William H. McKeithen v. Carolyn W. Colvin, No. 5:2016cv02224 - Document 20 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. The Agency must reevaluate Plaintiff's disability onset date in light of the findings made in this Order. (See document for further details). (mr)

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William H. McKeithen v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 WILLIAM H. McKEITHEN, No. EDCV 16-2224 SS 13 Plaintiff, 14 v. 15 NANCY A. BERRYHILL1, Acting Commissioner of Social Security, 16 17 MEMORANDUM DECISION AND ORDER Defendant. 18 19 20 I. 21 INTRODUCTION 22 23 24 Plaintiff William H. McKeithen (“Plaintiff”) seeks review of 25 the final decision of the Commissioner of the Social Security 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 Administration (hereinafter the “Commissioner” of the “Agency”) 2 concluding that Plaintiff was disabled as of September 3, 2014, 3 but was not disabled prior to that date. (Administrative Record 4 (“AR”) 34). The parties consented, pursuant to 28 U.S.C. § 636(c), 5 to the jurisdiction of the undersigned United States Magistrate 6 7 8 Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further proceedings. 9 10 II. 11 PROCEDURAL HISTORY 12 13 In 2009, Plaintiff filed an application for a period of 14 15 disability and disability insurance benefits (“DIB”), and an 16 application for supplemental security income (“SSI”), alleging a 17 disability onset date of September 1, 2008. 18 initially denied both applications on January 27, 2010, and upon 19 reconsideration on May 27, 2010. 20 hearing before an Administrative Law Judge (“ALJ”), which occurred 21 22 23 24 on July 21, 2011. (AR 107). (AR 41-54). (AR 107). The Agency Plaintiff requested a After the hearing, the ALJ determined that Plaintiff was not “disabled” under the Social Security Act and denied benefits. (AR 114). Plaintiff sought 25 review by the Appeals Council, which later remanded the action back 26 to the ALJ. (AR 118-22). 27 28 2 1 2 3 On remand, following a second hearing (AR 55-76), the ALJ again denied benefits. (AR 133). On appeal, the Appeals Council remanded the matter to the ALJ for a second time. (AR 139-44). 4 5 An ALJ held a third hearing. (AR 77-99). Following this 6 7 hearing, the ALJ issued a partially favorable ruling. (AR 22-40). 8 The ALJ concluded that Plaintiff was disabled as of September 3, 9 2014, but not from September 1, 2008 as Plaintiff contends. 10 34). 11 decision. 12 13 14 15 Plaintiff requested (AR 18). August 22, 2016. of the partially favorable The Appeals Council denied the request on (AR 1-7). Accordingly, Plaintiff filed this action to challenge the ALJ’s findings regarding his disability onset date. 16 17 review (AR III. STANDARD OF REVIEW 18 19 20 Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 the Commissioner’s denial of benefits when the ALJ’s findings are 23 based on legal error or are not supported by substantial evidence 24 in the record as a whole.” 25 “The court may set aside Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097 26 (9th Cir. 1999)); accord Smolen v. Chater, 80 F.3d 1273, 1279 (9th 27 28 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 3 However, the court must “affirm the denial of disability 1 1989). 2 benefits 3 Commissioner if it is applied supported the by substantial correct legal evidence standards.” and Marci the v. 4 Chater, 93 F.3d 540, 543 (9th Cir. 1996). 5 6 “Substantial evidence is more than a scintilla, but less than 7 8 a preponderance.” 9 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. It is “relevant evidence which a reasonable person might 10 1997)). 11 accept as adequate to support a conclusion.” 12 13 14 Id. To determine whether substantial evidence supports a finding, the court must “consider the record as a whole, weighing both evidence that 15 supports and evidence that detracts from the [Commissioner’s] 16 conclusion.” 17 2 F.3d 953, 956 (9th Cir. 1993). 18 support either affirming or reversing that conclusion, the court 19 may not substitute its judgment for that of the Commissioner. 