. 356-57 1 An Administrative Law Judge (“ALJ”) reviewed the record and heard 2 testimony from Plaintiff and a vocational expert (A.R. 33-81). The 3 ALJ found that Plaintiff has “severe” degenerative disc disease, 4 lumbar spine arthritis, history of lumbar strain/sprain and anxiety 5 disorder (A.R. 20). 6 fibromyalgia was not a medically determinable impairment (A.R. 20).1 However, the ALJ found that Plaintiff’s alleged 7 8 9 The ALJ deemed Plaintiff capable of performing a range of light work, limited to: (1) frequent climbing of ramps and stairs; 10 (2) occasional climbing of ladders, ropes and scaffolds; 11 (3) occasional balancing, stooping, kneeling, crouching, crawling and 12 overhead reaching with the right upper extremity; and (4) avoidance of 13 environmental irritants and temperature extremes. 14 Plaintiff is capable of “performing simple and routine tasks and 15 complex tasks,” interacting and responding appropriately with 16 supervisors, co-workers and the public, and adjusting to routine 17 changes in the workplace. 18 examiners’ functional capacity determinations at A.R. 600-01 and 608, 19 which are slightly more restrictive than the State agency physician’s 20 residual functional capacity determination on initial review at A.R. 21 91-92). 22 could perform, and, on that basis, denied disability benefits (A.R. 23 26-27 (adopting vocational expert testimony at A.R. 75-77)). 24 Appeals Council denied review (A.R. 1-4). 25 /// The ALJ found that See A.R. 21-26 (adopting consultative The ALJ identified certain light jobs Plaintiff assertedly The 26 27 28 1 The ALJ failed to discuss why the ALJ also found that Plaintiff’s alleged depression and chronic pain were not “severe” impairments. See A.R. 20. 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 4 1 DISCUSSION 2 3 Plaintiff contends, inter alia: (1) the ALJ erred in the 4 evaluation of opinions from the workers compensation treating and 5 examining physicians; and (2) the ALJ erred in finding that 6 Plaintiff’s alleged fibromyalgia is not a “medically determinable 7 impairment” and in failing to consider limitations from fibromyalgia 8 in assessing Plaintiff’s residual functional capacity. 9 agrees. The Court 10 11 I. Summary of the Relevant Medical Record 12 13 As detailed below, several workers compensation physicians 14 treated or evaluated Plaintiff for various medical conditions 15 throughout the period of alleged disability. 16 exception (QME Dr. Mitchell U. Silverman, discussed infra at footnote 17 7), all of the treating and examining physicians who opined regarding 18 Plaintiff’s capacity appeared to believe that, in one respect or 19 another, Plaintiff has a lesser functional capacity than the ALJ 20 assessed.2 With one arguable 21 22 23 24 25 26 27 28 2 The record appears to be missing treatment notes from several of Plaintiff’s providers and contains incomplete records from other providers (including Dr. Silverman). See A.R. 323-24 (attorney letter listing providers). Plaintiff’s counsel informed the ALJ at the administrative hearing that counsel did not have records from rheumatologist Dr. Ellis Assuta or MidValley Pain Management, which assertedly were “critical” for Plaintiff’s “biggest issue,” her alleged fibromyalgia (A.R. 37, 43-44). The ALJ agreed to keep the medical record open for 14 days (A.R. 44). Even so, the record still contains no treatment records from Dr. Ellis Assuta or from Mid-Valley Pain Management. 5 1 A. Plaintiff’s Injury and Initial Treatment 2 3 Plaintiff suffered a work related injury on November 29, 2009. 4 The record does not contain any provider’s notes from Plaintiff’s 5 initial treatment immediately following this injury. 6 summary is gleaned from later providers’ treatment notes. 7 was injured while working as a grocery stocker when a pallet fell on 8 her right knee, twisting her right ankle and knocking her back into 9 another pallet, which she held up with her right elbow and wrist while The Court’s Plaintiff 10 calling for help (A.R. 386). Her employer’s doctor examined Plaintiff 11 on December 2, 2009, and in January of 2010 prescribed medication, 12 crutches, a knee brace and physical therapy, and ordered her off work 13 for three weeks to be followed by only “light duty” (i.e., lifting, 14 pushing and pulling up to 25 pounds with use of a splint) (A.R. 387, 15 539). 16 work on December 24, 2009 (A.R. 387). However, Plaintiff reportedly was fired when she returned to 17 18 B. Plaintiff’s Workers Compensation Treatment Records 19 20 1. Dr. Tepper’s Records 21 22 In February of 2010, Plaintiff consulted workers compensation 23 treating physician and orthopedic surgeon Dr. Gil Tepper, who 24 prescribed medications and physical therapy and ordered Plaintiff off 25 work for four weeks (A.R. 539). 26 continued Plaintiff’s disability for four more weeks (A.R. 538). 27 /// 28 /// In March of 2010, Dr. Tepper 6 1 A progress report from Dr. Tepper dated April 20, 2010, states 2 that Plaintiff’s disability should continue for four additional weeks 3 (A.R. 326-29). 4 have less pain, but her low back/right knee pain persisted (i.e., she 5 complained of constant moderate lumbar spine pain radiating to her 6 right buttock with numbness and tingling in the right foot, 7 intermittent moderate right wrist pain radiating to the fingers with 8 numbness and tingling, constant moderate right knee pain and popping 9 worsened by standing and walking, and intermittent headaches and Plaintiff reported that physical therapy helped her 10 insomnia (A.R. 326-27). On examination, Plaintiff reportedly had a 11 slow, cautious gait, limited lumbar spine range of motion, positive 12 straight leg raising, positive right Braggard’s test, “hypertonicity 13 to lumbar para vertebral muscles,” limited right knee range of motion, 14 positive right knee McMurray test and right knee medial joint line 15 tenderness (A.R. 327). 