Mark Randall Bunker v. Nancy A. Berryhill, No. 5:2018cv00283 - Document 26 (C.D. Cal. 2018)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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Mark Randall Bunker 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 12 13 14 15 16 MARK RANDALL BUNKER, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Deputy ) Commissioner for Operations, ) Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 18-283-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on February 6, 2018, seeking review 26 of the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on March 10, 2018. 28 Plaintiff filed a motion for summary judgment on August 13, 2018. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on November 12, 2018. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed February 8, 2018. 4 5 BACKGROUND 6 7 Plaintiff, a former plumber, asserts disability since June 22, 8 2013, based on, inter alia, a back injury, dizziness, diabetes, weight 9 problems and fractured ribs (Administrative Record (“A.R.”) 37-41, 10 164-65, 188, 198, 202). Plaintiff’s treating physicians believe that 11 Plaintiff is unable to work (A.R. 268-69, 272, 716). 12 13 An Administrative Law Judge (“ALJ”) reviewed the record and heard 14 testimony from Plaintiff and a vocational expert (A.R. 15-26, 31-61). 15 Plaintiff testified to pain and limitations of allegedly disabling 16 severity (A.R. 39-56). 17 lumbar degenerative disc disease, obesity, rib fractures and sleep 18 apnea, but retains the residual functional capacity for a limited 19 range of light work. 20 allegations as “not entirely consistent with the medical evidence and 21 other evidence in the record”). 22 performing work as a “cashier II,” “information clerk” and “solderer,” 23 and, on that basis, denied disability benefits (A.R. 25-26 (adopting 24 vocational expert testimony at A.R. 58-60)). 25 denied review (A.R. 1-3). 26 /// 27 /// 28 /// The ALJ found that Plaintiff has “severe” See A.R. 17, 19-25 (rejecting Plaintiff’s The ALJ deemed Plaintiff capable of 2 The Appeals Council 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 For the reasons discussed herein, the Court finds that the ALJ 4 materially erred while assessing Plaintiff’s credibility and the 5 evidence from Plaintiff’s treating physicians. 6 7 I. Summary of the Medical Record 8 9 A. Treatment 10 11 The record contains treatment notes of Plaintiff’s monthly visits 12 with treating physician Dr. Charles T. Chen, and other providers 13 within the Beaver Medical Group, from June of 2013 through December of 14 2014 (A.R. 398-540). 15 16 Plaintiff went to a nurse practitioner on June 24, 2013, 17 complaining of worsening back pain with left leg and toe numbness 18 (A.R. 499). 19 tenderness in the left lumbar region, pain with toe maneuvers and 20 flexion, and decreased sensation (A.R. 499-500). 21 diagnosed with back pain and gastroesophageal reflux disease (“GERD”) 22 (A.R. 500). 23 for pain, scheduled for physical therapy, and given a note to be off 24 work until the following Wednesday (A.R. 500-01).1 25 /// On examination, Plaintiff reportedly was obese, had Plaintiff was Plaintiff was prescribed Tylenol with Codeine as needed 26 27 28 1 The record contains physical therapy treatment notes for “backaches” from June through August of 2013, and for vertigo from May through July of 2014 (A.R. 503-13, 538-40). 4 1 Plaintiff followed up with Dr. Chen on July 25, 2013, after 2 Plaintiff had been to the emergency room the day before for dizziness 3 and weakness (A.R. 491).2 4 earlier that month which revealed L4-L5 central and left paracentral 5 disc protrusion with mild to moderate central canal stenosis and 6 moderate narrowing of the left neural foramen (A.R. 491; see also A.R. 7 274 (July, 2013 MRI study)). 8 symptoms reportedly seemed to be improving (A.R. 491). 9 complained of persistent lumbar pain and radicular pain not addressed Plaintiff reported having had an MRI Plaintiff’s lightheadedness and vertigo Plaintiff 10 by physical therapy, and also complained of a sensation of the room 11 spinning (A.R. 491). 12 decreased range of motion in the lumbar spine, mildly unsteady gait 13 and persistent burning pain down the left L4-L5 dermatome (A.R. 492). 14 Dr. Chen diagnosed left lumbar radiculopathy, lumbar spinal stenosis, 15 back pain, “dizziness and giddiness,” type 2 diabetes mellitus, 16 hypothyroidism, hyperlipidemia, tobacco abuse, GERD and leukocytosis 17 (A.R. 492-95). 18 continued Plaintiff’s physical therapy, and requested authorization 19 /// 20 /// On examination, Plaintiff reportedly had Dr. Chen prescribed Gabapentin for nerve pain, 21 22 2 23 24 25 26 27 28 On July 19 and July 24, 2013, Plaintiff went to the emergency room at Redlands Community Hospital complaining of back pain and dizziness (A.R. 342, 354). Plaintiff reported that standing up and walking around improved his dizziness (A.R. 342). A CT scan of Plaintiff’s brain reportedly was “negative,” and he had no acute abnormalities reported on examination, apart from a “mild tachy” heart rate (A.R. 344, 352). Plaintiff initially was diagnosed with COPD and prescribed inhalers and Prednisone (A.R. 355, 360). When he returned, he was prescribed Meclizine for dizziness and Levofloxacin for possible bronchitis (A.R. 347, 353). 5 1 for an epidural injection at the L4-L5 area of the spine (A.R. 495- 2 96).3 3 4 When Plaintiff returned on August 22, 2013, Plaintiff reported 5 high blood sugars, no significant relief from his first epidural 6 injection, occasional chest pain and chest pressure on exertion with 7 associated shortness of breath, back pain and pain down his arms and 8 legs (A.R. 478). 9 slight tachycardia and decreased range of motion in the lumbar spine On examination, Plaintiff reportedly was obese with 10 (A.R. 479-80). Dr. Chen added diagnoses of sinus tachycardia, chest 11 pain (not otherwise specified), back pain, diabetes mellitus with 12 circulatory manifestation and diabetic angiopathy (A.R. 480-81). 13 Chen prescribed Metroprolol for Plaintiff’s heart, increased 14 Plaintiff’s Gabapentin and Metformin, and ordered Plaintiff off work 15 for one month (A.R. 482). Dr. 16 17 Plaintiff followed up with Dr. Chen on September 24, 2013, after 18 an emergency room visit for chest pain the previous month (A.R. 472).4 19 Plaintiff complained of lumbar pain and pain down his arms and legs, 20 21 22 23 24 25 26 27 28 3 Plaintiff underwent lumbar epidural steroid injections in August and October of 2013, with no reported relief (A.R. 25661). Plaintiff had complained of pain radiating over his lower back and left lower extremity down to his toes and numbness primarily when sitting (A.R. 257, 260). 