20 Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & 21 Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, If the evidence could reasonably Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 22 \\ 23 24 25 \\ \\ 26 27 28 4 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate 5 a medically determinable physical or mental impairment that 6 7 prevents him from doing a substantial gainful activity, and that 8 is expected to result in death or last for a continuous period of 9 at least twelve months. Reddick, 157 F.3d at 721 (citing 42 U.S.C. 10 § 423 (d) (1) (A)). The impairment must render the claimant 11 incapable of performing any other substantial gainful employment 12 in the national economy. Tackett, 180 F.3d at 1098 (citing 42 13 U.S.C. § 423 (d) (2) (A)). 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § § 404.1520, 416.920. 17 18 (1) Is the claimant presently engaged in a substantial gainful 19 activity? 20 no, proceed to step two. 21 22 23 24 25 If yes, the claimant is found not disabled. (2) Is the claimant’s impairment severe? is found not disabled. If If no, the claimant If yes, proceed to step three. (3) Does the claimant’s impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, 26 Subpart P, Appendix 1? 27 disabled. If yes, the claimant is found If not, proceed to step four. 28 5 1 (4) Is the claimant capable of performing his past work? 2 yes, the claimant is found not disabled. 3 If If no, proceed to step five. 4 (5) Is the claimant able to do any other work? If not, the 5 claimant is found disabled. If yes, the claimant is found 6 not disabled. 7 8 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 9 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. 10 11 §§ 404.1520 (a) – (g) (1) & 416.920 (a) – (g) (1). 12 The claimant has the burden of proof at steps one through four 13 14 and 15 Bustamante, 262 F.3d at 953-54. 16 the Commissioner has the burden of proof at step five. “Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record 17 at every step of the inquiry.” Id. at 954. If, at step four, 18 19 20 the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant 21 can perform some other work that exists in “significant numbers” 22 in 23 residual functional capacity (“RFC”), age, education, and work 24 25 the national experience. 721; 20 economy, taking into account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at C.F.R. §§ 404.1520 (g) (1), 416.920 (g) (1). The 26 Commissioner may do so by the testimony of a vocational expert 27 28 (“VE”) or by reference to the 6 Medical-Vocational Guidelines 1 appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly 2 known as “the Grids”). 3 (9th Cir. 2001). Osenbrock v. Apfel, 240 F.3d 1157, 1162 When a claimant has both exertional and non- 4 exertional limitations, the Grids are inapplicable and thus the 5 ALJ must take VE testimony. Moore v. Apfel, 216 F.3d 864, 869 (9th 6 7 8 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). 9 10 Plaintiff contends that the ALJ failed to give proper weight 11 to the treating physicians’ opinions in determining Plaintiff’s 12 13 14 15 disability onset date. Plaintiff also argues that the ALJ failed to provide clear and convincing reasons to reject Plaintiff’s subjective testimony. The Court agrees with Plaintiff’s 16 contentions and REMANDS this action to the Agency for further 17 proceedings. 18 19 20 21 Plaintiff contends that the ALJ erred by failing to give proper weight to the physical functional assessments of treating doctors Harold Luke, M.D., and Wilson Gomer, M.D., and the examining doctor 22 Robert Steinberg, M.D. 23 (Plaintiff’s Memorandum In Support of the 24 Complaint (“Pl. MSO”) at 11-20). Plaintiff further argues that 25 had the 26 physicians’ opinions, Plaintiff’s disability onset date would have the ALJ properly credited 27 28 7 treating and examining 1 been September 1, 2008, not September 3, 2014. 2 The Court agrees that remand is required, as discussed below. See Pl. MSO at 20. 3 4 V. 5 DISCUSSION 6 7 A. The ALJ Failed To Provide Specific And Legitimate Reasons To 8 Reject The Treating Physicians’ Opinions 9 10 11 As a matter of law, the greatest weight is accorded to the 12 claimant's treating physician. 13 1160-61 (9th Cir. 2014). 14 entitled to special weight because the treating physician is hired 15 16 17 18 19 Ghanim v. Golvin, 763 F.3d 1154, The opinions of treating physicians are to cure and has a better opportunity to know and observe the claimant as an individual. Id. Further, as a general rule, when a treating or examining physician’s opinion is not contradicted by another physician, it may be rejected 20 convincing” reasons. 