Desireee Ann Garcia v. Carolyn W Colvin, No. 5:2014cv02528 - Document 24 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. For the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED and this matter is remanded for further proceedings consistent with this Order. (es)

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Desireee Ann Garcia v. Carolyn W Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DESIREE ANN GARCIA, 12 13 14 15 16 Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Case No. CV 14-02528-GW (KS) MEMORANDUM OPINION AND ORDER Defendant. 17 18 On December 9, 2014, Plaintiff, Desiree Ann Garcia (“Plaintiff”), filed a 19 Complaint seeking judicial review of a denial of her application for Social Security 20 Disability Insurance benefits and Supplemental Security Income (“benefits”.) 21 (“Complaint,” ECF No. 1.) On August 19, 2015, the parties consented, pursuant to 22 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate 23 Judge. (Consents, ECF Nos. 17, 19.) On August 6, 2015, the parties filed a Joint 24 Stipulation (“Joint Stip.,” ECF No. 15), whereby Plaintiff seeks reversal of an 25 Administrative Law Judge’s (“ALJ”) decision to uphold the denial. The Court has 26 taken the Joint Stipulation under submission without oral argument. 27 28 Dockets.Justia.com 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 Plaintiff, who was born on March 14, 1970, alleges disability since September 4 1, 2010, due to systemic lupus erythematosus (“SLE” or “lupus”), membranous 5 nephritis, and degenerative disc disease. 6 Plaintiff’s past relevant work experience was as a babysitter or child monitor, 7 landfill supervisor, sales attendant, and sandwich maker. (A.R. 70.) (Complaint at 2; A.R. 24; 32; 197.) 8 9 Plaintiff’s application for benefits was denied initially and also upon 10 reconsideration. (Complaint, at 2.) She timely requested, and received, a hearing by 11 teleconference before Houston-based ALJ Vadim Mozyrsky, on March 11, 2013 12 (A.R. 39-74.) Plaintiff was represented by counsel and testified before the ALJ at 13 his hearing. (Id.) A vocational expert (“VE”) also testified at the hearing. (Id.) 14 Presented with a hypothetical based on limitations prescribed by the state agency 15 examining physicians, the VE testified that Plaintiff would be able to perform her 16 past relevant work as a landfill supervisor and sales attendant. (A.R. 71.) Presented 17 with hypotheticals based on the more restrictive limitations prescribed by each of 18 Plaintiff’s treating physicians, however, the VE testified that Plaintiff would not be 19 able to perform her previous jobs, or any other work. (A.R. 87.) 20 21 On April 5, 2013, the ALJ denied Plaintiff’s claim, finding that although 22 Plaintiff was severely impaired due to SLE, membranous nephritis, and degenerative 23 disc disease, and suffered other non-severe impairments, she nevertheless retained 24 the residual functional capacity (“RFC”) to perform her past relevant work, albeit at 25 a slightly reduced range—and was therefore not entitled to benefits. (A.R. 22-26.) 26 27 Specifically, the ALJ adopted the less-restrictive limitations prescribed by the 28 state agency physicians and determined that Plaintiff had the RFC to perform light 2 1 work as limited to lifting and carrying 25 pounds occasionally and 20 pounds 2 frequently; standing and walking for 6 hours out of an 8-hour workday; sitting for 6 3 hours out of an 8-hour workday; occasional climbing of ladders, ropes, and 4 scaffolds; frequent climbing of ramps and stairs; and frequent balancing stooping, 5 kneeling, crouching, and crawling.1 (A.R. 25-26.) 6 7 The ALJ’s decision became final on October 14, 2014, when the Appeals 8 Council declined to set aside the ALJ’s unfavorable decision. (A.R. 6.) Plaintiff 9 then filed her complaint in this action. 10 DISPUTED ISSUES 11 12 13 Plaintiff contends that the ALJ improperly (1) disregarded the functionality 14 assessments of both Plaintiff’s treating physicians, and (2) discredited Plaintiff’s 15 subjective complaints. (Joint Stip. at 6.) Plaintiff requests that the ALJ’s decision 16 be remanded for a new hearing and decision. (Id. at 28.) Defendant asks that the 17 Commissioner’s decision be affirmed and the complaint dismissed. (Id.) 18 STANDARD OF REVIEW 19 20 21 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 22 whether it is free from legal error and supported by substantial evidence in the 23 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007.) “Substantial 24 evidence is more than a mere scintilla but less than a preponderance; it is such 25 relevant evidence as a reasonable mind might accept as adequate to support a 26 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 27 28 The ALJ also found that, considering Plaintiff’s age of 40 years at the alleged onset date (A.R. 197), her education, work history, and residual functional capacity, she could make an adjustment to other work existing in significant numbers in the national economy. (A.R. 32-33.) The finding is not challenged in the instant case. 1 3 1 2014) (internal quotation marks and citations omitted.) “Even when the evidence is 2 susceptible to more than one rational interpretation, [reviewing courts] uphold the 3 ALJ’s findings if they are supported by inferences reasonably drawn from the 4 record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012.) Where the ALJ has 5 properly considered all of the limitations for which there is record support, the 6 ALJ’s RFC determination will not be overturned so long as the ALJ applied the 7 correct legal standard and the RFC assessment is supported by substantial evidence. 8 See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005.) 9 10 Although this Court cannot substitute its discretion for that of the ALJ, it must 11 nonetheless review the record as a whole, “weighing both the evidence that supports 12 and the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. 13 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation 14 omitted.) “The ALJ is responsible for determining credibility, resolving conflicts in 15 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 16 1035, 1039 (9th Cir. 1995.) 