Claude Jerry Flood v. Nancy A. Berryhill, No. 5:2017cv00862 - Document 26 (C.D. Cal. 2018)
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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Claude Jerry Flood v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLAUDE JERRY FLOOD, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. ) Case No. EDCV 17-0862-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying his application for supplemental security income benefits 20 (“SSI”). 21 undersigned under 28 U.S.C. § 636(c). 22 Court on the parties’ Joint Stipulation, filed February 27, 2018, 23 which the Court has taken under submission without oral argument. 24 For the reasons stated below, the Commissioner’s decision is 25 reversed and this action is remanded for further proceedings. The parties consented to the jurisdiction of the The matter is before the 26 27 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1961. (Administrative Record (“AR”) 3 20, 33, 197.) 4 worked as a pool-service man and groundskeeper (AR 19, 201, 207). 5 He completed 11th grade (AR 50, 201, 207) and On June 18, 2013, Plaintiff applied for SSI, alleging that 6 he had been unable to work since December 30, 2008, because of 7 nerve damage in his right shoulder, carpal-tunnel syndrome, and 8 complications from an injury to his right elbow and subsequent 9 surgery. (AR 170.) His applications were denied initially and 10 on reconsideration (see AR 73-84, 86-96), and he requested a 11 hearing before an Administrative Law Judge (AR 117). 12 was held on August 12, 2015, at which Plaintiff, who was 13 represented by counsel, testified, as did a vocational expert. 14 (AR 30-72.) 15 ALJ found Plaintiff not disabled. 16 Appeals Council review (AR 8), which was denied on March 14, 2017 17 (AR 1-6). 18 III. STANDARD OF REVIEW 19 A hearing In a written decision issued December 11, 2015, the (AR 12-21.) Plaintiff sought This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 24 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 means such evidence as a reasonable person might accept as 26 adequate to support a conclusion. 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 is more than a scintilla but less than a preponderance. 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 substantial evidence supports a finding, the reviewing court 4 “must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner’s conclusion.” 7 720 (9th Cir. 1998). 8 either affirming or reversing,” the reviewing court “may not 9 substitute its judgment” for the Commissioner’s. 10 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 11 People are “disabled” for purposes of receiving Social 12 Security benefits if they are unable to engage in any substantial 13 gainful activity owing to a physical or mental impairment that is 14 expected to result in death or has lasted, or is expected to 15 last, for a continuous period of at least 12 months. 16 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 17 1992). 42 U.S.C. 18 A. 19 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 20 whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); 21 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 22 amended Apr. 9, 1996). 23 determine whether the claimant is currently engaged in 24 substantial gainful activity; if so, the claimant is not disabled 25 and the claim must be denied. In the first step, the Commissioner must § 416.920(a)(4)(i). 26 If the claimant is not engaged in substantial gainful 27 activity, the second step requires the Commissioner to determine 28 whether the claimant has a “severe” impairment or combination of 3 1 impairments significantly limiting his ability to do basic work 2 activities; if not, the claimant is not disabled and his claim 3 must be denied. 4 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 5 impairments, the third step requires the Commissioner to 6 determine whether the impairment or combination of impairments 7 meets or equals an impairment in the Listing of Impairments set 8 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 9 disability is conclusively presumed. § 416.920(a)(4)(iii). 10 If the claimant’s impairment or combination of impairments 11 does not meet or equal an impairment in the Listing, the fourth 12 step requires the Commissioner to determine whether the claimant 13 has sufficient residual functional capacity (“RFC”)1 to perform 14 his past work; if so, he is not disabled and the claim must be 15 denied. 16 proving he is unable to perform past relevant work. 17 F.2d at 1257. 18 case of disability is established. 19 the claimant has no past relevant work, the Commissioner then 20 bears the burden of establishing that the claimant is not 21 disabled because he can perform other substantial gainful work 22 available in the national economy. 23 966 F.2d at 1257. 24 final step in the sequential analysis. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if § 416.920(a)(4)(v); Drouin, That determination comprises the fifth and § 416.920(a)(4)(v); 25 1 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; 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 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 2 B. 3 At step one, the ALJ found that Plaintiff had not engaged in 4 substantial gainful activity since June 18, 2013, the application 5 date. 6 severe impairments of “degenerative disc disease of the cervical 7 spine and lumbar spine; right shoulder and right elbow disorder; 8 and carpal tunnel syndrome of the bilateral wrists.” 9 step three, she determined that Plaintiff’s impairments did not The ALJ’s Application of the Five-Step Process (AR 14.) At step two, she concluded that Plaintiff had (Id.) At 10 meet or equal a listing. 11 that Plaintiff had the RFC to perform a limited range of medium 12 work: (AR 15.) At step four, the ALJ found 13 [Plaintiff] can lift and carry 50 pounds occasionally and 14 25 pounds frequently; sit, stand, and walk for six hours 15 out of an eight-hour workday. 