21 (9th Cir. 2017). 22 detailed and thorough summary of the facts. 23 only for “clear and 675. See Trevizo v. Berryhill, 871 F.3d 664, 675 The ALJ can meet this burden by setting forth a Trevizo, 871 F.3d at 24 25 When 26 27 28 a treating or an examining physician’s opinion is contradicted by another doctor, it may only be rejected if the ALJ provides “specific and legitimate” reasons supported by substantial 8 1 evidence in the record. 2 (9th Cir. 2014); see also Orn v. Astrue, 495 F.3d 625, 633 (9th 3 See Garrison v. Colvin, 759 F.3d 995, 1012 Cir. 2007. 4 5 Here, Consultative Examiner Azizollah Karamalou, M.D., 6 7 contradicted the assessments of treating doctors Luke and Gomer, 8 and examining consultative physician Robert Steinberg. (Compare AR 9 619 with AR 522-28, 570-76, and 549-51). Dr. Luke’s questionnaire 10 indicates his first date of treatment for Plaintiff’s pulmonary 11 condition was June 2, 2004. (AR 522). Dr. Steinberg viewed records 12 dating back to September 24, 2008 and concluded that “the earliest 13 14 15 date that the patient’s symptoms and limitations apply is 2009.” (AR 542-551). Because of the conflicting opinions, the ALJ must “specific and legitimate” reasons 16 provide for 17 rejecting the opinions of Doctors Luke, Gomer, and Steinberg. 18 19 1. Treating Physician Harold Luke, M.D. 20 21 Dr. Harold Luke, M.D., practices pulmonary medicine in Redlands 22 and Grand Terrace, California. (See e.g., AR 516, 521, 528). Dr. 23 24 Luke is affiliated with Redlands Community Hospital and the Quality 25 Medical Corporation’s Happy Care Clinic (“Quality Clinic”). 26 e.g., AR 514, 528). 27 Dr. Luke noted that Plaintiff has received treatment from Quality (See In a summary report drafted on June 30, 2011, 28 9 1 Clinic since 2004. (AR 515). Further, in 2009, Plaintiff presented 2 to Dr. Luke at Quality Clinic after suffering from an episode of 3 severe shortness and breath and chest pain. (AR 515). Chest x- 4 rays demonstrated Plaintiff maintained only forty-six percent of 5 his lung capacity. (AR 515) Further, Dr. Luke assessed that 6 7 Plaintiff suffered from emphysema and diabetes. (AR 515). 8 9 Dr. Luke assessed plaintiff on several occasions between 2009 10 and 2011. 11 diagnosed plaintiff with COPD, chronic bronchitis, obesity, bipolar 12 disorder, (See AR 497-528). hypertension, and During a visit in 2010, Dr. Luke diabetes. (AR 505). Dr. Luke 13 recommended that Plaintiff refrain from doing physical light work. 14 15 16 (AR 505). He further recommended that Plaintiff engage in “walking exercise daily after meals for 20 minutes one way.” (AR 505). 17 18 19 20 21 On September 25 2011, Dr. Luke completed a Pulmonary Impairment Questionnaire. (AR 522-28). Dr. Luke determined that, in an eight-hour workday, Plaintiff could only sit, stand and walk for up to one hour each day. (AR 525). Further, Plaintiff was limited 22 to lifting and carrying up to 10 pounds frequently, and up to 20 23 24 pounds occasionally. (AR 525). Dr. Luke also found that 25 Plaintiff’s reported level of pain, a five on a one-to-ten scale, 26 would “frequently” interfere with his concentration and attention. 27 (AR 527). 28 10 1 The ALJ incorporated the previous ALJ’s decision and rejected 2 Dr. Luke’s medical assessment of Plaintiff. 3 ALJ rejected Dr. Luke’s assessment for several reasons. (AR 30). The previous (AR 130- 4 31). 5 6 7 The ALJ found that Dr. Luke made a contradictory assessment of Plaintiff’s physical capabilities. (AR 130). The ALJ noted that Dr. Luke determined in 2011 that Plaintiff could not stand or 8 walk for more than one hour in an eight-hour workday, despite his 9 2010 recommendation that Plaintiff engage in recreational walking 10 for exercise up to three times daily and for twenty minutes at a 11 time. 12 rendered his 2011 assessment only as “a series of checked boxes 13 that (AR 130). were marked In addition, the ALJ concluded that Dr. Luke without any specific clinical or objective 14 15 support.” (AR 130-31). Finally, the ALJ found Dr. Luke never 16 administered any type of pulmonary function study when assessing 17 Plaintiff. (AR 131). 