Tonya Renee Clowser v. Carolyn W. Colvin, No. 5:2016cv02044 - Document 28 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Tonya Renee Clowser v. Carolyn W. Colvin Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONYA RENEE CLOWSER, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2044-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed July 11, 2017, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is reversed and this action is remanded The parties consented to the jurisdiction of For the reasons stated below, the 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. 1 Dockets.Justia.com 1 for further proceedings. 2 II. BACKGROUND 3 Plaintiff was born in 1976. (Administrative Record (“AR”) 4 186.) 5 vocational nurse (id.; see also AR 57-58). 6 She has a GED (AR 218) and last worked as a licensed On January 22, 2013, Plaintiff filed an application for DIB, 7 alleging that she had been disabled since December 21, 2011 (AR 8 186), because of “disc herniation facet joint hypertrophy 9 bursitis nerve,” “back injury multiple disc desiccation with 10 annular tear,” spinal retrolisthesis,2 bursitis of the hips, pain 11 and numbness in her right leg, anxiety, depression, insomnia, 12 colitis, irritable bowel syndrome, and fibromyalgia (see AR 217, 13 230). 14 upon reconsideration (AR 116), she requested a hearing before an 15 Administrative Law Judge (see AR 131). 16 December 30, 2014, at which Plaintiff, who was represented by 17 counsel, testified, as did a vocational expert. 18 a written decision issued March 20, 2015, the ALJ found Plaintiff 19 not disabled. 20 Appeals Council, and on August 1, 2016, it denied review. 21 6.) 22 III. STANDARD OF REVIEW 23 24 After her application was denied initially (AR 110) and (AR 33-47.) A hearing was held on (AR 53-81.) In Plaintiff requested review from the (AR 1- This action followed. Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The ALJ’s findings and 25 26 27 28 2 Retrolisthesis is a joint dysfunction in which a single vertebra slips backward along or underneath a disc. See Retrolisthesis: Types, Causes, and Symptoms, MedicalNewsToday, https://www.medicalnewstoday.com/articles/319571.php (last updated Sept. 30, 2017). 2 1 decision should be upheld if they are free of legal error and 2 supported by substantial evidence based on the record as a whole. 3 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 4 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 5 evidence means such evidence as a reasonable person might accept 6 as adequate to support a conclusion. 7 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 8 It is more than a scintilla but less than a preponderance. 9 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Substantial Richardson, 402 U.S. at 10 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 11 substantial evidence supports a finding, the reviewing court 12 “must review the administrative record as a whole, weighing both 13 the evidence that supports and the evidence that detracts from 14 the Commissioner’s conclusion.” 15 720 (9th Cir. 1996). 16 either affirming or reversing,” the reviewing court “may not 17 substitute its judgment” for the Commissioner’s. 18 IV. To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 19 People are “disabled” for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity owing to a physical or mental impairment that is 22 expected to result in death or has lasted, or is expected to 23 last, for a continuous period of at least 12 months. 24 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 25 1992). 42 U.S.C. 26 A. 27 The ALJ follows a five-step sequential evaluation process to 28 The Five-Step Evaluation Process assess whether a claimant is disabled. 3 20 C.F.R. 1 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 2 Cir. 1995) (as amended Apr. 9, 1996). 3 Commissioner must determine whether the claimant is currently 4 engaged in substantial gainful activity; if so, the claimant is 5 not disabled and the claim must be denied. In the first step, the § 404.1520(a)(4)(i). 