Albert Perez v. Andrew Saul, No. 2:2020cv00581 - Document 23 (C.D. Cal. 2020)
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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Albert Perez v. Andrew Saul Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ALBERT L. P., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 20-581-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 January 21, 2020, seeking review 26 of the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on March 26, 2020. 28 Plaintiff filed a motion for summary judgment on August 1, 2020. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on October 6, 2020. 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; “Order,” filed January 23, 2020. The 4 5 BACKGROUND 6 7 Plaintiff asserts disability since August 28, 2015, based on 8 allegations of neck and low back injury/pain/radiculopathy, right 9 shoulder/arm/wrist pain, left wrist pain, diabetes and bipolar 10 disorder (Administrative Record (“A.R.”) 650-51, 678, 698). Dr. Van 11 Huy Vu, a pain management specialist, treated Plaintiff during most of 12 the alleged disability period. 13 (herniated nucleus pulposus), cervical radiculopathy, lumbar sprain, 14 lateral epicondylitis in the right elbow and carpal tunnel syndrome 15 (A.R. 1162-63). 16 evidenced by an October, 2015 lumbar spine MRI, February, 2016 EMG/NCV 17 studies, and 2015-17 examination findings (i.e., reduced range of 18 motion, positive straight leg raising, abnormal gait, sensory loss, 19 reflex loss, tenderness, muscle spasm, motor loss, muscle atrophy, 20 muscle weakness, and impaired appetite). 21 that, since December of 2015, Plaintiff has been limited to: 22 (1) lifting less than 10 pounds rarely; (2) sitting for only one hour 23 at a time, standing for only 20 minutes at a time, sitting for a total 24 of less than two hours in an eight-hour day, and standing/walking for 25 a total of less than two hours in an eight-hour day; (3) rarely 26 twisting or climbing stairs; (4) never stooping, crouching/squatting 27 or climbing ladders; (5) using his hands/fingers/arms for fine and 28 gross manipulation and reaching for less than a full workday; Dr. Vu diagnosed lumbar “HNP” According to Dr. Vu, the diagnosed impairments were 2 Id. In 2018, Dr. Vu opined 1 (6) working with a sit/stand option with walking breaks every hour for 2 10 minutes at a time and with unscheduled breaks every hour for 10 3 minutes at a time; and (7) using an assistive device for Plaintiff’s 4 right foot (A.R. 1163-66; see also A.R. 1161 (additional opinion 5 noting lifting/standing/walking limits due to lumbar disc herniation 6 causing numbness in the legs)). 7 would be off task more than 25 percent of a workday, and would miss 8 more than four days of work per month (A.R. 1165-66). Dr. Vu also opined that Plaintiff 9 10 An Administrative Law Judge (“ALJ”) reviewed the record and heard 11 testimony from Plaintiff and a vocational expert (A.R. 96-106, 532- 12 61). 13 degenerative changes of the lumbar spine with narrowing and 14 radiculopathy, cervical radiculopathy, right acromioclavicular joint 15 osteoarthritis with tendinitis/tendinosis, right elbow lateral 16 epicondylitis, right fifth digit tenosynovitis, carpal tunnel 17 syndrome, obesity and diabetes mellitus with neuropathy (A.R. 98). 18 However, the ALJ deemed Plaintiff capable of performing a range of 19 light work, limited to no more than: (1) frequent climbing of ramps 20 and stairs; (2) occasional climbing of ladders, ropes and scaffolds; 21 (3) occasional balancing, stooping, kneeling, crouching, crawling and 22 bending; (4) occasional at or above shoulder lifting in the bilateral 23 upper extremities; (5) occasional forceful gripping or grasping with 24 the bilateral upper extremities; and (6) work not requiring frequent 25 or repetitive movements of the head from side to side or up or down, 26 i.e., work should be primarily in front of the worker. 27 04 (giving “little weight” to Dr. Vu’s opinions). 28 certain light jobs Plaintiff assertedly could perform, and, on that The ALJ found that Plaintiff has “severe” multi-level 3 See A.R. 101- The ALJ identified 1 basis, denied disability benefits through October 24, 2018, the date 2 of the decision (A.R. 105-06 (adopting vocational expert testimony at 3 A.R. 552-54)). 