18 19 20 21 22 23 24 The Court finds that the ALJ’s reasons for rejecting Dr. Luke’s assessments are not specific and legitimate. The ALJ’s initial determination that Dr. Luke made a contradictory assessment of Plaintiff’s physical physical functional capabilities assessment is of unfounded. Plaintiff in Dr. 2011 Luke’s was an 25 assessment of what Plaintiff could do at that particular time. 26 505). 27 “recreational” walking for exercise was expressly worded as a goal His recommendation in 2010 28 11 that Plaintiff engage (AR in 1 for Plaintiff. 2 Plaintiff endeavor to walk “daily after meals for 20 minutes on 3 way . . . if possible to condition the heart.” 4 5 (AR 505). For example, he recommended that (AR 505). words “if possible” suggest that this was a goal. The Accordingly, 6 the ALJ’s reason for rejecting Dr. Luke’s opinion because the 7 doctor’s findings were “contradictory” is not supported by the 8 record. 9 Furthermore, the ALJ’s rejection of Dr. Luke’s 10 assessment 11 because of a “series of checked boxes that were marked without any 12 specific clinical or objective support” is not supported by the 13 record. (AR 130-31). 14 15 Contrary to the ALJ’s finding, Dr. Luke supplied handwritten responses and comments to nine of the twenty- 16 one questions on the assessment form. 17 Luke submitted chart notes reflecting his own findings in support 18 of 19 Plaintiff’s diminished lung capacity, and Dr. Luke detailed other 20 21 22 his responses, he referenced medical findings he made. (AR 522-28). a chest (AR 515-16). x-ray Moreover, Dr. demonstrating See Garrison, 759 F.3d at 1014 n.17 (emphasizing that more than just the face of a “check- 23 box” form should 24 including notes and charts attached in support of a questionnaire’s 25 responses.). 26 of Dr. Luke’s opinion on the basis that the assessment was a “series be considered when considering its weight, Thus, the record does not support the ALJ’s rejection 27 28 12 1 of checked boxes that were marked without any specific clinical or 2 objective support.” 3 4 In addition, the ALJ erred by stating that Dr. Luke never 5 administered any type of pulmonary function study. Dr. Luke 6 7 administered and referenced a chest x-ray showing Plaintiff’s 8 significantly reduced lung capacity. 9 that the ALJ failed to provide specific and legitimate reasons to 10 (AR 515). Thus, Court finds reject Dr. Luke’s opinions. 11 12 2. Treating Physician Wilson Gomer 13 14 Primary 15 care physician, Dr. Wilson Gomer, M.D., 16 Plaintiff from July 2012 to October 2012. 17 26, 2012, Dr. Gomer completed a Multiple Impairment Questionnaire. 18 (AR 570-77). 19 apnea, depression, hypertension, chest pain, diabetes, emphysema, 20 21 (AR 570). treated He concluded that Plaintiff suffers from COPD, sleep hyperlipidemia, shortness of breath, and heart disease. 71). On October (AR 570- Based on his treatment, Dr. Gomer opined that that Plaintiff 22 could not sit, stand or walk for more than one hour in an eight23 24 hour workday. (AR 572). Further, he opined that Plaintiff could 25 occasionally lift and carry up to 10 pounds. 26 based on Plaintiff’s reported pain level, Dr. Gomer concluded that 27 28 13 (AR 573). Moreover, 1 Plaintiff’s experience of pain was enough to “constantly” interfere 2 with Plaintiff’s attention and concentration. (AR 575). 3 4 The ALJ rejected Dr. Gomer’s physical assessment based on four 5 reasons. 6 Initially, the ALJ characterized Dr. Gomer’s assessment 7 as “vague and overly broad objective findings.” 8 pointed to the lack of a pulmonary function study, chest x-rays, 9 MRI studies, or other diagnostic tools in the treatment record. (AR 31). The ALJ Next, the ALJ concluded that Dr. Gomer’s assessment 10 (AR 31). 11 consists of “a series of checked boxes on a preprinted form 12 solicited by the claimant’s representative.” 13 14 15 (AR 31). The ALJ also found Dr. Gomer’s assessment contradicted Dr. Luke’s. 31). (AR The ALJ noted that Dr. Gomer concluded that Plaintiff could 16 not sit, stand, or walk more than one hour in an eight-hour workday, 17 but Dr. Luke also recommended that Plaintiff walk for exercise up 18 to three times a day and for twenty minutes at a time. 19 Finally, 20 responded “No” to the question, “Have you substituted medications 21 22 in an the ALJ attempt to rejected produce Dr. less Gomer’s assessment symptomology 23 effects?” 