16 use of right hand controls for pushing and pulling and 17 frequent 18 frequently climb stairs and ramps, balance, stoop, kneel, 19 crouch and crawl; and occasionally climb ladders, ropes, 20 or 21 unprotected heights, moving mechanical parts, extreme 22 cold, and vibrations. bilateral scaffolds. handling He can have He is limited to frequent and fingering. occasional He exposure can to 23 (Id.) Based in part on the VE’s testimony, the ALJ concluded 24 that Plaintiff was able to perform his past relevant work as a 25 groundskeeper and swimming-pool servicer “as generally performed 26 in the regional and national economy, but not as actually 27 performed by [him].” 28 ALJ found that given Plaintiff’s age, education, work experience, (AR 19.) Alternatively, at step five, the 5 1 and RFC, he could perform three “representative” jobs in the 2 national economy. 3 disabled. 4 V. 5 Thus, the ALJ found Plaintiff not (AR 21.) DISCUSSION2 A. 6 7 (AR 20-21.) The ALJ Did Not Properly Consider the Medical Evidence in Determining Plaintiff’s RFC Plaintiff contends that the ALJ erred in assessing the 8 medical evidence. 9 relied too heavily on the findings of consulting orthopedist (J. Stip. at 4-9.) He argues that the ALJ 10 Vicente Bernabe, and those findings were “not consistent with or 11 supported by the totality of evidence.” 12 argues that the ALJ improperly failed to consider evidence from 13 Dr. Khalid Ahmed, who treated him for several years, and Dr. 14 Michael Tomkins, who examined him twice in the months leading up 15 to the hearing. 16 warranted based on the ALJ’s failure to discuss evidence from Dr. 17 Ahmed. 18 19 1. (Id. at 6-8.) (Id. at 5.) He further As discussed below, remand is Applicable law A claimant’s RFC is “the most [he] can still do” despite the 20 impairments and related symptoms that “may cause physical and 21 mental limitations that affect what [he] can do in a work 22 setting.” § 416.945(a)(1). A district court must uphold an 23 24 25 26 27 28 2 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 8, 32-63; J. Stip. at 4-9, 19-22); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council). 6 1 ALJ’s RFC assessment when the ALJ has applied the proper legal 2 standard and substantial evidence in the record as a whole 3 supports the decision. 4 (9th Cir. 2005). 5 “together with the rest of the relevant evidence.” 6 § 416.927(b);3 see also § 416.945(a)(1) (“We will assess your 7 residual functional capacity based on all the relevant evidence 8 in your case record.”). 9 Bayliss v. Barnhart, 427 F.3d 1211, 1217 The ALJ must consider all the medical opinions Three types of physicians may offer opinions in Social 10 Security cases: (1) those who directly treated the plaintiff, (2) 11 those who examined but did not treat the plaintiff, and (3) those 12 who did neither. 13 opinion is generally entitled to more weight than an examining 14 physician’s, and an examining physician’s opinion is generally 15 entitled to more weight than a nonexamining physician’s. 16 see § 416.927(c)(1). Lester, 81 F.3d at 830. A treating physician’s Id.; 17 This is so because treating physicians are employed to cure 18 and have a greater opportunity to know and observe the claimant. 19 20 21 22 23 24 25 26 27 28 3 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. 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. § 416.927 are to the version in effect from August 24, 2012, to March 26, 2017. 7 1 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 2 findings of a nontreating, nonexamining physician can amount to 3 substantial evidence, so long as other evidence in the record 4 supports those findings.” 5 (9th Cir. 1996) (per curiam) (as amended). 6 But “the Saelee v. Chater, 94 F.3d 520, 522 The ALJ may reject a treating physician’s opinion whether or 7 not that opinion is contradicted. 8 747, 751 (9th Cir. 1989) (“For example, the ALJ need not accept a 9 treating physician’s opinion which is ‘brief and conclusionary in 10 form with little in the way of clinical findings to support [its] 11 conclusion.’” (citation omitted) (alteration in original)). 12 a treating physician’s opinion is not contradicted by other 13 medical-opinion evidence, however, it may be rejected only for a 14 “clear and convincing” reason. 15 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing 16 Lester, 81 F.3d at 830-31). 17 must provide only a “specific and legitimate reason[]” for 18 discounting it. 19 F.3d at 830-31). 20 Magallanes v. Bowen, 881 F.2d When Id.; see Carmickle v. Comm’r, When it is contradicted, the ALJ Carmickle, 533 F.3d at 1164 (citing Lester, 81 An ALJ may not disregard a treating physician’s opinion 21 unless she sets forth “specific, legitimate reasons for doing so 22 that are based on substantial evidence in the record.” 23 80 F.3d at 1285 (citation omitted). 24 rejects a medical opinion” by “doing nothing more than ignoring 25 it.” 26 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 27 28 Smolen, “[A]n ALJ errs when [she] Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) The Court must consider the ALJ’s decision in the context of “the entire record as a whole,” and if the “‘evidence is 8 1 susceptible to more than one rational interpretation,’ the ALJ’s 2 decision should be upheld.” 3 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 4 2. 5 Relevant background i. 6 Ryan v. Comm’r of Soc. Sec., 528 Medical examinations and treatment Plaintiff began seeing orthopedist Khalid Ahmed in January 7 2009 in connection with a workers’-compensation claim.4 8 293.) 9 pain with radiating pain going up the right elbow to the right (AR He complained of “[r]ight elbow pain” and “[r]ight hand 10 forearm to the right shoulder,” resulting from “continuous 11 trauma” from approximately August 8, 2007, to November 5, 2008, 12 caused by his job duties as a maintenance man. 13 observed that Plaintiff had “decreased lordosis” of the cervical 14 spine, with a slightly reduced range of motion on his left side, 15 and “evidence of tightness and spasm” at the right and left 16 “trapezius, sternocleicomastoid, and strap muscles.” 17 He noted a decreased range of motion in Plaintiff’s right 18 shoulder, “with step-off noted over right AC joints,” 19 “[e]xostosis and pain on pressure,” “atrophy of right deltoid and (Id.) Dr. Ahmed (AR 296.) 