Everette Eyre v. Nancy A. Berryhill, No. 5:2018cv01481 - Document 22 (C.D. Cal. 2019)
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. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See Order for further details) (vm)
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Everette Eyre v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EVERETTE EYRE, Plaintiff, 12 13 14 15 CASE NO. EDCV 18-1481 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Everette Eyre (“Plaintiff”) brings this action seeking to 22 reverse the decision of the Acting Commissioner of Social Security 23 (the “Commissioner” or “Agency”) denying his applications for 24 Disability Insurance Benefits (“DIB”) and Supplemental Security 25 Income (“SSI”). 26 § 636(c) to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 below, the decision of the Commissioner is REVERSED, and this case The parties consented pursuant to 28 U.S.C. (Dkt. Nos. 10-11, 13). For the reasons stated Dockets.Justia.com 1 is REMANDED for further administrative proceedings consistent with 2 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 benefits, an 20 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 21 C.F.R. §§ 404.1520, 416.920. 19 To decide if a claimant is entitled to 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 vocational expert (“VE”) or by 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 reference to the Medical-Vocational Guidelines appearing in 20 2 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 3 grids”). 4 When a claimant has both exertional (strength-related) and non- 5 exertional limitations, the grids are inapplicable and the ALJ must 6 take the testimony of a VE. 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 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 Act. 16 has not engaged in substantial gainful activity since January 1, 17 2009, the alleged onset date. 18 that through June 30, 2009, the date last insured, there were no 19 medical signs or laboratory findings to substantiate the existence 20 of a medically determinable impairment. 21 determined 22 Plaintiff was not under a disability, as defined in the Social 23 Security Act, from January 1, 2009, the alleged onset date, through 24 June 30, 2009, the date last insured. 25 Plaintiff’s 26 Plaintiff’s major degenerative disc disease of the cervical spine, 27 status-post cervical fusion, and degenerative disc disease of the (AR 15-27). that SSI with At step one, the ALJ found that Plaintiff regards application, (AR 18). to the 28 4 At step two, the ALJ found (AR 18). Plaintiff’s ALJ DIB (AR 19). found Thus, the ALJ at application, With respect to step two that 1 lumbar spine are severe impairments.1 2 ALJ determined that Plaintiff does not have an impairment or 3 combination equal the 4 severity of any of the listings enumerated in the regulations. (AR 5 21). of impairments that (AR 19). meet or At step three, the medically 6 7 The ALJ then assessed Plaintiff’s RFC and concluded that he 8 can perform a full range of light work as defined in 20 C.F.R. 9 § 416.967(b).2 (AR 21). At step four, the ALJ found that Plaintiff 10 is capable of performing past relevant work as a motor vehicle 11 dispatcher, 12 Alternatively, based on Plaintiff’s RFC, age, education, and work 13 experience, the ALJ determined at step five that the grids direct 14 a finding of “not disabled.” 15 found that Plaintiff was not under a disability as defined by the as actually and generally (AR 26-27). performed. (AR 26). Accordingly, the ALJ 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ found that Plaintiff’s alleged left shoulder pain, osteoarthritis, diabetes, high blood pressure, and perianal fistula are non-severe, as there is no indication in the record that they cause more than a minimal effect on Plaintiff’s ability to perform basic work activities or lasted twelve continuous months, or more. (AR 19-20). The ALJ also found Plaintiff’s alleged hernia nonmedically determinable. (AR 21). 1 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 2 5 1 Act since October 2, 2014, the date the application was filed. 2 27). (AR 3 4 IV. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 8 Commissioner’s decision to deny benefits. 9 aside the Commissioner’s denial of benefits when the ALJ’s findings 10 are based on legal error or are not supported by substantial 11 evidence in the record as a whole.” 