4 5 6 The Appeals Council considered additional evidence but denied review (A.R. 1-6, 11-27, 29-92, 113-530). 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. section 405(g), this Court reviews the 11 Administration’s decision to determine if: (1) the Administration’s 12 findings are supported by substantial evidence; and (2) the 13 Administration used correct legal standards. 14 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 15 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 16 682 F.3d 1157, 1161 (9th Cir. 2012). 17 relevant evidence as a reasonable mind might accept as adequate to 18 support a conclusion.” 19 (1971) (citation and quotations omitted); see also Widmark v. 20 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 21 22 If the evidence can support either outcome, the court may 23 not substitute its judgment for that of the ALJ. 24 Commissioner’s decision cannot be affirmed simply by 25 isolating a specific quantum of supporting evidence. 26 Rather, a court must consider the record as a whole, 27 weighing both evidence that supports and evidence that 28 detracts from the [administrative] conclusion. 4 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 Where, as here, the Appeals Council “considers new evidence in 5 deciding whether to review a decision of the ALJ, that evidence 6 becomes part of the administrative record, which the district court 7 must consider when reviewing the Commissioner’s final decision for 8 substantial evidence.” 9 “[A]s a practical matter, the final decision of the Commissioner Brewes v. Commissioner, 682 F.3d at 1163. 10 includes the Appeals Council’s denial of review, and the additional 11 evidence considered by that body is evidence upon which the findings 12 and decision complained of are based.” 13 omitted).1 14 the first time to the Appeals Council. Id. (citations and quotations Thus, this Court has reviewed the evidence submitted for 15 16 DISCUSSION 17 18 For the reasons discussed below, the Court finds that the ALJ 19 materially erred in the evaluation of the medical evidence. 20 /// 21 /// 22 23 24 25 26 27 28 1 And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court has jurisdiction to review Appeals Council’s dismissal of request for review as untimely); see also Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 5 1 I. Summary of the Medical Record 2 3 A. Medical records predating the ALJ’s decision 4 5 The medical records consist primarily of treatment notes from Dr. 6 Vu, Dr. Richard Lee (a primary care physician) and other providers 7 with Optum Care Medical Group and the Centers for Family Medicine (Dr. 8 Lee’s practice groups). 9 from June of 2006 through at least February of 2019, principally for Dr. Lee and his associates treated Plaintiff 10 diabetes (diagnosed in 2013) with lower extremity neuropathy, 11 associated hypertension, hyperlipidemia and obesity. 12 (documents Plaintiff provided to the Appeals Council for review, some 13 of which were duplicates of documents provided to the ALJ, e.g., A.R. 14 846-68, 1185-1232, 1270-93). 15 with his worker’s compensation claim from August of 2015 through at 16 least September of 2017 (A.R. 1023-95, 1133-60). See A.R. 167-530 Dr. Vu treated Plaintiff in connection 17 18 In January of 2015, Plaintiff reported to Dr. Lee’s associate 19 that Plaintiff had right-sided back pain from a 6-mm disc protrusion 20 at L5-S1 requiring surgery or injections (A.R. 327). 21 reportedly then was being treated by a worker’s compensation doctor 22 for pain (A.R. 328; see also A.R. 914-17 (report summarizing medical 23 records from Dr. David Jeffrey Weil in 2013 and 2014)) (A.R. 909-10). 24 Reportedly, Plaintiff had sustained a work-related low back injury in 25 November of 2014, and cumulative trauma to his head, neck, right 26 shoulder, right elbow and bilateral wrists and hands in 2013/2014 27 (A.R. 909-10). 28 /// 6 Plaintiff 1 Dr. Vu subsequently treated Plaintiff for lumbar disc 2 protrusion/displacement, lumbar musculoligamentous injury, lumbar 3 radiculopathy, right shoulder myoligamentous injury, right elbow 4 lateral epicondylitis, bilateral wrist sprain/strain and left carpal 5 tunnel syndrome/wrist internal derangement (A.R. 1023-95, 1133-60; see 6 also A.R. 1089-93 (October, 2015 lumbar spine MRI report); A.R. 7 1094-95 (October, 2015 lumbar spine x-ray report); A.R. 1154-55 8 (September, 2017 right elbow MRI report); A.R. 1156-57 (October, 2017 9 right wrist MRI report); A.R. 1158 (October, 2017 left wrist MRI 10 report); A.R. 1159-60 (September, 2017 right shoulder MRI report)). 