Flaviano Arroyo v. Andrew Saul, No. 2:2020cv06380 - Document 22 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is REVERSED in part, and this matter is REMANDED for further administrative action consistent with this Opinion. (see document for further details) (hr)
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Flaviano Arroyo v. Andrew Saul Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FLAVIANO A.,1 12 Plaintiff, 13 14 15 Case No. 2:20-cv-06380-JC v. MEMORANDUM OPINION AND ORDER OF REMAND ANDREW SAUL, Commissioner of Social Security Administration, 16 Defendant. 17 18 I. 19 SUMMARY On July 17, 2020, plaintiff Flaviano A. filed a Complaint seeking review of 20 the Commissioner of Social Security’s denial of plaintiff’s application for benefits. 21 The parties have consented to proceed before the undersigned United States 22 Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 25 (collectively “Motions”). The Court has taken the Motions under submission 26 27 28 1 Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Order Lifting Stay; Case 2 Management Order filed on December 14, 2020, at ¶ 3. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is REVERSED AND REMANDED for further proceedings 5 consistent with this Memorandum Opinion and Order of Remand. In this case, the 6 Administrative Law Judge (“ALJ”) materially erred by rejecting a treating 7 physician opinion without providing adequate reasons. 8 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 9 DECISION 10 In November of 2016, plaintiff filed applications for Disability Insurance 11 Benefits and Supplemental Security Income, alleging disability beginning on 12 February 9, 2016, due to depression, ruptured/bulging/degenerative discs, sciatica 13 nerve pain, night terrors, severe anxiety, and limb numbness and swelling. 14 (Administrative Record (“AR”) 209-16, 245). Plaintiff filed a subsequent 15 application for Supplemental Security Income on April 13, 2017. (AR 218-26). 16 The ALJ examined the medical record and heard testimony from plaintiff (who 17 was represented by counsel) and a vocational expert. (AR 41-66). 18 On June 27, 2019, the ALJ determined that plaintiff was not disabled 19 through the date of the decision. (AR 23-36). Specifically, the ALJ found: 20 (1) plaintiff suffered from the following severe impairments: obesity, lumbar and 21 cervical degenerative disc disease with cervical radiculopathy, strain/sprain of the 22 bilateral knees, lower back, neck and bilateral shoulders, post traumatic stress 23 disorder (“PTSD”), and depressive disorder (not otherwise specified) (AR 25); 24 (2) plaintiff’s impairments, considered individually or in combination, did not meet 25 or medically equal a listed impairment (AR 26-28); (3) plaintiff retained the 26 residual functional capacity to perform light work (20 C.F.R. §§ 404.1567(b), 27 /// 28 /// 2 1 416.967(b)) with additional limitations2 (AR 28-34 (adopting capacity consistent 2 with internal medicine consultative examiner’s opinion at AR 429-34)); 3 (4) plaintiff could not perform his past relevant work (AR 34); and (5) plaintiff was 4 capable of performing other jobs in significant numbers in the national economy 5 and therefore was not disabled (AR 35-36). In so finding, the ALJ reportedly gave 6 little weight to the opinion of treating physician Dr. Samuel Chan, who opined that 7 plaintiff would have the capacity for a severely restricted range of sedentary work 8 which would essentially render plaintiff disabled. (AR 33). The ALJ also found 9 plaintiff’s subjective statements and testimony not fully supported by the objective 10 evidence given plaintiff’s activities of daily living, assertedly conservative 11 treatment, inconsistencies between his statements and the medical record, and the 12 ALJ’s observations of plaintiff during the hearing. (AR 31-33). 13 The Appeals Council considered additional evidence including a letter from 14 Dr. Chan dated February 11, 2020, which the Appeals Council did not exhibit (and 15 is not in the record), and on May 19, 2020, denied plaintiff’s application for 16 review. (AR 1-4). 