4 Plaintiff had gone to the Redlands Community Hospital on August 26, 2013, complaining of chest pain when getting out of bed, shortness of breath and coughing (A.R. 329-341). A chest xray reportedly showed “borderline” heart size, but no active disease (A.R. 338). A stress test reportedly showed no significant abnormalities (A.R. 340). Doctors ruled out myocardial ischemia and diagnosed chest pain after coughing (A.R. 339, 341). 6 1 and reportedly was ready for a second epidural injection (A.R. 472). 2 Examination results were unchanged from the prior visit (A.R. 473). 3 Dr. Chen added a diagnosis of hypertension (A.R. 473-75). 4 prescribed Lisinopril for blood pressure, noted that Plaintiff should 5 follow up with the second epidural injection, and ordered Plaintiff 6 off work until October 28, 2013 (A.R. 475). Dr. Chen 7 8 9 Plaintiff returned to Dr. Chen on October 24, 2013, after Plaintiff had received a second epidural injection, and Plaintiff then 10 reported that the injection had not helped his back pain “at all” 11 (A.R. 467). 12 aches, pain down his arms and legs, and stiffness (A.R. 467). 13 Plaintiff also reported that his blood sugar was still high and his 14 heart rate was faster when his blood sugar was high (A.R. 467). 15 Plaintiff said he wanted to have spine surgery, reporting persistent 16 pain radiating down the L4-L5 dermatome, left worse than right (A.R. 17 467). 18 for pain radiating down the L4-L5 dermatomes (A.R. 468). Dr. Chen 19 prescribed Nesina for diabetes, requested authorization for a spine 20 surgery consultation, and ordered Plaintiff off work for another month 21 (A.R. 470).5 Plaintiff complained of palpitations, back pain, muscle Examination results were unchanged from prior visits, except 22 23 24 25 26 27 28 5 Orthopedic surgeon Dr. Gail Hopkins of Arrowhead Orthopaedics evaluated Plaintiff for spine surgery on December 5, 2013 (A.R. 264-66). Plaintiff complained of pain radiating to the legs with numbness, tingling and weakness for the past six months, assertedly aggravated by prolonged sitting and standing and alleviated by rest (A.R. 264). Plaintiff reportedly had been treated with two epidural injections, physical therapy, medication, and “work duty moderations” (A.R. 264). On examination, Plaintiff reportedly had difficulty transferring (continued...) 7 1 Plaintiff went to the Beaver Medical Group urgent care on 2 November 18, 2013, reporting symptoms of dizziness for approximately 3 the past month and pain in the left upper back below the shoulder 4 blade (A.R. 460, 465-66). 5 On examination, Plaintiff reportedly had no tenderness to palpation of 6 his back (A.R. 460). Plaintiff was taking ibuprofen (A.R. 460). Plaintiff was given IV fluids and assessed with 7 5 8 9 10 11 12 13 14 15 16 17 (...continued) from sitting to standing and from standing to the examination table (A.R. 264-65). The examination also evidenced a moderate paraspinal tenderness and a limited range of motion in the lumbar spine (A.R. 264-65). Dr. Hopkins diagnosed lumbar degenerative disc disease, with a note that Plaintiff had “failed conservative care” and the only other option was a combined anterior posterior fusion at L5-S1 (A.R. 266). Dr. Hopkins also encouraged Plaintiff to lose weight (A.R. 266). Plaintiff returned to Dr. Hopkins on January 14, 2014, reporting no changes (A.R. 267). Plaintiff was taking ibuprofen for his pain (A.R. 267). Examination results were unchanged from the prior visit (A.R. 267-68). Dr. Hopkins deemed Plaintiff “temporarily totally disabled,” and indicated that Plaintiff wanted to undergo the fusion surgery to control his back pain and return to a functional status that might permit work (A.R. 26869). Dr. Hopkins authorized surgery (A.R. 269). 18 19 20 21 22 23 24 25 26 27 28 On March 6, 2014, Plaintiff saw Dr. John Steinmann, another doctor at Arrowhead Orthopaedics (A.R. 270). Dr. Steinmann’s examination findings were the same as Dr. Hopkins’ findings, except that Dr. Steinmann noted that Plaintiff had positive Gower’s sign and did not have reported areas of tenderness to palpation of the back (A.R. 271-72). X-rays of Plaintiff’s lumbar spine reportedly showed slight wedging at L1 (A.R. 272). Dr. Steinmann diagnosed low back pain emanating from L4-L5 and recommended surgery for Plaintiff’s “severe mechanical low back pain” with “single segment abnormalities or at most two-level motion on MRI scan” (A.R. 272). According to Dr. Steinmann, Plaintiff must either accept “a permanent weakness to his back or [rectify it] through a stabilization procedure” (A.R. 272). Dr. Steinmann opined that Plaintiff was medically suitable for the planned surgery (A.R. 272). Dr. Steinmann also opined that Plaintiff’s condition “significantly interferes with his activities of daily living and he is unable to perform his occupational duties” (A.R. 272). 8 1 dizziness, mild tachycardia, tobacco dependence, obesity and back pain 2 (A.R. 460). 3 4 Plaintiff followed up with Dr. Chen on December 4, 2013, after a 5 hospital visit for left-sided rib pain (A.R. 452).6 6 complained of chest pain/discomfort (A.R. 452). 7 Plaintiff reportedly was in moderate pain and distress (A.R. 453). 8 Dr. Chen added a diagnosis of left-sided rib pain, prescribed a 9 lidocaine patch, and ordered Plaintiff off work for another month 10 Plaintiff On examination, (A.R. 453-56). 11 12 Plaintiff went to urgent care on December 30, 2013, with 13 complaints of dizziness, extreme fatigue and right hand numbness (A.R. 14 445-47). 15 evaluation, where he presented the same day complaining of tingling in 16 his right hand, dizziness, vertigo, tachycardia, chest pain and 17 chronic low back pain (A.R. 378-80, 445). 18 showed “questionable” vascular congestion (A.R. 392). 19 diagnosed with benign positional vertigo, hand paraesthesias and chest 20 pain of uncertain cause, and was ordered to follow up with Dr. Chen 21 (A.R. 379, 384). 22 /// 23 /// He was referred to the San Gorgonio Emergency Department for A chest x-ray reportedly Plaintiff was 24 25 26 27 28 6 Plaintiff had been to the Redlands Community Hospital emergency room on December 1, 2013, complaining of rib pain after he sneezed and heard a “pop” (A.R. 321-26). Plaintiff was diagnosed with low rib/cartilage separation, tobacco abuse and chronic cough, prescribed ibuprofen for pain and Ativan for pain and sleep (A.R. 325). 9 1 Plaintiff followed up with Dr. Chen on January 15, 2014 (A.R. 2 438). Plaintiff reportedly could not stand for more than 15 minutes 3 without back pain (A.R. 438). 4 was obese, in mild pain and distress, with slight tachycardia, 5 decreased range of motion in the lumbar spine and burning pain 6 radiating down the L4-L5 dermatomes (A.R. 439-40). 7 Plaintiff’s lidocaine patch, ordered Plaintiff to follow up with Dr. 8 Hopkins for surgery, and extended Plaintiff’s disability for three 9 additional months (A.R. 442). On examination, Plaintiff reportedly Dr. Chen continued 10 11 Plaintiff presented to a nurse practitioner on February 5, 2014, 12 with complaints of dizzy spells for the previous six months, causing 13 unsteadiness and problems with walking (A.R. 434). 