12 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 13 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 14 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 15 16 “Substantial evidence is more than a scintilla, but less than 17 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 18 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 19 evidence which a reasonable person might accept as adequate to 20 support a conclusion.” 21 evidence supports a finding, the court must “‘consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 24 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 28 6 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 V. 5 DISCUSSION 6 7 Plaintiff raises three claims for relief: (1) the ALJ failed 8 to properly consider the opinion of Plaintiff’s treating 9 orthopedist; (2) the ALJ failed to fully and fairly develop the 10 record; and (3) the ALJ erred in finding that Plaintiff’s spinal 11 conditions do not meet Listing 1.04. (Dkt. No. 18). 12 13 A. 14 The ALJ’s Reasons For Rejecting Dr. Puri’s Opinions Are Not Supported By Substantial Evidence 15 Plaintiff’s back pain began in 2002. 16 (AR 398). He was rock 17 climbing when he fell and hit his lower back against a rock. 18 398). 19 tailbone. 20 playing football. (AR Three weeks later, he learned that he had broken his (AR 398). Plaintiff’s neck pain began in 2009 from (AR 398). 21 22 In September 2014, Plaintiff’s primary care physician referred 23 Plaintiff to Navdeep Loomba, M.D., a pain management specialist. 24 (AR 398). 25 3/10 up to 10/10, radiates from his neck into his head and from 26 his low back into his hips, thighs, legs, and feet. 27 described the pain as aching, burning, sharp, throbbing, pressure, 28 and pinching. (AR 398). Plaintiff’s pain is aggravated by physical Plaintiff reported that his pain, which he described as 7 (AR 398). He 1 activity, movement, changing positions, bending, lifting, sitting, 2 and lying down, and is relieved by rest and standing. 3 His current pain medications include Norco, gabapentin, meloxicam, 4 baclofen, naproxen, and tramadol.3 5 an April 2014 MRI and conducted a physical examination. 6 400). 7 in the lumbar paraspinal muscles, increased pain with flexion and 8 extension of the spine, positive straight leg raising test on the 9 left side, and tenderness in left lower quadrant. (AR 399). (AR 398). Dr. Loomba reviewed (AR 399- On examination, Plaintiff had an antalgic gait, tenderness (AR 399-400). 10 Dr. Loomba assessed lumbosacral radiculitis and herniated lumbar 11 disc, 12 injections, increased the Norco dosage to 10/325 mg, and continued 13 baclofen and gabapentin. recommended lumbar transforaminal epidural steroid (AR 400). 14 15 Plaintiff received an epidural steroid injection on October 16 17, 2014. 17 procedure, 18 helping enough, causing side effects.” 19 Dr. Loomba noted antalgic gait, tenderness in paraspinal muscles, 20 increased pain with flexion and extension of the spine, straight- 21 leg test positive on left side, and tenderness in the left lower 22 quadrant. 23 3 24 25 26 27 28 (AR 402). but He reported some pain relief from the complained (AR 403). that his pain medications (AR 402). are “not On examination, He ordered a back brace and another epidural Norco, which contains a combination of acetaminophen and hydrocodone, is an opioid pain medication. Neurontin (gabapentin) is used to treat neuropathic pain. Mobic (meloxicam) is used to treat pain or inflammation caused by rheumatoid arthritis and osteoarthritis. Gablofen (baclofen) is used to treat muscle spasm, pain and stiffness caused by spinal cord disorders. Aleve (naproxen) is used to treat pain or inflammation. Ultram (tramadol) is a narcotic-like pain reliever. <www.drugs.com> (last visited March 8, 2019). 8 1 steroid injection, discontinued Norco due to side effects, started 2 Percocet,4 and continued baclofen and gabapentin. 3 Dr. Loomba performed the epidural steroid injection on December 4 18, 2014. (AR 403-04). (AR 405). 5 6 On January 20, 2015, Plaintiff reported minor pain relief from 7 his recent epidural. (AR 407). He rated the severity of his pain 8 as 4/10, aggravated by physical activity and movement and relieved 9 somewhat with medications. (AR 407). On examination, Dr. Loomba 10 found antalgic gait, tenderness in paraspinal muscles, increased 11 pain with flexion and extension of the spine, straight-leg test 12 positive on left side, and tenderness in left lower quadrant. 13 408). 14 not provide significant relief. 