20 21 22 23 24 25 26 27 28 4 Plaintiff injured his right elbow on the job on August 8, 2007, while using a pickaxe but returned to his normal duties a few days later. (AR 294, 378.) He claims that the condition of his right arm worsened until he reinjured it on November 5, 2008, while “shoveling and pulling a backhoe.” (AR 378.) He was fired, apparently sometime in December 2008, following theft allegations. (AR 38-39, 201.) At Plaintiff’s first visit with Dr. Ahmed, he reported that he had been seen at San Bernardino Hospital in November 2008 for injuries to his right shoulder and arm and was given pain medication and cortisone shots. (AR 294; see also AR 371-72.) The record does not contain any examination notes or reports from before January 9, 2009, however. 9 1 rotator cuff muscles,” and a positive impingement test. (AR 2 297.) 3 his right wrist showed positive Tinel’s and Phalen’s signs.5 4 298.) 5 (AR 298-99.) 6 Secondary to Lateral Epicondylitis, Right Elbow with Failed 7 Cortisone Injections x1,” and “Right Shoulder Tendinitis 8 Impingement Syndrome with AC Joint Arthritis.” 9 placed him on temporary total disability for six weeks and noted His wrists and hands had normal extension and flexion, but (AR His thoracic and lumbar spines were assessed as normal. Dr. Ahmed diagnosed him with “Chronic Pain Syndrome (AR 302.) He 10 that Plaintiff’s injuries would restrict him to lifting no more 11 than 10 to 15 pounds with his right arm, no forceful pulling or 12 squeezing with his right “upper extremity,” and no overhead work 13 with his right arm. (AR 302-03.) Dr. Ahmed prescribed Anaprox,6 14 15 16 17 18 19 20 21 22 5 23 24 25 26 27 28 Tinel’s sign is positive when tapping the front of the wrist produces tingling of the hand. See Carpal Tunnel Syndrome, Medicine Net, https://www.medicinenet.com/carpal_tunnel_syndrome/ article.htm (last visited Sept. 25, 2018). Phalen’s sign is positive when bending the wrist downward produces tingling of the hand. See id. Both are considered markers of carpal-tunnel syndrome. See id. 6 Anaprox is a brand name for naproxen sodium and is a nonsteroidal anti-inflammatory drug used to treat pain and swelling. See Anaprox, WebMD, https://www.webmd.com/drugs/2/ drug-10989/anaprox-oral/details (last visited Sept. 25, 2018). 10 1 Prilosec,7 Norco,8 baclofen,9 Paxil,10 and Tranxene11 and 2 recommended physiotherapy and an MRI. 3 (AR 303.) At a follow-up visit with Dr. Ahmed on February 20, 2009, 4 Plaintiff still complained of pain in his right elbow and 5 shoulder as well as numbness in those areas. 6 Ahmed noted that the numbness “very well may be coming from the 7 cervical spine” and recommended further diagnostic studies and 8 physiotherapy. 9 (AR 290.) Dr. (AR 290.) Plaintiff continued to see Dr. Ahmed regularly for right- 10 elbow and shoulder pain and was also diagnosed with disc 11 protrusion of the cervical spine with radiculitis. (See, e.g., 12 7 13 14 15 Prilosec is a brand name for omeprazole and is used to treat stomach and esophagus problems, such as acid reflux, ulcers, heartburn, and difficulty swallowing. See Prilosec, WebMD, https://www.webmd.com/drugs/2/drug-7957-1173/ prilosec-oral/omeprazole-delayed-release-suspension-oral/details (last visited Sept. 26, 2018). 16 8 17 18 19 20 21 22 23 24 25 26 27 28 Norco is a brand-name combination of the opioid pain reliever hydrocodone and the nonopioid pain reliever acetominophen, and it works in the brain to change how the body feels and responds to pain. See Norco, WebMD, https:// www.webmd.com/drugs/2/drug-63/norco-oral/details (last visited Sept. 26, 2018). 9 Baclofen is a muscle relaxant used to treat muscle spasms caused by multiple sclerosis or spinal-cord injury or disease. See Baclofen, WebMD, https://www.webmd.com/drugs/ 2/drug-8615/baclofen-oral/details (last visited Sept. 26, 2018). 10 Paxil is a brand name for paroxetine and is a selective serotonin reuptake inhibitor used to treat anxiety and depression. See Paxil, WebMD, https://www.webmd.com/drugs/2/ drug-6968-9095/paxil-oral/paroxetine-oral/details (last visited Sept. 26, 2018). 11 Tranxene is a brand name for clorazepate dipotassium, a benzodiazepine used to treat anxiety, acute alcohol withdrawal, and seizures. See Tranxene, WebMD, https://www.webmd.com/drugs/ 2/drug-14016/tranxene-t-tab-oral/details (last visited Sept. 26, 2018). 11 1 AR 260-64, 265-69, 273-77.) 2 and Plaintiff agreed to right lateral epicondylar release surgery 3 because treatment with pain medication, cortisone injections, and 4 physical therapy had not been effective. 5 had surgery in July 2009. 6 In June 2009 Dr. Ahmed recommended (AR 274.) Plaintiff (AR 373.) On September 25, 2009, Plaintiff again saw Dr. Ahmed, who 7 observed that he had “mildly decreased” abduction, forward 8 flexion, and internal rotation in his right shoulder and 9 discomfort in his left arm. (AR 266.) He diagnosed 10 “compensatory pain, [l]eft [e]lbow,” and recommended pain 11 medication and physical therapy for both elbows. 12 follow-up visit on November 17, 2009, Dr. Ahmed observed “pain on 13 extension” of Plaintiff’s lumbar spine, a positive straight-leg- 14 raise test,12 a positive axial-loaded compression test13 of 15 Plaintiff’s cervical spine, and “diminished and painful” 16 mobility. 17 (Id.) At a (AR 261.) Plaintiff’s condition evidently did not improve, and he 18 continued seeing Dr. Ahmed regularly. 19 Plaintiff had an MRI of his cervical spine, which showed 20 posterior disc protrusions at the C3-C4 and C5-C6 levels but no On April 29, 2010, 21 22 23 24 25 26 27 28 12 A straight-leg-raise test checks the mechanical movement of neurological tissues and their sensitivity to stress and compression when disc herniation is suspected. See Straight Leg Raise Test, Physiopedia,https://www.physio-pedia.com/ Straight_Leg_Raise_Test (last visited Sept. 26, 2018). Pain when the leg is raised to between 30 and 70 degrees “is suggestive of lumbar disc herniation.” Id. 13 An axial-compression test checks for shoulder or spinal pain when pressure is placed on the patient’s head; one version of it is known as “Spurling’s Test.” See Spurling’s Test, Physiopedia, https://www.physio-pedia.com/Spurling%27s_Test (last visited Sept. 26, 2018). 12 1 evidence of spinal stenosis. 2 Plaintiff underwent a neurological examination and 3 electrodiagnostic study by Dr. Mumtaz A. Ali, after a referral 4 from Dr. Ahmed. 5 “[s]ensation to fine touch and pinprick was decreased in the 6 right 4th and 5th digits” (AR 468), and lab tests showed 7 decreased motor-conduction velocity in his right ulnar motor 8 nerve and decreased amplitude in his right ulnar sensory nerve 9 but no evidence of cervical radiculopathy or denervation (AR (AR 465-72.) (AR 475-76.) Dr. Ali observed that Plaintiff’s 10 471). 