14 Plaintiff reportedly had an unsteady gait, sinus tachycardia and 15 obesity (A.R. 434-35). 16 Redlands Community Hospital, where he complained of chest heaviness 17 and dizzy spells (A.R. 304, 435). 18 reportedly had mild dyspnea, tachycardia and a normal gait (A.R. 307- 19 08). 20 and an angiogram showed no evidence of pulmonary embolism (A.R. 311). 21 Plaintiff was sent home and ordered to follow up with Dr. Chen for 22 referral to a cardiologist, an ear nose and throat specialist and a 23 neurologist for his ongoing tachycardia and dizziness (A.R. 312). On examination, Plaintiff was sent to the emergency room at On examination, Plaintiff Apparently, a chest x-ray was normal, an EKG showed tachycardia, 24 25 Plaintiff followed up with Dr. Chen on February 27, 2014, after 26 Plaintiff had been hospitalized for fractured ribs (A.R. 426). 27 Plaintiff reportedly had been diagnosed with chest pain, fractures of 28 the left 8th and 9th ribs, pneumonia, diabetes mellitus type 2, 10 1 hypertension, tachycardia, obesity, tobacco dependence, hyperlipidemia 2 and chronic mild leukocytosis (probably secondary to tobacco use) 3 (A.R. 426; see also A.R. 284-303 (records from Redlands Community 4 Hospital admission from February 17-20, 2014, for pneumonia with left- 5 side rib fractures from coughing)). 6 vertigo for the past six months for which Meclizine had provided 7 “little resolution” (A.R. 427). 8 while he was in the hospital (A.R. 427). 9 pain at a level of 5-6 out of 10 (A.R. 428). Plaintiff complained of worsening Plaintiff reportedly had quit smoking Plaintiff complained of back On examination, 10 Plaintiff reportedly was obese with a “slightly tachy” heart rate, 11 tenderness to palpation of the left 8th and 9th ribs, and decreased 12 range of motion in the lumbar spine (A.R. 428-29). 13 reportedly showed low lung volumes (A.R. 433). 14 diagnoses for a closed fracture of two ribs, a history of tobacco use, 15 pneumonia and vertigo (A.R. 429-31). 16 with the cardiac lab for a Holter monitor and a stress echocardiogram 17 in three months, follow up with Dr. Hopkins for spine surgery and also 18 follow up with an ear nose and throat specialist for vertigo (A.R. 19 431-32). A chest x-ray Dr. Chen added Dr. Chen suggested follow up 20 21 Plaintiff returned for his annual physical on March 12, 2014, 22 reporting symptoms of benign positional vertigo (A.R. 418). On 23 examination, Plaintiff reportedly had tenderness to palpation of his 24 left ribs, a “slightly tachy” heart rate, obesity, decreased range of 25 motion in the lumbar spine, mild nystagmus and a positive Baranay test 26 (A.R. 419-20). 27 vertigo, and again suggested Plaintiff follow up with specialists 28 (A.R. 424). Dr. Chen prescribed Triamterene-HCTZ for Plaintiff’s 11 1 Plaintiff returned on May 13, 2014, for stress echocardiogram and 2 Holter monitor results, which reportedly were “fairly unremarkable” 3 (A.R. 408).7 4 rehabilitation as recommended by Dr. Cannon (A.R. 408).8 Plaintiff reportedly was receiving vestibular 5 6 Plaintiff went to urgent care on August 3, 2014, complaining of 7 fatigue and a history of chronic back pain, and reporting difficulty 8 getting out of bed or doing anything (A.R. 536). 9 that Plaintiff’s Metoprolol dose might be causing some fatigue and The doctor suspected 10 possible depression, and ordered Plaintiff to taper down his dosage 11 and to follow up with Dr. Chen (A.R. 536). 12 13 14 Plaintiff followed up with Dr. Chen on August 18, 2014, reporting that he had been taking more naps mid-day and falling asleep during 15 7 16 17 18 Plaintiff had consulted with otolaryngologist Dr. Stephen Cannon on April 14, 2014, for vertigo and disequilibrium (A.R. 415). A carotid ultrasound reportedly was normal (A.R. 416). A carotid x-ray revealed “somewhat irregular heartbeat” (A.R. 417). Dr. Cannon referred Plaintiff for “vestibular rehab” (A.R. 415). 19 20 21 22 23 24 25 26 27 28 Plaintiff also consulted with cardiologist Dr. Thomas Makowski on April 24, 2014, for chest pain (A.R. 414). Testing showed rare premature ventricular contractions with one ventricular couplet, and complaints of pain with some sinus tachycardia but no “significant ST depression” (A.R. 414). 8 There are physical rehabilitation treatment notes for Plaintiff’s vertigo, motion sensitivity and lack of coordination (A.R. 402-06). Plaintiff reportedly complained of imbalance, lightheadedness and dizziness, as well as significant back pain with numbness and tingling radiating to the left lower extremity (A.R. 402). Plaintiff reportedly was waiting for his symptoms to decrease so he could exercise and lose weight before lumbar spine surgery (A.R. 402). Plaintiff apparently ambulated without an assistive device but was limited in his ambulation secondary to back pain (A.R. 402). 12 1 the day despite sleeping a full eight-hour night (A.R. 526). Dr. Chen 2 added diagnoses of fatigue/malaise and snoring, and referred Plaintiff 3 for a sleep study (A.R. 526, 528-30).9 4 5 Plaintiff returned on December 3, 2014, complaining of left-sided 6 rib pain (A.R. 519). Plaintiff reportedly had a CPAP titration study 7 scheduled (A.R. 519). 8 of weight loss and treatment for apnea (A.R. 519). 9 reportedly had been trying to lose weight so he could have spine Dr. Chen counseled Plaintiff on the importance Plaintiff 10 surgery (A.R. 519). Dr. Chen added diagnoses of obstructive sleep 11 apnea and Vitamin B12 deficiency, and referred Plaintiff for follow up 12 regarding his sleep apnea (A.R. 522). 13 14 It appears that, beginning on March 4, 2015, Plaintiff sought 15 weekly treatments with Dr. Pranav Mehta (A.R. 687). 16 treatment notes are not as detailed as those of some of the other 17 providers. 18 tachycardia (A.R. 687). 19 follow up testing (A.R. 689-90). 20 2015, for a blood pressure check, reporting tachycardia but no 21 symptoms of chest pain or dizziness (A.R. 691). 22 active tachycardia (A.R. 691). See A.R. 687-704, 716, 719-39. Dr. Mehta’s Plaintiff reportedly had Plaintiff returned on March 12, 2015, for Plaintiff returned on March 19, He was assessed with Plaintiff returned on April 10, 2015, 23 9 24 25 26 27 28 On October 9, 2014, Plaintiff submitted to a sleep study at the Redlands Sleep Center, which showed severe obstructive sleep apnea/hypopnea syndrome (A.R. 543-81). Plaintiff was advised to try a CPAP, lose weight, and exercise caution when using alcohol or sedatives and when driving (A.R. 543). In a Patient Medical History form, Plaintiff reported, inter alia, taking two to three naps per day for thirty minutes to an hour each and staying in bed most of the time due to back pain and dizziness (A.R. 553-55). 