15 Percocet due to side effects, stopped baclofen and gabapentin due 16 to ineffectiveness, and started Fentanyl Patch.5 (AR Plaintiff declined more injections, reporting that they did (AR 408). Dr. Loomba discontinued (AR 408). 17 18 19 In May 2016, Plaintiff was referred to Rajiv Puri, M.D., a Board-certified orthopedic surgeon. (AR 449, 510). Plaintiff, 20 21 22 23 24 25 26 27 28 4 Percocet, which contains a combination of acetaminophen and oxycodone, is an opioid pain medication used to relieve moderate to severe pain. <https://www.drugs.com> (last visited March 11, 2019). 5 Fentanyl Patch is a strong opioid pain medication, which is used to treat moderate to severe chronic pain around the clock. Fentanyl patches are used when other pain treatments such as nonopioid pain medicines or immediate-release opioid medicines do not treat pain well enough or the patient cannot tolerate them. Fentanyl patches are not for treating mild or occasional pain or pain from surgery. <https://www.drugs.com> (last visited March 11, 2019). 9 1 who assessed his pain as 10/10, reported a history of severe 2 symptoms in the neck, radiating down the upper extremities causing 3 numbness in the hands, and severe pain in the lower back, radiating 4 down the left leg to the left foot. 5 Plaintiff was tender over the cervical spine with limited range of 6 motion in all directions, stinging sensation down his bilateral 7 arms during rotation, hypoactive reflexes at both wrists, decreased 8 sensation at C6 and C7, locally tender in the lumbar spine, right- 9 sided lumbar scoliosis with mildly right-sided rib hump palpable, 10 limited range of motion in the lumbar spine, positive root tension 11 in the lower extremities, and hypoactive knee and ankle reflexes. 12 (AR 449). An MRI of the cervical spine revealed severe degenerative 13 disc disease at C4-5, C5-6 and C6-7, causing bilateral foraminal 14 stenosis. 15 spine found degenerative disc disease from L1 through S1 with 16 foraminal stenosis on both the left and right sides. 17 id. 538-39). 18 with radiculopathy in both arms and degenerative scoliosis at L3- 19 S1, and recommended anterior cervical discectomy and fusion from 20 C4-C7. (AR 449). (AR 449, 451; see id. 536-37). On examination, An MRI of the lumbar (AR 449; see Dr. Puri diagnosed degenerative disc disease C4-C7 (AR 450). 21 22 Dr. Puri performed an anterior cervical discectomy and fusion 23 on October 14, 2016. 24 reported residual pain in the back of his neck and in the lumbar 25 spine. 26 of motion in the cervical spine, numbness in hands, and tenderness 27 and reduced range of motion in the lumbar spine. 28 Puri diagnosed status post anterior cervical fusion from C4-C7 and (AR 447). (AR 442-44). On October 26, Plaintiff On examination, Plaintiff had marked limitation 10 (AR 447). Dr. 1 degenerative disc disease in the lumbar spine with radicular pain 2 in both legs, recommended physical therapy for Plaintiff’s neck 3 and 4 nothing else seems to help.” 5 Plaintiff would be unable to work for at least twelve months. 6 447). lumbar spine surgery, and continued (AR 447). pain medications “as Dr. Puri opined that (AR 7 8 9 On November 7, 2016, Dr. Puri completed a medical opinion re: ability to do work-related activities (physical). (AR 310-12). 10 Dr. Puri concluded that Plaintiff was unable to lift or carry ten 11 pounds, could sit, stand, or walk less than two hours in an eight- 12 hour workday, must change positions every fifteen minutes, and 13 should lie down every three four hours. 14 Plaintiff’s status post cervical fusion and degenerative disc 15 disease in the lumbar spine, Plaintiff is unable to twist, stoop, 16 crouch, or climb. 17 radiation of pain to both hands, causing numbness and weakness, 18 Plaintiff’s ability to reach, handle, finger, feel, and push/pull 19 are limited. 20 environmental factors. 21 needs a cane to ambulate, needs to elevate legs to 90°, and is 22 unable to kneel or balance. 23 would 24 impairments. 25 Plaintiff would be unable to work for at least twelve months. 26 317). likely (AR 311). (AR 311). miss more (AR 312). (AR 310-11). Due to Because of his neck surgery and Plaintiff should avoid all exposure to (AR 312). Dr. Puri noted that Plaintiff (AR 312). than three He opined that Plaintiff days a month due to his On November 16, Dr. Puri reiterated that 27 28 11 (AR 1 An ALJ must take into account all medical opinions of record. 