6 If the claimant is not engaged in substantial gainful 7 activity, the second step requires the Commissioner to determine 8 whether the claimant has a “severe” impairment or combination of 9 impairments significantly limiting her ability to do basic work 10 activities; if not, the claimant is not disabled and her claim 11 must be denied. 12 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 13 impairments, the third step requires the Commissioner to 14 determine whether the impairment or combination of impairments 15 meets or equals an impairment in the Listing of Impairments set 16 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 17 disability is conclusively presumed. § 404.1520(a)(4)(iii). 18 If the claimant’s impairment or combination of impairments 19 does not meet or equal an impairment in the Listing, the fourth 20 step requires the Commissioner to determine whether the claimant 21 has sufficient residual functional capacity (“RFC”)3 to perform 22 her past work; if so, she is not disabled and the claim must be 23 denied. § 404.1520(a)(4)(iv). The claimant has the burden of 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 proving she is unable to perform past relevant work. 2 F.2d at 1257. 3 case of disability is established. Drouin, 966 If the claimant meets that burden, a prima facie Id. 4 If that happens or if the claimant has no past relevant 5 work, the Commissioner then bears the burden of establishing that 6 the claimant is not disabled because she can perform other 7 substantial gainful work available in the national economy. 8 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 9 determination comprises the fifth and final step in the 10 sequential analysis. 11 That n.5; Drouin, 966 F.2d at 1257. § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 12 B. 13 At step one, the ALJ found that Plaintiff had not engaged in 14 substantial gainful activity since December 21, 2011, the alleged 15 disability onset date. 16 she had the following severe impairments: “degenerative disc 17 disease of the lumbar spine with mild radiculopathy; bilateral 18 bursitis of the hips, left more than right; and pain disorder, 19 likely due to fibromyalgia.”4 20 that she did not have an impairment or combination of impairments 21 falling under a Listing. 22 The ALJ’s Application of the Five-Step Process (AR 35.) At step two, he concluded that (Id.) At step three, he found (AR 38-39.) At step four, the ALJ found that Plaintiff had the RFC to 23 perform a modified version of sedentary work: she can “lift, 24 carry, push, and pull ten pounds occasionally and less than five 25 pounds frequently,” “sit for six hours out of an eight-hour day, 26 for a maximum of forty minutes at a time,” “stand and walk for 27 4 28 Plaintiff does not challenge the ALJ’s finding that her other alleged impairments were not severe. 5 1 six hours of an eight-hour day, for a maximum of 10-15 minutes at 2 a time,” and “perform occasional climbing of ramps and stairs, 3 balancing, stooping, kneeling, crouching, and crawling.” 4 39.) 5 “must avoid extreme cold,” and “must avoid hazardous machinery 6 and unprotected heights.” 7 (AR She also “can never climb ladders, ropes, or scaffolds,” (Id.) Based on the VE’s testimony, the ALJ concluded that 8 Plaintiff could not perform any past relevant work. 9 step five, however, given her “age, education, work experience, (AR 45.) At 10 and [RFC],” he determined that she could successfully perform two 11 jobs in the national economy: booth ticket seller, DOT 211.467- 12 030, 1991 WL 671853, and bench hand, DOT 715.684-026, 1991 WL 13 679344. 14 (AR 46-47.) 15 V. (AR 46.) Thus, the ALJ found Plaintiff not disabled. DISCUSSION 16 Plaintiff argues that the ALJ erred in evaluating (1) the 17 medical-opinion evidence of record, specifically regarding the 18 length of time Plaintiff could stand and walk, (2) the medical 19 opinion from an “other source,” and (3) the credibility of 20 Plaintiff’s “pain and symptom testimony.” 21 Because the ALJ erred as to the medical-opinion evidence and part 22 of the other-source opinion, the matter must be remanded for 23 further proceedings. 24 25 A. (See J. Stip. at 4-5.) The ALJ Improperly Evaluated the Medical-Opinion Evidence 26 The ALJ gave only “partial weight” to the opinions of 27 nonexamining state-agency internists G. Taylor-Holmes and M. Yee 28 and examining internist Robin Alleyne because they were “overly 6 1 optimistic” and the “record support[ed] further limitations.”5 2 (AR 43-45.) 