17 18 The Court may review only the reasons stated by the ALJ in his decision “and 19 may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 20 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003.) However, the 21 Court will not reverse the Commissioner’s decision if it is based on harmless error, 22 which exists when it is “clear from the record that an ALJ’s error was 23 ‘inconsequential to the ultimate nondisability determination.’” Robbins v. Soc. Sec. 24 Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r of Soc. Sec., 25 454 F.3d 1050, 1055 (9th Cir. 2006.)) 26 // 27 // 28 // 4 THE EVIDENCE 1 2 3 Treating Physician, Dr. Mueller’s Records and Assessment. 4 5 Dr. Mueller, MD was Plaintiff’s treating physician specializing in family 6 medicine. (A.R. 223.) Dr. Mueller saw Plaintiff every two months between January 7 1, 2011 and August 23, 2011, and prepared treatment notes which are in the record. 8 (A.R. 223; 406-24.) 9 10 Dr. Mueller’s treatment notes are, for the most part, indecipherable due to 11 illegible handwriting. However, it is possible to make out repeated references to the 12 following terms in either the section on “present illness” or “assessment” in the 13 treatment notes: “lupus,” (A.R. 408-09, 412, 413, 416, 417, 422, 424); “lupus 14 nephritis” (A.R. 412, 417); “hurt all over esp[ecially] back [and] hip, knees[,] ankle” 15 (A.R. 412); “more stiffness” (A.R. 409); “more pain in hand elbows” (A.R. 413); 16 “persistent pain in hands elbows … shoulders…HTN…” (A.R. 416); “[right] hip 17 pain continues” (A.R. 422); “glomerulonephritis” (A.R. 412); “HTN” (A.R. 412, 18 416); “anxiety” (A.R. 413, 416); “vertigo” (A.R. 418, 422, 424); and “sleep apnea” 19 (A.R. 424). Dr. Mueller’s treatment notes, when decipherable, also consistently list 20 the medications prescribed to Plaintiff as including: “valium,” “prednisone,” 21 “Vicodin,” and “Xanax.” (A.R. 412, 413, 416, 417.) 22 23 The results of x-rays which are typewritten and also part of Dr. Mueller’s 24 treatment record contain the following impressions: (1) “no acute fracture” in the 25 right hip, and (2) “no significant abnormality of the lumbar spine,” from a January 26 17, 2012 x-ray, and (3) “negative right hip” after a November 17, 2010 x-ray of the 27 right hip. (A.R. 410-11; 423.) A “carotid evaluation” from an ultrasound resulted in 28 the following findings: “Real-time imaging of the carotid systems reveals plaquing 5 1 of the right bulb. Doppler analysis reveals normal peak systolic velocities 2 bilaterally. Vertebral flow is antegrade bilaterally,” and “0-39% stenosis of the 3 internal carotid arteries bilaterally.” (A.R. 420-21.) It is not entirely clear as to 4 what the significance, if any, is of the other test results in the record. (See, e.g. A.R. 5 415; 419.) 6 7 Dr. Mueller completed two Multiple Impairment Questionnaires, provided by 8 Plaintiff’s counsel, dated February 23, 2012 and February 23, 2013. (A.R. 426-33; 9 458-65.) In the first Multiple Impairment Questionnaire Dr. Mueller referenced 10 diagnoses of SLE, glomerulonephritis, hypertension, vertigo, and anxiety, supported 11 by clinical findings of hand deformities and depigmentation and tenderness on 12 grasping of the hands, with diagnostic testing consisting of a positive ANA titer in 13 May of 2008. (A.R. 426-33.) Plaintiff’s prescribed medication as listed by Dr. 14 Mueller included: morphine, Vicodin, valium, prednisone, and Xanax. (A.R. 430.) 15 16 By way of limitations, Dr. Mueller assessed that, in a regular, eight-hour 17 workweek, Plaintiff could sit up to six hours a day and stand/walk between two and 18 three hours a day, with the need to get up and move around hourly for up to an hour 19 each time; that she could lift up to five pounds frequently and ten pounds 20 occasionally and carry up to 20 pounds occasionally and no weight frequently; with 21 moderate limitations on her abilities to perform gross and fine manipulations and to 22 reach. (A.R. 428-30.) He added that her symptoms would frequently interfere with 23 her attention and concentration; that she would be incapable of tolerating even a 24 “low stress” work environment; that she would need to take 10- to 15-minute breaks 25 at unpredictable intervals; and that she would likely miss more than three workdays 26 a month due to her symptoms.2 (A.R. 431-32.) 27 28 2 Dr. Mueller also assessed a need to avoid wetness, noise, temperature extremes, humidity and heights on a sustained basis. (A.R. 432.) 6 1 In the second Multiple Impairment Questionnaire, Dr. Mueller updated his 2 diagnosis to SLE, anxiety, nephritis, and irritable bowel syndrome, supported by 3 primary symptoms of “all over” pain, especially in Plaintiff’s back and extremities, 4 as well as cramps and stiffness in the hands. (A.R. 458-65.) Dr. Mueller listed 5 some of the same prescription medications and also added a few new ones, 6 promethazine, and Lidoderm. (A.R. 462.) By way of limitations, Dr. Mueller 7 assessed that Plaintiff could sit no more than two hours in an eight-hour day; stand 8 and/or walk no more than one hour; that she would need to get up every 10 minutes 9 and move around for five minutes each time; that she could lift and carry no more 10 than five pounds frequently and ten pounds occasionally; that she has marked 11 limitations in her abilities to perform gross manipulations and to reach; that she has 12 moderate limitations in her ability to perform fine manipulations; that her symptoms 13 would “constantly” interfere with her attention and concentration; that she suffers 14 anxiety secondary to her pain that further affects her symptoms and her functional 15 limitations; and she would be incapable of tolerating even a “low stress” work 16 environment; that she would have to take 30-minute breaks every 15 to 20 minutes; 17 and that she would likely miss more than three workdays a month. (A.R. 460-64.) 18 19 Treating Physician, Dr. Ahluwalia’s Records and Assessment. 20 21 Plaintiff first saw Dr. Ahluwalia, MD, a specialist in internal medicine and 22 rheumatology, on March 30, 2010, based on a referral by Dr. Mueller. (A.R. 402- 23 03.) Dr. Ahluwalia’s treatment notes span from March 30, 2010 to May 4, 2012. 24 (A.R. 434.) The results of X-ray and lupus labs that Dr. Ahluwalia ordered on 25 March 30, 2010, which indicated “[m]ild degenerative disc disease,” and “slight loss 26 of normal cervical lordosis either related to the patient’s positioning or spasm.” 