Clarissa Escareno v. Nancy A. Berryhill, No. 5:2017cv02258 - Document 21 (C.D. Cal. 2018)
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. (see document for details) (hr)
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Clarissa Escareno v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLARISSA ESCARENO, Plaintiff, 12 13 14 15 16 CASE NO. EDCV 17-2258 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 INTRODUCTION 20 21 Clarissa Escareno (“Plaintiff”) brings this action seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying her applications 24 for Disability Insurance Benefits and Supplemental Security Income. 25 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 26 jurisdiction of the undersigned United States Magistrate Judge. 27 (Dkt. Nos. 11-13). For the reasons stated below, the decision of 28 Dockets.Justia.com 1 the Commissioner is REVERSED, and this case is REMANDED for further 2 administrative proceedings consistent with this decision. 3 4 II. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents the claimant from engaging in substantial gainful 10 activity and that is expected to result in death or to last for a 11 continuous period of at least twelve months. 12 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 13 The impairment must render the claimant incapable of performing 14 work 15 employment that exists in the national economy. 16 180 17 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 18 19 To decide if a claimant is entitled to benefits, an ALJ 20 conducts a five-step inquiry. 21 20 C.F.R. §§ 404.1520, 416.920. The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? 25 not, proceed to step two. 26 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 27 claimant is found not disabled. 28 three. 2 severe? If not, If the If so, proceed to step 1 (3) Does the claimant’s impairment meet or equal one of the 2 specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 14 (g)(1), 416.920(b)-(g)(1). 15 The claimant has the burden of proof at steps one through four 16 17 and the 18 Bustamante, 262 F.3d at 953-54. 19 affirmative duty to assist the claimant in developing the record 20 at every step of the inquiry. 21 claimant meets his or her burden of establishing an inability to 22 perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity (“RFC”), age, education, and work 26 experience. 27 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 28 may do so by the testimony of a VE or by reference to the Medical- the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 3 The Commissioner 1 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 2 Appendix 2 (commonly known as “the grids”). 3 240 F.3d 1157, 1162 (9th Cir. 2001). 4 exertional (strength-related) and non-exertional limitations, the 5 Grids are inapplicable and the ALJ must take the testimony of a 6 vocational expert (“VE”). 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 9 10 III. 11 THE ALJ’S DECISION 12 13 The ALJ employed the five-step sequential evaluation process 14 and concluded that Plaintiff was not disabled within the meaning 15 of the Social Security Act. 16 found 17 activity since February 13, 2014, her alleged onset date. 18 At step two, the ALJ found that Plaintiff’s chronic pain syndrome, 19 degenerative disc disease of the cervical spine, degenerative disc 20 disease 21 impairments.2 that of Plaintiff the lumbar (AR 18). has (AR 17-28).1 not spine, engaged asthma, in and At step one, the ALJ substantial obesity gainful (AR 18). are severe At step three, the ALJ determined that 22 1 23 24 25 26 27 28 Pages two and three of the ALJ’s decision are reversed in the administrative record. (AR 18-19). 2 The ALJ found that Plaintiff’s medically determinable impairments of diabetes mellitus, vitamin D deficiency, uterine bleeding, and mood disorder do not cause more than minimal limitations in Plaintiff’s ability to perform basic work activities and are, therefore, nonsevere. (AR 18, 20, 21-22). The ALJ also found that Plaintiff’s alleged fibromyalgia is not a medically determinable impairment. (AR 20-21). 4 1 Plaintiff does not have an impairment or combination of impairments 2 that meet or medically equal the severity of any of the listings 3 enumerated in the regulations. (AR 23). 