3 could “stand and walk for four hours in an eight-hour workday” 4 (J. Stip. at 6 (citing AR 88-90, 101-03, 501-04)), but the ALJ 5 rejected that finding “without an explanation,” Plaintiff 6 alleges, when he determined an RFC in which she could “stand and 7 walk for six hours in an eight-hour day, for a maximum of 10-15 8 minutes at a time” (id. at 6 (citing AR 39), 7). 9 10 1. Those doctors specifically opined that Plaintiff Applicable law Three types of physicians may offer opinions in Social 11 Security cases: those who directly treated the plaintiff, those 12 who examined but did not treat the plaintiff, and those who did 13 neither. 14 is generally entitled to more weight than an examining 15 physician’s, and an examining physician’s opinion is generally 16 entitled to more weight than a nonexamining physician’s. 17 see § 404.1527(c)(1).6 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; This is so because treating physicians 18 19 20 21 22 23 24 25 26 27 28 5 As noted by both parties (see J. Stip. at 5 n.3, 11 n.6), the ALJ mistakenly refers to Dr. Alleyne as “Dr. Resnick” (compare AR 44 (stating that “Dr. Resnick” conducted consultative examination in July 2013), with AR 500-05 (Dr. Alleyne in fact conducted July 2013 consultative examination while radiologist Lawrence Resnick provided radiological assessment of Plaintiff’s lumbar spine)). 6 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. 7 1 are employed to cure and have a greater opportunity to know and 2 observe the claimant. 3 Cir. 1996). 4 physician can amount to substantial evidence, so long as other 5 evidence in the record supports those findings.” 6 Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 7 amended). 8 9 Smolen v. Chater, 80 F.3d 1273, 1285 (9th But “the findings of a nontreating, nonexamining Saelee v. The ALJ may disregard a treating or examining physician’s opinion regardless of whether it is contradicted. Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); see Carmickle v. 11 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 12 When a treating or examining physician’s opinion is not 13 contradicted by other medical-opinion evidence, however, it may 14 be rejected only for “clear and convincing” reasons. 15 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing Lester, 81 16 F.3d at 830-31). 17 only “specific and legitimate reasons” for discounting it. 18 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 19 The weight given an examining physician’s opinion, moreover, 20 depends on whether it is consistent with the record and 21 accompanied by adequate explanation, among other things. 22 § 404.1527(c)(3)-(6). 23 afforded the opinions of nonexamining physicians. Magallanes, When it is contradicted, the ALJ must provide Those factors also determine the weight § 404.1527(e). 24 25 26 27 28 Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.”). Accordingly, citations to 20 C.F.R. § 404.1527 are to the version in effect from August 24, 2012, to March 26, 2017. 8 1 The ALJ considers findings by state-agency medical consultants 2 and experts as opinion evidence. 3 Id. Furthermore, “[t]he ALJ need not accept the opinion of any 4 physician . . . if that opinion is brief, conclusory, and 5 inadequately supported by clinical findings.” 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 7 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 8 An ALJ need not recite “magic words” to reject a physician’s 9 opinion or a portion of it; the court may draw “specific and Thomas v. 10 legitimate inferences” from the ALJ’s opinion. 11 F.2d at 755. 12 record, the ALJ does not need to ‘discuss every piece of 13 evidence.’” 14 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 15 (8th Cir. 1998)). 16 Magallanes, 881 “[I]n interpreting the evidence and developing the Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, The Court must consider the ALJ’s decision in the context of 17 “the entire record as a whole,” and if the “‘evidence is 18 susceptible to more than one rational interpretation,’ the ALJ’s 19 decision should be upheld.” 