13 1 for another blood pressure check, reporting that he had been suffering 2 sharp chest pain, with shortness of breath and sweating the previous 3 few days, and that his back pain was not controlled with Motrin 4 692). (A.R. Dr. Mehta sent Plaintiff to the emergency room (A.R. 692).10 5 6 Plaintiff followed up with Dr. Mehta on April 29, 2015, reporting 7 continuing difficulty catching his breath, lots of stress and anxiety, 8 and shortness of breath when he wakes up (A.R. 696). Dr. Mehta 9 10 11 12 13 14 10 Plaintiff went to the Redlands Community Hospital emergency room on April 10, 2015, complaining of chest pain (A.R. 604). On examination, there were no reported abnormalities (A.R. 606-07). A stress test reportedly was “negative” (A.R. 615, 622). A chest radiograph reportedly showed minimal left basilar linear atelectasis or scarring and no other acute cardiopulmonary abnormality (A.R. 621). Doctors ruled out myocardial infarction and diagnosed obesity, hypertension, GERD, type 2 diabetes and “poor conditioning” (A.R. 622-23). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff returned to the emergency room on April 21, 2015, complaining of chest pain, sweating profusely, feeling nauseated and feeling like he would pass out even though he was lying down (A.R. 624). There were no noted abnormalities on examination (A.R. 626-27). An EKG reportedly showed mild sinus tachycardia (A.R. 628-29). Plaintiff was advised to follow up with his primary care physician (A.R. 629). Plaintiff followed up with Dr. Mehta on April 23, 2015, who recommended that Plaintiff go to Loma Linda University Health System for a second opinion and for an arteriogram to look for blockage (A.R. 635-85, 695). There, Plaintiff complained of intermittent chest pain for two weeks, and dizziness, shortness of breath, dyspnea, and light headedness (A.R. 635, 637, 641). No abnormal findings were reported on examination (A.R. 638, 643). However, an EKG reportedly was “abnormal” and showed T wave abnormality with a note to consider anterior ischemia (A.R. 638). A chest x-ray reportedly showed increased interstitial markings in the lungs most likely consistent with bronchitis or COPD (A.R. 639, 644). After a series of additional tests, Plaintiff was discharged with a diagnosis of chest pain and instructions to follow up with his primary care doctor and with a cardiologist within a week (A.R. 652-53). 14 1 indicated that Plaintiff’s dyspnea may be a component of anxiety, 2 prescribed Ativan, and referred Plaintiff for pulmonary evaluation 3 (A.R. 696).11 4 5 On May 21, 2015, Plaintiff returned, reporting that he was 6 dieting better and losing weight (A.R. 697). According to a July 23, 7 2015 treatment record, triglycerides were high, vitamin D level was 8 normal, and diabetes was controlled by Glucophage and diet (A.R. 719). 9 Plaintiff reportedly was taking Norco for pain (A.R. 719). Plaintiff 10 returned on August 7, 2015, for a blood pressure check and “paper 11 work” (A.R. 720; see also A.R. 716 (letter from Dr. Mehta concerning 12 Plaintiff’s limitations)). 13 and began taking Tricor for his hyperlipidemia (A.R. 721). 14 returned on February 3, 2016, and his Tricor was continued (A.R. 722- 15 23).12 Plaintiff returned on December 3, 2015, Plaintiff 16 17 Plaintiff followed up with Dr. Mehta on June 23, 2016, reporting 18 that he had cut down on his Lopressor and was having major heart 19 palpitations but no chest pain, dizziness or dyspnea (A.R. 724-25). 20 Plaintiff returned on September 19, 2016, saying he had been coughing 21 22 23 24 25 26 27 28 11 Plaintiff had a lung evaluation in June and July of 2015 (A.R. 594-602). Plaintiff was assessed with COPD and a cough (likely chronic bronchitis) (A.R. 602). 12 On February 25, 2016, Plaintiff went to the San Gorgonio Memorial Hospital emergency room complaining of left rib pain after he coughed and felt a pop in his left rib (A.R. 706, 712). X-rays showed minimal congestion and an old fracture – no new fractures were seen (A.R. 708, 712, 714-15). Plaintiff was diagnosed with a chest wall contusion fracture (rib), prescribed Zithromax and discharged with instructions to follow up with his primary doctor (A.R. 710-13). 15 1 for three weeks (A.R. 726-27). He was encouraged to use his CPAP, his 2 Lopressor was increased, and he was prescribed a steroid 3 bronchiodilator (A.R. 726-28). 4 (A.R. 729). 5 triglycerides were over 600 because Plaintiff had stopped his Tricor, 6 Plaintiff’s diabetes was uncontrolled, and his neuropathy had worsened 7 (A.R. 729, 737). 8 (A.R. 729). Plaintiff returned on October 21, 2016 According to the record from this visit, Plaintiff’s Dr. Mehta prescribed a different diabetes medication 9 10 B. Additional Medical Opinion Evidence 11 12 In a letter dated August 7, 2015, Dr. Mehta stated that Plaintiff 13 suffers “debilitating” conditions (i.e., severe back pain and 14 “[e]pisodes of dizziness that make him unable to work”) (A.R. 716). 15 Dr. Mehta further stated: 16 17 [Plaintiff] has seen many specialists at Arrowhead 18 Orthopedics for his back pain. 19 helped. 20 on narcotic medications. 21 groggy and he cannot drive on that medication. 22 dizziness has been severe at times. 23 specialists and ended up in [the] emergency room on several 24 occasions. 25 University Hospital ENT department for re evaluation of his 26 dizziness. 27 [is] limited by his current medical conditions. 28 opinion he is disabled and cannot hold a job. Epidural injections have not Surgical options carry very high risk. Now he is Medications also make him feel His He has seen ENT At present he is being sent to Loma Linda ¶ Mark Bunker is a person who wants to work but 16 In my If you have 1 any questions feel free to call me. 2 3 (A.R. 716). 4 5 Consultative examiner Dr. Vicente Bernabe prepared an “Orthopedic 6 Consultation” dated March 9, 2015 (A.R. 585-90). Plaintiff complained 7 of lower back pain since May of 2013, described as “sharp, throbbing 8 pain” exacerbated by prolonged sitting, standing, walking, bending and 9 lifting (A.R. 585). Dr. Bernabe reviewed Plaintiff’s lumbar spine MRI 10 (A.R. 585). Plaintiff had undergone physical therapy and epidural 11 steroid injections and then was taking Hydrocodone and ibuprofen for 12 his pain (A.R. 586). 13 findings apart from tenderness to palpation of the lumbosacral 14 junction and limited range of motion in the lumbar spine (A.R. 586- 15 89). 16 spine and lumbar musculoligamentous strain, and opined that Plaintiff 17 can perform medium work (A.R. 589). On examination, Dr. Bernabe noted no abnormal Dr. Bernabe diagnosed degenerative disc disease of the lumbar 18 19 A state agency physician reviewed the record as of July of 2014, 20 and found Plaintiff can perform light work with: (1) frequent 21 balancing; (2) occasional climbing of ramps or stairs, stooping, 22 kneeling, crouching and crawling; and (3) no climbing of ladders, 23 ropes or scaffolds, and no exposure to hazards (A.R. 62-71). 