24 could be used to control Plaintiff’s condition. (AR 31-32). or (AR 31). because relieve he side The ALJ found that numerous medications (AR 31-32). 25 26 27 The Court finds that the ALJ’s reasons for rejecting the treating physician Gomer’s assessments 28 14 are not specific and Gomer’s 1 legitimate. 2 characterized as “vague findings.” 3 clear. First, Dr. assessments are improperly The findings are specific and Moreover, the ALJ did not explain what further studies 4 should have been done. 5 Thus, “vague findings” was not a legitimate reason to reject Dr. Gomer’s report. 6 7 Second, Dr. Gomer’s responses do not display a “series of 8 9 mindlessly checked boxes.” Dr. Gomer submitted pages of charts 10 and notes in support of his assessment. (AR 529-36, 562-68, 597- 11 615, 664-98). 12 Moreover, he supplied handwritten responses to fourteen of the twenty-nine questions on the first questionnaire 13 form (AR 570-76), and he submitted handwritten responses to ten 14 15 16 out of fourteen responses on the most recent questionnaire. 646-50). (AR Thus, Dr. Gomer’s responses were not just checked boxes. 17 Third, Dr. Gomer’s assessment of Plaintiff’s ability to walk 18 Luke’s 19 and stand in an eight-hour workday does not contradict Dr. 20 “recommendation” that he walk for twenty minutes at a time up to 21 22 23 24 three times a day to condition his heart. (AR 549). As stated before, Dr. Luke’s recommendation was expressly worded as a goal rather than an assessment of what Plaintiff could presently do. 25 (AR 505). For this 26 reason, Dr. contradict Dr. Luke’s. 27 28 15 Gomer’s assessment did not 1 Finally, the ALJ’s decision to reject Dr. Gomer’s assessment 2 because he responded “No” to a question on his assessment form 3 about providing substitute medication to Plaintiff is not a 4 specific and legitimate reason. 5 6 7 (AR 574). Dr. Gomer adjusted Plaintiff’s diabetes medication and made several additions to the medications in his regimen. (AR 698). Further, the ALJ is a 8 layperson, not a doctor. An ALJ cannot challenge a medical doctor’s 9 treatment choices and a physician’s awareness of the scope of 10 treatments available to his patient. 11 F.3d 1094, 1102 (9th Cir. 1999); Day v. Weinberger, 522 F.2d 1154, 12 1156 (9th Cir. 1975). See Tackett v. Apfel, 180 Accordingly, the Court finds that the ALJ 13 failed to provide specific and legitimate reasons for rejecting 14 15 Dr. Gomer’s assessment. 16 17 3. Examining Consultative Physician Robert Steinberg, M.D. 18 19 Plaintiff’s counsel retained Dr. Robert Steinberg, M.D., to 20 assess Plaintiff. 21 Integrative Medicine specialist. 22 23 24 (AR 538-52). Dr. Steinberg is an Internal and (AR 538). On September 27, 2012, after examining Plaintiff and reviewing medical records dating back to 2009, Dr. Steinberg provided a detailed report on Plaintiff’s limitations. (AR 538-52). Dr. Steinberg concluded that in an 25 26 eight-hour day, Plaintiff could sit only for about two hours, and 27 stand/walk for only about thirty minutes to one hour. 28 He also opined that Plaintiff can lift and carry up to 10 pounds 16 (AR 549). 1 frequently and up to 20 pounds occasionally. 2 Steinberg found that increase in competitive 3 a Plaintiff’s work pain (AR 549). Dr. symptoms would environment. likely (AR 550). 4 Additionally, Dr. Steinberg advised that Plaintiff would need 5 unscheduled rest-breaks at unpredictable intervals during the 6 7 eight-hour work day, for twenty minutes a time at every hour. 8 550). 9 and limitations was in 2009. (AR. He determined that the earliest date of Plaintiff’s symptoms (AR 551). 10 11 12 The ALJ rejected examining doctor Steinberg’s assessment on three grounds. First, the ALJ asserted that a non-examining medical Ostrow 13 advisor found that the record supporting Dr. 14 15 Steinberg’s assessment contained insufficient “objective findings” 16 to endorse the restrictive standing and walking limitations and 17 unscheduled rest breaks recommended by Dr. Steinberg. 18 Second, the ALJ concluded that Plaintiff’s reported pain level, a 19 five on a one-to-ten scale, is intrinsically at odds with Dr. 20 Steinberg’s opinion that the pain would “frequently” interfere with 21 22 Plaintiff’s attention and concentration. ALJ rejected 23 Dr. Steinberg’s assessment (AR 31). based on (AR 30-31). Lastly, the the ALJ’s 24 determination that Plaintiff’s lungs were essentially clear on 25 examination. (AR 31) 26 27 28 17 The Court finds that the ALJ’s reasons for rejecting examining 1 2 3 doctor Steinberg’s assessment are not specific and legitimate. As a matter of law, a non-examining medical advisor’s opinion will 4 not suffice to override a treating or examining and consultative 5 6 physician’s opinion. 