20 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 21 2. 22 Ryan v. Comm’r of Soc. Sec., 528 Relevant background On February 22, 2011, Plaintiff, a licensed vocational 23 nurse, injured her lower back at work. (AR 279-81.) 24 treated with analgesic medication she had at home” but did not 25 seek medical care and continued to work. 26 however, worsened, and in November 2011 an MRI scan revealed 27 “degeneration and disc bulging.” 28 300.) (AR 280.) She “self- Her pain, (AR 280-81; see also AR 297- Surgery was not required, but Plaintiff stopped working on 9 1 December 20, 2011, at the request of her doctor. 2 In July 2013, Plaintiff received an internal-medicine 3 consultation from Dr. Alleyne of the Department of Social 4 Services. 5 a “slightly antalgic gait” and had difficulty walking on her 6 heels but could walk on tiptoes without difficulty. 7 There was “some lower lumbar tenderness” in Plaintiff’s back but 8 “no evidence of muscle spasm.” 9 waist was “limited to 40 degrees,” she was “only able to crouch (AR 500-04.) Dr. Alleyne observed that Plaintiff had (AR 502.) (AR 501.) Back flexion at the 10 to 50%,” and bilateral positive straight-leg raises were limited 11 to 40 degrees. 12 knees, and ankles were all within normal limits. 13 noted that Plaintiff was taking various prescription medications. 14 (AR 500.) 15 Plaintiff had “mild to moderate limitations.” 16 could “walk and stand four hours out of an eight-hour day” and 17 “crouch, climb and crawl occasionally,” among other things. 18 (Id.) 19 (Id.) But the ranges of motion in her hips, (Id.) She Based on her findings, Dr. Alleyne concluded that (AR 503.) She Plaintiff’s medical records were reviewed in 2013 by Drs. 20 Taylor-Holmes and Yee, who found her not disabled. 21 94-107.) 22 stand and walk for four hours a day “with normal breaks” and 23 occasionally climb stairs, crouch, and crawl. 24 November, Dr. Yee assessed no change since Dr. Taylor-Holmes’s 25 evaluation (AR 99-100) and found those same exertional 26 limitations. (AR 82-93, In August, Dr. Taylor-Holmes found that Plaintiff could (See AR 102-03.) 27 28 10 (AR 88-89.) In 1 2 3. Analysis The opinions on standing and walking of Drs. Taylor-Holmes, 3 Yee, and Alleyne were not contradicted by other medical-opinion 4 evidence in the record, and the ALJ was therefore required to 5 provide clear and convincing reasons for discounting them. See 6 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164.7 But 7 he provided no such reason for rejecting the four-hour standing- 8 and-walking limitations found by those doctors in favor of the 9 six-hour limitation he included in the RFC. Indeed, nothing in 10 the record supports a six-hour standing-and-walking limitation. 11 See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999) 12 (finding that ALJ erred in rejecting treating physician’s opinion 13 in part because “[t]here [was] no medical evidence to support the 14 ALJ’s finding that [plaintiff] could work through an eight hour 15 workday with breaks every two hours”). 16 The ALJ did note that Plaintiff’s “standing[] and walking 17 abilities” as found by Drs. Taylor-Holmes, Yee, and Alleyne were 18 undermined by medical findings suggesting “more restrictive” 19 limitations (AR 43-44) and by “claimant’s allegations concerning 20 21 7 22 23 24 25 26 27 28 Though the ALJ found that the opinions of Dr. TaylorHolmes and Dr. Yee stood “in contrast” to the opinion of chiropractors Christine Abgaryan and Anna Gasparian (AR 44), who determined that Plaintiff should not stand for longer than an hour at a time (AR 357), a chiropractor’s contradictory opinion does not constitute medical-opinion evidence. See § 404.1513(d)(1); Bara v. Colvin, No. C15-5214 RAJ, 2016 WL 4444030, at *2 (W.D. Wash. Jan. 4, 2016) (“[Plaintiff] fails to point to a specific medical record or medical opinion (as opposed to other source opinion) that contradicts [the treating physician’s] opinion,” warranting clear-and-convincing-reasons standard (citing Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991)). 11 1 the maximum amount of time she can . . . stand[] and walk” (AR 2 44-45). 