Robert Frantz v. Andrew Saul, No. 5:2020cv00021 - Document 20 (C.D. Cal. 2020)
Court Description: OPINION AND ORDER by Magistrate Judge Shashi H. Kewalramani. IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED and this case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). (see document for further details) (hr)
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Robert Frantz v. Andrew Saul Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 R.F., Case No. 5:20-cv-00021-SHK 12 Plaintiff, v. 13 OPINION AND ORDER ANDREW SAUL, Commissioner of Social Security, 14 15 Defendant. 16 17 18 Plaintiff R.F. 1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying his application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This 22 Court has jurisdiction under 42 U.S.C. § 405(g), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. 27 28 1 The Court substitutes Plaintiff’s initials for Plaintiff’s name to protect Plaintiff’s privacy with respect to Plaintiff’s medical records discussed in this Opinion and Order. Dockets.Justia.com I. 1 BACKGROUND Plaintiff filed an application for DIB on March 2, 2015, alleging disability 2 3 beginning on June 1, 2014. Transcript (“Tr.”) 15, 180-86. 2 Following a denial of 4 benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) 5 and, on December 19, 2018, ALJ Josephine Arno determined that Plaintiff was not 6 disabled. Tr. 15-26. Plaintiff sought review of the ALJ’s decision with the Appeals 7 Council, however, review was denied on November 5, 2019. Tr. 1-6. This appeal 8 followed. II. 9 STANDARD OF REVIEW The reviewing court shall affirm the Commissioner’s decision if the decision 10 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. 13 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “‘When evidence reasonably supports either confirming or reversing the 20 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Batson, 359 F.3d at 23 1196); see also Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26 27 28 2 A certified copy of the Administrative Record was filed on June 1, 2020. Electronic Case Filing Number (“ECF No.”) 16. Citations will be made to the Administrative Record or Transcript page number rather than the ECF page number. 2 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart, 400 F.3d 676, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders, 556 U.S. 396, 409 (2009). III. 8 A. 9 Establishing Disability Under The Act To establish whether a claimant is disabled under the Act, it must be shown 10 11 DISCUSSION that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d 28 at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps 3 1 one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett, 180 F.3d at 1098. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. 21 § 404.1520(d). If the claimant’s See 20 C.F.R. 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 28 4 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20 3 C.F.R. § 404.1520(f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 11 is “not disabled” and therefore not entitled to [DIB]. See 20 C.F.R. §§ 12 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, 13 then the claimant is “disabled” and therefore entitled to [DIB]. See id. 14 Id. at 1098-99. 15 B. 16 The ALJ determined that “[Plaintiff] meets the insured status requirements Summary Of ALJ’s Findings 17 of the . . . Act through December 31, 2019.” Tr. 17. The ALJ then found at step 18 one, that “[Plaintiff] has not engaged in [SGA] since June 1, 2014, the alleged onset 19 date (20 CFR 404.1571 et seq.).” Id. At step two, the ALJ found that Plaintiff has 20 the following severe impairments: “degenerative disc disease of the cervical spine, 21 status post discectomy and fusion; degenerative disc disease of the lumbar spine 22 with stenosis, status post fusion; peripheral neuropathy; carpel tunnel syndrome; 23 aortic stenosis; heart failure; status post left ulnar nerve transposition; and chronic 24 pain (20 CFR 404.1520(c)).” Id. At step three, the ALJ found that “[Plaintiff] 25 does not have an impairment or combination of impairments that meets or 26 medically equals the severity of one of the listed impairments in 20 CFR Part 404, 27 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” Tr. 19. 