16 right ankle, right knee, right wrist and lumbar spine, and headaches 17 and insomnia secondary to injuries, for which Dr. Tepper continued 18 Plaintiff’s medications and physical therapy (A.R. 327-28). 19 Tepper also requested approval for lumbar spine and right knee MRIs to 20 rule out disc protrusion and internal derangement (A.R. 327-28). Dr. Tepper diagnosed sprain/strain in the Dr. 21 22 2. Dr. Rajagopalan’s Records 23 24 Orthopedic surgeon Dr. Bal Rajagopalan treated Plaintiff from May 25 of 2010 through at least September of 2012 (A.R. 386-471, 617-36). 26 Over the course this treatment, Plaintiff complained of, inter alia, 27 right knee pain and low back pain radiating down to her right foot 28 (A.R. 406, 409, 420, 446, 467, 617, 620, 623, 626, 631, 634), headache 7 1 (A.R. 409, 467), insomnia (A.R. 409, 446, 467, 631), right lower 2 extremity numbness and tingling (A.R. 631), and right knee “giving 3 out” and “locking” (A.R. 467, 634). 4 2010, Plaintiff reportedly had tenderness to palpation of the lumbar 5 spine and right knee, positive straight leg raising and positive 6 McMurray tests (A.R. 388-89). 7 disease with right leg sciatica, right knee internal derangement and 8 insomnia (A.R. 389). 9 a knee brace, ordered physical therapy and extended Plaintiff’s On initial examination in May of Dr. Rajagopalan diagnosed lumbar disc Dr. Rajagopalan prescribed Naprosyn, Vicodin and 10 disability for six weeks (A.R. 389). Dr. Rajagopalan also requested 11 approval for MRIs of the lumbar spine and right knee (A.R. 389).3 12 13 In June of 2010, Dr. Rajagopalan reviewed the MRI studies and 14 diagnosed lumbar disc disease and right knee fibromas, prescribed 15 Naprosyn, ordered chiropractic treatment and extended Plaintiff’s 16 disability for six weeks (A.R. 618). 17 reported improvement from chiropractic treatment (A.R. 620). 18 Rajagopalan continued Plaintiff’s chiropractic treatment and 19 medications, and extended Plaintiff’s disability for six weeks (A.R. 20 621). 21 Plaintiff reported slight improvement in her low back, but no 22 improvement in her right knee (A.R. 623). In August of 2010, Plaintiff Dr. In September of 2010, after finishing chiropractic treatment, Dr. Rajagopalan ordered 23 3 24 25 26 27 28 A May, 2010 lumbar spine MRI showed, inter alia, a 2millimeter disc protrusion at L4-L5 with facet arthropathy, and a 4-millimeter disc protrusion at L5-S1 abutting the left S1 nerve root (A.R. 396-97). A May, 2010 right knee MRI showed no evidence of internal derangement, and a suspected nonossified fibroma or fibrous cortical defect in the posterolateral tibia metadiaphysis (A.R. 398). From these studies, Dr. Tepper diagnosed herniated nucleus pulposus at L4-L5, L5-S1 and right lower extremity radiculitis (A.R. 615). 8 1 more physical therapy, prescribed Vicodin, and extended Plaintiff’s 2 disability for one month (A.R. 624). 3 reported continued low back pain with no improvement (A.R. 406). 4 Rajagopalan ordered more chiropractic treatment, continued Plaintiff’s 5 medications (adding Tizanidine), and extended Plaintiff’s disability 6 for two months (A.R. 407). 7 awaiting authorization for a referral to a spine surgery specialist 8 (A.R. 407). In December of 2010, Plaintiff Dr. Dr. Rajagopalan indicated that he was 9 10 In February of 2011, Plaintiff complained of headaches and 11 insomnia in addition to low back pain, reporting that she had seen a 12 spine surgeon who had not recommended surgery (A.R. 409).4 13 spine reportedly was tender on examination (A.R. 409-10). 14 Rajagopalan diagnosed lumbar disc disease, insomnia and headaches, 15 continued Plaintiff’s Vicodin, requested further evaluation by a spine 16 specialist, a pain management specialist and an internist (A.R. 410). Her lumbar Dr. 17 18 19 20 21 22 23 24 25 26 27 28 4 Orthopedic surgeon and QME Dr. Daniel M. Silver examined Plaintiff in November of 2010, reviewed medical records including nerve conduction studies, and prepared a report dated March 11, 2011 (A.R. 643-58). Dr. Silver opined that the studies suggest bilateral chronic active L5-S1 radiculopathy, bilateral nerve root impingement at L4-L5 and L5-S1, and right carpal tunnel syndrome (A.R. 643-44). Dr. Silver diagnosed right wrist sprain/strain plus carpal tunnel syndrome, herniated nucleus pulposus at L5-S1 with bilateral radiculopathy, a 2-millimeter disc bulge at L4-L5, and right knee fat pad syndrome without meniscal tear but with generalized synovitis sprain/strain (A.R. 645). Dr. Silver opined that Plaintiff was “permanent and stationary,” and should have work restrictions of no lifting more than 15 pounds, no vigorous or repetitive gripping or grasping with the right upper extremity and no repetitive bending or stooping, no prolonged standing, squatting, kneeling, stair climbing or ladder climbing (A.R. 645-46; see also A.R. 659-70 (May, 2011 supplemental report reaching same conclusion upon review of additional medical records)). 9 1 Dr. Rajagopalan also extended Plaintiff’s disability for eight weeks 2 (A.R. 410). 3 4 In April of 2011, Plaintiff reported increased, intense pain at 5 8/10 (A.R. 420). Dr. Rajagopalan continued Plaintiff’s Vicodin, 6 extended Plaintiff’s disability for eight weeks, and noted that 7 Plaintiff was still awaiting approval for evaluation by specialists 8 (A.R. 421).5 9 with no change, despite having received a lumbar epidural steroid In June of 2011, Plaintiff complained of low back pain 10 injection (A.R. 626). Dr. Rajagopalan prescribed Vicodin, Naprosyn, 11 Omeprazole and Soma, and extended Plaintiff’s disability for eight 12 weeks (A.R. 627). 13 using a TENS unit and attending aquatic therapy with noted improvement 14 (A.R. 440). 