11 consistent with the history of injury.” 12 On May 26, 2010, He concluded that “[Plaintiff’s] subjective complaints are (AR 469.) On July 23, 2010, in response to Dr. Ali’s report and 13 Plaintiff’s continuing complaints of pain, Dr. Ahmed requested an 14 authorization for surgery. 15 disclose what type of surgery was contemplated. 16 Ahmed made another authorization request on September 10, 2010, 17 recommending “cubital tunnel release of the right elbow.” 18 453-54, 457.) 19 2010. 20 thereafter for pain in both of his arms and his neck. 21 e.g., AR 419-29.) 22 (AR 459-63.) The record does not (See id.) Dr. (AR Plaintiff underwent that surgery on October 30, (AR 443.) He continued to see Dr. Ahmed regularly (See, On May 2, 2011, agreed medical examiner Dr. David Wood14 23 apparently examined Plaintiff in connection with his workers’- 24 compensation claim and found him to have “loss of sensation from 25 the ulnar nerve arising from the right elbow,” with “ongoing 26 27 28 14 Dr. Wood appears to have been an orthopedist, although the AR does not expressly state as much. (See, e.g., AR 335 (Plaintiff seen for “orthopedic” reexam; report typed on stationery from University Spine & Orthotics).) 13 (AR 332-33.)15 1 related pain” and “loss of muscle power.” 2 Wood observed that Plaintiff had difficulty with daily activities 3 like “opening car doors, getting in and out of a car, and taking 4 a bath.” 5 extremity impairment and a five percent whole-person impairment16 6 based on the carpal-tunnel syndrome and a two percent upper- 7 extremity impairment and one percent whole-person impairment 8 based on his “cervical spine condition.” 9 evidently opined that Plaintiff “is not a candidate for surgery (AR 333.) Dr. He gave Plaintiff an eight percent upper- (Id.) He also 10 to [his] cervical spine nor do I think that he needs to have any 11 type of surgery to the right wrist, shoulder, or left wrist” on 12 15 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Wood’s original examination notes from May 2, 2011, are not part of the AR. 16 “Whole Person Impairment” is a term of art in workers’ compensation that refers to “[p]ercentages that estimate the impact on the individual’s overall ability to perform activities of daily living, excluding work.” Milpitas Unified Sch. Dist. v. Workers’ Comp. Appeals Bd., 187 Cal. App. 4th 808, 814 n.5 (Ct. App. 2010) (as modified) (alteration in original) (citing Am. Med. Ass’n, Guides to the Evaluation of Permanent Impairment at 603 (5th ed. 2000)). A WPI of less than 100 percent “entitles the injured worker to a prescribed number of weeks of indemnity payments in accordance with that percentage” to compensate for the loss of “some or all of [his] future earning capacity.” Id. at 819 (citation omitted). Findings of disability for purposes of workers’ compensation or other programs or agencies are not binding in Social Security cases, see Lee v. Comm’r of Soc. Sec., No. 2:16-cv-02565-CKD, 2018 WL 684799, at *5-6 (E.D. Cal. Feb. 1, 2018) (citation omitted) (WPI of 19 percent based on injury to plaintiff’s right “upper extremity” not entitled to particular weight in application for SSI and DIB; affirming Commissioner’s finding that plaintiff was not disabled), but may be considered as evidence of possible impairment, see Meza v. Colvin, No. CV 157291-SP, 2016 WL 7479321, at *4-7 (C.D. Cal. Dec. 29, 2016) (remanding in part because ALJ failed to consider opinion of treating psychiatrist who assessed plaintiff with nine- to 12percent WPI and various functional limitations); see also § 416.904. 14 1 an “acute basis,” but surgery “should be held open to him in the 2 future possibly” if his condition worsened. 3 1, 2011, Dr. Ahmed reported that Plaintiff was “quite frustrated” 4 because “he was apparently waiting for surgical intervention in 5 terms of his carpal tunnel, but he says just the first cut is 6 funding,” apparently referring to a lack of insurance coverage 7 for left-wrist or shoulder surgery. 8 9 (AR 415.) On July (AR 420.) Plaintiff was examined by Dr. Ahmed again on August 12, 2011. (AR 413-18.) Dr. Ahmed observed positive Tinel’s and 10 Phalen’s signs on both hands and a positive axial-loading 11 compression test on his cervical spine, and he noted that 12 “[m]obility is diminished and painful.” 13 Plaintiff again in January and April 2012 to refill his 14 prescriptions for Norco and Prilosec, and he also prescribed two 15 topical treatments for pain relief. 16 times that Plaintiff’s mobility was still diminished and painful 17 and that he had a positive axial-compression test. 18 409.) 19 (AR 414.) (AR 403-12.) Dr. Ahmed saw He noted both (AR 404, On March 11, 2013, Plaintiff was reexamined by Dr. Wood. 20 (AR 335-41.) 21 with locking when turning the head to the right,” “constant, 22 aching pain and at times popping in the right shoulder,” “off and 23 on, sore type pain in the right elbow,” and “ongoing numbness 24 into the last three fingers of the right hand.” 25 indicated that his symptoms worsened when holding or gripping 26 things with his right hand, stretching out his right arm, turning 27 his neck, or driving, among other things. 28 complained of pain and numbness in his left wrist that “increases He complained of “constant, aching pain in the neck 15 (AR 335.) (AR 335-36.) He He also 1 with lifting trash bags.” (AR 336.) He rated his elbow pain at 2 four of 10 and his other pains at six or seven of 10. 3 36.) 4 cervical spine, shoulders, and wrists, but he noted reduced grip 5 strength in his right hand and positive Tinel’s and “Mill’s”17 6 tests on his right side. 7 off of [the] C5 and C6 [vertebrae]” and mild shoulder arthritis 8 with acromial spurring. 9 Plaintiff “d[id] not appear significantly changed” from his (AR 335- Dr. Wood found him to have normal ranges of motion in his (AR 337-39.) (AR 339.) X-rays showed “spurring Dr. Wood concluded that 10 evaluation in 2011, when he had rated him in his workers’- 11 compensation case as “temporarily totally disabled” for the 12 period at issue. 13 (AR 340; see also AR 333.)18 On June 28, 2013, shortly after he applied for SSI benefits, 14 Plaintiff again visited Dr. Ahmed, complaining of neck pain. 15 399.) 