28 5 1 2 In preparation for step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to: 3 perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] 4 is able to stand or walk for a total of four hours in an eight hour workday; 5 is able to sit for a total of six hours in an eight hour workday; is never 6 able to climb ladders, ropes, or scaffolds; may occasionally climb ramps 7 or stairs; may occasionally balance, stoop, kneel, crouch and crawl; is 8 able to frequently reach overhead with the non-dominant left upper 9 extremity; is able to occasionally feel with the left upper extremity; may 10 have no exposure to unprotected heights and moving mechanical parts; 11 and may have no concentrated exposure to fumes, odors, dust, gases 12 and poor ventilation. 13 Tr. 19-20. The ALJ then found, at step four, that “[Plaintiff] is unable to 14 perform any past relevant work (20 CFR 404.1565).” Tr. 24. 15 In preparation for step five, the ALJ noted that “[Plaintiff] was born on July 16 14, 1966 and was 47 years old, which is defined as a younger individual age 18-49, 17 on the alleged disability onset date. [Plaintiff] subsequently changed age category 18 to closely approaching advanced age (20 CFR 404.1563.” Id. The ALJ observed 19 that “[Plaintiff] has at least a high school education and is able to communicate in 20 English (20 CFR 404.1564).” Id. The ALJ then added that “[t]ransferability of 21 job skills is not material to the determination of disability because using the 22 Medical-Vocational Rules as a framework supports a finding that [Plaintiff] is ‘not 23 disabled,’ whether or not [Plaintiff] has transferable job skills (See SSR 82-41 and 24 20 CFR Part 404, Subpart P, Appendix 2).” Id. 25 At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 26 work experience, and [RFC], there are jobs that exist in significant numbers in the 27 national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569[(]a)).” 28 6 1 Id. Specifically, the ALJ found that Plaintiff could perform the “light, unskilled” 2 occupations of: 3 • “Production assembler,” as defined in the dictionary of occupational titles 4 (“DOT”) at DOT 706.687-010, which the ALJ found had “58,000 such 5 positions in the national economy after erosion of 50 percent due to the 6 limitation regarding standing and walking”; 7 • “Marker II, DOT 920.687-126,” which the ALJ found had “27,000 such 8 positions in the national economy after erosion of 50 percent due to the 9 limitation regarding standing and walking”; and 10 • “Assembler, electrical accessories, DOT 729.687-010,” which the ALJ 11 found had “20,000 such occupations in the national economy after erosion 12 of 50 percent due to the limitation regarding standing and walking.” Tr. 25. 13 The ALJ based her decision that Plaintiff could perform the aforementioned 14 occupations “on the testimony of the [VE]” from the administrative hearing, after 15 “determin[ing] that the [VE’s] testimony [wa]s consistent with the information 16 contained in the [DOT].” Id. The ALJ, therefore, found that “[Plaintiff] has not 17 been under a disability, as defined in the . . . Act, from June 1, 2014, through 18 [December 19, 2018], the date of th[e] decision (20 CFR 404.1520(g)).” Id. 19 C. 20 In this appeal, Plaintiff raises two issues, whether the ALJ: (1) properly 21 rejected the opinions of two of his doctors; and (2) properly rejected his subjective 22 symptom statements. ECF No. 19, Joint Stip. at 5. The Court finds that the first 23 issue is dispositive and so it begins and ends its analysis there. However, before 24 addressing the dispositive issue, the Court first addresses one initial matter of the 25 ALJ’s step five finding that was not addressed by the parties. 26 Issues Presented 1. Initial Matter Of The ALJ’s Evaluation At Step Five 27 As an initial matter, the Court observes that the ALJ erred at step five of the 28 sequential evaluation process. Specifically, the ALJ found that there were 58,000; 7 1 27,000; and 20,000 jobs available in the national economy that Plaintiff could 2 perform in the three aforementioned occupations, based on the testimony of the 3 VE from the administrative hearing “after erosion of 50 percent due to the 4 limitation regarding standing and walking.” Tr. 24. The ALJ’s finding, however, 5 is not supported by the VE’s testimony because the VE testified that there were 6 fewer jobs available in each of the three aforementioned occupations. Specifically, 7 the VE testified that there were: 8 • “15,000 jobs estimated in the national economy” for the Production 9 assembler occupation, but “[t]hat number would reduce by half to account for the preference of seated work”; 10 • “27,000 jobs estimated in the national economy” for the Marker II 11 