17 III. APPLICABLE LEGAL STANDARDS 18 A. 19 To qualify for disability benefits, a claimant must show that he is unable “to Administrative Evaluation of Disability Claims 20 engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected to result in death or which 22 has lasted or can be expected to last for a continuous period of not less than 12 23 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 24 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by 25 2 26 27 28 The ALJ determined that plaintiff would be limited to: (1) occasional stooping, kneeling, crouching, crawling, and climbing; (2) frequent handling and fingering; (3) avoiding concentrated exposure to loud noise, unprotected heights, and fast-moving unprotected machinery; and (4) being off task five percent of the workday due to exacerbation of signs and symptoms of plaintiff’s PTSD and bipolar disorder (AR 28). 3 1 regulation on other grounds; 20 C.F.R. §§ 404.1505(a), 416.905. To be considered 2 disabled, a claimant must have an impairment of such severity that he is incapable 3 of performing work the claimant previously performed (“past relevant work”) as 4 well as any other “work which exists in the national economy.” Tackett v. Apfel, 5 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 6 To assess whether a claimant is disabled, an ALJ is required to use the five- 7 step sequential evaluation process set forth in Social Security regulations. See 8 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 9 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 10 416.920). The claimant has the burden of proof at steps one through four – i.e., 11 determination of whether the claimant was engaging in substantial gainful activity 12 (step 1), has a sufficiently severe impairment (step 2), has an impairment or 13 combination of impairments that meets or medically equals one of the conditions 14 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 15 retains the residual functional capacity to perform past relevant work (step 4). 16 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 17 Commissioner has the burden of proof at step five – i.e., establishing that the 18 claimant could perform other work in the national economy. Id. 19 B. 20 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 21 Commissioner’s “final decision” was “based on legal error or not supported by 22 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 23 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard 24 of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc. 25 Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks 26 omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably 27 support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 28 (citations omitted). Even when an ALJ’s decision contains error, it must be 4 1 affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 2 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to 3 the ultimate nondisability determination; or (2) ALJ’s path may reasonably be 4 discerned despite the error) (citation and quotation marks omitted). 5 Substantial evidence is “such relevant evidence as a reasonable mind might 6 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 7 “substantial evidence” as “more than a mere scintilla, but less than a 8 preponderance”) (citation and quotation marks omitted). When determining 9 whether substantial evidence supports an ALJ’s finding, a court “must consider the 10 entire record as a whole, weighing both the evidence that supports and the evidence 11 that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d 12 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 13 Federal courts review only the reasoning the ALJ provided, and may not 14 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 15 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 16 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 17 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 18 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 19 A reviewing court may not conclude that an error was harmless based on 20 independent findings gleaned from the administrative record. Brown-Hunter, 806 21 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 22 conclude that an error was harmless, a remand for additional investigation or 23 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 24 (9th Cir. 2015) (citations omitted). 