16 Lesion with Radiculitis/Radiculopathy with Evidence of Herniated 17 Nucleus Pulposus with Positive MRI Scan,” “Tendonitis, 18 Impingement Syndrome, Right Shoulder with Positive MRI Scan,” 19 residual loss of strength in his right elbow resulting from 20 surgery, and “Tendonitis, Carpal Tunnel Syndrome, Right Wrist and (AR Dr. Ahmed diagnosed him with “Cervical Sprain/Strain, Disk 21 22 17 23 24 25 26 27 28 A Mill’s test is used to diagnose lateral epicondylitis, or “tennis elbow.” See Mill’s Test, Physiopedia, https://www.physio-pedia.com/Mill%E2%80%99s_Test (last visited Sept. 25, 2018). The clinician holds the affected elbow with one hand and extends and flexes the patient’s forearm and wrist; if the patient experiences pain, the test is positive. Id. 18 Plaintiff was ultimately rated “permanent and stationary” at seven percent WPI for state- and local-benefits purposes. (AR 366.) The designation occurred on October 25, 2013, and took into account gastrointestinal “injury” Plaintiff incurred as a side effect of his pain medications. (Id.) 16 1 Hand with Positive NCV Test,” among other things. 2 Ahmed prescribed Norco and Ultram19 for pain and Prilosec for 3 “gastric mucosa.” 4 medications had been helpful in the past. 5 (Id.) (Id.) Dr. Plaintiff indicated that those (AR 400.) On October 9, 2013, Plaintiff saw Dr. Ahmed for a follow-up 6 visit, complaining of neck pain. 7 him to have tightness in the muscles surrounding his cervical 8 spine and a cervical-spine rotational range of motion of only 65 9 degrees.20 (AR 356.) (AR 355-58.) Dr. Ahmed found He repeated his previous diagnoses and 10 renewed Plaintiff’s prescriptions for Norco, Ultram, and Anaprox. 11 (Id.) 12 Five days later, on October 14, 2013, Plaintiff was examined 13 by consulting orthopedist Bernabe. 14 reviewed “a medical progress note dated 3/11/13”21 but evidently 15 none of Plaintiff’s other medical records. 16 Bernabe reported that Plaintiff had had “x-rays of the neck” 17 showing degenerative osteoarthritis, but he was apparently 18 unaware of Plaintiff’s MRI results or the electrodiagnostic study 19 that confirmed nerve damage to his right hand and arm. 20 to his report, Plaintiff complained only of right-elbow and neck 21 pain and “denie[d] any numbness or tingling to his right upper 22 extremity.” (AR 347.) (AR 346-51.) The doctor (AR 346.) Dr. According Dr. Bernabe’s report does not mention 23 19 24 25 Ultram is a brand name for tramadol, an opioid pain reliever. See Ultram, WebMD, https://www.webmd.com/drugs/2/ drug-11276/ultram-oral/details (last visited Sept. 26, 2018). 20 26 27 28 Dr. Wood’s March 11, 2013 report lists 80 degrees bilaterally as the “normal” range of motion for rotation of the cervical spine. (See AR 337.) 21 This presumably refers to some or all of Dr. Wood’s report (AR 335-41), but Bernabe’s notes do not expressly say so. 17 1 Plaintiff’s history of carpal-tunnel syndrome in both wrists or 2 any problem with his left hand or wrist. 3 (See AR 346-51.) Dr. Bernabe observed that Plaintiff had a normal range of 4 motion in his neck, arms, wrists, and shoulders, could ambulate 5 normally, and could get on and off the examination table without 6 difficulty. 7 was noticeably weaker than his left, but Dr. Bernabe assessed his 8 motor strength as “grossly within normal limits” and opined that 9 he had “normal” sensation in his upper extremities. (AR 348-49.) Plaintiff’s right-hand grip strength (AR 349.) 10 He further opined that Plaintiff could work with “no manipulative 11 restrictions.” 12 (AR 350.) On January 10, 2014, Plaintiff returned to Dr. Ahmed’s 13 office, complaining of pain in his left wrist. 14 Ahmed noted swelling in Plaintiff’s left wrist and observed that 15 “[e]xtension is 45 degrees, flexion is 45 degrees, radial 16 deviation is 20 degrees, and ulnar deviation is 30 degrees.” 17 394.) 18 Syndrome” and “Chronic Pain Syndrome” secondary to epicondylitis 19 of the right elbow, right-shoulder impingement, disc lesion of 20 the cervical spine, complications from surgery, and compensatory 21 pain of the left elbow. 22 another doctor’s assessment of seven percent WPI. (AR 393-94.) Dr. (AR He reported relevant diagnoses of “Bilateral Carpal Tunnel (AR 394-95.) Dr. Ahmed “agree[d]” with (Id.) On December 22, 2014, Plaintiff was examined by Dr. Miguel 23 24 Martinez22 at Arrowhead Regional Medical Center, complaining of 25 chronic right-hip pain that became worse with activity. 26 63.) Dr. Martinez observed “swelling” and “warmth” in 27 28 22 The AR does not indicate Dr. Martinez’s medical specialty. 18 (AR 560- 1 Plaintiff’s right hip (AR 563) and noted a positive straight-leg- 2 raise test in his right leg at a 30-degree angle (AR 562). 3 diagnosed him with “ongoing right leg radiculopathy” and chronic 4 right-hip pain, prescribed ibuprofen and Tylenol, and ordered 5 another MRI of Plaintiff’s spine. He (AR 561-62.) On February 3, 2015, Dr. Michael Tomkins23 examined 6 7 Plaintiff, apparently as a follow-up to the visit with Dr. 8 Martinez. 9 as “chronic neck and low back pain” that “radiates into his right (AR 557-59.) Plaintiff complained of arm pain as well 10 leg/hip” and “is worse with lying and sitting.” 11 rated his pain at eight of 10. 12 Dr. Tomkins that “he was recommended for surgery in the past and 13 would like to see an [o]rthopedic [s]urgeon” about his lower-back 14 pain. 15 Dr. Wood’s 2011 recommendation that surgery be left open as a 16 future possibility (AR 415) or if he received a more specific 17 referral for surgery at some other time; no such referral is in 18 the record. (Id.) (Id.) (AR 557.) He Plaintiff apparently told It is not clear whether Plaintiff was referring to Dr. Tomkins prescribed gabapentin,24 naproxen,25 and 19 20 21 23 Dr. Tomkins appears to have been a family practitioner. (See, e.g., AR 557.) 22 24 23 24 25 Gapabentin, also sold under the brand name Neurontin, is an anticonvulsant used to relieve nerve pain. See Gabapentin, WebMD, https://www.webmd.com/drugs/2/drug-14208-8217/ gabapentin-oral/gabapentin-oral/details (last visited Sept. 25, 2018). 25 26 27 28 Naproxyn, also sold under the brand name Naprosyn, is a nonsteroidal anti-inflammatory that relieves pain from muscle aches and reduces pain, swelling, and joint stiffness caused by arthritis. See Naprosyn Tablet, WebMD, https://www.webmd.com/ drugs/2/drug-1705-1289/naprosyn-oral/ naproxen-oral/details (last visited Sept. 26, 2018). 