7 Chater, 81 F.3d 821, 830 (1995) (“The ALJ’s primary reasons for 8 rejecting 9 conflicted with the testimony of a non-examining medical advisor. 10 In so doing, the ALJ committed an error of law.”); see also Pitzer 11 v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“[T]he non- 12 examining physician’s conclusion, with nothing more, does not 13 [the constitute See Garrison, 759 F.3d at 1012; Lester v. treating substantial physicians’] evidence, opinions particularly were in that view they of the 14 15 conflicting observations, opinions, and conclusions of an examining Accordingly, because Dr. Steinberg is Plaintiff’s 16 physician.”). 17 examining 18 opinion, by itself, may not stand to override Dr. Steinberg’s 19 assessment. doctor, the non-examining medical advisor Ostrow’s 20 21 Next, the ALJ had no factual basis to determine that Plaintiff’s 22 reported pain level as a five on a one-to-ten scale is intrinsically 23 24 at odds with Dr. Steinberg’s 25 “frequently” 26 concentration. 27 with Plaintiff that there is nothing inconsistent between a mid- interfere (AR 559). with opinion that Plaintiff’s the pain attention would and As a factual matter, the Court agrees 28 18 1 range level of pain and an inference that such a pain would 2 “frequently” 3 interfere with an the finding individual’s attention and concentration. 4 5 Finally, 6 7 ALJ’s that Plaintiff’s lungs were essentially clear on examination lacks merit. Dr. Steinberg found 8 decreased breath sounds in all lung fields in Plaintiff, with a 9 prolonged expiratory phase. (AR 544). Furthermore, Dr. Steinberg’s 10 findings are consistent with the opinions of treating physicians 11 Luke and Gomer, who similarly determined that Plaintiff suffered 12 from wheezing (AR 523, 533), poor breath sounds (AR 505), and 13 diminished breathing. (AR 515). 14 15 16 Thus, the Court finds the ALJ failed to give specific and 17 legitimate reasons for rejecting examining consultative doctor 18 Steinberg’s assessment. 19 20 21 22 B. The ALJ Failed To Provide Clear And Convincing Reasons To Reject Plaintiff’s Credibility 23 24 Plaintiff also challenges the ALJ’s credibility 25 determination. Plaintiff contends that the ALJ failed to provide 26 clear and convincing reasons supported by substantial evidence in 27 the record for discrediting his testimony. 28 19 (Pl. MSO at 20-22). 1 The Court agrees and remands this action for further proceedings 2 consistent with this decision. 3 4 The ALJ presented several reasons for discounting Plaintiff’s 5 credibility. The ALJ initially concluded that Plaintiff was not 6 7 credible because the chest pain he experienced while trimming his 8 hedges subsided when he discontinued that activity. 9 The ALJ also found that Plaintiff’s testimony lacked credibility 10 because Plaintiff failed to stop smoking after being medically 11 advised to do so. 12 Plaintiff’s failure to quit smoking evinced his failure to follow 13 (AR 32). (AR 32). Consequently, the ALJ held that medical advice, thus undermining his credibility. (AR 32). For 14 15 the reasons stated below, the Court concludes that the ALJ failed 16 to provide clear and convincing reasons to reject Plaintiff’s 17 credibility. 18 19 1. Chest Pain Testimony 20 21 22 23 24 Plaintiff challenges the ALJ’s decision to reject his credibility based on his alleged “inconsistent” testimony about Plaintiff’s chest pain. (Pl. MSO at 20). In particular, the ALJ 25 discredited Plaintiff’s testimony regarding his chest pain because 26 the “chest pain ceased after [Plaintiff] stopped trimming” the 27 hedges. (AR 32). 28 20 1 2 3 The ALJ may use “ordinary techniques of credibility evaluation, such as . . . prior inconsistent statements.” Ghanim, 4 763 F.3d at 1163 (quoting Smolen, 80 F.3d at 1284). 