25 IV. DISCUSSION 26 Plaintiff claims that the ALJ erred by improperly rejecting Dr. Chan’s 27 treating physician opinion and plaintiff’s subjective statements and testimony. 28 (Plaintiff’s Motion at 5-17). For the reasons stated below, the Court finds that the 5 1 ALJ materially erred in rejecting Dr. Chan’s opinion without sufficient reasoning. 2 Since the Court cannot find that the error was harmless, a remand is warranted. 3 A. 4 In Social Security cases, the amount of weight given to medical opinions Pertinent Law 5 generally varies depending on the type of medical professional who provided the 6 opinions, namely “treating physicians,” “examining physicians,” and 7 “nonexamining physicians.” See 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 8 404.1513(a), 416.927(c)(1)-(2) & (e), 416.902, 416.913(a); Garrison, 759 F.3d at 9 1012 (citation and quotation marks omitted). A treating physician’s opinion is 10 generally given the most weight, and may be “controlling” if it is “well-supported 11 by medically acceptable clinical and laboratory diagnostic techniques and is not 12 inconsistent with the other substantial evidence in [the claimant’s] case record[.]” 13 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Revels v. Berryhill, 874 F.3d 648, 654 14 (9th Cir. 2017) (citation omitted). In turn, an examining, but non-treating 15 physician’s opinion is entitled to less weight than a treating physician’s, but more 16 weight than a nonexamining physician’s opinion. Garrison, 759 F.3d at 1012 17 (citation omitted). 18 A treating doctor’s opinion, however, is not necessarily conclusive as to 19 either a physical or mental condition or the ultimate issue of disability. Magallanes 20 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). An ALJ may 21 reject the uncontroverted opinion of a treating source by providing “clear and 22 convincing reasons that are supported by substantial evidence” for doing so. 23 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). Where 24 a treating source’s opinion is contradicted by another doctor’s opinion, an ALJ 25 may reject such opinion only “by providing specific and legitimate reasons that are 26 supported by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and 27 footnote omitted). 28 /// 6 1 An ALJ may provide “substantial evidence” for rejecting such a medical 2 opinion by “setting out a detailed and thorough summary of the facts and 3 conflicting clinical evidence, stating his interpretation thereof, and making 4 findings.” Garrison, 759 F.3d at 1012 (citing Reddick v. Chater, 157 F.3d 715, 725 5 (9th Cir. 1998)) (quotation marks omitted).3 6 B. 7 Dr. Samuel Chan of Coast City Medical Group treated plaintiff from as early Summary of the Relevant Medical Record 8 as July of 2010 through at least February of 2019. (AR 329, 940). 9 Plaintiff initially reported suffering a work injury and having been in a car 10 accident where he was ejected from the car in 2014, which caused a ruptured disc 11 and sciatic nerve damage. (AR 330). 12 A July, 2010 x-ray of plaintiff’s lumbar spine that was provided to Dr. Chan 13 reports degenerative disc disease at L4-L5. (AR 329). Dr. Chan ordered a lumbar 14 spine MRI to rule out L4-L5 “HNP” (herniated nucleus pulposus). (AR 331-33). 15 A September, 2010 MRI study showed L2-L3 mild ligamentous hypertrophy with 16 no obvious neural impingement, L3-L4 mild facet hypertrophy and diastasis with 17 Grade 1 posterior spondylolisthesis and no obvious neural impingement, L4-L5 18 degenerative disc disease with annular bulge-osteophyte complex suggesting a 19 Grade 3 annual tear at the central posterior margin with mild facet hypertrophy and 20 diastasis and Grade 1 posterior spondylolisthesis with moderate narrowing of the 21 lateral recesses and neural foramina bilaterally, L5-S1 degenerative disc disease 22 with central posterior protrusion, mild facet hypertrophy and diastases with 23 24 25 26 27 28 3 For claims filed after March 27, 2017, new regulations govern the evaluation of medical opinion evidence which eliminated the term “treating source,” as well as the rule previously known as the treating source rule or treating physician rule, which required special deference to treating sources. See 20 C.F.R. §§ 404.1520c, 416.920c; Natalie E. v. Saul, 2020 WL 6545860, at *3 n.4 (C.D. Cal. Nov. 6, 2020); Martha R.L. v. Saul, 2020 WL 1140433, at *3 n.6 (C.D. Cal. March 9, 2020); Alonzo v. Commissioner, 2020 WL 1000024, at *3 (D. Ariz. March 2, 2020); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). In this case, because plaintiff originally filed his claims before March 27, 2017, the ALJ did not apply the new rules. 