19 1 diclofenac gel,26 referred him to an orthopedist, and made a note 2 to check on the status of the planned MRI. 3 (AR 559.) On April 29, 2015, Plaintiff was seen for the second time by 4 Dr. Tomkins, who noted tenderness in the left neck paravertebral 5 musculature of Plaintiff’s cervical spine and in the right 6 paravertebral musculature of Plaintiff’s lumbar spine. 7 He observed a positive straight-leg raise on the right side and 8 decreased range of motion in Plaintiff’s left cervical-spine 9 rotation. 10 11 (Id.) gabapentin. (AR 551.) He renewed the prescriptions for naproxen and (AR 552.) On April 30, 2015, Plaintiff underwent an MRI of his lumbar 12 spine, which showed diffuse disc bulges at the L3-4 and L4-5 13 levels with facet hypertrophy, causing mild spinal and foraminal 14 stenosis.27 15 discuss his MRI results with Dr. Tomkins (AR 548) and on July 14, 16 2015, to receive intramuscular injections of Toradol28 and its (AR 536.) Plaintiff returned on May 29, 2015, to 17 26 18 19 20 21 22 23 24 25 26 27 28 Diclofenac is a nonsteroidal anti-inflammatory drug that reduces substances in the body that cause pain and inflammation. See Diclofenac, Drugs.com, https://www.drugs.com/diclofenac.html (last updated Mar. 23, 2017). It is used to treat mild to moderate pain or signs and symptoms of osteoarthritis and rheumatoid arthritis. Id. 27 Spinal stenosis is a narrowing of the spinal canal and can cause pain, numbness, tingling, and difficulty standing or walking. See What is Spinal Stenosis?, WebMD, https:// www.webmd.com/back-pain/guide/spinal-stenosis#1 (last visited Sept. 25, 2018). Foraminal stenosis is a narrowing of the openings allowing nerves to branch from the spine to the rest of the body and can cause similar symptoms. See Foraminal Stenosis, Cedars-Sinai Med. Ctr., https://www.cedars-sinai.edu/Patients/ Health-Conditions/Foraminal-Stenosis.aspx (last visited Sept. 25, 2018). 28 Toradol is a brand name for ketorolac, an NSAID pain reliever. See Toradol, WebMD, https://www.webmd.com/drugs/2/ drug-57955/toradol-intramuscular/details (last visited Sept. 25, 20 1 2 generic equivalent from an unnamed provider (AR 546-47). On May 29, 2015, evidently at the appointment to discuss 3 Plaintiff’s MRI results (AR 548-49), Dr. Tomkins completed a 4 “Physical Impairment Questionnaire” supplied by Plaintiff’s 5 counsel. 6 visits with Plaintiff, he diagnosed him with “cervical spine disk 7 bulge” and “lumbar spine disk bulge” causing “neck pain with 8 radicular [symptoms]” and “lumbar spine pain w[ith] [r]ight leg 9 pain.” (AR 541-44.) (AR 542.) After noting that he had had only two He indicated that Plaintiff’s condition was 10 “not likely to improve, unless [he] undergoes surgery or other 11 treatments.” 12 were “often,” although not “frequently,” “severe enough to 13 interfere with the attention [and] concentration required to 14 perform simple work-related tasks.” 15 (Id.) He also indicated that Plaintiff’s symptoms (Id.) Dr. Tomkins filled out the next section of the form with 16 “direct answers from [Plaintiff],” including limitations on 17 walking, sitting, standing, and working an eight-hour day without 18 unscheduled breaks; he opined, “based on [Plaintiff’s] response,” 19 that Plaintiff was not “physically capable of working” a normal 20 40-hour weekly work schedule. 21 (AR 543.) Dr. Tomkins also indicated that Plaintiff could “never” lift 22 50 pounds, “occasionally” lift 20 pounds, and “frequently” lift 23 10 pounds or less. 24 “limitations in doing repetitive reaching, handling, or 25 fingering” but that he was “unable to assess” what percentage of 26 an eight-hour workday Plaintiff would be able to use his hands, (Id.) He noted that Plaintiff had 27 28 2018). 21 1 fingers, or arms for specific activities. 2 “based on [his] experience with [Plaintiff] and based upon 3 objective medical, clinical, and laboratory findings,” that 4 Plaintiff would be absent from work as a result of his conditions 5 three or four times a month. 6 Plaintiff was not a malingerer, “at least w[ith] [his] limited 7 encounters.” 8 how long Plaintiff had had the assessed limitations and then 9 wrote, “1 year?” 10 11 (Id.) (Id.) (Id.) He estimated, He also indicated that He concluded by noting that he did not know (AR 544.) ii. Reviewing opinions and evaluations On October 31, 2013, SSA medical consultant Dr. Leonard 12 Naiman29 reviewed Plaintiff’s medical files, including the 13 records from Dr. Ahmed, Dr. Wood, and Dr. Bernabe, which he 14 considered as “significant objective findings” (AR 77), in order 15 to assess Plaintiff’s RFC (AR 74-84). 16 on Dr. Bernabe’s report and “adjudicated [Plaintiff’s 17 application] strongly on” it. 18 Plaintiff could lift 50 pounds “occasionally” and 25 pounds 19 “frequently,” stand or walk for about six hours of an eight-hour 20 workday, and “[f]requently” or “[o]ccasionally” climb, balance, 21 stoop, kneel, crouch, or crawl. 22 manipulative limitations on left and right overhead reaching and 23 bilateral handling and feeling, and he recommended that Plaintiff 24 avoid “concentrated exposure” to cold, vibration, and hazards. 25 (AR 80-81.) He placed “great weight” (AR 79, 81.) (AR 79-80.) He found that He assessed Those findings supported an RFC for medium work with 26 27 28 29 The AR does not indicate Dr. Naiman’s medical specialty, but he appears to have been an internist. See Schmidt v. Colvin, No. EDCV 13-1331-JPR, 2014 WL 4237124, at *4 & n.8 (C.D. Cal. Aug. 26, 2014). 22 1 some limitations and a finding that Plaintiff was not disabled. 2 (AR 83.) 3 Bernabe’s examination notes, he put in manipulative limitations, 4 such as those for bilateral fingering and reaching, that were not 5 in Dr. Bernabe’s report; he did not cite any medical document or 6 opinion in particular on which he based those limitations. 7 found Plaintiff’s allegations “credible” and opined that his 8 impairments “as documented are not inconsistent with symptoms and 9 functional limitations as alleged” but nevertheless did not 10 11 Although Dr. Naiman reported relying heavily on Dr. “preclude RFC as written.” He (AR 82.) On April 11, 2014, SSA medical consultant Dr. George Walker, 12 a general practitioner,30 conducted an RFC assessment based on 13 Plaintiff’s allegations of “worsening of his shoulder and neck 14 pain along with a new impairment of not being able to sleep 15 because of the pain.” 16 allegations “not credible” because they were “not supported by 17 new functional or objective” medical reports. 