3 right leg sensory deficits, tenderness to the palpation of the 4 inguinal area of the hip,8 and marked tenderness to palpation of 5 the great trochanteric area of the hip” supported “more 6 restrictive limitations in [Plaintiff]’s sitting, standing, and 7 walking abilities” than Drs. Taylor-Holmes and Yee had opined. 8 (AR 43-44 (citing AR 269, 285-86).) 9 reasons for discounting the opinion of Dr. Alleyne, stating that The ALJ noted that “findings of right leg hypesthesia, The ALJ offered similar 10 “findings of tenderness to palpation in [Plaintiff’s] lumbar 11 spine and right hip, decreased sensation in her right leg, and 12 limited range of motion in her lumbar spine and right hip 13 support[ed] further limitations than [what was] opined.” 14 (citing AR 269, 285-86, 380-81, 532, 543).) 15 added a limitation to Plaintiff’s RFC that she stand or walk for 16 no more than 10 to 15 minutes at a time. 17 (AR 44 As a result, the ALJ The ALJ pointed to the findings of a treating orthopedic 18 surgeon who diagnosed Plaintiff with degenerative disc disease 19 and bilateral trochanteric bursitis in 2012. 20 (citing AR 269, 285-86), 288.) 21 physical examination he conducted at the time (see, e.g., AR 285 22 (Plaintiff demonstrating limited flexion and extension in her 23 back and tenderness in areas of her lower back and hips)) and 24 medical images of Plaintiff’s spine (see, e.g., AR 286 (x-ray (See AR 43-44 His opinion was corroborated by a 25 26 8 27 28 The ALJ stated that Plaintiff was found to have “tenderness to palpation of the inguinal area of the hip.” (AR 44 (citing AR 269).) But at AR 269 Plaintiff was noted as having “no inguinal tenderness.” 12 1 images showing narrowing of L3-4 and L4-5 intervertebral space), 2 287 (MRI images showing disc desiccation, disc protrusion, and 3 bilateral facet joint hypertrophy, among other things)). 4 findings were supported by other medical records from 2012. 5 (See, e.g., AR 268-70 (Plaintiff’s pain did not change following 6 April 2012 extracorporeal-shockwave-therapy treatment), 478-79 7 (in April 2012 Plaintiff demonstrated limited range of motion in 8 her back, low-back pain, muscle spasms, and swelling), 389-93 9 (May 2012 MRI imaging of her thoracic spine showing restricted His 10 range of motion in extension position, disc desiccation, diffuse 11 disc protrusion, and bilateral facet joint hypertrophy).) 12 None of the cited records, however, suggest that Plaintiff 13 could stand or walk for six hours in an eight-hour workday. 14 ALJ did not identify any such medical finding, nor did he 15 articulate why a six-hour standing-and-walking limitation, even 16 for “10-15 minutes at a time,” is “more restrictive” than a four- 17 hour standing-and-walking limitation with “normal breaks.” 18 Kline v. Colvin, 140 F. Supp. 3d 912, 918 (D. Ariz. 2015) (as 19 amended Jan. 12, 2016) (finding that ALJ erred under “clear and 20 convincing” standard because “she did not explain which aspects 21 of [treating physician’s] opinion were contradicted or by whom”). 22 Defendant argues that “common sense dictates that the ALJ’s RFC 23 assessment is, in fact, more restrictive than the doctors’ 24 opinion” because of the ALJ’s added limitation of standing for no 25 more than 10 to 15 minutes at a time (J. Stip. at 13), but no 26 matter how you do the math, six hours is more than four. 27 Further, the ALJ never stated that he was increasing the total 28 amount of time Plaintiff could stand or walk because he had 13 The See 1 limited the length of time she could do either without a break. 2 See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th 3 Cir. 2009) (district court must “review the ALJ’s decision based 4 on the reasoning and factual findings offered by the ALJ — not 5 post hoc rationalizations that attempt to intuit what the 6 adjudicator may have been thinking”). 