15 Plaintiff’s medications, and referred Plaintiff for a functional 16 /// 17 /// 18 /// 19 /// In August of 2011, Plaintiff reported that she was Dr. Rajagopalan ordered more physical therapy, continued 20 21 22 23 24 25 26 27 28 5 Internal medicine specialist and QME Dr. Arthur E. Lipper examined Plaintiff in May of 2011, reviewed medical records, apparently prepared an initial report dated May 12, 2011 (which is not included in the record), and, upon review of additional medical records, prepared a supplemental report dated June 3, 2011 (A.R. 431-39). Plaintiff complained of headaches and insomnia with daytime fatigue and sleepiness, as well as pain in the shoulders radiating to the neck (A.R. 431). Dr. Lipper diagnosed cervicogenic/muscle contraction headaches and insomnia related to Plaintiff’s injuries (A.R. 432). In a further supplemental report dated March 20, 2012, Dr. Lipper reported that Plaintiff’s sleep habits had improved and opined that there was no evidence of a current sleep disorder based on Plaintiff’s Epworth score and symptom complex (A.R. 456). 10 1 capacity examination (A.R. 441).6 2 3 Dr. Rajagopalan prepared a permanent and stationary report dated 4 November 22, 2011, upon review of Kan’s functional capacity evaluation 5 (A.R. 444-53). 6 7/10, and difficulty sleeping due to pain (A.R. 446). 7 reported Kan’s examination results (A.R. 444, 446-49; compare A.R. 8 339-56), and adopted Kan’s functional capacity evaluation (i.e., that 9 Plaintiff was capable of less than light work) (A.R. 452-53). Plaintiff complained of radiating low back pain at Dr. Rajagopalan 10 11 In June of 2012, Plaintiff complained of low back pain at 7/10 12 radiating down both legs (A.R. 465). Dr. Rajagopalan prescribed 13 Medrol, requested authorization for referral to a pain management 14 specialist for possible epidural injections and extended Plaintiff’s 15 disability for six weeks (A.R. 465). In July of 2012, Plaintiff had 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Chiropractor and QME Henry Kan examined Plaintiff, reviewed medical records, and prepared a functional capacity evaluation dated November 3, 2011 (A.R. 336-60). Plaintiff described her low back, right leg and right foot pain as at 7/10 on average (A.R. 338). Plaintiff reported that she had trouble sleeping due to severe stabbing back pain (A.R. 338). On examination, Plaintiff had an antalgic gait, limited range of motion in the right upper extremity, reduced right grip strength, reduced strength due to severe low back pain, and tenderness to palpation of the lumbar spine with “loss of spinal rhythm” (A.R. 339-52). Kan diagnosed lumbar disc disease, insomnia and headaches for which he considered Plaintiff permanent and stationary (A.R. 353). Kan opined that Plaintiff could: (1) lift up to 15 pounds occasionally and 8 pounds frequently; (2) stand up to four hours per day, sit less than eight hours per day; (3) occasionally climb, balance, stoop, kneel, crouch, crawl and twist; and (4) frequently reach, handle, finger, feel, see, hear and speak (A.R. 356-58). Kan precluded Plaintiff from working on slippery surfaces, right power gripping, repetitive firm gripping and grasping, and “prolonged fine finger manipulation of over 10 minutes continuously” (A.R. 357). 11 1 positive right foot plantar fasciitis, positive bilateral straight leg 2 raising, and limited range of motion in the lumbar spine on 3 examination (A.R. 631-32). 4 program, prescribed Ambien and Vicodin, again referred Plaintiff to a 5 pain management specialist and an internal medicine specialist and 6 extended Plaintiff’s disability for four weeks (A.R. 632). Dr. Rajagopalan ordered a home exercise 7 8 9 In August of 2012, Plaintiff reported that she had not had physical therapy since 2011, had not had any lumbar spine epidural 10 injections but had received one knee injection (A.R. 467). On 11 examination, Plaintiff had reduced right hand grip strength and 12 tenderness in her knee with pain on flexion and positive McMurray test 13 (A.R. 468). 14 lumbar disc syndrome, insomnia and headaches (A.R. 469). 15 Rajagopalan gave Plaintiff a steroid shot in her right knee, ordered a 16 knee brace and physical therapy, continued Plaintiff’s Vicodin, and 17 again referred Plaintiff to specialists (A.R. 469). 18 September, 2012 examination, Plaintiff had tenderness and spasm and 19 limited range of motion in the lumbar spine and right knee, with a 20 positive McMurray test (A.R. 634-35). 21 lumbar disc syndrome, right knee internal derangement and insomnia, 22 prescribed Vicodin, Restoril and Mobic, referred Plaintiff to 23 specialists, requested a right knee MRI, and extended Plaintiff’s 24 disability for six weeks (A.R. 635). 25 /// 26 /// 27 /// 28 /// Dr. Rajagopalan diagnosed a right knee meniscal tear, 12 Dr. During a Dr. Rajagopalan diagnosed 1 3. Dr. Bakshian’s Records 2 3 The next available treatment records are from spine surgeon Dr. 4 Sam Bakshian from February of 2013 through January of 2014 (A.R. 522- 5 74, 637-42). 6 record and prepared an initial report dated February 25, 2013 (A.R. 7 525-50). 8 pain at 7/10 radiating to her lower back with numbness, intermittent 9 sharp right arm pain at 7/10 radiating to her hands/fingers with Dr. Bakshian evaluated Plaintiff, reviewed the medical Plaintiff complained of intermittent sharp right shoulder 10 numbness and tingling in her right hand, occasional moderate stabbing 11 pain in the right wrist at 5/10, constant severe low back pain at 9/10 12 radiating to her hips and down her right leg to the foot with 13 numbness, constant sharp right leg pain at 9/10 radiating to her toes 14 with numbness in the right leg and foot, intermittent sharp stabbing 15 pain in the right knee at 9/10 radiating to her right foot, anxiety 16 and depression, insomnia and occasional headaches at 7/10 (A.R. 527- 17 28). 