12 occupation, but that “[s]imilarly, that number would be halved”; and 13 • “20,000 jobs estimated in the national economy” for the Assembler, 14 electrical accessories occupation, but that the number of nationally 15 available positions that Plaintiff could perform would “also [be] reduced 16 by half.” 17 Tr. 49. Thus, pursuant to the VE’s testimony, there were 31,000 jobs available in 18 19 the national economy 3 that Plaintiff could perform, not 105,000 available jobs 4 as 20 the ALJ found. Accordingly, the ALJ’s step five finding that Plaintiff was not 21 disabled because there were 105,000 jobs in the national economy that Plaintiff 22 could perform, as evidenced by the VE’s testimony, was erroneous because the VE 23 opined that there were only 31,000 jobs available nationally that Plaintiff could 24 perform, some 74,000 fewer than the ALJ found at step five. 25 /// 26 27 28 3 15,000+27,000+20,000=62,000 jobs, reduced by fifty percent because of Plaintiff’s limited ability to stand is 31,000 jobs. 4 58,000+27,000+20,000=105,000 jobs. 8 1 The Court finds, however, the ALJ’s error at step five was harmless because 2 the Ninth Circuit has found that 25,000 jobs available nationally—although a 3 “close call”—represents a significant number of jobs and the VE’s testimony 4 indicates that there are 31,000 jobs nationally available that Plaintiff can perform. 5 See Gutierrez, 740 F.3d at 519, 528-29 (25,000 jobs nationally available presents a 6 “close call” as to whether work exists in significant numbers nationally). 7 Moreover, an inspection of the DOT descriptions of the jobs the ALJ found 8 Plaintiff could perform at step five reveals that two of the occupations list activities 9 that appear contrary to Plaintiff’s RFC. Specifically, the ALJ found, in pertinent 10 part, that Plaintiff had the RFC to have “no exposure to . . . moving mechanical 11 parts . . . [or] dust[.]” Tr. 20. However, the description of the job duties in the 12 DOT for the “Assembler, Production” occupation at DOT 706.687-010 instructs 13 that workers in that occupation “[m]ay tend machines, such as arbor presses or 14 riveting machine[s], to perform force fitting or fastening operations.” 5 The 15 occupational necessity to use arbor pressing and riveting machines appears 16 contrary to Plaintiff’s inability to be exposed to moving mechanical parts in 17 Plaintiff’s RFC. 18 Further, the description of the job duties in the DOT for the Marker II 19 occupation instructs that workers in that occupation “[m]ark[] or affix[] 20 trademarks or other identifying information, . . . using one or more methods, such 21 as . . . sand-grit and stencil[.]” 6 The occupational necessity to work with “sand- 22 grit” appears contrary to Plaintiff’s inability to be exposed to dust. 23 24 Thus, it appears to the Court that these occupational hazards would likely erode the number of nationally available jobs that Plaintiff could perform below the 25 26 27 28 5 See Dictionary of Occupational Titles, Assembler, Production, https://occupationalinfo.org/70/706687010.html (last accessed December 10, 2020). 6 See Dictionary of Occupational Titles, Marker II, https://occupationalinfo.org/92/920687126.html (last accessed December 10, 2020). 9 1 already, corrected 31,000 positions the VE opined were available because the VE 2 did not make any reductions to account for these inconsistencies and instead 3 testified that there were “[n]o inconsistencies” between the VE’s testimony and 4 the DOT and the ALJ found the same. Tr. 25, 51. 5 However, because it is unclear how many fewer positions would be available 6 to Plaintiff as a result of the apparent above discussed occupational hazards, 7 because the parties failed to identify and brief this issue, and because the Court 8 finds that remand for further proceedings is appropriate for the reasons discussed 9 next, the Court does not remand as to this issue. Nevertheless, on remand, the 10 ALJ shall consider and discuss: (1) the discrepancy between the number of jobs the 11 VE testified were available for Plaintiff to perform and the number of jobs the ALJ 12 found Plaintiff could perform at step five; and (2) whether there is a conflict 13 between the job duties for the two aforementioned occupations as outlined in the 14 DOT and whether Plaintiff has the RFC to perform those duties and, if so, whether 15 that conflict warrants a further reduction in the number of nationally available jobs 16 that Plaintiff can perform. The Court turns next to the dispositive first issue raised 17 by Plaintiff of whether the ALJ properly rejected the opinions of two of his doctors. 