24 reconsideration in March of 2015, another state agency physician 25 reviewed the record, including Dr. Bernabe’s opinion, and found the 26 same residual functional capacity for light work, except that this 27 physician also limited Plaintiff to occasional balancing and avoiding 28 concentrated exposure to extreme heat, extreme cold and vibration 17 On 1 (A.R. 73-82). 2 3 II. Summary of Plaintiff’s Subjective Statements and Testimony 4 5 Plaintiff testified that he stopped working in June of 2013 due 6 to back pain (A.R. 37-39). Plaintiff testified that he has constant 7 lower back pain which radiates down both legs to his ankles, worse on 8 his left side than his right, for which he lies down and stretches out 9 to feel better (A.R. 41, 48-49, 55). He said he had been told that 10 spine fusion surgery would pose a very high risk and would not rid him 11 of the pain entirely (A.R. 41, 49-50). 12 had tried physical therapy and two epidural injections with no relief, 13 and currently was relying on pain pills (Hydrocodone) and ibuprofen 14 (A.R. 41, 45-46, 51). 15 and lightheadedness, so he tries not to take it too often and instead 16 lies in bed “constantly” (A.R. 45). 17 difficulty walking because he experiences pain with every step, and 18 that, if he stands for 10 to 15 minutes, his leg will go numb (A.R. 19 41-42, 51). 20 20 minutes, his back starts hurting from the weight pushing down on 21 his spine (A.R. 42, 54). 22 for which he uses two inhalers daily (A.R. 42). 23 cannot sleep more than two hours at a time due to pain (A.R. 46). Plaintiff said he previously Plaintiff said the Hydrocodone causes dizziness Plaintiff testified that he has Plaintiff also said that, if he sits for more than 15 or Plaintiff testified to breathing problems Plaintiff claimed he 24 25 Plaintiff testified that he spends most of his time lying in bed 26 (A.R. 42, 52). He said he will get up and try to do chores like 27 washing dishes, sweeping, or making something to eat, which he does in 28 five-minute increments before lying back down (A.R. 42-44). 18 Plaintiff 1 estimated that he has stayed in bed an average of 21 hours a day since 2 2013 (A.R. 53). 3 house except attend family holiday get togethers (A.R. 44, 46). 4 Plaintiff also drives his son to work once or twice a week, a distance 5 of approximately a mile and a half (A.R. 37). 6 Plaintiff reported was using his cell phone to talk to friends, play 7 games and go on Facebook (A.R. 45). Plaintiff also said he does not do much outside the The only other activity 8 9 Plaintiff testified he cannot work a normal eight-hour workday 10 because he has to lie down and stretch out his back to ease his pain 11 after sitting or standing 12 hearing, and said he was experiencing pain and dizziness (A.R. 13 53-54).13 (A.R. 54). Plaintiff was sweating at the 14 15 III. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 16 Regarding the Severity of Plaintiff’s Symptoms Without Stating 17 Legally Sufficient Reasons for Doing So. 18 19 Where, as here, an ALJ finds that a claimant’s medically 20 determinable impairments reasonably could be expected to cause some 21 degree of the alleged symptoms of which the claimant subjectively 22 complains, any discounting of the claimant’s complaints must be 23 supported by “specific, cogent” findings. 24 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 See Berry v. Astrue, 622 25 26 27 28 13 In an Exertion Questionnaire dated January 21, 2015, Plaintiff reported similar problems and limitations. See A.R. 227-30; see also A.R. 93-94 (letter dated September 9, 2014, reporting similar issues and limitations); A.R. 215-16 (similar “Remarks” dated October 1, 2014). 19 1 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 2 Cir. 1996) (indicating that ALJ must state “specific, clear and 3 convincing” reasons to reject a claimant’s testimony where there is no 4 evidence of malingering).14 5 suffice. 6 (the ALJ’s credibility findings “must be sufficiently specific to 7 allow a reviewing court to conclude the ALJ rejected the claimant’s 8 testimony on permissible grounds and did not arbitrarily discredit the 9 claimant’s testimony”) (internal citations and quotations omitted); Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 11 must “specifically identify the testimony [the ALJ] finds not to be 12 credible and must explain what evidence undermines the testimony”); 13 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 14 which symptom testimony is not credible and what facts in the record 15 lead to that conclusion.”); see also Social Security Ruling 16-3p 16 /// 17 /// 18 /// 19 /// 20 /// 21 22 23 24 25 26 27 28 14 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 20 1 (eff. March 28, 2016).15 2 3 The ALJ discounted Plaintiff’s testimony and statements as “not 4 entirely consistent with the medical evidence and other evidence in 5 the record” (A.R. 19-21). 6 engaged in somewhat normal level activities” which “undermine the 7 claimant’s allegations of disabling functional limitations”; and 8 (2) the medical evidence of record assertedly did not support 9 Plaintiff’s allegations because Plaintiff was “receiving routine and The ALJ stated that: (1) Plaintiff “has 10 conservative treatment,” and Plaintiff’s allegations “were dramatized 11 in comparison to the available objective evidence of record,” which 12 included findings that Plaintiff was able to walk without difficulty, 13 had 5/5 strength, reported no back tenderness on some examinations, 14 and had “multiple stable examinations” (A.R. 20-21, 23-24). 15 discussed below, these stated reasons for rejecting Plaintiff’s 16 subjective allegations are factually and legally infirm. As 17 18 With regard to the first stated reason, inconsistencies between 19 admitted activities and claimed incapacity properly may impugn the 20 accuracy of a claimant’s testimony and statements under certain 21 circumstances. 22 (9th Cir. 2012) (ALJ properly discredited pain allegations as See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 23 24 25 26 27 28 15 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). SSR 16–3p superseded SSR 96–7p, but may have “implemented a change in diction rather than substance.” R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 21 1 contradicting claimant’s testimony that she gardened, cleaned, cooked, 2 and ran errands); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th 3 Cir. 2008) (claimant’s “normal activities of daily living, including 4 cooking, house cleaning, doing laundry, and helping her husband in 5 managing finances” provided sufficient explanation for discounting 6 claimant’s testimony). 