18 cervical and lumbar spine and limited range of motion, a “wide-based” 19 limp, decreased motor strength in the right side, positive L’Hermite 20 and Spurling tests, no deep tendon reflexes in the biceps, quadriceps 21 or Achilles, tenderness to palpation of the right shoulder, right 22 wrist, right knee and right hip with reduced strength in the right hip 23 (A.R. 540-48). 24 space narrowing at L5-S1 with early spondylosis at L5-S1 (A.R. 548). 25 Dr. Bakshian diagnosed lumbosacral sprain/strain, disc dessication and 26 bulging at L5-S1, right knee contusion, right ankle pain, right 27 shoulder pain, probable myofascial pain syndrome with overlay, sleep 28 disturbance, a “pysch disturbance no new anxiety and depression,” and On examination, Plaintiff had tenderness to palpation of the X-rays showed mild cervical straightening and disc 13 1 cervicogenic headaches (A.R. 548). Dr. Bakshian opined that Plaintiff 2 presented with myofascial pain syndrome and should be evaluated by a 3 pain management specialist and a pain psychologist, noting that 4 Plaintiff has a “presumptive diagnosis of fibromyalgia” and therefore 5 should be evaluated by a rheumatologist (A.R. 549). 6 ordered continued physical therapy and requested authorization for 7 evaluation by a rheumatologist (A.R. 549). Dr. Bakshian 8 9 In April of 2013, Plaintiff complained of ongoing low back pain, 10 but indicated she was feeling better in her wrists, shoulders and 11 knees (A.R. 522). 12 on examination (A.R. 522). 13 injection, as to which Plaintiff was reluctant to proceed, so Dr. 14 Bakshian referred Plaintiff for physical therapy and a rheumatology 15 evaluation and ordered Plaintiff to remain off work (A.R. 523). 16 June of 2013, Plaintiff complained of ongoing pain in her low back, 17 hips, knee, foot and ankle (A.R. 637). 18 tender, but with motor strength intact (A.R. 637). 19 noted that he suspected Plaintiff’s pain has a myofascial origin, 20 recommended continued pain management, and extended her disability for 21 two months (A.R. 638).7 The right side of Plaintiff’s lower back was tender Dr. Bakshian recommended a trigger point In On examination, she was Dr. Bakshian again 22 23 24 25 26 27 28 7 Orthopedic surgeon and QME Dr. Mitchel U. Silverman examined Plaintiff in May of 2013, reviewed the medical record and apparently prepared an initial report dated May 9, 2013 (which is not a part of the record), and also prepared supplemental reports dated June 19, 2013 and February 5, 2014, upon review of additional medical records (A.R. 575-95). Dr. Silverman’s initial work restrictions are not detailed in the supplemental reports but are incorporated by reference (A.R. 583, 592-93). Dr. Silverman opined that Plaintiff could return to (continued...) 14 1 In August of 2013, Plaintiff reported that she had been in 2 physical therapy, which improved her back, but that she was still 3 having pain in her right hip and knee (A.R. 639). 4 tender on examination, with positive Faber test, limited range of 5 motion and tightness in her hips (A.R. 639). 6 Plaintiff’s medications, recommended a right knee brace, a right hip 7 MRI and evaluation by an orthopedic specialist (A.R. 640-41). 8 Bakshian extended Plaintiff’s disability to her next appointment, and 9 noted that he was waiting on a rheumatologist report (A.R. 640-41).8 Plaintiff was Dr. Bakshian continued Dr. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 (...continued) work with preclusion from heavy lifting (A.R. 583). Dr. Silverman stated it was “medically probable that [Plaintiff] did not require any work restrictions whatsoever” since Plaintiff completed training to be a physical therapy aid during the disability period (A.R. 593). However, in the latest report, Dr. Silverman also acknowledged Dr. Salick’s finding (discussed infra) that Plaintiff has fibromyalgia syndrome, and Dr. Silverman indicated that he would defer to a QME-level rheumatologist, because rheumatological diagnoses are outside Dr. Silverman’s expertise (A.R. 592). 8 Rheumatologist and QME Dr. Allen I. Salick evaluated Plaintiff on August 7, 2013, and prepared a permanent and stationary report (A.R. 472-90). Plaintiff reported a history of total body pain onset in December of 2009, with joint stiffness and swelling, muscle aches, weakness, anxiety, depression, headaches, heartburn, acid reflux, sleep disorder and fatigue (A.R. 474). Plaintiff complained of pain in her entire body, pain from the neck radiating to the shoulders, pain in her arms, elbows, wrist and hands, upper, mid and lower back pain radiating to her hips, buttocks and down both legs, pain in her knees, ankles and feet, tingling in her hands and fingers, burning sensation in her low back, shoulders and right knee, swelling in her joints, locking and sensitivity to touch in her right knee and right hip, stiffness in her joints with swelling/tightness, mild hair loss, sensitivity to sunlight, dry eyes and mouth, differences in her senses, restless legs and spasms, nonrestorative sleep, sensitivity to cold, fatigue, depression, anxiety, loss of concentration, difficulty sleeping due to pain (continued...) 15 1 In September of 2013, Plaintiff reported ongoing pain, 2 accelerating the need for a right hip MRI (A.R. 551). Plaintiff 3 reportedly was being treated by a pain management specialist (A.R. 4 551). 