2 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 3 among the opinions of three types of physicians: (1) those who 4 treat the claimant (treating physicians); (2) those who examine 5 but do not treat the claimant (examining physicians); and (3) those 6 who 7 physicians).” 8 as amended (Apr. 9, 1996). 9 opinion carries more weight than an examining physician’s, and an 10 examining physician’s opinion carries more weight than a reviewing 11 [(nonexamining)] physician’s.” 12 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d 13 995, 1012 (9th Cir. 2014). 14 physician’s testimony depends ‘on the degree to which they provide 15 supporting explanations for their opinions.’” 16 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R. 17 § 404.1527(d)(3)). neither examine nor treat the claimant (nonexamining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d “The weight afforded a non-examining Ryan v. Comm’r of 18 19 The medical opinion of a claimant’s treating physician is 20 given “controlling weight” so long as it “is well-supported by 21 medically acceptable clinical and laboratory diagnostic techniques 22 and is not inconsistent with the other substantial evidence in [the 23 claimant’s] 24 416.927(c)(2). 25 controlling, it is weighted according to factors such as the length 26 of the treatment relationship and the frequency of examination, 27 the 28 supportability, nature case record.” “When and and a extent 20 C.F.R. treating of consistency 12 §§ doctor’s 404.1527(c)(2), opinion the treatment with the is not relationship, record.” Revels v. 1 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. 2 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 3 given to the “opinion of a specialist about medical issues related 4 to his or her area of specialty.” 5 416.927(c)(5). Greater weight is also 20 C.F.R. §§ 404.1527(c)(5), 6 “To 7 reject an uncontradicted opinion of a treating or 8 examining doctor, an ALJ must state clear and convincing reasons 9 that are supported by substantial evidence.” Bayliss v. Barnhart, 10 427 F.3d 1211, 1216 (9th Cir. 2005). 11 doctor’s opinion is contradicted by another doctor’s opinion, an 12 ALJ may only reject it by providing specific and legitimate reasons 13 that 14 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 15 doctor’s credible opinion on disability are comparable to those 16 required for rejecting a treating doctor’s medical opinion.”). 17 “The ALJ can meet this burden by setting out a detailed and thorough 18 summary of the facts and conflicting clinical evidence, stating 19 his interpretation thereof, and making findings.” 20 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). 21 “When an examining physician relies on the same clinical findings 22 as a treating physician, but differs only in his or her conclusions, 23 the conclusions of the examining physician are not ‘substantial 24 evidence.’” 25 Additionally, “[t]he opinion of a nonexamining physician cannot by 26 itself constitute substantial evidence that justifies the rejection 27 of the opinion of either an examining physician or a treating 28 physician.” are supported by substantial “If a treating or examining evidence.” Id.; see also Trevizo v. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Lester, 81 F.3d at 13 831 (emphasis in original). 1 Finally, when weighing conflicting medical opinions, an ALJ may 2 reject an opinion that is conclusory, brief, and unsupported by 3 clinical findings. 4 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Bayliss, 427 F.3d at 1216; Tonapetyan v. 5 6 The ALJ gave Dr. Puri’s opinion “little weight”: 7 8 [Dr. Puri] states that [Plaintiff] has been disabled 9 since 2006, but did not see [Plaintiff] until July 2016. 10 Furthermore, as noted above, there is no evidence in the 11 record 12 medical evidence, as discussed thoroughly above, does 13 not 14 requirement for a cane. prior support to 2012. such Additionally, extreme limitations, the objective including any 15 16 (AR 25) (citation omitted). 17 18 The ALJ properly gave Dr. Puri’s opinion less weight because it was based on only a few visits. 20 doctor’s opinion is not controlling, it is weighted according to 21 factors such as the length of the treatment relationship and the 22 frequency of examination, the nature and extent of the treatment 23 relationship, supportability, and consistency with the record.” 24 Revels, 874 F.3d at 654. 25 in July 2016. 26 cervical discectomy and fusion, Dr. Puri submitted his medical 27 opinion. 