18 upheld Dr. Naiman’s RFC assessment and the finding of “not 19 disabled.” 20 (AR 90, 94.) Dr. Walker found the (AR 91.) He (AR 92-96.) 3. Analysis 21 The ALJ gave “great weight” to the opinions of nonexamining 22 physicians Naiman and Walker and “significant weight” to that of 23 consulting examiner Bernabe. 24 weight” and “little weight” to treating physician Tomkins’s May (AR 18.) She afforded “less 25 26 27 28 30 Dr. Walker’s electronic signature includes a medicalspecialty code of 12, indicating “Family or General Practice.” (See AR 94); Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 15, 2015), https:// secure.ssa.gov/apps10/poms.nsf/lnx/0424501004. 23 1 29, 2015 assessment. (AR 18-19.) The ALJ did not discuss Dr. 2 Ahmed or any of his treatment notes, examination results, or 3 opinions on Plaintiff’s condition and limitations. (AR 12-21.) 4 Dr. Ahmed had a five-year treatment relationship with 5 Plaintiff in connection with his workers’-compensation claim that 6 included at least three visits in the seven months after 7 Plaintiff’s application date. 8 393-488.) 9 2009, the doctor opined that he could lift no more than 10 to 15 (See AR 260-307, 308-22, 355-59, After his initial visit with Plaintiff, in January 10 pounds with his right arm and could not do forceful pulling, 11 squeezing, or overhead lifting on his right side. 12 He apparently never revised that assessment.31 13 308-22, 355-59, 393-488.) 14 provide a specific and legitimate reason for rejecting his 15 opinion (or, for that matter, any reason at all). 16 F.3d at 1285; (cf. AR 12-21). 17 error was not harmless. (AR 302-03.) (See AR 260-307, The ALJ therefore erred in failing to See Smolen, 80 For the reasons stated below, the 18 Defendant argues that Dr. Ahmed’s opinion was properly 19 rejected because he gave it more than four years before the 20 application date and “indicated that [Plaintiff’s] limitations 21 22 23 24 25 26 27 28 31 On February 12, 2010, Dr. Ahmed reported that Plaintiff would “soon be reaching maximum medical improvement” and would “return [to work] in the next seven weeks.” (AR 484.) But on what appears to have been Plaintiff’s next visit, on March 26, 2010, Dr. Ahmed noted a positive Spurling test on Plaintiff’s cervical spine and impaired mobility in his right shoulder. (AR 479.) He did not release him to return to work but instead administered two cortisone injections, recommended another MRI and an EMG of his right shoulder, and indicated that he would reevaluate him in six to seven weeks. (AR 479-80.) He continued to treat Plaintiff for nearly another four years and did not clear him to return to work or indicate that he could do some work with less-restrictive limitations. 24 1 were only temporary pending treatment, which [he] subsequently 2 had.” 3 correct. 4 (doctor’s opinion predating period at issue not relevant absent 5 allegation that condition had since worsened). 6 above, Dr. Ahmed apparently did not revise his assessment after 7 Plaintiff’s two surgeries and several years of physiotherapy and 8 pain medication, and his notes from Plaintiff’s visits after the 9 application date provide no reason to think that Plaintiff’s (See J. Stip. at 17-18.) Ordinarily Defendant would be See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989) But as noted 10 condition had improved enough to warrant less-restrictive 11 limitations. 12 noting continued neck pain and diagnosing bilateral carpal-tunnel 13 syndrome, disc lesion of cervical spine, and right-elbow and 14 shoulder problems), 393-402 (progress reports from June 28, 2013, 15 and January 10, 2014, noting chronic pain and continued problems 16 with wrists, right shoulder and elbow, and cervical spine).) 17 Nor, evidently, did he ever release Plaintiff to return to work. 18 (See generally AR 260-322, 355-59, 393-488.) 19 considered or discussed Dr. Ahmed’s opinion issued after the 20 application date that Plaintiff had permanent seven-percent WPI 21 and would require “lifetime medical treatment.” 22 Meza v. Colvin, No. CV 15-7291-SP, 2016 WL 7479321, at *4-7 (C.D. 23 Cal. Dec. 29, 2016) (ALJ erred in failing to provide any reason 24 for rejecting treating psychiatrist’s opinion that plaintiff had 25 mental-health limitations that caused nine- to 12-percent WPI). 26 (See AR 355-59 (progress report from Oct. 9, 2013, And the ALJ never (See AR 394-95); Defendant’s argument that Dr. Bernabe’s opinion is “more 27 probative of Plaintiff’s condition during the relevant time 28 period” because Dr. Bernabe examined Plaintiff in October 2013 25 1 ignores Plaintiff’s three visits with Dr. Ahmed in the seven 2 months after he applied for SSI benefits, two of which were 3 before Dr. Bernabe’s exam and one of which was after. 4 Defendant’s analogous argument about the opinions of nonexamining 5 physicians Walker and Naiman fails for the same reason.32 6 Defendant also argues that Dr. Ahmed’s opinion could 7 reasonably have been rejected because he “was a worker’s 8 compensation doctor and thus was looking at whether Plaintiff 9 could return to his past work.” (See J. Stip. at 17 (citing AR 10 293-305).) 11 necessarily conclusive as to “the ultimate issue of disability,” 12 see Magallanes, 881 F.2d at 751, it is well settled that an ALJ 13 must properly consider every medical opinion without regard to 14 its source or purpose. 15 (9th Cir. 1996) (ALJ entitled to draw inferences logically 16 flowing from evidence adduced in connection with workers’- 17 compensation proceeding although state disability determination 18 not conclusive); Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 19 (C.D. Cal. 2002) (“[T]he ALJ may not disregard a physician’s Although a “treating physician’s opinion” is not See Macri v. Chater, 93 F.3d 540, 543-44 20 21 22 23 24 25 26 27 28 32 Defendant further claims that the opinions of Drs. Walker and Naiman are “more probative” because those doctors “reviewed the medical record, including several reports which came after Dr. Ahmed’s opinion.” (J. Stip. at 18.) But several of those subsequent reports were from Dr. Ahmed himself (see AR 74-77 (Naiman noting review of two sets of medical records received from Dr. Ahmed in 2013 and specifically mentioning Dr. Ahmed’s Nov. 2012 progress notes), 87-90 (Walker noting review of three sets of records received from Dr. Ahmed between Aug. 2013 and Feb. 2014 and specifically referring to Dr. Ahmed’s Feb. 2013 progress notes), 308-22, 355-59, 393-488 (sets of medical records from Dr. Ahmed submitted to SSA and dating from 2010 to 2014)), and, as stated above, further developments in Plaintiff’s condition do not appear to have led him to revise his initial assessment (see AR 260-307, 308-22, 355-59, 393-488). 