5 and recommendations from the pain specialist, and Dr. Bakshian ordered 6 Plaintiff to remain off work (A.R. 552).9 Dr. Bakshian noted that he was waiting for the right hip MRI 7 8 9 10 In January of 2014, Dr. Bakshian prepared a permanent and stationary report (A.R. 559-74). Plaintiff complained of pain, headaches, anxiety, depression and insomnia (A.R. 562-63). On 11 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (...continued) and difficulty getting out of bed due to pain and stiffness (A.R. 474-75, 477). Plaintiff reportedly walked with an uneven gait and had muscle spasms in the neck and upper back (A.R. 477). Plaintiff reported difficulty with her activities of daily living due to her pain and fatigue, an inability to sit for more than 15 minutes or stand more than 30 minutes, difficulty grasping, gripping, lifting, carrying, twisting, bending, stooping and squatting, and difficulty with driving, self-care and performing tasks (A.R. 477-78). On examination, Plaintiff reportedly had a normal gait but problems toe walking due to pain, reduced range of motion in the cervical and lumbar spine, 10/20 fibromyalgia tender points, and normal electrodiagnostic and laboratory studies (which ruled out inflammatory processes, radiculopathy, arthritis and other potential causes of Plaintiff’s symptoms) (A.R. 480-82, 491-94). Dr. Salick diagnosed fibromyalgia syndrome according to the 2010 American College of Rheumatology criteria (A.R. 483, 486). 9 Dr. Rajan M. Patel evaluated Plaintiff for her hip pain on November 22, 2013 (A.R. 553-58). Plaintiff complained of constant severe pain in her lower back at 9/10 radiating to her right hip and down to her foot with numbness and some popping and grinding in her hip (A.R. 555). On examination, Plaintiff had positive Labral and Faber tests, and her MRI showed some narrowing of the anterior labrum (A.R. 556-57). Dr. Patel diagnosed right hip pain secondary to a degenerative labral tear and recommended that Plaintiff try a cortisone injection to her right hip (A.R. 557). 16 1 examination, Plaintiff had tenderness to palpation of the cervical and 2 lumbar spine with limited range of motion, tenderness to palpation of 3 the right shoulder with pain on testing, tenderness to palpation of 4 the right wrist and right knee, and positive Labral and Faber tests 5 (A.R. 563-69). 6 secondary to degenerative labral tear per Dr. Patel and indicated that 7 Plaintiff was permanent and stationary (A.R. 570-71). 8 opined that Plaintiff is precluded from lifting 25 pounds and from 9 “walking back and forth” (A.R. 573). Dr. Bakshian added a diagnosis of right hip pain Dr. Bakshian Dr. Bakshian also stated that 10 Plaintiff should avoid any work requiring pushing, pulling, climbing 11 ladders, bending, stooping, reaching above her head, standing or 12 walking (A.R. 573). 13 14 4. Treatment by Sharp Imaging Medical Group, Inc. 15 16 Meanwhile, in November of 2013, Plaintiff presented to an 17 orthopedist at the Sharp Imaging Medical Group, either Dr. Steven N. 18 Brourman or Norman A. Linder,10 asking the doctor to serve as her 19 primary care physician (A.R. 496-521). 20 frequent pain in her right wrist and hand with tingling and numbness, 21 worsened with repetitive use and eased with rest and medications, 22 intermittent aching, sharp middle and low back pain radiating to her 23 legs with numbness and tingling, worsened with prolonged sitting, 24 standing, bending, lifting and carrying and eased with rest and Plaintiff complained of 25 26 27 28 10 The report from this evaluation appears to be only a partial copy; the report does not contain a signature page to identify the doctor who treated Plaintiff. See A.R. 521 (last available page of the report). 17 1 medications, continuous pain in the right knee, frequent pain in the 2 right ankle worsened by standing/walking, depression and difficulty 3 sleeping (A.R. 499-500, 502). 4 and anti-inflammatory medication (A.R. 501). 5 the pain severely limited her activities of daily living (A.R. 503-04 6 (detailing same)). Plaintiff reportedly was taking Vicodin Plaintiff claimed that 7 8 9 On examination, Plaintiff had positive Neer’s and Hawkins-Kennedy impingement tests, tenderness in the right scaphoid or lunate carpal 10 bones and right wrist, positive Phalen’s and Durkan’s median 11 compression tests, classic patterns of right carpal tunnel syndrome, 12 increasing pain toward terminal range of motion in the thoracic and 13 lumbar spines, right knee patellofemoral crepitus and patellofemoral 14 and medial joint line tenderness, positive McMurray test, and 15 decreased sensation in the right median nerve distribution (A.R. 505- 16 16). 17 radiculopathy), rule out right carpal tunnel syndrome, right shoulder 18 subacromial impingement syndrome (rule out rotator cuff tear), right 19 knee chondromalacia patella (rule out medial meniscal tear), and rule 20 out intercarpal ligament tear right wrist (A.R. 517). 21 requested authorization for nerve conduction studies, MRIs of the 22 right shoulder, wrist, ankle and foot, and prescribed 800 milligram 23 Motrin, Vicodin, Prilosec, and “extracorpeal shockwave therapy” for 24 Plaintiff’s right shoulder, knee and ankle (A.R. 518-19). 25 found Plaintiff temporarily totally disabled (A.R. 518-19). 26 /// 27 /// 28 /// The doctor diagnosed lumbar spine spondylosis (rule out lumbar 18 The doctor The doctor 1 C. 2 Opinions of Consultative Examiners and State Agency Physicians 3 4 Orthopedic surgeon Dr. H. Harlan Bleecker examined Plaintiff and 5 prepared a Complete Orthopedic Evaluation dated July 1, 2015 (A.R. 6 604-09). 7 right shoulder radiating down her right arm to all of the fingers, and 8 low back radiating down the right leg to the big toe, aggravated by 9 looking down, reaching, sitting, standing, walking, bending and Plaintiff complained of pain in the right side of her neck, 10 lifting (A.R. 604). Plaintiff also complained of right knee swelling, 11 reporting that her knee buckles and gives away, for which she wears a 12 knee brace (A.R. 604). 13 anxiety, panic attacks, depression and fibromyalgia (A.R. 604). 14 examination, she had an antalgic gait on the right side, could not 15 walk on tiptoes or heels on the right side, had limited range of 16 motion in her neck, back (with a catch on extension), right shoulder 17 and right knee, reduced grip strength in her right hand, and “stocking 18 hypalgesia” in the right upper and lower extremities (A.R. 605-07). 