11 Dr. Vu prescribed physical therapy, Gabapentin, pain cream, wrist 12 braces, bilateral wrist injections, right elbow injections, cervical 13 and lumbar spine epidural steroid injections and sacral-iliac joint 14 injections (A.R. 1025-26). 15 consultation with an orthopedist for Plaintiff’s right elbow and a 16 spine specialist for Plaintiff’s spine (A.R. 1025, 1135; see also A.R. 17 1072-79, 1261-65 (reports of epidural injections)).2 Dr. Vu requested authorization for a 18 19 Dr. Vu completed a “Medical Opinion Regarding Physical Capacity 20 for Work” form dated March 9, 2018 (A.R. 1161). Dr. Vu opined that 21 Plaintiff was limited to: (1) lifting 10 pounds for 1/3 of the day and 22 23 24 25 26 27 28 2 Dr. Vu’s colleague, Dr. Mike Tran, opined in August of 2015 that Plaintiff could return to work limited to lifting no greater than 10 pounds, no repetitive bending, stooping or squatting, no standing or walking for greater than 1-2 hours/day, no repetitive gripping, grasping or torquing activities and no overhead work (A.R. 1067, 1069). However, Dr. Vu subsequently ordered Plaintiff to remain off work from September 24, 2015 through at least September 4, 2017 (A.R. 1026, 1030, 1034, 1038, 1045, 1048, 1051, 1054, 1056, 1058, 1059, 1135, 1138, 1141, 1144, 1147, 1150, 1153). 7 1 five pounds for 2/3 of the day due to lumbar disc herniation; and 2 (2) standing or walking 30 minutes at a time without a break due to 3 lumbar disc herniation causing numbness in his legs (A.R. 1161). 4 Vu also completed a “Lumbar Spine Medical Source Statement” dated 5 April 12, 2018, indicating that he had treated Plaintiff once a month 6 for the past three years for lumbar herniated nucleus pulposus, 7 cervical radiculopathy, lumbar sprain, lateral epicondylitis in the 8 right elbow and carpal tunnel syndrome (A.R. 1162-66). 9 Dr. Vu, these impairments were evidenced by the October, 2015 lumbar Dr. According to 10 spine MRI, February, 2016 EMG/NCV studies, and 2015-17 examination 11 findings (i.e., reduced range of motion, positive straight leg 12 raising, abnormal gait, sensory loss, reflex loss, tenderness, muscle 13 spasm, motor loss, muscle atrophy, muscle weakness, and impaired 14 appetite), which cause constant pain with numbness and tingling (A.R. 15 1162-66). 16 lift less than 10 pounds rarely, walk 1/4 a city block, sit for only 17 one hour at a time, stand for only 20 minutes at a time, sit for a 18 total of less than two hours in an eight-hour day, stand/walk for a 19 total of less than two hours in an eight hour day, rarely twist and 20 climb stairs, never stoop, crouch/crawl or climb ladders, would have 21 limits using his hands/fingers/arms for fine and gross manipulation 22 and reaching, would require a sit/stand option and walking breaks 23 every hour for 10 minutes and unscheduled breaks every hour for 10 24 minutes, would require the use of an assistive device on Plaintiff’s 25 right foot, would be off task more than 25 percent of a workday, and 26 would miss more than four days of work per month (A.R. 1163-66). 27 /// 28 /// Dr. Vu opined that, since December of 2015, Plaintiff could 8 1 In April of 2018, Plaintiff reported to Dr. Lee, complaining of 2 back pain radiating to his right leg (A.R. 207). According to 3 Plaintiff, this pain had been an issue since 2014, and Plaintiff had 4 been treated by a pain management specialist (Dr. Vu), but Plaintiff 5 had been forced to stop such treatment because of insurance issues 6 (A.R. 207). 7 Plaintiff’s sciatica, which showed multilevel degenerative changes 8 resulting in moderate bilateral L4-L5 and mild to moderate L5-S1 9 neural foraminal narrowing with no significant central spinal canal Dr. Lee ordered a lumbar spine MRI to evaluate 10 stenosis (A.R. 205-09). At his next visit in May of 2018, Plaintiff 11 complained of chronic fatigue, lumbar spine pain, shoulder pain which 12 Plaintiff said limited him to lifting no more than 10 pounds, and 13 right foot pain for which he was referred for physical therapy (A.R. 14 189-91). 