7 Circuit opinions discussing when a claimant’s admitted activities may 8 and may not justify a discounting of the claimant’s testimony and 9 statements. Yet, it is difficult to reconcile Ninth Compare Stubbs-Danielson v. Astrue with Vertigan v. 10 Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a 11 plaintiff has carried on certain daily activities, such as grocery 12 shopping, driving a car, or limited walking for exercise, does not in 13 any way detract from her credibility as to her overall disability”); 14 see also Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) 15 (daily activities of cooking, cleaning, vacuuming, washing dishes, 16 shopping and cleaning a cat’s litter box insufficient to discount the 17 claimant’s subjective complaints). 18 19 Contrary to the ALJ’s stated findings in the present case, 20 Plaintiff’s admitted activities of lying in bed, doing chores in 21 five-minute increments before lying back down, using his cell phone, 22 and driving a mile and a half once or twice a week are not “somewhat 23 normal level activities” and cannot properly undermine Plaintiff’s 24 subjective complaints. 25 (9th Cir. 2017) (ALJ erred in finding disparity between claimant’s 26 reported activities and symptom testimony where the claimant indicated 27 she could use the bathroom, brush her teeth, wash her face, take her 28 children to school, wash dishes, do laundry, sweep, mop, vacuum, go to See Revels v. Berryhill, 874 F.3d 648, 667-68 22 1 doctor’s appointments, visit her mother and father, cook, shop, get 2 gas, and feed her dogs; ALJ failed to acknowledge the claimant’s 3 explanation, consistent with her symptom testimony, that she could 4 complete only some tasks in a single day and regularly needed to take 5 breaks). 6 admitted activities and Plaintiff’s claimed incapacity. There is no material inconsistency between Plaintiff’s 7 8 9 With regard to the ALJ’s second stated reason, a lack of objective medical evidence can be a factor in discounting a claimant’s 10 subjective complaints, but cannot “form the sole basis.” 11 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261 12 F.3d 853, 857 (9th Cir. 2001) (same); see also Carmickle v. 13 Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with 14 the medical record is a sufficient basis for rejecting the claimant’s 15 subjective 16 inconsistency between the medical evidence and a claimant’s subjective 17 complaints, the ALJ must make a specific finding identifying the 18 testimony the ALJ found not credible and linking the rejected 19 testimony to parts of the medical record supporting the ALJ’s 20 non-credibility determination. 21 at 494 (holding it was legal error for ALJ to fail to make such a 22 link) (citations omitted). testimony”). See Burch v. Further, where there is an alleged See Brown-Hunter v. Colvin, 806 F.3d 23 24 Here, the ALJ characterized Plaintiff’s allegations as 25 “dramatized” in comparison to the available medical record, observing 26 that Plaintiff alleged that he needed to lie in bed 21 out of 24 hours 27 a day and made allegations of pain, but he was “documented as being 28 capable of walking without difficulty and some examination showed no 23 1 back tenderness[,] . . . he had 5/5 strength in his physical 2 examinations[, and] [h]e had multiple stable examinations” (A.R. 23, 3 24). 4 the medical record as a whole and, in any event, the findings are not 5 inconsistent with Plaintiff’s claimed disabling need for extensive bed 6 rest. 7 Plaintiff’s subjective complaints. 8 Commissioner, 2017 WL 1178042, at *7 (D. Ariz. Mar. 30, 2017) (ALJ’s 9 citation to isolated examples of noncompliance which did not “capture 10 the record as a whole” was not a sufficiently clear, convincing basis 11 to discount a claimant’s testimony); Griglione v. Colvin, 2013 WL 12 5840366, at *5 (C.D. Cal. Oct. 30, 2013) (ALJ’s references to isolated 13 instances in the record did not constitute substantial evidence to 14 support adverse credibility finding based on alleged symptom 15 exaggeration, where the record as a whole showed that the claimant 16 sought regular treatment for neck and back pain, and there was no 17 other mention of symptom exaggeration in the treatment record); see 18 generally Garrison v. Colvin, 759 F.3d at 1017 (“[I]t is error to 19 reject a claimant’s testimony merely because symptoms wax and wane in 20 the course of treatment. 21 symptoms are a common occurrence, and in such circumstances it is 22 error for an ALJ to pick out a few isolated instances of improvement 23 . . . and to treat them as a basis for concluding a claimant is 24 capable of working.”) (citing Holohan v. Massanari, 246 F.3d at 1205). These isolated findings do not accurately capture the tenor of The findings are not a legally sufficient reason to discount See, e.g., Imperatrice v. Cycles of improvement and debilitating 25 26 The ALJ also cited Plaintiff’s allegedly “routine and 27 conservative treatment” (A.R. 21). A limited course of treatment 28 sometimes can justify the rejection of a claimant’s testimony, at 24 1 least where the testimony concerns physical problems. See, e.g., 2 Burch v. Barnhart, 400 F.3d at 681 (lack of consistent treatment, such 3 as where there was a three to four month gap in treatment, properly 4 considered in discrediting claimant’s back pain testimony); Meanel v. 5 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (in assessing the 6 credibility of a claimant’s pain testimony, the Administration 7 properly may consider the claimant’s failure to request treatment and 8 failure to follow treatment advice) (citing Bunnell v. Sullivan, 947 9 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. Shalala, 10 F.3d 10 678, 679-80 (9th Cir. 1993) (permissible credibility factors in 11 assessing pain testimony include limited treatment and minimal use of 12 medications); see also Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 13 Cir. 1995) (absence of treatment for back pain during half of the 14 alleged disability period, and evidence of only “conservative 15 treatment” when the claimant finally sought treatment, sufficient to 16 discount claimant’s testimony). 17 18 In the present case, however, it is highly doubtful Plaintiff’s 19 treatment accurately may be characterized as “routine and 20 conservative.” 21 frequently sought treatment from several providers throughout the 22 alleged disability period, followed up as ordered and complied with 23 all non-surgical treatment suggestions, including physical therapy, 24 narcotic pain medication, and multiple epidural injections. 25 while, Plaintiff reported that the treatment had not significantly 26 alleviated his back pain. 27 appear to have been “routine” or “conservative.” 28 v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t As detailed above, the record shows that Plaintiff All the Plaintiff’s recommended treatment does not 25 See, e.g., Childress 1 is not obvious whether the consistent use of [Norco] (for several 2 years) is ‘conservative’ or in conflict with Plaintiff’s pain 3 testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. 4 July 18, 2014) (“It would be difficult to fault Plaintiff for overly 5 conservative treatment when he has been prescribed strong narcotic 6 pain medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. 