7 Thus, the ALJ erred in evaluating the medical-opinion 8 evidence as to Plaintiff’s standing and walking abilities, which 9 was uncontradicted in concluding that Plaintiff could stand and 10 walk no more than four hours in an eight-hour day. 11 157 F.3d at 725 (ALJ must explain why his conclusions, rather 12 than doctors’, are correct); Burden v. Berryhill, No. 2:17-cv- 13 00222-RBL, 2017 WL 4417225, at *2 (W.D. Wash. Oct. 5, 2017) 14 (“[T]he ALJ erred by tacitly rejecting part of [a nonexamining 15 physician’s] opinion without explanation.”); see also Soholt v. 16 Astrue, No. 10-cv-5937-RBL-JRC, 2011 WL 5909992, at *5 (W.D. 17 Wash. Oct. 31, 2011) (finding that ALJ erred in part because he 18 “did not explain why he did not adopt the aforementioned opinions 19 of [an examining physician] regarding plaintiff’s functional 20 ability to sit, stand or walk without breaks every thirty 21 minutes”), accepted by 2011 WL 5909998 (W.D. Wash. Nov. 28, 22 2011). 23 See Reddick, Accordingly, because the ALJ failed to provide a clear and 24 convincing reason for rejecting the standing-and-walking opinions 25 of Drs. Taylor-Holmes, Yee, and Alleyne, remand is warranted.9 26 27 28 9 Defendant has not argued that any error was harmless (see generally J. Stip. at 11-15), so the Court does not examine whether that is so. See Press v. Astrue, No. CV. 08-1089-AC, 14 1 B. 2 3 The ALJ Likely Improperly Evaluated the Other-Source Opinion Plaintiff “mainly takes issue with the ALJ’s rejection of 4 the lifting and carrying restrictions assessed by Dr[s]. Abgaryan 5 and Gasparian,” chiropractors who examined her in 2012. 6 Stip. at 17.) 7 and reject that portion of their opinion. 8 also complains that the ALJ improperly evaluated their opinion 9 regarding her ability to crouch. 10 11 1. (J. She argues that the ALJ did not properly evaluate (Id. at 17, 19.) She (Id. at 16.) Applicable law “Acceptable medical sources” under the Social Security 12 regulations include only licensed physicians, psychologists, 13 optometrists, podiatrists, and speech pathologists. 14 § 404.1513(a).10 15 see § 404.1513(d)(1), and an ALJ may reject opinions from other 16 sources by giving “reasons germane to each witness for doing so.” 17 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation 18 omitted); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th 19 Cir. 2010) (citation omitted); see also Bruce v. Astrue, 557 F.3d 20 1113, 1115 (9th Cir. 2009) (reasons for rejecting other-source 21 testimony must be “germane” and “specific”). Chiropractors are treated as “other sources,” 22 23 24 25 2010 WL 3222103, at *9 n.6 (D. Or. Aug. 13, 2010) (because “Commissioner did not argue that the ALJ’s failure was harmless error,” “the Commissioner has given the court no basis upon which to evaluate whether the error was harmless and the court declines to seek one out”). 26 10 27 28 Social Security regulations regarding the categories of acceptable medical evidence were amended effective March 27, 2017. See § 404.1513. Again, the Court applies the law in effect at the time of the ALJ’s decision. 15 1 2. 2 Additional relevant background Chiropractors Abgaryan and Gasparian conducted a functional- 3 capacity evaluation for Plaintiff on June 12, 2012. 4 72.) 5 measuring both the reliability of Plaintiff’s subjective-pain 6 complaints and the extent of her functional limitations in 7 various areas, including strength, range of motion, mobility, and 8 dexterity. 9 a “dynamic lift” test, in which she demonstrated that she could (See AR 355- They administered several tests and questionnaires (See id.) They had Plaintiff complete, for example, 10 carry 8.5 pounds for 30 feet but 11 pounds at most. 11 She also demonstrated the ability to lift 8.5 pounds from “floor 12 to knuckle,” six pounds from “knuckle to shoulder,” and less than 13 six pounds from “shoulder to overhead.” 14 lift 11 pounds from floor to knuckle, 8.5 pounds from knuckle to 15 shoulder, and six pounds overhead. (Id.) (AR 368.) At most she could (Id.) 16 They concluded that Plaintiff should not sit for longer than 17 60 minutes at a time; should not stand for longer than 60 minutes 18 at a time; could not carry greater than “8.5 pounds over a length 19 of 30 feet maximum”; could not lift more than 8.5 pounds, and for 20 less than 30 percent of the day; and should “[a]void bending,” 21 “crouching,” and “twisting.” 22 subjective reports of pain and disability “moderately reliable” 23 and concluded that she “displayed moderate physical effort” 24 during the evaluation. 25 3. 