27 (A.R. 404.) Dr. Ahluwalia’s clinical impression recorded in his consultation notes 28 from March 30, 2010, indicated that Plaintiff had a history of SLE, vitiligo, and 7 1 fibromyalgia. (A.R. 403.) His notes also reflected obesity and vitiligo but no oral 2 ulcers, joint tenderness, or limitation of joint motion. (A.R. 403.) 3 4 At a follow up examination on April 6, 2010, Plaintiff complained of 5 worsening joint pain with occasional hand swelling and Dr. Ahluwalia’s 6 examination revealed “trace synovitis in the index, longer finger, and MCP and PIP 7 joints bilaterally with tenderness,” and once again he diagnosed Plaintiff with SLE 8 and also inflammatory arthritis for which he started her on medication and ordered 9 testing. (A.R. 401; 27.) 10 11 On May 19, 2010, Plaintiff “reported intermittent swelling of the legs, and Dr. 12 Ahluwalia noted that laboratory testing showed a nephrotic range of proteinuria.” 13 The tests, which are part of the record, (A.R. 271-79) are interpreted only so far as 14 they suggest elevated levels of protein in the urine (i.e. showing a nephrotic range of 15 proteinuria.) 3 (A.R. 27; 398-99.) The test results caused Dr. Ahluwalia to suspect 16 lupus nephritis, a complication of SLE that affected the kidneys, and order a renal 17 biopsy. (A.R. 398-99.) 18 19 On September 28, 2010 Plaintiff returned to Dr. Ahluwalia. His notes from 20 the visit stated the renal “biopsy showed membranous lupus nephritis.”4 (A.R. 400.) 21 At s subsequent examination on November 9, 2010, Dr. Ahluwalia re-affirmed the 22 diagnoses of SLE and lupus nephritis. (A.R. 397.) Dr. Ahluwalia ordered a genetic 23 test to gage Plaintiff’s response to medication, which yielded “an abnormal result,” 24 indicated that Plaintiff had a genetic mutation or deficiency whereby the TPMT 25 26 27 28 3 Plaintiff asserts that the tests show evidence of decreased C3 and C4 complements, elevated specific gravity, elevated protein and total creatinine in the urine; and positive RNP autoantibodies, Smith antibodies, and SS-A antibodies. (Joint Stip. at 7-8.) 4 The ALJ misattributes the renal biopsy and its results to Plaintiff rather than to her treating physician who was actually the source of that information, having ordered the biopsy, received the test results, and interpreted them. (A.R. 27; 400.) 8 1 enzyme that is involved in the metabolizing of certain drugs, was not functioning 2 properly. (A.R. 280-84.) A December 2010 follow-up examination revealed trace 3 synovitis in the scattered metacarpal and phalangeal joints. 4 comprehensive metabolic panel on December 22, 2010, showed elevated levels of 5 creatinine, protein, and overall protein/creatinine ratio; elevated DNA antibodies, a 6 low C4C component, as well as elevated protein in the urine. (A.R. 285-87.) (A.R. 396.) A 7 A May 9, 2011 follow-up examination with Dr. Ahluwalia, was 8 9 unremarkable, by Plaintiff’s own admission. (A.R. 394; Joint Stip. at 10.) 10 However, a “lupus panel” on August 22, 2011, once again showed high anti-DNA 11 antibodies, low C3C and C4C complements, and high protein/creatinine levels in the 12 urine (A.R. 290.) At her December 2011 follow-up, Plaintiff complained of low 13 back and hip pain despite taking morphine and Vicodin. On January 18, 2012, Dr. 14 Ahluwalia’s examination revealed osteoarthritic changes in the hands and he again 15 affirmed the diagnoses of SLE, osteoarthritis of the hands, and degenerative disc 16 disease of the lumbar spine. (A.R. 392.) Blood and urine tests dated January 19, 17 2012 revealed abnormally high protein levels in the urine with a high protein to 18 creatinine ratio; a low A/G ratio; and elevated anti-DNA antibodies. (A.R. 292-94.) 19 In May 2012, Dr. Ahluwalia wrote that Plaintiff’s clinical profile was still consistent 20 with SLE but wrote in “review of systems” that “lupus was negative.”5 (A.R. 391.) 21 22 On February 1, 2013, Dr. Ahluwalia completed an SLE Impairment 23 Questionnaire provided by Plaintiff’s lawyers, affirming that Plaintiff met the 24 American College of Rheumatology’s diagnostic criteria for SLE (namely that she 25 displayed at least 4 of the eleven listed signs or symptoms.) (A.R. 451-52.) Using a 26 check-list, Dr. Ahluwalia specified that Plaintiff showed the following signs or 27 28 5 In between visits to Dr. Ahluwalia, Plaintiff presented to the Emergency Room with complaints of severe pain, but the diagnoses and discharge did not suggest any disabling illness. (See, e.g. A.R. 27-28.) 9 1 symptoms: (1) malar rash, (2) photosensitivity, (3) oral ulcers, (4) arthritis, (5) anti 2 DNA antibody, and (6) positive test for ANA. (Id.) Notably, Dr. Ahluwalia did not 3 check the line next to “Renal involvement shown by a) persistent proteinuria shown 4 by: (greater than 0.5gm or (3+ test sticks or b) cellular casts,” but did check “yes” in 5 response to the question “Is there evidence of renal involvement?” (Id.) With 6 respect to that check mark, and nearly all others on the form, the space provided in 7 the questionnaire under “Describe” is blank. (A.R. 452.) 8 9 With respect to limitations on work, as indicated in the form, Dr. Ahluwalia 10 estimated that, in a regular, eight-hour workday, Plaintiff could sit no more than a 11 total of two hours; stand and/or walk no more than one hour; and lift and carry no 12 more than five pounds frequently and ten pounds occasionally. (A.R. 454-55.) 13 Further, he indicated in the form, that her symptoms would interfere “frequently” 14 with her attention and concentration, she would be incapable of tolerating even a 15 “low stress” work environment, would need to take three to four breaks lasting 16 about half an hour each, and would likely miss two to three workdays a month due 17 to her impairments. (A.R. 455-56.) 18 19 In addition, Dr. Ahluwalia provided a letter dated March 5, 2013, that 20 summarized the February 2013 SLE Impairment Questionnaire in narrative form. 21 (A.R. 467.) Dr. Ahluwalia’s letter re-affirmed the same diagnoses, symptoms, and 22 limitations indicated on the form. (A.R. 467.) In his letter, he wrote that his 23 examinations of Plaintiff revealed malar rashes, photosensitivity, oral ulcers, 24 arthritis of the proximal interphalangeal joints and metacarpals, and anti DNA 25 antibodies. (A.R. 467.) 26 // 27 // 28 // 10 1 Non-examining State Agency Physicians’ Assessments. 