28 treating physician’s opinion when she has obtained a longitudinal (AR 449). (AR 310-12). (AR 25). “When a treating 19 Plaintiff began treating with Dr. Puri Four months later, after performing Generally, more weight is given to a 14 1 picture of her patient’s impairment. 20 C.F.R. 2 §§ 404.1527(c)(2)(i) (“Generally, the longer a treating source has 3 treated you and the more times you have been seen by a treating 4 source, the more weight we will give to the source’s medical 5 opinion.”), 416.927(c)(2)(i) (same). 6 reject Dr. Puri’s opinion based on not treating Plaintiff prior to 7 July 2016, the ALJ may properly give the opinion less weight.6 Thus, while the ALJ cannot 8 9 Nevertheless, after a thorough review of the administrative 10 record, the Court finds that the ALJ’s other reasons for rejecting 11 Dr. Puri’s opinion were not supported by substantial evidence. 12 First, the Court disagrees with the ALJ’s characterization of the 13 record. 14 examinations were not “largely unremarkable.” 15 records 16 examination in November 2013 indicated a positive straight leg 17 raise bilaterally and multilevel degenerative disk disease. 18 337). 19 in his lumbar spine. 20 examination in January 2015, Plaintiff had significant reduced 21 range of motion in his lumbar spine: flexion was 30° (normal is 22 60°), extension 10° (normal is 25°), side bending 15° (normal is Contrary to the ALJ’s assertion (AR 23), Plaintiff’s cited by the ALJ indicate Indeed, many of the otherwise. A physical (AR In July 2014, Plaintiff exhibited decreased range of motion (AR 383). Similarly, at his consultative 23 24 25 26 27 28 6 The ALJ accurately notes that there is no evidence in the record prior to 2012. (AR 25). However, Plaintiff does not dispute the ALJ’s conclusion that he was not under a disability prior to June 30, 2009, his date last insured. (AR 19). Thus, the remaining issue is whether Plaintiff is disabled with respect to his SSI application, which looks back only to the application date: October 2, 2014. 15 and rotation 25°), 2 <www.livestrong.com/article/257162-normal-human-range-of-motion/> 3 (last visited March 11, 2019) (describing normal range of motion). 4 In September 2015, Plaintiff presented with an antalgic gait, 5 tenderness in paraspinal muscles, increased pain with flexion and 6 extension of the spine, straight-leg test positive on left side, 7 and tenderness in left lower quadrant. 8 2015, 9 intervertebral spaces, and bilateral sacroiliac joints revealed palpation of 30° (normal the (AR 479). is 80°).7 1 thoracic (AR (AR 399-400). and lumbar 393); see In October faces, lumbar 10 “severe pain.” Range of motion of the lumbar spine was 11 “decreased with severe pain,” along with “severe” palpable trigger 12 points in the muscles of the lower back. 13 Plaintiff had moderate difficulty transferring from the chair to 14 standing and from standing to the examination table. 15 He exhibited reduced range of motion, hindered secondarily to pain. 16 (AR 524). 17 and neck pain and referred for surgery. (AR 479). In March 2016, (AR 524). In May 2016, Plaintiff was diagnosed with chronic back (AR 510-12). 18 19 The Court also disagrees with the ALJ’s view of the efficacy 20 of Plaintiff’s pain medications. 21 Plaintiff has been offered but “does not generally or regularly[ ] 22 take pain medications or has not been compliant with medications.” 23 (AR 23) (citation omitted). 24 Plaintiff was not always compliant with his medications. 25 391-92, 429-30, 413, 452, (AR 23). The ALJ found that The evidence does indicate that 544. However, these same (AR 329, records 26 27 28 The ALJ inexplicably found the CE’s examination “largely unremarkable.” (AR 24). 7 16 1 indicate that Plaintiff had developed allergies to opioids and 2 other strong pain medications. 3 Further, Plaintiff has a “high tolerance” to pain medications, 4 indicating that even opioid medicines were largely ineffective. 5 (AR 329). While Plaintiff’s medications do provide “some benefit,” 6 as noted by the ALJ (AR 23), even when compliant Plaintiff still 7 endures significant pain, which is aggravated by physical activity 8 and movement. 9 pain medications were largely ineffective, Plaintiff underwent 10 cervical fusion surgery and has been recommended for lumbar spine 11 surgery. 12 unfavorable to the claimant while ignoring evidence favorable to 13 the claimant.” 