19 Dr. Bleecker reviewed medical records, including imaging studies, and 20 Dr. Bakshian’s January, 2014 permanent and stationary report (A.R. 21 607-08). 22 degenerative disc disease, lumbar spine degenerative arthritis and 23 internal derangement of the right knee (A.R. 608). 24 opined that Plaintiff is capable of light work with occasional 25 kneeling, squatting, bending and reaching overhead with the right 26 upper extremity (A.R. 608). 27 /// 28 /// Plaintiff reported a history of asthma, On Dr. Bleecker diagnosed right shoulder impingement syndrome, 19 Dr. Bleecker 1 Psychiatrist Dr. Maged Botros examined Plaintiff and prepared a 2 Complete Psychiatric Evaluation dated May 28, 2015 (A.R. 597-601). 3 Dr. Botros reviewed no medical records (A.R. 597). 4 complained of panic attacks five to 10 times a day, lasting up to 10 5 minutes each, which assertedly have resulted in Plaintiff staying home 6 “all the time” (A.R. 598). 7 prior symptoms of depression, mania or psychosis, and reported having 8 no treatment by a psychiatrist or therapist (A.R. 598). 9 apparently stated that she could dress and bathe herself, but does no Plaintiff Plaintiff reportedly denied any current or Plaintiff 10 household chores and cannot go places by herself (A.R. 599). On 11 examination, Plaintiff had psychomotor agitation, an “okay” mood, 12 anxious affect and she was able to recall three of five items in five 13 minutes, with “fair” insight and judgment (A.R. 599-600). 14 diagnosed anxiety disorder (not otherwise specified), rule out panic 15 disorder with agoraphobia (A.R. 600-01). 16 Plaintiff has mild limitations in all areas of functioning, and that 17 she had a possibility of improvement within 12 months, if treated 18 (A.R. 600-01). Dr. Botros Dr. Botros opined that 19 20 In July of 2015, State agency physicians reviewed the available 21 record and found limitations similar to the limitations found by Drs. 22 Bleecker and Botros (A.R. 82-94). 23 24 II. The ALJ’s Erred in the Evaluation of Medical Opinion Evidence. 25 26 In determining Plaintiff’s physical residual functional capacity, 27 the ALJ summarized the opinion evidence from Drs. Rajagopalan, Silver, 28 Botros, Bleecker and Kan, but not the opinion evidence from Dr. 20 1 Bakshian (A.R. 23-24). The ALJ purportedly gave “partial” weight to 2 the workers compensation treating and examining physicians’ opinions, 3 stating: 4 5 [The opinions] are somewhat consistent with the evidence at 6 the time. 7 improvement. 8 opinion at A.R. 604-13, Dr. Silver’s, 2011 reports at A.R. 9 643-84, and Dr. Silverman’s February, 2014 report at A.R. However, the more recent evidence shows some [Citing Dr. Bleecker’s July, 2015 consultative 10 685-96]. I afford little weight to the opinions of her 11 physicians that she is disabled under the workers’ 12 compensation guidelines or that she is temporarily disabled. 13 [Citations omitted]. 14 issue reserved for the Commissioner. 15 entitled to controlling weight or given special 16 significance. 17 her physical condition. 18 than mild degenerative changes. 19 exhibits an antalgic gait, but she does not exhibit any 20 severe physical limitations upon examination. 21 Bleecker’s consultative examination at A.R. 604-13]. 22 evidence establishes that the claimant is capable of 23 activities at the light exertional level, with additional 24 limitations. The determination of disability is an Further, the evidence shows improvement in The objective imaging shows no more 25 26 (A.R. 25-26). 27 /// 28 /// These opinions are not 21 She reports pain and she [Citing Dr. The 1 A treating physician’s conclusions “must be given substantial 2 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 3 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 4 give sufficient weight to the subjective aspects of a doctor’s 5 opinion. . . . 6 treating physician”) (citation omitted); see also Garrison v. Colvin, 7 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the 8 opinions of treating and examining physicians). 9 treating physician’s opinions are contradicted, as here, “if the ALJ This is especially true when the opinion is that of a Even where the 10 wishes to disregard the opinion[s] of the treating physician he . . . 11 must make findings setting forth specific, legitimate reasons for 12 doing so that are based on substantial evidence in the record.” 13 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, 14 quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 15 762 (“The ALJ may disregard the treating physician’s opinion, but only 16 by setting forth specific, legitimate reasons for doing so, and this 17 decision must itself be based on substantial evidence”) (citation and 18 quotations omitted). 19 20 The reasons the ALJ stated for rejecting the treating physicians’ 21 opinions do not comport with these authorities. First, the ALJ’s 22 reasoning is insufficiently specific. 23 lumped together the multiple opinions of the workers compensation 24 treating physicians, and the ALJ failed even to acknowledge Dr. 25 Bakshian’s opinions. 26 1028, 1038 n.10 (9th Cir. 2007) (an ALJ cannot avoid the specificity 27 requirements for rejecting treating physician’s opinion by not 28 mentioning the opinion and making findings contrary to it). For the most part, the ALJ See, e.g., Lingenfelter v. Astrue, 504 F.3d 22 1 Second, while the ALJ stated that the workers compensation 2 opinions were “somewhat consistent” with the evidence at the time, the 3 ALJ inferred from more recent medical records that Plaintiff’s 4 condition had significantly improved. 5 records cannot constitute a specific, legitimate reason for 6 discounting the physicians’ opinions. 