2 3 On May 1, 2012, a non-examining state agency physician, Dr. Fahlberg, 4 opined that Plaintiff was not disabled, and though she had SLE, her condition was 5 not severe enough to qualify for benefits. (A.R. 75-94.) The opinion was based on 6 a phone conversation with Plaintiff, and review of Plaintiff’s medical records, 7 including those of her treating physicians, Dr. Ahluwalia and Dr. Mueller from 8 November 30, 2011 to April 10, 2012. (A.R. 76-78.) 9 10 On June 20, 2012, a non-examining state agency physician, Dr. B. Harris 11 similarly found Plaintiff to be “non-disabled” and assessed identical limitations as 12 Dr. Fahlberg, based on a review of the same materials as Dr. Fahlberg but with 13 additional treatment reports Plaintiff’s treating physicians. (A.R. 97-116.) 14 15 DISCUSSION 16 17 Applicable Law Regarding the Weight of Medical Opinions. 18 19 In Social Security cases, courts give different degrees of deference to medical 20 opinions depending on whether the opinion is that of a “treating physician,” 21 “examining physician,” or “nonexamining physician.” Garrison v. Colvin, 759 22 F.3d 995 1012 (9th Cir. 2014) (citation and quotation marks omitted). Generally, a 23 treating physician’s opinion is given “controlling weight” when it is “well- 24 supported by medically acceptable clinical and laboratory diagnostic techniques 25 and is not inconsistent with the other substantial evidence in [the Plaintiff’s] case 26 record[.]” Orn, 495 F.3d at 631 (citations and quotation marks omitted); see also 27 20 C.F.R. § 404.1527(c)(2). An examining, but non-treating physician’s opinion is 28 entitled to less eight than that of a treating physician, but more weight than a 11 1 nonexamining physician’s opinion. Id. (citation omitted). 2 3 However, a treating physician’s opinion is not necessarily conclusive, as to a 4 plaintiff’s medical condition or disability. Margallanes v. Bowen, 881 F.2d 747, 5 751 (9th Cir. 1989) (citation omitted.) An ALJ may reject a treating physician’s 6 uncontroverted opinion by providing “clear and convincing reasons supported by 7 substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 8 1998) (citation omitted). An ALJ may reject a treating physician’s opinion that 9 conflicts with another doctor’s opinion “by providing specific and legitimate 10 reasons that are supported by substantial evidence.” Garrison, 759 F.3d at 1012 11 (citation and footnote omitted). 12 13 1. The ALJ Did Not Provide Specific and Legitimate Reasons For Rejecting the Opinions of Plaintiff’s Treating Physicians. 14 15 16 17 18 19 20 21 Here, the ALJ’s wholesale adoption of Plaintiff’s evaluation by nonexamining, state agency physicians, of unknown specialization, is legal error insofar as the ALJ fails to provide specific and legitimate reasons for rejecting the opinions of Plaintiff’s treating physicians. Typically the opinions of treating physicians are afforded greater weight than those of non-treating physicians, while opinions of non-treating, non-examining physicians are generally weighted the lowest. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2.) 22 23 24 25 26 “Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record.” Orn, 495 F.3d at 632 (internal quotation marks and citations omitted.) This can be done by setting out a detailed 27 28 12 1 and thorough summary of the facts and conflicting clinical evidence, stating his 2 interpretation thereof, and making findings.” Id. 3 4 Here, the ALJ states simply that “the State Agency review physicians 5 determined that the [SLE] impairment was severe but that it did not meet or equal a 6 listed impairment and that [Plaintiff] was capable of lifting and carrying 25 pounds 7 occasionally and 20 pounds frequently; standing and walking for 6 hours out of an 8 8-hour workday; sitting for 6 hours out of an 8-hour workday; occasional climbing 9 of ladders, ropes, and scaffolds; frequent climbing of ramps and stairs; frequent 10 stooping, kneeling, crouching, and crawling; and unlimited balancing.” (A.R. 31.) 11 The ALJ provides no reference or support for these evaluations. Next the ALJ states 12 that “[t]he State Agency review psychiatrists did not find that [Plaintiff] had a 13 mentally determinable mental impairment,” and references the disability 14 determinations by two non-examining state agency physicians (of unknown 15 specialization)6: Dr. Fahlberg and Dr. Harris. 16 17 Lastly, the ALJ states that he “concurs and adopts the opinions of the State 18 Agency review physicians as their assessments are supported by the overall 19 evidence.” (A.R. 31.) However, the ALJ does not identify what specific evidence 20 supported the state agency review physicians’ assessments. Even if the ALJ had 21 specified the evidence that supported the state agency physicians’ assessments, 22 “nonexamining physicians’ conclusion[s], with nothing more, does not constitute 23 substantial evidence, particularly in view of the conflicting observations, opinions, 24 25 26 27 28 This is relevant because an ALJ “generally gives more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.” 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5.) Moreover, the agency has “acknowledged the importance of specialized knowledge of the particular disease suffered by [Plaintiff]. During the notice and comment period of a proposed rulemaking, the agency heard concerns that doctors without specialized training "may not have an understanding of ‘emerging illnesses,’ such as . . . lupus erythematosus.” Reed v. Massanari, 270 F.3d 838, 845 (9th Cir. 2001) (quoting Federal Old-Age, Survivors, and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Evaluating Opinion Evidence, 65 Fed. Reg. 11866, 11872 (March 7, 2000) (emphasis added)) 6 13 1 and conclusions of an examining physician,” as existed in this case. See Pitzer v. 2 Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990.) 3 4 a. The ALJ Improperly Discounted Dr. Mueller’s Assessment. 5 6 The ALJ summarized the findings in Dr. Mueller’s Multiple Impairment 7 Questionnaires and rejected them because the treatment notes either: (1) indicated 8 normal results, largely through check-box findings, and were not indicative of any 9 debilitating condition; or (2) contained illegible handwriting. (A.R. 29-32.) 10 11 i. Dr. Mueller’s Treatment Notes were Consistent with his Assessment. 