15 16 In August of 2018, Plaintiff complained of right shoulder pain, 17 elbow pain, wrist pain and right sided sciatica, for which he was 18 given steroid injections in his right elbow and an elbow brace for 19 lateral epicondylitis, as well as a wrist brace for tendinitis (A.R. 20 181-83). 21 (A.R. 171-73). 22 right shoulder in October of 2018, reporting that physical therapy had 23 not helped and he was still having trouble lifting more than 10 pounds 24 (A.R. 177-80). 25 degenerative joint disease and Plaintiff was referred to an orthopedic 26 specialist (A.R. 179). 27 /// 28 /// Dr. Lee prescribed Tramadol for pain in September of 2018 Plaintiff returned for a steroid injection for his An x-ray of the right shoulder showed minor 9 1 B. Medical records postdating the ALJ’s decision 2 3 In December of 2018, Plaintiff presented to orthopedic specialist 4 Dr. Raymond Klug, reporting a history of physical therapy and 5 cortisone injections which had provided only partial relief for 6 Plaintiff’s pain (A.R. 43). 7 prescribed Gabapentin and Tramadol (A.R. 51, 121, 127, 129, 137-38). 8 A December, 2018 cervical spine MRI reflected multilevel degenerative 9 change with mild to moderate right neural foraminal narrowing at C4-C5 Reportedly, Plaintiff also had been 10 and C7-T1 (A.R. 35-36). Lumbar spine x-rays done in February of 2019 11 reflected lumbar spondylosis (A.R. 36). 12 Klug’s practice, orthopedic specialist Dr. Kusharga Verma, reviewed 13 these results and examined Plaintiff in February of 2019 (A.R. 33, 14 36). 15 cervical spine pain, and a recent injection at C7 which reportedly had 16 not helped (A.R. 33, 36). 17 positive Spurling’s sign and Durkin’s compression on the right side, 18 with pain radiating to his fingers (A.R. 33-34). 19 lumbar and cervical spine stenosis and radiculopathy, with pain in the 20 right shoulder, the back of the arm and the hand with hand numbness, 21 as well as pain in the right leg and the back of the leg (A.R. 36-37). 22 Dr. Verma requested further MRI imaging and an EMG study (A.R. 37). Another doctor working in Dr. At that time, Plaintiff reported lumbar spine pain, decreased According to Dr. Verma, Plaintiff had Dr. Verma diagnosed 23 24 Plaintiff presented to another pain management doctor for 25 examination in January of 2019 (A.R. 126-27). 26 exhibited limited cervical spine range of motion due to pain with 27 positive facet loading, 2/4 reflexes, positive shoulder impingement 28 testing with mildly impaired range of motion, tenderness in the lumbar 10 At that time, Plaintiff 1 spine with muscle spasm and positive facet loading, and a positive 2 right straight leg raising test (A.R. 126-27). 3 lumbar radiculopathy, right leg pain, back muscle spasm, right leg 4 weakness, cervicalgia, cervical radiculopathy, bilateral shoulder pain 5 and other chronic pain for which Plaintiff was prescribed Cymbalta 6 (A.R. 128). 7 steroid injections at C6-C7 and L4-L5/L5-S1 in July, August, October 8 and November of 2018 and January of 2019, and Plaintiff was referred 9 for a spine surgery evaluation (A.R. 123-25, 130-31, 133-35, 139, 10 The doctor diagnosed Plaintiff had been given cervical and lumbar epidural 141-47). 11 12 Following these consultations, Dr. Lee completed a “Physical 13 Medical Source Statement” dated February 13, 2019, opining that 14 Plaintiff has significant limitations due to lumbar spinal stenosis 15 and cervical radiculopathy (e.g., Plaintiff could sit for only one 16 hour before needing to get up, could sit for only a total of two hours 17 in an eight hour workday, could stand/walk less than two hours in an 18 eight hour workday, would need to take breaks every hour for 20 19 minutes at a time, and could lift no more than 10 pounds) (A.R. 20 12-14). 21 22 23 C. The opinions of the medical examiner and the state agency physician 24 25 On February 10, 2016, non-treating orthopedic surgeon Dr. 26 Simpkins prepared an “Agreed Medical Evaluation” (A.R. 908-35). 27 Plaintiff reportedly was being treated by worker’s compensation 28 doctors, including Dr. Vu, for, inter alia: (1) a low back injury from 11 1 November 22, 2014, consisting of bulging discs at L4, L5 and S1, for 2 which Plaintiff had been given lumbar epidural injections, pain 3 medication and physical therapy; and (2) cumulative trauma to his 4 head, neck, right shoulder, right elbow and bilateral wrists and hands 5 causing pain for which Plaintiff had received injections, pain 6 medication, physical therapy and acupuncture (A.R. 908-11). 