26 (AR 357.) They also found her (AR 356.) Analysis The ALJ gave “partial weight” to the opinion of 27 chiropractors Abgaryan and Gasparian. 28 that “their findings from their examination support their 16 (AR 44.) He acknowledged 1 opinion,” but he concluded that his RFC was “a more accurate 2 depiction of [Plaintiff’s] functional abilities.” 3 (Id.) Plaintiff argues that the ALJ incorrectly discounted the 4 chiropractors’ opinion that she “could never crouch.” 5 Stip. at 16 (citing AR 44).) 6 ability “to crouch to 50%,” as found by Dr. Alleyne (see AR 502), 7 indicated that she was unable to crouch “to the full range of 100 8 percent,” which she seems to suggest is consistent with the 9 Abgaryan and Gasparian opinion (J. Stip. at 16). (See J. She contends that her demonstrated But the ALJ did 10 not err in this regard. 11 chiropractors, they are considered “other” sources, see 12 § 404.1513(d)(1), and the ALJ properly offered a germane reason — 13 contradiction with medical evidence (AR 44) — for discounting 14 their crouching opinion, see Molina, 674 F.3d at 1111. 15 Because Drs. Abgaryan and Gasparian are An ALJ may properly discount an other-source opinion when it 16 conflicts with medical evidence. 17 Circuit has held that “lack of support from medical records is 18 not a germane reason,” see Diedrich v. Berryhill, 874 F.3d 634, 19 640 (9th Cir. 2017); accord Bruce, 557 F.3d at 1116; Smolen, 80 20 F.3d at 1289 (citing SSR 88-13, 1988 WL 236011 (July 20, 1988)), 21 those cases are distinguishable. 22 rejection of a family member’s laywitness observations. 23 Diedrich, 874 F.3d at 640 (plaintiff’s fiancé); Bruce, 557 F.3d 24 at 1116 (plaintiff’s wife); Smolen, 80 F.3d at 1289 (various 25 family members). 26 1218 (9th Cir. 2005) (holding that inconsistency with medical 27 evidence is germane reason for discrediting testimony of family 28 members); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) Id. at 1112. Though the Ninth Each involved an ALJ’s See But see Bayliss v. Barnhart, 427 F.3d 1211, 17 1 (same); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 2 (9th Cir. 1984) (per curiam) (same). 3 Here, by contrast, the ALJ rejected the opinion of a medical 4 “other source,” namely, two chiropractors. See § 404.1513(d) 5 (distinguishing between other “[m]edical sources,” such as 6 chiropractors and physicians’ assistants, and other “non-medical 7 sources,” such as spouses and family members). 8 with medical evidence is germane to discounting the opinion of 9 medical “other sources.” Contradiction See Molina, 674 F.3d at 1111-12 (ALJ 10 properly discounted opinion of physician’s assistant because it 11 was inconsistent with medical evidence); Minton v. Astrue, CV 11- 12 00461-PHX-FJM, 2012 WL 1019591, at *4 (D. Ariz. Mar. 26, 2012) 13 (“One example of a germane reason to discount the opinion of an 14 ‘other’ medical source is when that opinion conflicts with 15 medical evidence.”). 16 The Social Security Administration defines “crouching” as 17 “bending both the legs and spine in order to bend the body 18 downward and forward.” 19 1983); see also Filimoshyna v. Astrue, No. CIV S-08-2131 GGH, 20 2009 WL 3627946, at *8 (E.D. Cal. Oct. 29, 2009). 21 properly determined that Drs. Abgaryan and Gasparian’s opinion 22 that Plaintiff “should never crouch” was contradicted by medical 23 evidence demonstrating that she could crouch, albeit only to 50 24 percent. 25 appears to require that “crouching” be to a certain depth. 26 (AR 44.) See SSR 83-10, 1983 WL 31251 (Jan. 1, The ALJ Nothing in the regulations or case law The ALJ cited and relied on AR 502 (see AR 44), Dr. 27 Alleyne’s opinion that Plaintiff was “able to crouch to 50%” and 28 could crouch “occasionally” (AR 502-03). 18 That finding was 1 supported by a thorough physical examination conducted at the 2 time (see AR 501-02) and by medical opinions in the record also 3 stating that Plaintiff could crouch (see AR 89, 103). 4 contradiction with Dr. Alleyne’s opinion, which itself was 5 supported by substantial evidence, was a sufficiently germane 6 reason to reject the crouching opinion of Drs. Abgaryan and 7 Gasparian. 