4 5 The ALJ then assessed Plaintiff’s RFC and concluded that she 6 can perform less than the full range of sedentary work as defined 7 in 20 C.F.R. §§ 404.1567(a), 416.967(a) and SSR 83-10 except:3 8 9 [Plaintiff] must use a hand-held assistive device in one 10 hand when walking a distance of 50 feet or more with the 11 other hand available to carry small articles like docket 12 files, ledgers, and small tools; balance frequently; 13 stoop, kneel, crouch, crawl, and climb ramps or stairs 14 occasionally; never climb ladders, ropes, or scaffolds; 15 have no exposure to hazards such as unprotected heights, 16 open bodies of water, and moving mechanical parts of 17 equipment, tools, or machinery; have no concentrated 18 exposure to humidity, wetness, extreme cold, extreme 19 heat, vibration, or respiratory irritants such as fumes, 20 odors, dusts, gases, and poor ventilation; and work in 21 environment with up to a moderate noise intensity level. 22 23 24 25 26 27 28 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 3 5 1 (AR 23). At step four, based on Plaintiff’s RFC, age, education, 2 work experience, and the VE’s testimony, the ALJ determined that 3 Plaintiff is capable of performing past relevant work as a general 4 clerk as actually performed, but not as generally performed. 5 27-28). 6 disability, as defined by the Social Security Act, from February 7 13, 2014, through the date of the decision. (AR Accordingly, the ALJ found that Plaintiff was not under a (AR 28). 8 IV. 9 STANDARD OF REVIEW 10 11 12 Under 42 U.S.C. § 405(g), a district court may review the 13 Commissioner’s decision to deny benefits. The court may set aside 14 the Commissioner’s decision when the ALJ’s findings are based on 15 legal error or are not supported by substantial evidence in the 16 record as a whole. 17 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 18 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 19 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 21 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 22 23 “Substantial evidence is more than a scintilla, but less than 24 a preponderance.” 25 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 26 evidence which a reasonable person might accept as adequate to 27 support a conclusion.” 28 Smolen, 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To 6 determine whether substantial 1 evidence supports a finding, the court must “ ’consider the record 2 as a whole, weighing both evidence that supports and evidence that 3 detracts from the [Commissioner’s] conclusion.’ ” 4 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 5 1993)). 6 or reversing that conclusion, the court may not substitute its 7 judgment for that of the Commissioner. 8 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Auckland, 257 If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 9 10 V. 11 DISCUSSION 12 13 A. Relevant Treatment History 14 On June 29, 2015, Plaintiff began treating with the Family 15 16 Health Center of Joshua Tree. 17 pain. 18 begin physical therapy. (AR 514). On August 13, Plaintiff reported 19 progressively worsening pain and weakness, which is tolerable with 20 Norco. 21 frequent use of Diazepam. 22 night for pain and to help her sleep. 23 found diffuse weakness in grip strength and major joints and 24 extremities, with decreased range of motion. 25 was (AR 514). (AR 510). assessed with (AR 514). She complained of chronic Norco was prescribed and Plaintiff advised to Her anxiety remains uncontrolled, necessitating asthma, (AR 510). type 26 27 28 7 2 Plaintiff takes Tramadol at (AR 510). An examination (AR 511). diabetes, Plaintiff fibromyalgia, and 1 generalized anxiety.4 2 assistant, recommended physical therapy to evaluate Plaintiff’s 3 fibromyalgia. 4 flare up of left-sided numbness, weakness, and pain, which is 5 tolerable only with Norco. 6 type 7 physical therapy. (AR 507). On November 16, a physical examination 8 was unremarkable. 