7 complained of radiating neck pain with stiffness and headaches, right 8 shoulder pain radiating to the forearm with tightness and popping, 9 weakness, numbness, bilateral wrist/hand pain with grip loss, and Plaintiff 10 continuous radiating low back pain with weakness, numbness and 11 tingling in the right leg to the toes (A.R. 911-12). 12 reviewed some medical records from 2009-15, including a December, 2014 13 lumbar spine MRI, some chiropractic treatment records from September 14 and October of 2015, two 2015 work status reports by Dr. Vu, and some 15 physical therapy notes from 2015 (A.R. 916-17). Dr. Simpkins 16 17 On examination, Plaintiff reportedly had cervical and lumbar 18 spine tenderness, neurological deficits in the ulnar nerves and right 19 L4, L5 and S1 nerve root distributions, tenderness in the right 20 shoulder and elbow, positive right Hawkin’s test, and positive left 21 carpal tunnel canal compression (A.R. 919-26). 22 testing showed evidence of bilateral C6 and C7 cervical radiculopathy, 23 right L5 and S1 lumbosacral radiculopathy, but no evidence of 24 neuropathy (A.R. 926). 25 note to rule out radiculitis, right posterior shoulder/midback pain 26 with myofascial tenderness, mechanical back pain with a note to rule 27 out radiculitis, right medial and lateral epicondylitis, right radial 28 tunnel tenderness with a note to rule out radial tunnel syndrome, and EMG/Nerve conduction Dr. Simpkins diagnosed axial neck pain with a 12 1 possible bilateral carpal tunnel syndrome (A.R. 926-27). Dr. Simpkins 2 opined that Plaintiff should be precluded from: (1) repetitive 3 positioning of the head and repetitive lifting at or above shoulder 4 level; (2) repetitive forceful gripping and grasping; (3) lifting, 5 pushing or pulling over 35 pounds; and (4) bending or stooping for 6 greater than 50 percent of the workday (A.R. 929). 7 8 In September of 2016, a non-examining state agency physician 9 reviewed some of the medical records and opined that Plaintiff had not 10 provided sufficient evidence to explain why he had income after the 11 alleged onset date through May of 2016.3 12 indicated that there was less than 12 months of records to review 13 after May of 2016 (A.R. 567, 571). 14 limited review, the state agency physician opined that Plaintiff was 15 capable of light work with some frequent or occasional postural 16 limitations (A.R. 574-75). The state agency physician Nevertheless, on the basis of this 17 18 II. The ALJ Erred in the Evaluation of the Medical Evidence. 19 20 The ALJ summarized some medical records concerning Plaintiff’s 21 lumbar spine, cervical spine and upper extremity impairments, 22 highlighting examinations in July of 2016 and March of 2017 that 23 assertedly showed no significant findings. 24 A.R. 819 (December, 2011 treatment note for chest pain, high glucose See A.R. 102-03 (citing 25 26 27 28 3 At the hearing before the ALJ, Plaintiff explained that this “income” was a vacation time payout, see A.R. 536-37. The ALJ found that Plaintiff “has not engaged in substantial gainful activity since August 28, 2015, the alleged onset date” (A.R. 98). 13 1 and cough which contains no detailed examination findings) and A.R. 2 846-47 (a treatment note from Dr. Lee concerning diabetes, a thyroid 3 issue and forehead numbness, which note does not concern pain issues). 4 The ALJ characterized the record as containing “no evidence 5 establishing the impairments are so severe as to prevent the claimant 6 from basic work activities” (A.R. 102). 7 the record as reflecting “relatively conservative treatment” for pain 8 (i.e., treatment with pain medication “not indicative of disability- 9 level impairments,” epidural injections and physical therapy “not The ALJ also characterized 10 appear[ing] to have been over a longitudinal period of time,” and with 11 no “other more invasive or drastic treatment plan” recommended such as 12 surgery) (A.R. 102-03). 13 14 The ALJ, who did not have the benefit of Dr. Lee’s February, 2019 15 opinion, rejected Dr. Vu’s 2018 opinion in favor of the 2016 16 evaluations by Dr. Simpkins and the state agency physician (A.R. 103- 17 04). 