7 Cal. Sept. 16, 2011) (refusing to categorize as “conservative” 8 treatment including use of narcotic pain medication and epidural 9 injections); see also Sanchez v. Colvin, 2013 WL 1319667, at *4 (C.D. 10 Cal. Mar. 29, 2013) (“Surgery is not conservative treatment”). 11 12 IV. The ALJ Erred in Evaluating the Medical Evidence. 13 14 Dr. Chen and his staff ordered Plaintiff to remain off work from 15 Plaintiff’s initial visit in June of 2013 through at least April of 16 2014, due to Plaintiff’s back pain (A.R. 442, 455, 470, 475, 482, 17 500). 18 totally disabled” and in need of spine fusion surgery to return to a 19 functional level that might permit work (A.R. 268-69). 20 similarly opined in March of 2014 that, without surgery, Plaintiff’s 21 condition is a “permanent weakness to his back” that renders him 22 “unable to perform his occupational duties” (A.R. 272). 23 opined in August of 2015 that Plaintiff cannot work (A.R. 716).16 24 Although none of these physicians specified particular work-related In January of 2014, Dr. Hopkins deemed Plaintiff “temporarily Dr. Steinmann Dr. Mehta 25 26 16 27 28 Contrary to Defendant’s apparent construction, the Court does not construe Plaintiff’s Motion to acquiesce in the ALJ’s rejection of Dr. Mehta’s opinion. See Plaintiff’s Motion at 4. 26 1 limitations, it is evident that all of these physicians believe that 2 Plaintiff presently lacks the physical capacity to work. 3 4 A treating physician’s conclusions “must be given substantial 5 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 6 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 7 give sufficient weight to the subjective aspects of a doctor’s 8 opinion. . . . 9 treating physician”) (citation omitted); see also Garrison v. Colvin, This is especially true when the opinion is that of a 10 759 F.3d at 1012 (discussing deference owed to the opinions of 11 treating and examining physicians). 12 physician’s opinions are contradicted, as here, “if the ALJ wishes to 13 disregard the opinion[s] of the treating physician he . . . must make 14 findings setting forth specific, legitimate reasons for doing so that 15 are based on substantial evidence in the record.” 16 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets 17 omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may 18 disregard the treating physician’s opinion, but only by setting forth 19 specific, legitimate reasons for doing so, and this decision must 20 itself be based on substantial evidence”) (citation and quotations 21 omitted). Even where the treating Winans v. Bowen, Here, the ALJ’s reasoning is insufficient. 22 23 First, the ALJ considered and rejected Dr. Hopkins’ opinion as 24 “not relevant” because the opinion allegedly was rendered “in the 25 context of a workers’ compensation case” (A.R. 23). 26 record does not reveal whether Dr. Hopkins’ opinion was rendered in 27 the context of a workers’ compensation case, although the term in the 28 opinion “temporarily totally disabled” is often used in workers’ 27 Actually, the 1 compensation law. In any event, the purpose for which a medical 2 opinion is obtained “does not provide a legitimate basis for rejecting 3 it.” 4 v. Colvin, 2016 WL 67677, at *7 (E.D. Cal. Jan. 5, 2016) (“the ALJ may 5 not disregard a physician’s medical opinion simply because it was 6 initially elicited in a state workers’ compensation proceeding . . .”) 7 (citations and quotations omitted); Casillas v. Colvin, 2015 WL 8 6553414, at *3 (C.D. Cal. Oct. 29, 2015) (same); Franco v. Astrue, 9 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 2012) (same); Booth v. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); see Nash 10 Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (same). By 11 finding Dr. Hopkins’ opinion “not relevant,” the ALJ erred. 12 see also Brammer v. Colvin, 2015 WL 9484450, at *5 (C.D. Cal. Dec. 29, 13 2015) (“Although workers’ compensation disability ratings are not 14 controlling in Social Security cases, an ALJ must nevertheless 15 evaluate medical opinions stated in workers’ compensation terminology 16 just as he would evaluate any other medical opinion.”). See id.; 17 18 Second, the ALJ did not mention Dr. Steinmann. It is error to 19 fail to mention a treating physician who opined that the claimant 20 cannot work. 21 n.10 (2007). See, e.g., Lingenfelter v. Astrue, 504 F.3d 1028, 1038 22 23 Third, the ALJ gave “little weight” to Dr. Mehta’s opinion, as 24 “not consistent with the entire evidence of record including Dr. 25 Mehta’s own treatment notes” (A.R. 23). 26 Mehta’s treatment notes reflect only “routine and conservative 27 treatment” (A.R. 23). 28 referenced Plaintiff’s treatment for fractured ribs, diabetes and According to the ALJ, Dr. As support for this conclusion, the ALJ 28 1 chest pain (A.R. 23). These references are largely beside the point. 2 Dr. Mehta’s letter states that Plaintiff’s debilitating conditions are 3 “severe back pain” and dizziness, not fractured ribs, diabetes or 4 chest pain (A.R. 716). 5 treatment for his back pain does not appear to have been “routine” or 6 “conservative.” Additionally, as discussed above, Plaintiff’s 7 8 An ALJ properly may discount a treating physician’s opinions that 9 are in conflict with treatment records or are unsupported by objective 10 clinical findings. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 11 Cir. 2005) (conflict between treating physician’s assessment and 12 clinical notes justifies rejection of assessment); Batson v. 13 Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may 14 discredit treating physicians’ opinions that are conclusory, brief, 15 and unsupported by the record as a whole . . . or by objective medical 16 findings”); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 17 (“Connett”) (treating physician’s opinion properly rejected where 18 physician’s treatment notes “provide no basis for the functional 19 restrictions he opined should be imposed on [the claimant]”); see also 20 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly 21 may reject treating physician’s opinions that “were so extreme as to 22 be implausible and were not supported by any findings made by any 23 doctor . . .”); 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to 24 consider in weighing treating source opinion include the 25 supportability of the opinion by medical signs and laboratory findings 26 as well as the opinion’s consistency with the record as a whole). 27 However, the ALJ’s stated perception of an inconsistency between Dr. 28 Mehta’s opinion and the medical record lacks substantial supporting 29 1 evidence. 2 3 No doctor discerned any specific inconsistency between Dr. 4 Mehta’s opinion and the “evidence of record.” Drs. Hopkins and 5 Steinmann both opined that Plaintiff cannot work without surgery (A.R. 6 269, 272). 