7 1 moderate lateral recess and neural frontal narrowing bilaterally, and a probable 2 small hemangioma in the S1 vertebral body. (AR 336-38). 3 The next available record is in 2016.4 In June of 2016, Dr. Chan completed 4 a “Return to Work” form indicating that plaintiff would be disabled until August of 5 2016. (AR 420). In December of 2016, Dr. Chan completed a “Work Status” form 6 indicating that plaintiff was disabled from work until “retired.” (AR 486). In 7 September of 2018, Dr. Chan completed a “Work Status” form indicating that 8 plaintiff was disabled with no explanation. (AR 450). 9 Throughout plaintiff’s treatment with Dr. Chan from June of 2016 through 10 February of 2019, plaintiff reported middle and upper back pain, sciatic pain 11 radiating to his feet, right hand numbness of varying intensity and, in later visits, 12 also low back, elbow, knee, ankle, foot, and hip pain. See AR 423 (June, 2016 13 note); AR 412, 416 (July, 2016 notes); AR 409 (August, 2016 note); AR 400, 404, 14 583 (September, 2016 notes); AR 390, 395 (October, 2016 note); AR 616 15 (November, 2016 note); AR 387, 464, 485 (December, 2016 notes); AR 382, 443, 16 577 (January, 2017 notes);5 AR 376, 454, 594 (March, 2017 notes); AR 457 (April, 17 2017 note); AR 504 (October, 2017 note); AR 487 (December, 2017 note); AR 514 18 (January, 2018 note); AR 510, 539 (March, 2018 notes); AR 522, 573 (April, 19 2018); AR 568 (May, 2018 note); AR 497, 518 (July, 2018 notes); AR 528 20 (August, 2018 note); AR 449, 589 (September, 2018 notes); AR 949 (December, 21 22 4 In March of 2017, plaintiff submitted some records from Dr. Chan’s office but indicated 23 that the file included over 1,000 pages, so plaintiff chose to include evidence from when plaintiff 24 started seeing Dr. Chan in 2010 and records more current to March of 2017. (AR 327). The record contains several duplicate copies of Dr. Chan’s records in Exhibit 6F. (AR 441-860). 25 Plaintiff reportedly submitted 50 pages of records from Dr. Chan for the period from May 6, 26 2013, to April 24, 2019, but the Appeals Council did not exhibit those records. (AR 2). 27 28 5 In January of 2017, Dr. Chan ordered a left knee MRI for internal derangement to rule out Baker’s cyst and meniscal tear. (AR 441-42). There is no report of a knee MRI in the record. 8 1 2018 note); AR 936 (January, 2019 note); AR 940 (February, 2019 note). At 2 almost every visit, Dr. Chan reported objective findings which are handwritten and 3 difficult to read but appear to reference plaintiff’s “LS” (lumbar spine) tenderness. 4 See AR 376, 382, 387, 390, 395 (also reporting bilateral knee tenderness), 400, 5 404, 409, 412, 422, 423, 443 (also reporting swollen/tender knees), 449, 454, 457, 6 464, 485 (also reporting knee swelling/tenderness and positive right side “SLR” 7 (straight leg raising)), 504, 510, 514 (also reporting positive right side SLR), 518, 8 522, 528, 568 (also reporting positive right side SLR), 573 (also reporting positive 9 right side SLR), 577, 583, 589, 594, 936. The December, 2018 treatment note also 10 reports objective findings of left wrist positive Finkelstein test and pain with range 11 of motion, cervical spine spasm, tenderness, positive Spurlings, and decreased 12 range of motion, and lumbar spine sciatica and pain with range of motion. (AR 13 949). The February, 2019 treatment note reports lumbar spine findings of spasm, 14 tenderness, decreased range of motion, sciatica, and mild antalgic gait, and cervical 15 spine findings of spasm, tenderness, decreased range of motion, and other findings 16 that are illegible. (AR 940). 