12 13 The Ninth Circuit has held that the ALJ may “permissibly reject[ ] . . . check- 14 off reports that [do] not contain any explanation of the bases of their conclusions.” 15 Molina, 674 F.3d at 1111. However, the use of check boxes should not foreclose all 16 evidentiary value of a report. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 17 Cir. 2001) (holding that treating physician’s opinion that was “unsupported by 18 rationale or treatment notes, and offered no objective medical findings” to support 19 diagnoses was properly rejected.) Though Dr. Mueller’s two Multiple Assessment 20 Questionnaires do not contain an extensive narrative they do reference the “positive 21 clinical findings that demonstrate and/or support [his] diagnosis.” (A.R. 458.) 22 23 The 2012 Questionnaire references chronic pain in specific terms, as “burning 24 stiffness[,] loss of range of motion and [ ] discomfort,” describing its frequency as 25 “daily,” and its precipitating factors as “daily activities, stress, weather.” (A.R. 427- 26 28.) The 2013 Questionnaire also references pain in terms of “burning, sharp, dull 27 pressure,” in “all extremities incl[uding] shoulders, elbows, knees , hips, feet and 28 back,” describing its frequency as “constant,” and precipitating factors as “any 14 1 physical activity.” (A.R. 459-60.) “Where evidence is susceptible to more than one 2 rational interpretation,” this Court has a duty to uphold the ALJ’s findings. Burch v. 3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005.) 4 references to Plaintiff’s conditions of disability (i.e. SLE, membranous nephritis, 5 and their attendant symptoms of pain) in Dr. Mueller’s treatment notes (see A.R. 6 406-24) it is difficult to imagine a rational interpretation that would lead to the 7 conclusion that Plaintiff did not suffer any “debilitating changes.” (A.R. 31.) 8 ii. 9 However, in light of repeated The ALJ Improperly Discounted Dr. Mueller’s Treatment Notes Based on Illegible Handwriting. 10 11 The ALJ also discounted Dr. Mueller’s opinion while noting that some of his 12 handwritten notes were illegible. (Id.) Upon review of the record, Dr. Mueller’s 13 treatment notes are, for the most part, indecipherable due to illegible handwriting. It 14 also appears that the typewritten documents in the treatment record indicate (1) “no 15 acute fracture” in the right hip, (2) “no significant abnormality of the lumbar spine,” 16 from a January 17, 2012 x-ray, and (3) “negative right hip” after a November 17, 17 2010 x-ray of the right hip. (A.R. 410-11; 423.) However, as previously noted, a 18 “carotid evaluation” from an ultrasound resulted in the following findings: “Real- 19 time imaging of the carotid systems reveals plaquing of the right bulb. Doppler 20 analysis reveals normal peak systolic velocities bilaterally. 21 antegrade bilaterally,” and “0-39% stenosis of the internal carotid arteries 22 bilaterally.” 23 significance, if any, is of the other test results in the record. (See, e.g., A.R. 415; 24 419.) 25 Plaintiff’s objective medical data (particularly in the results of x-rays showing an 26 absence of fractures or spinal abnormalities), a review of the overall evidence in the 27 record—including the parts of Dr. Mueller’s notes that are legible, notes from (A.R. 420-21.) Vertebral flow is Further, it is not entirely clear as to what the While the term “normal” does appear in Mr. Mueller’s compilation of 28 15 1 Plaintiff’s other treating physician, and test results ordered by Plaintiff’s other 2 treating physician—shows it is consistent with Dr. Mueller’s assessment. 3 4 Even if Dr. Mueller’s assessment were inconsistent with the record as a 5 whole, the ALJ erred in discarding Dr. Mueller’s assessment on the basis that his 6 treatment notes were illegible. This is because the ALJ was duty-bound to seek 7 clarification from the medical source before discarding it based on “illegible 8 handwriting.” (Joint Stip. at 16) The tension, if any, between the ALJ’s duty to 9 seek clarification under 20 C.F.R. § 404.1512(e), and the Court’s duty to uphold the 10 ALJ’s conclusion “[w]here evidence is susceptible to more than one rational 11 interpretation,” is resolved in favor of the Plaintiff in this case because federal courts 12 have held that where a “physician's documentation is illegible and, therefore, 13 inadequate to allow for proper evaluation of the medical evidence,” the “ambiguity 14 triggers the ALJ’s duty to develop the record.” Burch, 400 F.3d at 679; Tonapetyan, 15 242 F.3d at 1150 (The ALJ “has an independent duty to fully and fairly develop the 16 record and to assure that the claimant's interests are considered.”) See also Williams 17 v. Colvin, 2015 U.S. Dist. LEXIS 152783, **7-8 (W.D. Wash. Nov. 10, 2015); 18 Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 19 (1st Cir. 1996) 19 (holding that “unreadable entries may have some import. We think that it is the duty 20 of the ALJ, on remand, to make some effort to decipher them.”) Therefore, the 21 ALJ’s dismissal of Dr. Mueller’s opinion, in part, on the basis that his handwriting 22 was illegible, was improper. 23 24 b. The ALJ Improperly Discredited Dr. Ahluwalia’s Assessment. 25 26 The ALJ discounted Dr. Ahluwalia’s opinion, seemingly in its entirety, on the 27 grounds that his opinion was (1) unsupported by objective findings, and (2) 28 16 1 inconsistent with his treatment notes and with the record as a whole. (A.R. 31.) The 2 Court finds the ALJ’s rejection of Dr. Ahluwalia’s assessment to be legal error. 3 4 i. Dr. Ahluwalia’s Assessment was Supported by Objective Medical Evidence. 5 6 Specifically, the ALJ found that Dr. Ahluwalia failed to provide “objective 7 findings of revealed malar rashes, photosensitivity, oral ulcers, arthritis of the 8 proximal interphalangeal joints and metacarpals.” (Id.) The ALJ also stated that 9 Plaintiff “seldom has more than trace synovitis,” and that “[t]here is no medical 10 evidence documenting fibromyalgia.” (A.R. 29.) 11 12 An ALJ may properly reject a physician’s opinions where the physician’s 13 conclusions do not “mesh” with the patient’s objective data or history. Tommasetti 14 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding that the incongruity between 15 the limitations listed by the physician—which lacked support in the patient’s 16 medical records—provided a specific and legitimate reason for rejecting that 17 physician’s opinion of the patient’s limitations); Rollins v. Massanari, 261 F.3d 18 853, 856 (9th Cir. 2001) (ALJ properly discounted physician’s limitations as “not 19 supported by any findings”.) 