18 physician, and the ALJ did not discuss any of Dr. Vu’s treatment 19 records (A.R. 102-04). 20 opinions, stating: The ALJ did not acknowledge that Dr. Vu was a treating The ALJ gave “little weight” to Dr. Vu’s 21 22 Less weight is given to [Dr. Vu’s] opinions given that they 23 are inconsistent with the objective medical evidence, as 24 well as the opinions of the agreed medical examiner, Dr. 25 Simpkins. 26 the mostly mild to moderate clinical findings detailed 27 above. 28 found that a reduced light residual functional capacity is The extreme limitations are not consistent with Based on the overall evidence, the undersigned has 14 1 appropriate given the combination of severe impairments. 2 3 (A.R. 104). 4 5 A treating physician’s conclusions “must be given substantial 6 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 7 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 8 give sufficient weight to the subjective aspects of a doctor’s 9 opinion. . . . This is especially true when the opinion is that of a 10 treating physician”) (citation omitted); see also Garrison v. Colvin, 11 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the 12 opinions of treating and examining physicians). 13 treating physician’s opinions are contradicted, as here, “if the ALJ 14 wishes to disregard the opinion[s] of the treating physician he . . . 15 must make findings setting forth specific, legitimate reasons for 16 doing so that are based on substantial evidence in the record.” 17 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, 18 quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 19 762 (“The ALJ may disregard the treating physician’s opinion, but only 20 by setting forth specific, legitimate reasons for doing so, and this 21 decision must itself be based on substantial evidence”) (citation and 22 quotations omitted). Even where the 23 24 The reasons the ALJ stated for rejecting Dr. Vu’s treating 25 physician opinions do not comport with these authorities. 26 fact that Dr. Vu’s opinions were inconsistent with Dr. Simpkins’ 27 opinion triggers rather than satisfies the requirement of stating 28 “specific, legitimate reasons” for rejecting a treating physician’s 15 First, the 1 opinion. See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 (9th 2 Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007). 3 4 Second, there is no medical opinion evidence supporting the ALJ’s 5 assertions that Dr. Vu’s opinions are inconsistent with “the objective 6 medical evidence,” or that the medical record shows “mostly mild to 7 moderate clinical findings.” 8 treatment notes or the detailed findings on which Dr. Vu expressly 9 based his opinions (A.R. 102-04). The ALJ failed to acknowledge Dr. Vu’s The ALJ also failed to acknowledge 10 similar treatment notes and findings from Dr. Lee that predated the 11 ALJ’s decision (A.R. 102-04). 12 records cannot constitute specific, legitimate reasons for discounting 13 Dr. Vu’s opinions. 14 1998) (an “ALJ cannot arbitrarily substitute his own judgment for 15 competent medical opinion”) (internal quotation marks and citation 16 omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs 17 must not succumb to the temptation to play doctor and make their own 18 independent medical findings”); Day v. Weinberger, 522 F.2d 1154, 1156 19 (9th Cir. 1975) (an ALJ is forbidden from making his or her own 20 medical assessment beyond that demonstrated by the record). 21 the ALJ nor this Court possesses medical expertise sufficient to 22 determine whether Dr. Vu’s opinions are inconsistent with “the 23 objective medical evidence” or “the clinical findings.” 24 the ALJ may have relied on the far earlier opinions of the state 25 agency physician and the agreed medical examiner (Dr. Simpkins), those 26 opinions did not have the benefit of a significant portion of the 27 /// 28 /// The ALJ’s lay inferences from medical See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 16 Neither To the extent 1 medical record generated during the alleged disability period.4 2 later portion of the record reflected ongoing treatment with steroid 3 injections without reported relief, as well as referrals for surgical 4 evaluations. This 5 6 As indicated above, Dr. Vu rendered opinions limiting Plaintiff’s 7 capacity far more profoundly than did the ALJ. Without a medical 8 expert to interpret all of the record evidence relevant to the alleged 9 disability period, the ALJ’s lay speculation that such evidence is 10 inconsistent with Dr. Vu’s opinions cannot furnish a specific, 11 legitimate reason to discount those opinions. 