9 for continued pain management, which is moderately controlled with 2 (AR 511). diabetes, 10 current 11 unremarkable. (AR 511). and On September 15, Plaintiff reported a (AR 506). fibromyalgia (AR 499). regimen. Katerina Viitala, a physician’s (AR Viitala diagnosed anxiety, and referred Plaintiff for On December 14, Plaintiff presented 496). A physical examination was (AR 497). 12 13 On February 15, 2016, Plaintiff reported worsening pain, which 14 radiates down her legs from her lower back and down her arms from 15 her upper back, with associated upper and lower extremity weakness. 16 (AR 494). 17 daily living, including getting to the bathroom, self-care, and 18 housekeeping. 19 diabetes, and degenerative disc disease, continued Plaintiff’s 20 medications, and ordered a CT scan of Plaintiff’s lumbar and 21 cervical spine. 22 chronic pain secondary to fibromyalgia and worsening episodes of 23 severe pain related to her degenerative disc disease. 24 Viitala 25 prescribed She asserted struggling with completing activities of (AR 494). Viitala diagnosed fibromyalgia, anxiety, (AR 495). assessed Norco, On March 14, Plaintiff complained of fibromyalgia Neurontin and degenerative (gabapentin), and disc (AR 492). disease, Tramadol, and Plaintiff does not dispute the ALJ’s finding that fibromyalgia is not a medically determinable impairment. her 26 27 28 4 8 1 recommended physical therapy, weight loss, and increased home care 2 assistance. (AR 493). 3 4 On March 16, 2016, Viitala reported that Plaintiff has been a 5 patient since June 2015 and has been diagnosed with fibromyalgia, 6 chronic pain, anxiety, and degenerative disc disease. 7 Viitala noted that Plaintiff “is experiencing acute exacerbation 8 and worsening symptoms including weakness and radicular low back 9 pain requiring increase in assistance at home.” (AR 355). (AR 355). Viitala 10 opined that Plaintiff requires four hours of assistance to perform 11 activities of daily living, “specifically toileting, and light 12 house work.” (AR 355). 13 14 On April 15, 2016, Plaintiff presented for chronic pain 15 management of fibromyalgia, muscle spasms, and degenerative disc 16 disease. 17 upcoming physical therapy appointment. (AR 490). 18 fibromyalgia, 19 began tapering Norco due to long term adverse outcomes. 20 On May 18, Plaintiff presented for continuing management of chronic 21 low back pain and fibromyalgia. 22 quality of life and difficulty completing activities of daily 23 living due to pain and weakness. 24 to lift objects of more than a couple pounds, walk further than 25 her mailbox, climb stairs, or drive. 26 well in physical therapy, but noted that it causes “significant 27 pain.” (AR 490). She reported walking more regularly and an continued (AR 488). Neurontin, Viitala assessed discontinued (AR 488). Diazepam, and (AR 491). She reported impaired (AR 488). (AR 488). Plaintiff is unable She reported doing Viitala assessed low back pain and fibromyalgia 28 9 1 and advised Plaintiff to continue physical therapy and current 2 medicine regimen. (AR 489). 3 4 On June 9, 2016, a physical examination by Andre Kasko, D.O, 5 Viitala’s supervising physician, indicated arthralgias, back pain, 6 joint stiffness, and myalgias. 7 the help of a walker and her gait was slowed. 8 assessed 9 Plaintiff’s medicine regimen, and advised Plaintiff to initiate an fibromyalgia and (AR 485). chronic Plaintiff ambulated with low (AR 486). back pain, Dr. Kasko continued 10 exercise program and follow-up with her physical therapist. (AR 11 487). 12 located in left, mid, and lower lumbar spine, radiating to left 13 thigh. 14 moderate, and sharp.” (AR 475). 15 Kasko for 16 (fibromyalgia). On July 26, Plaintiff reported chronic back pain, primarily She characterized her pain as “constant, (AR 475). was positive A physical examination by Dr. chronic back pain and myalgias Reasons For Rejecting (AR 475). 17 18 19 B. The ALJ Did Not Provide Germane Viitala’s Opinion 20 21 On May 18, 2016, Viitala submitted a medical source statement 22 of ability to do work-related activities. 23 reported that Plaintiff’s degenerative disc disease, arthritis, 24 weakness, and radicular symptoms limit her ability to perform work- 25 related functions. 26 lift or carry any weight. 