7 75, 81 (2d Cir. 1998) (an “ALJ cannot arbitrarily substitute his own 8 judgment for competent medical opinion”) (internal quotation marks and 9 citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) This lay inference from medical See Balsamo v. Chater, 142 F.3d 10 (“ALJs must not succumb to the temptation to play doctor and make 11 their own independent medical findings”); Day v. Weinberger, 522 F.2d 12 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his or her 13 own medical assessment beyond that demonstrated by the record). 14 Neither the ALJ nor this Court possesses the medical expertise to 15 determine whether test results or fluctuating symptom reports 16 demonstrated that Plaintiff’s conditions significantly improved so as 17 to undercut the earlier opinion evidence. 18 fibromyalgia diagnosis renders any such determination by a lay person 19 particularly perilous. The presence of a 20 21 As indicated above, essentially all the workers compensation 22 treating and examining physicians who gave detailed opinions regarding 23 Plaintiff’s abilities found that she is more limited than the ALJ’s 24 /// 25 /// 26 /// 27 /// 28 /// 23 1 assessment.11 2 lumbar disc syndrome, right knee internal derangement, headaches, 3 insomnia, right ankle pain, right shoulder pain/impingement syndrome, 4 right hip pain secondary to a degenerative labral tear, and anxiety 5 disorder. 6 chiropractic treatment, physical therapy, and narcotic pain relievers. 7 The ALJ did not discuss with any specificity the extent to which the 8 diagnosed conditions do or do not support the limitations the 9 physicians found to exist. Plaintiff has diagnoses of, inter alia, fibromyalgia, Plaintiff has received, inter alia, injections, 10 11 In sum, without a medical expert to interpret the record 12 evidence, the ALJ’s lay inference of significant improvement cannot 13 furnish a specific, legitimate reason to discount the treating 14 physicians’ opinions. 15 16 The ALJ also erred in concluding that Plaintiff’s fibromyalgia is 17 not a medically determinable impairment. “[T]here are no laboratory 18 tests to confirm the diagnosis [of fibromyalgia].” 19 Barnhart, 379 F.3d 587, 590 (9th Cir. 2004); see also Revels v. 20 Berryhill, 874 F.3d 648, 666 (9th Cir. 2017) (observing that 21 fibromyalgia is diagnosed in part by evidence showing that another 22 condition does not account for a patient’s symptoms). 23 the presence of assertedly “mild” findings and snapshot evaluations of Benecke v. Consequently, 24 25 26 27 28 11 The Court does not have Dr. Silverman’s initial report, which may have found lesser limitations. The Court only has Dr. Silverman’s follow up reports suggesting that Plaintiff might not have any work restrictions, but also indicating that he would defer to a QME rheumatologist concerning Plaintiff’s fibromyalgia (A.R. 592-93). 24 1 Plaintiff’s physical abilities, (which are inconsistent with other 2 snapshot evaluations), cannot properly impugn medical opinions 3 regarding fibromyalgia. 4 (“SSR 12-2p recognizes that the symptoms of fibromyalgia ‘wax and 5 wane’ and that a person may have ‘bad days and good days’”) (citation 6 omitted); Johnson v. Astrue, 597 F.3d 409, 410 (1st Cir. 2009) (“the 7 musculoskeletal and neurological examinations are normal in 8 fibromyalgia patients, and there are no laboratory abnormalities”) 9 (quoting Harrison’s Principles of Internal Medicine at 2056 (16th ed. See Revels v. Berryhill, 874 F.3d at 657 10 2005)); McCormick v. Colvin, 2013 WL 3972700, at *15 (N.D. Iowa 11 July 26, 2013), adopted, 2013 WL 4401853 (N.D. Iowa Aug. 14, 2013) 12 (“Because [fibromyalgia] is a rheumatic disease, it is not diagnosed 13 through the type of objective findings utilized with neurological 14 orthopedic disorders. . . . 15 relatively normal MRI findings and lacked other objective findings 16 that would suggest neurological or orthopedic impairments does not 17 provide a good reason for discounting Dr. Luft’s opinions”); Reliford 18 v. Barnhart, 444 F. Supp. 2d 1182, 1190-91 (N.D. Ala. 2006) 19 (“Fibromyalgia is not diagnosed by MRI or x-rays. . . . 20 MRI and x-ray scans are meaningless in fibromyalgia cases”); Curtis v. 21 Astrue, 623 F. Supp. 2d 957, 967 (S.D. Ind. 2009) (“The ALJ’s 22 conclusion that Plaintiff’s normal MRI and normal neurological results 23 were inconsistent with her diagnosis of fibromyalgia misunderstands 24 the nature of fibromyalgia”); cf. Coleman v. Astrue, 423 Fed. App’x 25 754, 755 (9th Cir. 2011) (the ALJ erred by “rel[ying] on the absence 26 of objective physical symptoms of severe pain as a basis for 27 disbelieving [claimant’s] testimony regarding” effects of fibromyalgia 28 symptoms). In short, the fact that McCormick had 25 The negative 1 The ALJ’s cursory rejection of Dr. Salick’s fibromyalgia 2 diagnosis is not supported by substantial evidence. Dr. Salick’s 3 diagnosis followed Dr. Bakshian’s opinion that Plaintiff may have 4 fibromyalgia. 5 determinable impairment because Plaintiff supposedly did not have the 6 symptoms required under Social Security Ruling 12-2p (A.R. 20). 7 the contrary, as Dr. Salick explained (and as detailed in Social 8 Security Ruling 12-2p), a person suffers from fibromyalgia if she has: 9 (1) widespread pain that has lasted at least three months; The ALJ postulated that fibromyalgia is not a medically To 10 (2) repeated manifestations of six or more fibromyalgia symptoms, 11 signs or co-occurring conditions (e.g., muscle pain, fatigue or 12 tiredness, headache, numbness or tingling, insomnia, depression, and 13 anxiety disorder); and (3) other causes of symptoms have been 14 excluded. 15 to the medical records, Plaintiff (often and for years) had complained 16 of widespread muscle pain (A.R. 326, 338, 446, 474-79, 499-500, 527- 17 28, 555, 562, 631), fatigue (A.R. 431, 474, 479), headache (A.R. 326, 18 409, 431, 467, 528, 563), numbness or tingling (A.R. 326, 499, 527-28, 19 555, 562, 631), insomnia (A.R. 326, 338, 409, 431, 467, 502, 563, 20 631), depression (A.R. 502, 528, 562, 604) and anxiety (A.R. 528, 562, 21 604). 