26 1 opinion simply because it was initially elicited in a state 2 workers’ compensation proceeding.”); § 416.927(c) (“Regardless of 3 its source, we will evaluate every medical opinion we receive.”). 4 Here, the ALJ explicitly credited the opinion of Dr. Wood — 5 the agreed medical examiner in Plaintiff’s worker’s-compensation 6 case whose latest examination of Plaintiff occurred three months 7 before the application date — and used it in determining his RFC. 8 (AR 17-18.) 9 Plaintiff’s November 7, 2012 visit as objective evidence of his Further, she cited Dr. Ahmed’s treatment notes from (AR 17 (citing AR 314-15, 319).)33 10 carpal-tunnel syndrome. 11 also expressly rejected the February 3, 2015 County disability 12 determination (AR 493) as “an opinion on an issue reserved to the 13 Commissioner” that had “no probative value,” “was not supported 14 by objective evidence,” and was “inconsistent with the record as 15 a whole, including [Plaintiff’s] activities of daily living” (AR 16 19), but did she not make any similar statement about Dr. Ahmed’s 17 opinion or progress notes. 18 Dr. Ahmed’s status as a worker’s-compensation doctor was the 19 reason the ALJ not only implicitly rejected his assessment but 20 failed to acknowledge its existence at all. 21 She Thus, there is no basis to infer that (See AR 12-20.) Accordingly, on the record before the Court, it is not clear 22 that the ALJ gave proper consideration to the opinion of Dr. 23 Ahmed, Plaintiff’s longest-standing treating physician. 24 ALJ properly considered that opinion, she might have determined 25 Plaintiff’s RFC — and thus his disability status — differently. Had the 26 27 28 33 The ALJ’s citation to AR 319 appears to have been erroneous. That page is part of Dr. Ahmed’s progress notes from a July 25, 2012 visit that is not mentioned or discussed in the ALJ’s decision. (Compare AR 17 with AR 319.) 27 1 Her failure to provide any explanation at all, much less a 2 specific and legitimate one, for rejecting Dr. Ahmed’s assessment 3 was therefore not harmless. 4 see also Allen v. Comm’r Soc. Sec. Admin., No. 2:16-cv-00304-SAB, 5 2017 WL 5140877, at *6-7 (E.D. Wash. Sept. 19, 2017) (ALJ 6 committed reversible error in discounting opinion of Plaintiff’s 7 treating physician in favor of consulting examiner’s opinion in 8 case alleging carpal-tunnel syndrome and degenerative spinal 9 disease). 10 See Garrison, 759 F.3d at 1012–13; Because the Court reverses on this ground, it declines to 11 address Plaintiff’s contentions as to the weight afforded Dr. 12 Tomkins’s opinion; the ALJ will necessarily have to reevaluate it 13 in light of her assessment of Dr. Ahmed’s opinion and treatment 14 notes. 15 part based on her erroneous evaluation of the “objective medical 16 evidence” (see AR 17), any reevaluation of the latter will 17 necessarily entail a reassessment of Plaintiff’s subjective 18 symptom testimony. 19 Plaintiff’s credibility, either. 20 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the 21 ALJ for the reasons stated, we decline to reach [plaintiff’s] 22 alternative ground for remand.”). Moreover, as the ALJ assessed Plaintiff’s credibility in Thus, the Court need not reach the issue of See Hiler v. Astrue, 687 F.3d 23 B. Remand for Further Proceedings Is Appropriate 24 When an ALJ errs, as here, the Court “ordinarily must remand 25 for further proceedings.” 26 1044-45 (9th Cir. 2017) (as amended Jan. 25, 2018); see also 27 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as 28 amended); Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). Leon v. Berryhill, 880 F.3d 1041, 28 1 The Court has discretion to do so or to directly award benefits 2 under the “credit-as-true” rule. 3 direct award of benefits was intended as a rare and prophylactic 4 exception to the ordinary remand rule[.]” 5 whether to remand for further proceedings turns upon the likely 6 utility of such proceedings,” Harman, 211 F.3d at 1179, and 7 “[w]here . . . an ALJ makes a legal error, but the record is 8 uncertain and ambiguous, the proper approach is to remand the 9 case to the agency,” Leon, 880 F.3d at 1045 (second alteration in Leon, 880 F.3d at 1045. Id. “[A] The “decision of 10 original) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 11 F.3d 1090, 1105 (9th Cir. 2014)). 12 Here, further administrative proceedings would serve the 13 useful purpose of allowing the ALJ to give proper consideration 14 to all of the medical evidence in the record. 15 Colvin, No. CV 14-5524-E, 2015 WL 12661949, at *5 (C.D. Cal. Mar. 16 24, 2015) (remand appropriate when parties disputed extent and 17 implications of plaintiff’s degenerative disc condition and it 18 was “not clear that the ALJ would be required to find Plaintiff 19 disabled” for entire claimed period “if the rejected medical 20 opinions were fully credited”). 21 evidence from Plaintiff’s treating physicians in favor of 22 opinions from consulting physicians or to discount Plaintiff’s 23 subjective symptoms, she can then provide an adequate discussion 24 of the evidence justifying her doing so. 25 672 F. App’x 732, 733 (9th Cir. 2016). 26 further proceedings is appropriate. 27 1020 & n.26. See Pino v. If the ALJ chooses to discount 28 29 See Payan v. Colvin, Therefore, remand for See Garrison, 759 F.3d at 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),34 IT IS ORDERED that judgment be entered 4 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this memorandum decision. 7 8 DATED: September 27, 2018 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 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.” 30
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