5 As a general 6 rule, the Ninth Circuit “do[es] not consider a cursory finding that 7 a single line of testimony is ‘equivocal’ sufficient to constitute 8 substantial evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 9 884 (9th Cir. 2006). In Robbins, the Ninth Circuit held that an 10 ALJ failed to provide clear and convincing reasons to discount a 11 claimant’s 12 credibility when relying on a inconsistent testimony regarding alcohol use. “single line” of Id. 13 14 Here, as in Robbins, the ALJ erroneously relied on a single 15 16 limited discrepancy to reject Plaintiff’s credibility. 17 the ALJ’s finding that Plaintiff is capable of light physical 18 exertion may conflict with Plaintiff’s claim that he endured pain 19 while 20 sufficient to wholly reject Plaintiff’s credibility. 21 22 23 trimming his hedges, that inconsistency Although alone is not Thus, the Court agrees that this rationale fails to provide a clear and convincing reason to reject Plaintiff’s credibility. 24 25 26 27 28 21 1 2. Plaintiff’s Failure To Quit Smoking 2 3 Plaintiff challenges the ALJ’s decision to reject his 4 credibility based on his failure to follow medical advice to quit 5 smoking. (Pl. MSO at 21). 6 7 “A claimant's subjective symptom testimony may be undermined by an unexplained, or inadequately 8 explained, failure to ... follow a prescribed course of treatment.” 9 Trevizo, 871 F.3d at 679 (citations omitted). Failure to assert a 10 reason for not following treatment “can cast doubt on the sincerity 11 of the claimant's pain testimony.” Id. 12 13 14 15 As a general rule, “in the case of impairments where the stimulus to seek relief is less pronounced, and where medical 16 treatment is very unlikely to be successful, the approach to 17 credibility makes little sense.” 18 example, in Orn, the Ninth Circuit, held that a claimant’s failure 19 to follow a medically advised treatment for treating his obesity 20 was not sufficient to discount the claimant’s credibility. 21 22 23 Therefore, the court found that Orn, 495 F.3d at 638. the claimant’s credibility on this ground. ALJ erred in For Id. rejecting Id. 24 25 Additionally, the Court notes that the Seventh Circuit in 26 Shramek v Apfel followed several steps (omitted by the ALJ here) 27 before denying benefits for a failure to follow medical advice to 28 22 1 quit smoking. 2 follow medical advice, the Seventh Circuit found that an inquiry 3 Before denying benefits because of a failure to must be conducted into the circumstances surrounding the failure, 4 and a determination must be made as to whether following the 5 6 7 treatment advice would have restored the person’s ability to work or sufficiently improve his condition. Shramek v. Apfel, 226 F.3d 8 809, 812-13 (7th Cir. 2000) (cited in Bray v. Comm’r of Soc. Sec. 9 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). 10 11 12 Here, Plaintiff’s failure to follow medical advice to quit smoking is similar the plaintiff in Orn, who failed to follow 13 medical advice to lose weight. In neither situation is the failure 14 15 to follow medical advice, on the facts of the case, a clear and 16 convincing reason to reject the claimant’s subjective testimony. 17 Furthermore, the ALJ here failed to consider whether quitting 18 smoking 19 sufficiently improved his health condition to allow him to work. 20 Without such an inquiry, Plaintiff’s failure to quit smoking alone 21 22 23 24 25 would have restored Plaintiff’s ability to work or cannot constitute a convincing reason to reject his credibility. Therefore, the Court agrees that Plaintiff’s failure to follow the medical advice to quit smoking, under these facts, does not provide a clear and convincing reason to reject his credibility. 26 27 28 23 1 VI. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four 5 of 42 U.S.C. § 405(g),1 IT IS ORDERED that judgment be entered 6 7 REVERSING the decision of the Commissioner and REMANDING this 8 matter for further proceedings consistent with this decision. The 9 Agency must reevaluate Plaintiff’s disability onset date in light 10 of the findings made in this Order. 11 the Clerk of the Court serve copies of this Order and the Judgment 12 IT IS FURTHER ORDERED that on counsel for both parties. 13 14 15 16 DATED: November 13, 2017 17 18 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 This 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.” 1 26 27 28 24 1 NOTICE 2 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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