22 treating doctor disagreed with Dr. Salick’s diagnosis of fibromyalgia 23 diagnosis. 24 support the ALJ’s finding that Plaintiff’s alleged fibromyalgia was 25 not a medically determinable impairment. 26 by failing to consider any fibromyalgia-related limitations in 27 assessing Plaintiff’s residual functional capacity. 28 /// See A.R. 483, 486; Social Security Ruling 12-2p. No other rheumatologist evaluated Plaintiff. According No examining or On the present record, substantial evidence fails to 26 Accordingly, the ALJ erred See Revels v. 1 Berryhill, 874 F.3d at 662.12 2 3 4 III. The Court is Unable to Deem the 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 Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 8 (even though the district court had stated “persuasive reasons” why 9 the ALJ’s failure to mention the treating physician’s opinion was 10 harmless, the Ninth Circuit remanded because “we cannot ‘confidently 11 conclude’ that the error was harmless”); Treichler v. Commissioner, 12 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ 13 makes a legal error, but the record is uncertain and ambiguous, the 14 proper approach is to remand the case to the agency”); see also Molina 15 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless 16 where it is inconsequential to the ultimate non-disability 17 determination”) (citations and quotations omitted); McLeod v. Astrue, 18 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where “the 19 reviewing court can determine from the ‘circumstances of the case’ 20 that further administrative review is needed to determine whether 21 there was prejudice from the error”). 22 23 24 Defendant appears to contend that the ALJ’s failure to find Plaintiff’s fibromyalgia to be a medically determinable impairment 25 26 27 28 12 Defendant appears to suggest that, even if Plaintiff suffers from fibromyalgia, the disease has not resulted in any limitations. The record does not support this suggestion with any degree of certainty. 27 1 necessarily was harmless, relying on Burch v. Barnhart, 400 F.3d 676, 2 682 (9th Cir. 2005) (“Burch”) and Taylor v. Astrue, 2010 WL 2773337, 3 at **2-3 (D. Or. July 12, 2010) (“Taylor”). 4 to confuse a failure to find that an alleged impairment is medically 5 determinable (the present circumstance) with a failure to find that a 6 medically determinable impairment is severe (the circumstance in 7 Burch and Taylor). 8 Administration must consider all medically determinable impairments, 9 even those deemed not severe. Defendant thereby appears In assessing residual functional capacity, the 20 C.F.R. § 404.1545(a)(2). However, 10 in assessing residual functional capacity, the Administration 11 considers only medically determinable impairments. 12 Colvin, 2016 WL 8232243, at *4-5 (E.D. Wash. Aug. 23, 2016) (“the ALJ 13 found Plaintiff's fibromyalgia was not medically determinable. . . . 14 Consequently, the ALJ did not incorporate Plaintiff's alleged 15 limitations from her fibromyalgia into the RFC [residual functional 16 capacity] finding. . . . [B]y classifying Plaintiff's fibromyalgia as 17 a non-medically determinable impairment - rather than a severe or 18 non-severe impairment - the ALJ excluded the effects of this condition 19 when formulating Plaintiff's RFC, rendering the ALJ's RFC finding 20 suspect”) (citations and quotations omitted). 21 not consider the effects of Plaintiff’s fibromyalgia when defining 22 Plaintiff’s residual functional capacity. 23 unlike the circumstance in Burch and Taylor), the Court is unable to 24 conclude that the ALJ’s error was harmless.13 25 /// See id.; Butler v. Therefore, the ALJ did See id. Accordingly (and 26 27 28 13 The Court also observes that the Ninth Circuit reversed the Taylor decision more than eight years ago. See Taylor v. Commissioner, 659 F.3d 1228 (9th Cir. 2011). 28 1 Remand is appropriate because the circumstances of this case 2 suggest that further administrative review could remedy the ALJ’s 3 errors. 4 537 U.S. 12, 16 (2002) (upon reversal of an administrative 5 determination, the proper course is remand for additional agency 6 investigation or explanation, except in rare circumstances); Dominguez 7 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 8 court concludes that further administrative proceedings would serve no 9 useful purpose, it may not remand with a direction to provide McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 10 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 11 for further administrative proceedings is the proper remedy “in all 12 but the rarest cases”); Garrison v. Colvin, 759 F.3d 995, 1020 (9th 13 Cir. 2014) (court will credit-as-true medical opinion evidence only 14 where, inter alia, “the record has been fully developed and further 15 administrative proceedings would serve no useful purpose”); Harman v. 16 Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 17 (2000) (remand for further proceedings rather than for the immediate 18 payment of benefits is appropriate where there are “sufficient 19 unanswered questions in the record”). 20 unanswered questions in the present record. 21 F.3d at 1173 (remanding for further administrative proceedings to 22 allow the ALJ to “comment on” the treating physician’s opinion). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 29 There remain significant Cf. Marsh v. Colvin, 792 1 CONCLUSION 2 3 For all of the foregoing reasons,14 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: October 31, 2019. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 30
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