12 13 14 III. The Court is Unable to Deem the ALJ’s Errors Harmless; Remand for Further Administrative Proceedings is Appropriate. 15 16 The Court is unable to conclude that the ALJ’s errors in the 17 evaluation of the medical evidence were harmless. See Marsh v. 18 Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (even though the district 19 court had stated “persuasive reasons” why the ALJ’s error in regard to 20 the treating physician’s opinion was harmless, the Ninth Circuit 21 22 23 24 25 26 27 28 4 In discounting the opinion of the state agency physician, the ALJ acknowledged this deficiency, stating that the agency physician “did not treat the claimant over a significant period of time and did not have the opportunity to review the medical records in its [sic] entirety” (A.R. 104). Yet, these same discounting factors would apply with even greater force to the opinion of the agreed medical examiner. The agreed medical examiner never treated Plaintiff and had available fewer of the medical records than those available to the agency physician. Yet, the ALJ accorded “great weight” to the opinion of the agreed medical examiner (A.R. 103). 17 1 remanded because “we cannot ‘confidently conclude’ that the error was 2 harmless”); Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 3 2014) (“Where, as in this case, an ALJ makes a legal error, but the 4 record is uncertain and ambiguous, the proper approach is to remand 5 the case to the agency”); see also Molina v. Astrue, 674 F.3d 1104, 6 1115 (9th Cir. 2012) (an error “is harmless where it is 7 inconsequential to the ultimate non-disability determination”) 8 (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 9 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 10 determine from the ‘circumstances of the case’ that further 11 administrative review is needed to determine whether there was 12 prejudice from the error”). 13 that if a person were limited by the need for a 10 minute break every 14 hour – just one of the limitations that Dr. Vu assessed – it would 15 eliminate competitive employment (A.R. 554-55, 557). Here, the vocational expert testified 16 17 Remand is appropriate because the circumstances of this case 18 suggest that further administrative review could remedy the ALJ’s 19 errors. 20 537 U.S. 12, 16 (2002) (upon reversal of an administrative 21 determination, the proper course is remand for additional agency 22 investigation or explanation, except in rare circumstances); Dominguez 23 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 24 court concludes that further administrative proceedings would serve no 25 useful purpose, it may not remand with a direction to provide 26 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 27 for further administrative proceedings is the proper remedy “in all 28 but the rarest cases”); Garrison v. Colvin, 759 F.3d at 1020 (court McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 18 1 will credit-as-true medical opinion evidence only where, inter alia, 2 “the record has been fully developed and further administrative 3 proceedings would serve no useful purpose”); Harman v. Apfel, 211 F.3d 4 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand 5 for further proceedings rather than for the immediate payment of 6 benefits is appropriate where there are “sufficient unanswered 7 questions in the record”). 8 questions in the present record. 9 1173 (remanding for further administrative proceedings to allow the 10 There remain significant unanswered Cf. Marsh v. Colvin, 792 F.3d at ALJ to “comment on” the treating physician’s opinion). 11 12 CONCLUSION 13 14 For all of the foregoing reasons,5 Plaintiff’s and Defendant’s 15 motions for summary judgment are denied and this matter is remanded 16 for further administrative action consistent with this Opinion. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: October 8, 2020. 21 22 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 5 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. 19
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