14 2016) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 15 2014)). (AR 402, 408, 429-30, 458, 543). (AR 398, 400, 402-03, 407-08). (AR 447). Indeed, because the “[A]n ALJ may not pick and choose evidence Cox v. Colvin, 639 F. App’x 476, 477 (9th Cir. 16 17 Second, Dr. Puri’s opinion is supported by his own objective if a is not 19 controlling, the ALJ must consider the extent to which the opinion 20 is supported by clinical and diagnostic examinations in determining 21 the weight to give the opinion. 22 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 23 cervical spine surgery, Dr. Puri noted tenderness over the cervical 24 spine with limited range of motion in all directions, stinging 25 sensation 26 hypoactive reflexes at both wrists, decreased sensation at C6 and 27 C7, tenderness in the lumbar spine, right-sided lumbar scoliosis 28 with mildly right-sided rib hump palpable, limited range of motion Plaintiff’s treating opinion examinations. down Even doctor’s 18 Revels, 874 F.3d at 654; 20 C.F.R. bilateral 17 Prior to Plaintiff’s arms during rotation, 1 in the lumbar spine, positive 2 extremities, and hypoactive knee and ankle reflexes. 3 Further, MRIs indicated severe degenerative disc disease with 4 bilateral foraminal stenosis in the both the cervical and lumbar 5 spine. 6 “marked 7 continued symptoms of numbness in Plaintiff’s hands, and “limited 8 range of motion” in the lumbar spine. (AR 447). Dr. Puri’s opinion 9 is further supported by other objective evidence in the record. (AR 449, 451, 536-39). limitation consultative of tension in the lower (AR 449). Following surgery, Dr. Puri found movement examination root in the found cervical significant spine,” with 10 The tenderness to 11 palpation at the lumbosacral junction and left sacroiliac joint 12 and reduced range of motion in the lumbar spine. 13 Other examinations consistently noted antalgic gait and reduced 14 range of motion. (AR 392-93). (AR 403, 408, 424, 483). 15 16 Finally, giving the State agency consultants’ opinions “some 17 weight” (AR 25) is problematic given that the they did not have 18 the opportunity to review Dr. Puri’s opinion. 19 2015, the consultants opined that Plaintiff was capable of a full 20 range of heavy work. 21 examinations and opinion were not completed until November 2016 22 (AR 23 conclusions. 24 subsequent 25 Plaintiff was capable of heavy work. 26 example, in October 2015, Plaintiff’s range of motion of the lumbar 27 spine 28 palpable trigger points in the muscles of the lower back. 310-12), was to In January and April (AR 72-74, 84-85, 98-99, 110-11). well after the consultants Dr. Puri’s submitted their Indeed, much of the medical record was submitted the State “decreased with agency severe 18 consultants determining that (See AR 429-626). For pain,” along with “severe” (AR 1 479). In March 2016, Plaintiff exhibited reduced range of motion, 2 hindered secondarily to pain. (AR 524). 3 4 In sum, the ALJ failed to provide specific and legitimate 5 reasons for rejecting Dr. Puri’s 6 shall reevaluate the weight to be afforded Dr. Puri’s opinion. On remand, the ALJ opinion. 7 8 B. Other Issues 9 10 Plaintiff also argues that the ALJ failed to fully develop 11 the record and to properly consider the applicability of Listing 12 1.04. 13 Plaintiff’s arguments on these grounds, as the matter is remanded 14 for the alternative reasons discussed at length in this Order. 15 Nevertheless, if the ALJ finds appropriate reasons for not giving 16 Dr. Puri’s opinion controlling weight, the ALJ may not reject the 17 opinion without providing specific and legitimate reasons supported 18 by substantial evidence in the record. 19 of Dr. Puri’s opinion, the ALJ shall reconsider whether Plaintiff 20 meets the requirements of Listing 1.04. 21 shall consult a medical expert to reconcile the record evidence 22 and various medical opinions. (Dkt. No. 18 at 7-10). However, it is unnecessary to reach After proper consideration If necessary, the ALJ 23 24 VI. 25 CONCLUSION 26 27 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 28 the decision of the Commissioner and REMANDING this matter for 19 1 further proceedings consistent with this decision. IT IS FURTHER 2 ORDERED that the Clerk of the Court serve copies of this Order and 3 the Judgment on counsel for both parties. 4 5 DATED: March 18, 2019 6 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 7 8 9 10 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 IN WESTLAW,
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