17 Dr. Chan consistently prescribed, inter alia, MS Contin (morphine sulfate), 18 Percocet, Caridoptofol (Soma), Tylenol with Codeine, and Hydrocodone (Norco). 19 (AR 343-75, 378-94, 396, 398-99, 401-03, 405-08, 410-15, 417-19, 421, 442, 445, 20 448, 451-52, 456, 459-63, 489, 491-95, 499, 501, 503-04, 507-10, 513, 517, 52021 21, 525-26, 530-31, 533, 535, 539, 571-72, 576, 579, 582, 586, 588, 592, 603, 619, 22 938, 942, 944, 946-48, 951). 23 Dr. Chan completed a “Medical Opinion Re: Ability to Do Work-Related 24 Activities (Physical)” form dated August 30, 2017. (AR 559-61). Dr. Chan 25 indicated that plaintiff could occasionally and frequently lift and carry 10 pounds, 26 stand and walk less than two hours in an eight-hour day, sit about two hours in an 27 eight-hour day, sit for 15 minutes before needing to change positions, stand for 10 28 minutes before needing to change positions, must walk around every 30 minutes 9 1 for 10 minutes, must need to shift from sitting or standing/walking at will, will 2 need to lie down at unpredictable intervals during a work day, and can never twist, 3 crouch, climb stairs or ladders, and occasionally stoop. (AR 560-61). Dr. Chan 4 based the limitations on plaintiff’s lumbosacral muscle spasm with pain, and 5 numbness in the legs and hands with weakness. (AR 561). Dr. Chan indicated that 6 plaintiff would have limitations with reaching handling, feeling, and pushing/ 7 pulling due to plaintiff’s back pain as supported by MRI and x-ray studies. (AR 8 561). Dr. Chan also indicated that plaintiff must avoid all exposure to extreme 9 cold, heat, wetness and hazards, and avoid moderate exposure to humidity, noise 10 and fumes, odors, etc. (AR 559). Dr. Chan explained that cold/heat/wetness 11 causes back pain and hand numbness, noise causes anxiety, poor ventilation causes 12 dizziness, and hazards are dangerous to plaintiff’s health. (AR 559). Dr. Chan 13 indicated that plaintiff would need to elevate his legs to reduce stretching on his 14 back which causes pain. (AR 559). Dr. Chan indicated that plaintiff would miss 15 more than three days of work per month due to his condition. (AR 559).6 16 C. 17 The ALJ’s decision lacks sufficiently specific and legitimate reasons Analysis 18 supported by substantial evidence for rejecting Dr. Chan’s opinion. The ALJ 19 considered Dr. Chan’s opinion that plaintiff has a capacity for “severely restricted” 20 sedentary work but gave “little weight” to the opinion as: (1) brief, conclusory, 21 22 6 Prior to Dr. Chan’s opinion, consultative examiner Dr. John Sedgh had prepared an 23 Internal Medicine Consultation dated January 23, 2017, opining that plaintiff would be capable 24 of light work with occasional postural activities consistent with the residual functional capacity the ALJ found to exist. (AR 429-34). Dr. Sedgh reviewed no medical records but did review 25 spine and knee x-rays showing moderate discogenic disease at L4-L5 with spurring and possible 26 stenosis, and soft tissue swelling in the knees. (AR 429, 435-36). On examination, plaintiff was 27 28 311 pounds, had reduced grip strength of 15 and 10 pounds, limited range of motion in the cervical and lumbar spine, shoulders, and knees, and a slightly antalgic gait with dragging of the left leg. (AR 430-33). Dr. Sedgh diagnosed lower back, knee, shoulder and neck sprain/strain based on plaintiff’s subjective complaints, limited range of motion and gait. (AR 433). 10 1 and inadequately supported by the objective findings, where Dr. Chan’s treatment 2 notes purportedly summarized plaintiff’s subjective complaints and treatment 3 without providing medically-acceptable clinical or diagnostic findings supporting 4 the assessment; and (2) assertedly inconsistent with Dr. Chan’s own treatment 5 records which reportedly documented routine and conservative treatment and 6 benign objective findings. (AR 33). 