20 21 An ALJ “need not accept the opinion of any physician, including a treating 22 physician, if that opinion is brief, conclusory and inadequately supported by clinical 23 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also 20 24 C.F.R. § 404.1527(c)(2); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) 25 (finding that an ALJ properly rejected physician’s determination where it was 26 “conclusory and unsubstantiated by relevant medical documentation.”) 27 28 17 1 However, the nature of Plaintiff’s diagnoses is noteworthy in this case. The 2 Ninth Circuit has recognized “the difficulty of diagnosing [SLE], which has been 3 known to require continuous reevaluation by doctors when new symptoms develop.” 4 Poppa v. Comm’r of SSA, 1999 U.S. App. LEXIS 30184, **3-4 (9th Cir. Nov. 18, 5 1999.) Indeed, like many other SLE patients, Plaintiff’s “diagnoses have shifted 6 over time,” and in such circumstances, it is particularly critical that the ALJ consider 7 a treating physician’s opinion and Plaintiff’s own SLE-induced “pain and fatigue 8 complaints.” Id. 9 10 Similarly “[f]ibromyalgia7 has previously been described by [the Ninth 11 Circuit] as ‘a rheumatic disease’ with symptoms that include ‘chronic pain 12 throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep 13 disturbance that can exacerbate the cycle of pain and fatigue.”’ Rounds v. Comm’r, 14 SSA, 795 F.3d 1177, 1181 (9th Cir. 2015) (quoting Benecke v. Barnhart, 379 F.3d 15 587, 589-90 (9th Cir. 2004.)) 16 “[f]ibromyalgia’s cause is unknown, there is no cure, and it is poorly-understood 17 within much of the medical community;” moreover, fibromyalgia is “diagnosed 18 entirely on the basis of patients' reports of pain and other symptoms” and “there are 19 no laboratory tests to confirm the diagnosis.” Rounds, 795 F.3d at 1181 (quoting 20 Benecke, 379 F.3d at 590.) 21 diagnosis is consistent with the described symptoms and the prescribed medications 22 for pain. The Ninth Circuit has recognized that Under these guidelines, Plaintiff’s fibromyalgia 23 24 With respect to the ALJ’s reference that certain symptoms were corroborated 25 by objective evidence only “on a few occasions,” this characterization is an 26 improper ground for rejecting a treating physician’s opinion. Orn, 495 F.3d at 632 27 28 Though it is not named as one of Plaintiff’s disabling conditions in her application for benefits, the discussion of fibromyalgia is relevant because Dr. Ahluwalia diagnosed Plaintiff with fibromyalgia and the ALJ discredited his assessment partly based on the reason that his diagnoses were unsupported by objective evidence. 7 18 1 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (holding that an ALJ 2 may not offer his own conclusions but must set forth his own interpretations of 3 conflicting clinical evidence and explaining why they, rather than the doctor’s, are 4 correct.) 5 ii. 6 Dr. Ahluwalia’s Findings were Consistent with his Overall Treatment Notes. 7 8 With respect to the conclusion that Dr. Ahluwalia’s findings that were 9 inconsistent with his treatment notes, the ALJ noted that Dr. Ahluwalia 10 “consistently reported that [Plaintiff] has no oral ulcer; her joints had no synovitis 11 and were not tender, and they had a full range of motion. . . that [Plaintiff] reported 12 no photosensitivity, rash, or ulcers . . . had only trace synovitis in the MCP and PIP 13 joints bilaterally of the index and long fingers, and those symptoms were only on a 14 few occasions.” (A.R. 31.) Nevertheless, Dr. Ahluwalia indicated in both SLE 15 Impairment Questionnaires and his March 5, 2013 letter, that Plaintiff had malar 16 rashes, photosensitivity, and oral ulcers. (A.R. 451-57; 467.) 17 18 It may appear that Dr. Ahluwalia’s treatment notes, which unequivocally 19 stated that no rash was found, are inconsistent with the SLE Impairment 20 Questionnaire and letter which indicate that a rash was present. However, the 21 presence of other signs and symptoms in the Questionnaire, such as synovitis, 22 arthritis, and renal involvement are consistent with both Dr. Ahluwalia’s treatment 23 notes and the objective evidence in the record. (See e.g. A.R. 271-87; 290; 292-94; 24 392; 396.) 25 inconsistencies in [a doctor’s] treatment notes, [if] the physician’s records document 26 his conclusions,” the ALJ should re-consider that doctor’s opinion. Goulart v. 27 Colvin, 604 F. App’x 585, 586 (9th Cir. 2015)(citing Orn, 495 F.3d at 631-33.) The Ninth Circuit has held that “although the ALJ found a few 28 19 1 “A conflict between treatment notes and a treating provider’s opinions may 2 [typically] constitute an adequate reason to discredit the opinions of a treating 3 physician or another treating provider.” Ghanim v. Colvin, 763 F.3d 1154, 1161 4 (9th Cir. 2014) (citing Molina, 674 F.3d at 1111-12.) 5 “substantial evidence does not support the ALJ's conclusion that the [overall] 6 opinions of [the treating physicians] were inconsistent with the treatment notes,” 7 which indicated that Plaintiff regularly suffered the symptoms typical of her 8 condition, and several tests and objective data corroborated the existence of those 9 symptoms (e.g. renal involvement, trace synovitis, arthritis, proteinuria.) However, in this case, Id. 10 Therefore, the inconsistency between Dr. Ahluwalia’s treatment notes and his 11 assessment of Plaintiff’s limitations, is not sufficient to support the ALJ’s finding 12 that Dr. Ahluwalia’s assessment did not “mesh” with the objective data and lacked 13 support in Plaintiff’s medical records. 14 15 To the extent that the ALJ finds Dr. Ahluwalia’s assessment inconsistent with 16 Plaintiff’s daily activities, the Court finds this determination too is not supported by 17 substantial evidence. The Plaintiff’s limited daily activities are not in tension with 18 the opinions of her treating providers. See Morgan v. Comm’r of Soc. Sec. Admin., 19 169 F.3d 595, 600-02 (9th Cir. 1999) (considering an inconsistency between a 20 treating physician’s opinion and a claimant’s daily activities a specific and 21 legitimate reason to discount the treating physician’s opinion); Smolen v. Chater, 80 22 F.3d 1273, 1284 n. 7 (9th Cir. 1996) (holding that a claimant need not be completely 23 incapacitated to receive benefits.) 