27 sitting, standing, or walking for fifteen to twenty minutes without 28 interruption and can sit, stand, and walk for two hours each during (AR 357). (AR 356-61). Viitala She opined that Plaintiff cannot (AR 356). 10 Plaintiff is limited to 1 an eight-hour workday. 2 uses a walker to ambulate and can walk only fifty feet without the 3 use of an assistive device. 4 weakness, reduced grip strength, and decreased lower extremity 5 strength, Plaintiff is limited to occasional reaching, handling, 6 fingering, pushing/pulling, and operation of foot controls. 7 358). 8 balance, occasionally climb stairs and ramps, but can never climb 9 ladders or scaffolds, balance, stoop, kneel, crouch, or crawl. Viitala (AR 357). further Viitala reported that Plaintiff (AR 357). opined Because of diffuse muscle that Plaintiff can (AR frequently (AR 10 359). Plaintiff can withstand occasional exposure to humidity and 11 wetness, extreme cold, extreme heat, and vibrations, but can never 12 tolerate unprotected heights, moving mechanical parts, operating a 13 motor vehicle, or dusts, odors, fumes and pulmonary irritants. 14 360). (AR 15 16 “In addition to considering the medical opinions of doctors, 17 an ALJ must consider the opinions of medical providers who are not 18 within the definition of ‘acceptable medical sources.’ ” 19 v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); see 20 C.F.R. 20 §§ 404.1527(b), (f), 416.927(b), (f); SSR 06-03p, at *3 (“Opinions 21 from 22 ‘acceptable medical sources’ under our rules, are important and 23 should be evaluated on key issues such as impairment severity and 24 functional effects, along with the other relevant evidence in the 25 file.”); Garrison, 759 F.3d at 1013–14 (other sources “can provide 26 evidence about the severity of a claimant’s impairment(s) and how 27 it 28 alterations omitted). these affects medical the sources, claimant’s who are ability to not technically work”) Revels deemed (citation and While opinions from “other sources” are not 11 1 entitled to the same deference as “acceptable medical sources,” an 2 ALJ “may discount testimony from these ‘other sources’ [only] if 3 the ALJ gives reasons germane to each witness for doing so.” Molina 4 v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). 5 “The 6 providers who are acceptable medical sources are used to evaluate 7 the opinions of those who are not.” 8 “Those factors include the length of the treatment relationship 9 and the frequency of examination, the nature and extent of the same factors used to evaluate the opinions of medical Revels, 874 F.3d at 655. 10 treatment 11 record, and specialization of the doctor.” 12 §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). 13 the particular facts in a case, and after applying the factors for 14 weighing opinion evidence, an opinion from a medical source who is 15 not an ‘acceptable medical source’ may outweigh the opinion of an 16 ‘acceptable medical source,’ including the medical opinion of a 17 treating source.” relationship, supportability, consistency with the Id.; see 20 C.F.R. Indeed, “depending on SSR 06-03p, at *5. 18 The ALJ’s reasons for discounting Viitala’s opinion reads, in 19 20 full: 21 22 I give some weight, but not great weight, to the opinion 23 of 24 assistant. 25 [Plaintiff] was experiencing an acute exacerbation and 26 worsening symptoms as indicated by Ms. Vitala [sic] in 27 her 28 assessments do not reflect the severity and limiting Katerina letter Vitala These dated [sic], opinions March 6, 12 a certified are 2016. from As a physician’s time such, when these 1 effects of [Plaintiff’s] impairments on a consistent 2 basis for any period of 12 months or more. 3 a certified physician assistant is not an acceptable 4 medical source under Social Security regulations, and an 5 opinion that is not entitled to be given the same weight 6 as a qualifying medical source opinion. Furthermore, 7 8 (AR 27) (citation omitted). After careful consideration, the Court 9 finds that the ALJ did not give specific, supported, and germane 10 reasons for discounting Viitala’s opinion. 