8 1320093, at *22 (E.D. Cal. Mar. 24, 2015) (finding that ALJ 9 properly rejected nurse’s other-source opinion because it was Thus, See Mendoza v. Colvin, No. 1:13-cv-01213-SKO, 2015 WL 10 directly contradicted by consultative examiner’s opinion, which 11 was “an acceptable medical source entitled to more weight”). 12 But the ALJ’s stated reason for rejecting the chiropractors’ 13 more restrictive opinion concerning Plaintiff’s “lifting and 14 carrying restrictions” — “spinal tenderness” (AR 44) — does not 15 appear to be germane. 16 tenderness” would enable Plaintiff to lift more than the 17 chiropractors found. The ALJ did not explain why “spinal He may do so on remand. 18 C. 19 Plaintiff asserts that the ALJ erred in assessing the Plaintiff’s Subjective Symptom Statements 20 credibility of her subjective symptom statements. (J. Stip. at 21 19-23, 26.) 22 statements’ credibility after he reassesses the opinions of Drs. 23 Taylor-Holmes, Yee, and Alleyne and chiropractors Abgaryan and 24 Gasparian, so the Court does not address this argument. 25 Negrette v. Astrue, No. EDCV 08-0737 RNB, 2009 WL 2208088, at *2 26 (C.D. Cal. July 21, 2009) (finding it unnecessary to address 27 further disputed issues when court found that ALJ failed to 28 properly consider treating doctor’s opinion and laywitness The ALJ may have to reevaluate Plaintiff’s 19 See 1 testimony). 2 D. Remand for Further Proceedings Is Appropriate 3 Plaintiff requests that the Court reverse the ALJ’s decision 4 and “order the payment of benefits in this case.” 5 26-27.) 6 must remand to the agency for further proceedings.” 7 Berryhill, 874 F.3d 1130, 1132 (9th Cir. 2017); see also Harman 8 v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended); 9 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). (J. Stip. at But when, as here, an ALJ errs, the Court “ordinarily Leon v. The 10 Court has discretion to make a direct award of benefits under the 11 “credit-as-true” rule, which asks (1) “whether the ‘ALJ failed to 12 provide legally sufficient reasons for rejecting evidence,’” (2) 13 “whether there are ‘outstanding issues that must be resolved 14 before a disability determination can be made,’” and (3) “whether 15 further administrative proceedings would be useful.” 16 874 F.3d at 1132-33 (citations omitted). 17 conditions are satisfied, the discredited testimony is credited 18 as true, but even then, at step three, “it is within the court’s 19 discretion either to make a direct award of benefits or to remand 20 for further proceedings.” 21 award of benefits was intended as a rare and prophylactic 22 exception to the ordinary remand rule”); see also Harman, 211 23 F.3d at 1179 (noting that “the decision of whether to remand for 24 further proceedings turns upon the likely utility of such 25 proceedings”); Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th 26 Cir. 2014). 27 28 See Leon, When the first two Id. at 1133 (explaining that “a direct Here, further administrative proceedings would serve the useful purpose of allowing the ALJ to reassess the opinions of 20 1 Drs. Taylor-Holmes, Yee, and Alleyne and chiropractors Abgaryan 2 and Gasparian. 3 Plaintiff’s standing-and-walking limitations, he can then provide 4 a clear and convincing reason for that finding. 5 clarify his rejection of chiropractors Abgaryan and Gasparian’s 6 lifting-and-carrying opinion, reassess his evaluation of the 7 credibility of Plaintiff’s symptom statements, and reevaluate 8 Plaintiff’s RFC in light of the evidence he did not previously 9 consider or did not adequately explain his consideration of. If he again rejects the doctors’ opinions as to 10 Thus, remand is appropriate. 11 n.26. 12 VI. He may also 13 See Garrison, 759 F.3d at 1020 CONCLUSION Consistent with the foregoing and under sentence four of 42 14 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 15 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 16 request for remand, and REMANDING this action for further 17 proceedings consistent with this memorandum decision. 18 19 DATED: November 30, 2017 20 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 21 22 23 24 25 26 27 28 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 21
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