24 25 The outcome of this case turns on the ALJ’s finding that although Plaintiff 26 suffers from SLE and other impairments—in contrast to her treating physicians’ 27 assessment—the severity of those impairments is not sufficient for a finding of 28 disability. (A.R. 29.) “An ALJ may find an impairment not severe ‘only if the 20 1 evidence establishes a slight abnormality that has no more than a minimal effect on 2 an individual’s ability to work.’ Wick v. Barnhart, 173 F. App’x 597, 600 (9th Cir. 3 2006) (quoting Webb v. Barnhart, 433 F.3d 683, 2005 WL 3544685, at *3 (9th Cir. 4 2005).) On this record, the ALJ did not identify substantial evidence supporting the 5 finding that Plaintiff’s impairments were nonsevere.8 Id. 6 2. The ALJ Erred in Determining that Plaintiff was Not Credible. 7 8 Applicable Law 9 10 11 The ALJ is responsible for determining credibility, resolving conflicts in 12 medical testimony, and for resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 13 722 (9th Cir. 1998) (quoting Andrews, 53 F.3d at 1039.) 14 credibility of a claimant’s testimony regarding subjective pain or the intensity of 15 symptoms, the ALJ engages in a two-step analysis.” Ghanim, 763 F.3d at 1163. 16 First, the ALJ must determine whether the claimant has presented objective medical 17 evidence of an underlying impairment which could reasonably be expected to 18 produce the pain or other symptoms alleged.” Id. (quoting Vasquez v. Astrue, 572 19 F.3d 586, 591 (9th Cir. 2009.)) “If the claimant meets the first test and there is no 20 evidence of malingering, the ALJ can only reject the claimant’s testimony about the 21 severity of the symptoms if she gives ‘specific, clear and convincing reasons’ for the 22 rejection.” Id. (quoting Vasquez, 572 F.3d at 591.) “In assessing the 23 24 “General findings are insufficient; rather, the ALJ must identify what 25 testimony is not credible and what evidence undermines the claimant’s complaints.” 26 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996.) The ALJ’s finding must be 27 28 To the extent that the ALJ found the impairments nonsevere because they did not rise to the level of “an incapacitating or debilitating medical condition,” rather than evaluating whether Plaintiff could work on a sustained basis, the ALJ used the wrong standard. Benecke, 379 F.3d at 594; see also A.R. 24-25. 8 21 1 supported by specific, cogent reasons. Id. (quoting Rashad v. Sullivan, 903 F.2d 2 1229, 1231(9th Cir. 1990.)) See also Treichler v. Comm’r of Soc. Sec. Admin., 775 3 F.3d 1090, 1102 (9th Cir. 2014) (affirming two-step credibility standard of review, 4 citing Lingenfelter, 504 F.3d at 1036; Smolen, 80 F.3d at 1281.) 5 6 “The ALJ may consider many factors in weighing a claimant’s credibility, 7 including (1) ordinary techniques of credibility evaluation, such as the claimant’s 8 reputation for lying, prior inconsistent statements concerning the symptoms, and 9 other testimony by the claimant that appears less than candid; (2) unexplained or 10 inadequately explained failure to seek treatment or to follow a prescribed course of 11 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 12 by substantial evidence, the court may not engage in second-guessing.” Chaudhry 13 v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quoting Tommassetti, 533 F.3d at 14 1039.) 15 16 “Because pain is a subjective phenomenon . . . it is possible to suffer disabling 17 pain even where the degree of pain, as opposed to the mere existence of pain, is 18 unsupported by objective medical findings.” Fair v. Bowen, 885 F.2d 597, 601 (9th 19 Cir. 1989). Therefore, the Ninth Circuit has held that once a plaintiff “submits 20 objective medical evidence establishing an impairment that could reasonably be 21 expected to cause some pain, ‘it is improper as a matter of law for an ALJ to 22 discredit excess pain testimony solely on the ground that it is not fully corroborated 23 by objective medical findings.’” Id. (quoting Cotton v. Bowen, 799 F.2d 1403, 1407 24 (9th Cir. 1986) (per curiam).) 25 // 26 // 27 // 28 // 22 1 a. The Documented Evidence of Pain in the Record. 2 3 4 Plaintiff’s physical impairments are closely related to, and largely influenced by, worsening pain documented in the record as follows: 5 6 Since September of 2010, her symptoms have worsened (A.R. 48.) The pain is 7 located throughout her body, in all her muscles and joints, and persists daily 8 (A.R. 49.) She sometimes cannot extend her arms because of the muscle 9 tightness and the stiffness in her shoulders (A.R. 50.) Her fingers and hands 10 sometimes swell, such that she cannot bend her wrists (A.R. 50.) Her hips, 11 ankles, feet, and toes hurt, which affects her ability to walk (A.R. 50.) She sits, 12 reclines, or lies down, depending on what is most tolerable at the time, before 13 walking around the house to “stretch out a little bit” (A.R. 51.) She can only sit 14 for about one to two hours before needing to lie down or stand up; she can stand 15 no more than about 20 minutes before the pain flares; she can walk about a 16 block-and-a-half before needing to sit; and she can only lift about five pounds 17 (A.R. 52, 67.) As an example of her difficulty grasping objects, she noted how 18 her hands start to cramp when holding a fork, such that it will fall out of her 19 grasp (A.R. 53.) She also has difficulty with fine manipulation such that she 20 even has difficulty manipulating papers or a keyboard after one to two minutes 21 (A.R. 61-62.) She cannot bend at the waist more than “half way” and cannot 22 kneel with her knees on the floor (A.R. 53.) She finds that her medications only 23 control the pain “[a]t times” (A.R. 49.) The medications make her drowsy on a 24 daily basis, and also make her nauseous, and cause a ringing in her head such 25 that she needs to go rest or nap (A.R. 59.) She generally naps throughout the day 26 for an hour each time (A.R. 60.) She also wears wrist braces that she bought 27 over-the-counter and sometimes relies on her husband’s unspecified assistive 28 device when she is tired or folding laundry (A.R. 55-56.) 