11 12 First, the ALJ misstates the law governing the weight to be 13 given to opinions from “other sources.” While “[t]he fact that an 14 opinion is from an ‘acceptable medical source’ is a factor that 15 may justify giving that opinion greater weight than from a medical 16 source who is not an ‘acceptable medical source,’ ” the applicable 17 regulations do not preclude the ALJ from assigning the most weight 18 to Viitala’s opinion. 19 Revels, 874 F.3d at 655 (“Under certain circumstances, the opinion 20 of a treating provider who is not an acceptable medical source may 21 be given greater weight than the opinion of a treating provider 22 who is — for example, when the provider has seen the individual 23 more often than the treating source, has provided better supporting 24 evidence and a better explanation for the opinion, and the opinion 25 is more consistent with the evidence as a whole.”) (citation 26 omitted). 27 contrary opinions from a treating source and the ALJ gave “little SSR 06-03p, at *5 (emphasis added); see That is especially the case here where there are no 28 13 1 weight” to the opinions of the consultative examiner and the State 2 agency consultants. (AR 26-27). 3 4 Second, contrary to the ALJ’s conclusion (AR 27), the medical 5 record reflects that Plaintiff’s impairments have persisted and 6 will persist for at least twelve months. 7 complained of chronic pain. 8 reported progressively worsening pain and weakness. 9 examination found diffuse weakness in grip strength and major (AR 514). In June 2015, Plaintiff In August 2015, Plaintiff (AR 510). An 10 joints and extremities, with reduced range of motion. 11 In November 2015, Plaintiff reported a flare-up of left-sided 12 numbness, weakness, and pain. 13 Plaintiff reported worsening pain, radiating from her back to all 14 extremities. 15 activities of daily living, including getting to the bathroom, 16 self-care, and housekeeping. 17 reported chronic, worsening, severe pain. 18 May 2016, Plaintiff reported continuing chronic pain. 19 490). 20 completing activities of daily living due to pain and weakness. 21 (AR 488). 22 a couple pounds, walk further than her mailbox, climb stairs, or 23 drive. 24 arthralgias, back pain, joint stiffness, and myalgias. 25 Plaintiff ambulated with the aid of a walker and had a slowed gait. 26 (AR 486). 27 sharp pain, primarily located in her spine and radiating to her She (AR 494). reported (AR 506). (AR 511). In February 2016, She asserted struggling to complete (AR 494). impaired quality In March 2016, Plaintiff (AR 493). of life In April and and (AR 488, difficulty She asserted an inability to lift objects of more than (AR 488). In June 2016, a physical examination indicated (AR 485). In July 2016, Plaintiff reported constant, moderate, 28 14 1 left thigh. (AR 475). A physical examination was positive for 2 chronic back pain and myalgias. (AR 475). 3 4 Third, Viitala’s diagnoses, examinations, and treatment 5 recommendations were approved, confirmed, and corroborated by her 6 supervising physician, Dr. Kasko, who is an “acceptable medical 7 source.” 8 the type of fact that the Revels court found meaningful. (AR 488, 9 490, 492, 494, 496, 498, 500, 502); ("[The nurse practioner's] 10 check-the-box assessment was co-signed by an acceptable medical 11 source in her clinic . . .") Revels, 874 F.3d at 665. 12 several 13 concurring in Viitala’s findings. 14 who 15 supervised by a physician in treating a claimant may be considered 16 “an acceptable medical source” even though that “other source” 17 would not be considered an “acceptable medical source” in treating 18 the claimant independently. 19 1013 20 practitioner’s opinion should be accorded deference where “nothing 21 in the record indicates that [the nurse practitioner] worked so 22 closely under [either of two physicians] as to be considered an 23 agent of either”); 24 the record did not show that a physician’s assistant worked under 25 a physician’s close supervision, the ALJ’s “germane reasons” were 26 sufficient to discount the physician’s assistant’s opinions). Even 27 if 28 conclusion that Viitala’s opinion did not establish the requisite is Dr. Kasko co-signed Viitala’s treatment records, i.e., occasions, not (9th Viitala an Cir. is Dr. Kasko acceptable 2015) performed his own examinations, (AR 485-87, 475). medical source but Further, on who A provider is closely Cf. Britton v. Colvin, 787 F.3d 1011, (rejecting the contention that a nurse Molina, 674 F.3d at 1111 (holding that because not an acceptable 15 medical source, the ALJ’s 1 twelve-month severity is contrary to the medical record and is, 2 therefore, not a germane reason for rejecting her opinion, as 3 discussed above. 