7 record prior to the time that Dr. Mehta provided an opinion.17 8 ALJ’s purported lay discernment of some alleged inconsistency between 9 Dr. Mehta’s opinion and Dr. Mehta’s treatment notes or other parts of Dr. Bernabe and the state agency physicians reviewed the The 10 the medical record cannot constitute substantial evidence. See 11 Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an “ALJ cannot 12 arbitrarily substitute his own judgment for competent medical 13 opinion”) (internal quotation marks and citation omitted); Rohan v. 14 Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to 15 the temptation to play doctor and make their own independent medical 16 findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an 17 ALJ is forbidden from making his or her own medical assessment beyond 18 that demonstrated by the record). 19 20 21 The ALJ also cited Plaintiff’s assertedly “dramatized” subjective complaints as a basis for discounting Dr. Mehta’s opinion (A.R. 23). 22 23 24 25 26 27 28 17 The Court also observes that Dr. Bernabe and the state agency physicians never indicated they even considered the opinion of Dr. Steinmann. See A.R. 66-67 (state agency physician on initial review noting Dr. Hopkins’ “temporarily totally disabled” finding, but elsewhere stating, “There is no indication that there is medical or other opinion evidence”); A.R. 80 (state agency physician on reconsideration referenced only Dr. Bernabe’s opinion evidence); A.R. 585-90 (Dr. Bernabe noting that he reviewed Plaintiff’s lumbar spine MRI, but making no mention of having reviewed any other medical records). 30 1 An ALJ may reject a treating physician’s opinion that is predicated on 2 the properly discounted subjective complaints of the claimant. 3 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); accord 4 Mattox v. Commissioner, 371 Fed. App’x 740, 742 (9th Cir. 2010); Fair 5 v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); but see Ghanim v. Colvin, 6 763 F.3d 1154, 1162-63 (9th Cir. 2014) (holding that “when a [treating 7 physician’s] opinion is not more heavily based on a patient’s self- 8 reports than on clinical observations,” an ALJ may not discount the 9 treating physician’s opinion based on the patient’s lack of See 10 credibility); accord Ryan v. Commissioner, 528 F.3d 1194, 1200 (9th 11 Cir. 2008). 12 discount Plaintiff’s subjective complaints. 13 clear to what degree Dr. Mehta’s opinion may have been based on 14 Plaintiff’s subjective complaints as distinguished from the clinical 15 observations reflected in the record. 16 rejecting Dr. Mehta’s opinion is factually and legally insufficient. As discussed above, however, the ALJ did not properly Additionally, it is not The ALJ’s reasoning for 17 18 19 V. The Court is Unable to Deem the Errors Harmless; Remand for Further Administrative Proceedings is Appropriate. 20 21 The Court is unable to conclude that the ALJ’s errors were 22 harmless. “[A]n ALJ’s error is harmless where it is inconsequential 23 to the ultimate nondisability determination.” 24 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); 25 see Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) 26 (“Where, as in this case, an ALJ makes a legal error, but the record 27 is uncertain and ambiguous, the proper approach is to remand the case 28 to the agency”); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 31 Molina v. Astrue, 674 1 2011) (error not harmless where “the reviewing court can determine 2 from the ‘circumstances of the case’ that further administrative 3 review is needed to determine whether there was prejudice from the 4 error”). 5 6 Remand is appropriate because the circumstances of this case 7 suggest that further development of the record and further 8 administrative review could remedy the ALJ’s errors. 9 Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 See McLeod v. 10 (2002) (upon reversal of an administrative determination, the proper 11 course is remand for additional agency investigation or explanation, 12 except in rare circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 13 (9th Cir. 2017) (reversal with a directive for the immediate 14 calculation of benefits is a “rare and prophylactic exception to the 15 well-established ordinary remand rule”; Dominguez v. Colvin, 808 F.3d 16 403, 407 (9th Cir. 2015) (“Unless the district court concludes that 17 further administrative proceedings would serve no useful purpose, it 18 may not remand with a direction to provide benefits”); Treichler v. 19 Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative 20 proceedings is the proper remedy “in all but the rarest cases”); 21 Garrison v. Colvin, 759 F.3d at 1020 (court will credit-as-true 22 medical opinion evidence only where, inter alia, “the record has been 23 fully developed and further administrative proceedings would serve no 24 useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), 25 cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings 26 rather than for the immediate payment of benefits is appropriate where 27 there are “sufficient unanswered questions in the record”); Connett, 28 340 F.3d at 876 (remand is an option where the ALJ fails to state 32 1 sufficient reasons for rejecting a claimant’s excess symptom 2 testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 3 (citing Connett for the proposition that “[w]hen an ALJ’s reasons for 4 rejecting the claimant’s testimony are legally insufficient and it is 5 clear from the record that the ALJ would be required to determine the 6 claimant disabled if he had credited the claimant’s testimony, we 7 remand for a calculation of benefits”) (quotations omitted); see also 8 Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015) 9 (discussing the narrow circumstances in which a court will order a 10 benefits calculation rather than further proceedings); Ghanim v. 11 Colvin, 763 F.3d at 1166 (remanding for further proceedings where the 12 ALJ failed to state sufficient reasons for deeming a claimant’s 13 testimony not credible); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th 14 Cir. 2009) (a court need not “credit as true” improperly rejected 15 claimant testimony where there are outstanding issues that must be 16 resolved before a proper disability determination can be made). 17 remain significant unanswered questions in the present record.18 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 There 25 26 27 28 18 For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff’s testimony and the treating physicians’ opinions were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 33 1 CONCLUSION 2 3 For all of the foregoing reasons,19 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 14, 2018. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 19 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 34

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