23 1 2 (Joint Stip. at 4.) 3 b. 4 The ALJ Erred in Discrediting Plaintiff’s Subjective Statements. 5 6 7 8 9 10 11 12 13 14 The ALJ found that (1) Plaintiff suffers from SLE which could reasonably produce the symptoms complained of, and (2) found no evidence of malingering. (A.R. 27.) The ALJ nevertheless concluded that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” (Id.) Although the ALJ offered specific reasons for his adverse credibility determination, the ALJ’s reasons are not supported by substantial evidence and thereby do not satisfy the clear and convincing requirement. Lingenfelter, 504 F.3d at 1036 (holding that an ALJ’s reasons must be both specific in nature and supported by substantial evidence.) 15 16 The ALJ’s first specific reason was that Plaintiff’s “described limitations are 17 not supported by the evidence.” (A.R. 30.) The ALJ appears to be referring to the 18 19 20 21 22 limitations described in the function report that Plaintiff completed (which he found to corroborate that of Plaintiff’s daughter), that she has difficulty bathing and requires assistance using the toilet. (A.R. 29-30.) However, an ALJ may not discredit subjective complaints simply because they are not substantiated by objective medical evidence. See Fair, 885 F.2d at 601. 23 24 25 26 27 Moreover, the medical evidence demonstrates that at least some instances of Plaintiff’s subjective complaints of pain were substantiated. For example, the ALJ noted that on April 6, 2010, Plaintiff presented to Dr. Ahluwalia complaining of muscle and joint stiffness; a physical examination revealed “trace synovitis in the 28 24 1 index, longer finger, and MCP and PIP joints bilaterally with tenderness.” (A.R. 2 27.) The ALJ also noted that on May 19, 2010, Plaintiff “reported intermittent 3 swelling of the legs, and Dr. Ahluwalia noted that laboratory testing showed a 4 nephrotic range of proteinuria.” 5 Plaintiff’s subjective complaints were consistent with the objective medical 6 evidence. (A.R. 27.) Both these instances suggest that 7 8 The ALJ also found that the record did not demonstrate that Plaintiff was 9 medically advised or prescribed the use of any assistive device despite her testimony 10 that she used wrist splints or her husband’s walker. (A.R. 26.) In light of the 11 abundant evidence of Plaintiff seeking treatment for her subjective complaints of 12 pain, the ALJ’s finding of Plaintiff’s implied “failure” to seek official sanction for 13 the use of assistive devices is not supported by substantial evidence. Orn, 495 F.3d 14 at 638 (holding that failure to seek treatment, when complaining of disabling pain, 15 may be probative of credibility, because a person’s normal reaction is to seek relief 16 from pain.) In contrast to cases where an ALJ’s adverse credibility determination 17 has been upheld—based on a finding that the plaintiff’s medical records show a 18 higher level of functionality, that the plaintiff has been uncooperative regarding use 19 of medications, and that the plaintiff appears to access support resources only when 20 she has secondary motivations—here, Plaintiff’s medical records do not show a 21 higher level of functionality than that self-described, Plaintiff was not uncooperative 22 regarding use of medication, and Plaintiff accessed support resources like her 23 husband’s walker—just to get by—even when they were not prescribed or otherwise 24 noted in the record. Rounds, 795 F.3d at 1186. 25 26 Lastly, the ALJ found that Plaintiff’s activities of daily living contradicted the 27 level of impairment she claimed. (A.R. 26-29.) In support of this conclusion, the 28 ALJ points to Plaintiff’s testimony that she drives 5 to 10 miles daily to the grocery 25 1 store, her daughter’s school, and to doctor’s appointments; she shops with her 2 family and picks up cans and boxes, helps her husband with daily tasks. (A.R. 29.) 3 4 While an “ALJ may reject a claimant’s symptom testimony if the claimant is 5 able to spend a substantial part of her day performing household chores or other 6 activities that are transferable to a work setting . . . this line of reasoning has its 7 limits. The Social Security Act does not require that claimants be utterly 8 incapacitated to be eligible for benefits, and many home activities may not be easily 9 transferable to a work environment where it might be impossible to rest periodically 10 or take medication.” Smolen, 80 F.3d at 1284 (citing Fair, 885 F.2d at 603.) 11 12 In this case, Plaintiff’s need for rest and medication including morphine, 13 Vicodin, valium, Xanax, and prednisone, is heavily documented in the record. 14 (A.R. 15 received treatment for pain, an ALJ errs in reasoning that the plaintiff’s complaints 16 were inconsistent with her activities and the degree of treatment she required. 17 Nguyen v. Chater, 172 F.3d 31. Indeed, where doctors cannot find a specific cause 18 for a plaintiff’s plain, the fact that they prescribed potent pain medications have led 19 courts to conclude that the ALJ failed to produce substantial evidence to discredit 20 the plaintiff’s subjective complaints. 21 Plaintiff’s daily activities alone may not form the substantial evidence that an ALJ 22 uses to discredit a plaintiff’s subjective testimony. See Wick, 173 F. App’x at 599 23 (citing Fair, 885 F.2d at 603.) 430, 455, 462.) Furthermore, where a plaintiff continually sought and See Crosby v. Apfel, 248 F.3d 1157. 24 25 Accordingly, the ALJ’s reasons for discounting Plaintiff’s credibility are 26 either unsupported by substantial evidence in the record or otherwise insufficient to 27 undermine her credibility. On that basis, the ALJ’s denial of benefits must be 28 26 1 reversed and remanded for further administrative proceedings to correct the legal 2 errors identified in the ALJ’s decision. 3 CONCLUSION 4 5 6 For the reasons stated above, IT IS ORDERED that the decision of the 7 Commissioner is REVERSED and this matter is remanded for further proceedings 8 consistent with this Order. 9 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 11 this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and 12 for defendant. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 17 18 DATED: November 25, 2015 __________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 27

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