4 5 Finally, there are strong reasons to assign great weight to 6 Viitala’s 7 Plaintiff on a monthly basis since June 2015. 8 § 404.1527(c)(1)-(2), (f) (explaining that an opinion from a source 9 who has opinion. examined She the was a claimant treating and source had a who examined See 20 C.F.R. longer treatment 10 relationship should generally be given greater weight); accord SSR 11 06-03p, at *5 (listing factors for considering opinion evidence 12 from “other sources”). 13 consistent with the medical record, as discussed above. 14 C.F.R. 15 relevant 16 medical signs and laboratory findings, the more weight we will give 17 that medical opinion.”), (c)(4) (“Generally, the more consistent a 18 medical opinion is with the record as a whole, the more weight we 19 will give to that medical opinion.”); accord SSR 06-03p, at *5. 20 Further, 21 acceptable medical source, as noted above. 22 at 665. Viitala’s opinion is supported by and § 404.1527(c)(3) evidence Viitala’s to (“The support treatment more a a medical medical records source opinion, were See 20 presents particularly co-signed by an See Revels, 874 F.3d 23 24 The Commissioner contends that “even if [the ALJ’s] reason 25 for discounting Ms. Viitala’s ‘other source’ opinion was deficient, 26 the error was harmless.” 27 commits legal error, [a federal court will] uphold the decision 28 where that error is harmless.” (Dkt. No. 20 at 5). “Even when the ALJ Treichler v. Comm’r of Soc. Sec. 16 1 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Nevertheless, Ninth 2 Circuit “precedents have been cautious about when harmless error 3 should be found.” 4 2015). 5 “[e]very other opinion in the record - all of which were from 6 acceptable medical sources - indicated that Plaintiff did not have 7 any significant work-related limitations.” 8 The ALJ, however, rejected all of these other opinions, finding 9 that the they were all deserving of “little weight.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. The Commissioner argues that any error is harmless because (Dkt. No. 20 at 5). (AR 26-27). 10 This Court cannot substitute its opinion for that of the ALJ’s in 11 order to conclude that the ALJ’s error rejecting Viitala’s opinion 12 was harmless. 13 Cir. 2015) (“A reviewing court may not make independent findings 14 based on the evidence before the ALJ to conclude that the ALJ’s 15 error was harmless.”); Marsh, 792 F.3d at 1172 (a district court 16 may not find harmless error by “affirm[ing] the agency on a ground 17 not invoked by the ALJ”). See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th 18 In sum, the ALJ failed to provide specific, supported, and 19 20 germane reasons for discounting Viitala’s opinion. The matter is 21 remanded for further proceedings.5 22 reevaluate the weight to be given Viitala’s opinion, taking into On remand, the ALJ shall 23 24 25 26 27 28 5 Plaintiff also argues that the ALJ failed to articulate clear and convincing reasons for rejecting her subjective statements. (Dkt. No. 17 at 9-11). However, it is unnecessary to reach Plaintiff’s arguments on this ground, as the matter is remanded for the alternative reasons discussed at length in this Order. 17 1 account all the factors for considering opinion evidence. 2 20 C.F.R. §§ 404.1527, 416.927; SSR 06-03p. 3 4 VI. 5 CONCLUSION 6 7 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 8 the decision of the Commissioner and REMANDING this matter for 9 further proceedings consistent with this decision. IT IS FURTHER 10 ORDERED that the Clerk of the Court serve copies of this Order and 11 the Judgment on counsel for both parties. 12 13 DATED: August 15, 2018 14 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 20 21 22 23 24 25 26 27 28 18 IN WESTLAW,
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