7 With respect to the first reason, this can be a specific and legitimate reason 8 supporting an ALJ’s determination to discount a medical opinion. See Burrell v. 9 Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (“[A]n ALJ may discredit treating 10 physicians’ opinions that are conclusory, brief, and unsupported by the record as a 11 whole or by objective medical findings”) (citation omitted); Houghton v. Comm’r 12 of Soc. Sec. Admin., 493 Fed. Appx. 843, 845 (9th Cir. 2012) (holding that ALJ 13 properly discounted medical opinions that were “internally inconsistent, 14 unsupported by [the doctors’] own treatment records or clinical findings, [and] 15 inconsistent with the record as a whole”). However, as detailed above, in the 16 available record Dr. Chan did note objective findings, albeit cursorily, and Dr. 17 Chan also had reviewed plaintiff’s 2010 x-rays and MRI study. 18 The ALJ’s inaccurate characterization of the medical evidence calls into 19 question the validity of both the ALJ’s evaluation of the medical evidence and the 20 ALJ’s decision as a whole. See Regennitter v. Comm’r of Soc. Sec. Admin, 166 21 F.3d 1294, 1297 (9th Cir. 1999) (A “specific finding” that consists of an 22 “inaccurate characterization of the evidence” cannot support ALJ’s decision); see 23 also Reddick, 157 F.3d at 722-23 (error for ALJ to paraphrase medical evidence in 24 manner that is “not entirely accurate regarding the content or tone of the record”). 25 Additionally, if the ALJ felt the need to know the objective basis for Dr. Chan’s 26 opinion (apart from Dr. Chan’s reference to MRI and x-ray studies and ), the ALJ 27 could have sought clarification from Dr. Chan. See Smolen v. Chater, 80 F.3d 28 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to now the basis of Dr. 11 1 Hoeflich’s opinions in order to evaluate them, he had a duty to conduct an 2 appropriate inquiry, for example, by subpoenaing the physicians or submitting 3 further questions to them. He could also have continued the hearing to augment 4 the record.”) (citations omitted). 5 With regard to the second reason, the treatment Dr. Chan provided which 6 included consistently prescribing pain medications like MS Contin, Percocet, 7 Soma, Tylenol with Codeine, and Norco. It is doubtful that plaintiff’s treatment 8 with narcotic pain medications may properly be characterized as “conservative” 9 within the meaning of Ninth Circuit jurisprudence. See, e.g., Shepard v. Colvin, 10 2015 WL 9490094, at *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in the Ninth 11 Circuit have found that treatment was conservative when the claimant’s pain was 12 adequately treated with over-the-counter medication and other minimal treatment,” 13 however where record reflected heavy reliance on Tramadol and Oxycodone and 14 other prescriptions for pain, record did not support finding that treatment was 15 “conservative”) (internal citations omitted; citing for comparison Lapeirre-Gutt v. 16 Astrue, 382 Fed. App’x. 662, 664 (9th Cir. 2010) (doubting whether “copious 17 amounts of narcotic pain medication” as well as nerve blocks and trigger point 18 injections was “conservative” treatment)); Childress v. Colvin, 2014 WL 4629593, 19 at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of 20 [Norco] (for several years) is ‘conservative’ or in conflict with Plaintiff’s pain 21 testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) 22 (“It would be difficult to fault Plaintiff for overly conservative treatment when he 23 has been prescribed strong narcotic pain medications”). As detailed above, 24 plaintiff regularly sought treatment with Dr. Chan throughout the alleged disability 25 period, and consistently was prescribed more than one narcotic pain medication. 26 Contrary to the ALJ’s assertion, it appears that plaintiff's treatment has not been 27 “conservative” within the meaning of Ninth Circuit jurisprudence. 28 /// 12 1 Accordingly, a remand is warranted so that the ALJ can reevaluate the 2 medical opinion evidence.7 3 V. CONCLUSION 4 For the foregoing reasons, the decision of the Commissioner of Social 5 Security is REVERSED in part, and this matter is REMANDED for further 6 administrative action consistent with this Opinion. 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: April 28, 2021 9 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court has not reached any other issue raised by plaintiff except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 13
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