18 D. 19 Plaintiff argues that the ALJ failed to articulate specific and legitimate 20 reasons for rejecting the opinions of his treating physician Dr. Albert Retodo, M.D. 21 and examining physician Dr. Martha Singer, M.D. ECF No. 19, Joint Stip. at 5-10. 22 The Court finds that the ALJ’s reasons for rejecting Dr. Singer’s opinion was not 23 specific and legitimate and, thus, focuses on this issue below. 24 25 Court’s Consideration Of Plaintiff’s First Issue 1. Dr. Singer’s Opinion On March 18, 2016, Dr. Singer performed a qualified medical evaluation of 26 Plaintiff and rendered an opinion as to Plaintiff’s limitations at that time. Tr. 694- 27 708. In her examination notes, Dr. Singer noted that she had previously evaluated 28 Plaintiff in January 2015 after Plaintiff had two cervical spine surgeries in February 10 1 and December 2014 and after Plaintiff’s alleged disability onset in June 2014, but 2 before Plaintiff had a lower back surgery in June 2015. Tr. 696. 3 Dr. Singer noted that during her seventy-five-minute examination of Plaintiff 4 in March 2016, Plaintiff reported pain and tenderness in his neck, left scapular area, 5 left pectoral area, left elbow, and left forearm, and that Plaintiff also reported 6 numbness in his left hand. Tr. 694-95, 697. Dr. Singer noted that Plaintiff 7 “describes the problem as neck pain 100% of the time and left arm pain 100% of the 8 time” and that Plaintiff further indicated that his “left side is not much improved 9 after his second cervical spine surgery.” Tr. 697. 10 Dr. Singer’s examination notes indicate that Plaintiff presented with: 11 • “a mild bilateral tremor when holding his hands out”; 12 • tenderness in Plaintiff’s supraspinatus area bilaterally; 13 • “discomfort” in the left pectoralis area; 14 • “essentially absent reflexes of the upper extremities”; 15 • “some supraspinatus atrophy bilaterally and, perhaps, some pectoralis 16 atrophy on the left side”; 17 • “positive Tinel’s on the right”; and 18 • “some loss of range of motion of the cervical spine.” 19 Tr. 697, 699. 20 Dr. Singer then assessed Plaintiff’s cervical range of motion as follows: 21 • Cervical flexion is 60 degrees; 22 • Extension is 20 degrees; 23 • Lateral bend to the right is 33 degrees; and 24 • Lateral bend to the left is 25 degrees. 25 Tr. 698. Dr. Singer indicated that Plaintiff “describes more pain wit[h] left-sided 26 lateral bend” and that Plaintiff indicated pain in “the back of the neck.” Id. Dr. 27 Singer also indicated that Plaintiff’s supine rotation was measured at seventy 28 degrees to the right and sixty degrees to the left. Id. 11 1 After discussing the pertinent findings contained in over thirty of Plaintiff’s 2 medical records from during the relevant timer period, as well as explaining the 3 procedures used in, and the outcomes of, Plaintiff’s multiple cervical surgeries Dr. 4 Singer provided an opinion regarding Plaintiff’s limitations cause by his 5 impairments. Tr. 699-705. Specifically, Dr. Singer opined that “[f]or the neck 6 itself, work preclusions would include activities that involve prolonged work at or 7 above shoulder level, weightbearing on the head and neck,” “repetitive neck 8 motions or prolonged neck extension[,]” and “a lifting restriction of 20 pounds on 9 a regular basis would be reasonable.” Tr. 705, 708. 10 11 2. ALJ’s Partial Rejection Of Dr. Singer’s Opinion The ALJ first discussed the lifting limitation endorsed by Dr. Singer and 12 found that Dr. Singer “opined [Plaintiff] could not lift or carry more than 20 13 pounds, which is reasonable in light of [Plaintiff’s] history of cervical and lumbar 14 surgery as well as his complaints of pain.” Tr. 23. 15 The ALJ, however, did “not give great weight” to Dr. Singer’s “opinion 16 that [Plaintiff] could not bend or twist at the neck, perform repetitive neck motions, 17 or perform activities at or above shoulder level is too extreme in light of the 18 objective medical findings in the record” for two reasons. Id. First, the ALJ 19 explained that “the record indicates that [Plaintiff’s] condition improved following 20 his cervical spine surgery in December 2014, but he continues to have diminished 21 range of motion in the cervical spine with some muscle spasms.” Id. (citing Tr. 22 400, 408, 411, 687). Second, the ALJ reasoned that Plaintiff’s “neurological 23 symptoms waxed and waned.” Id. (citing Tr. 1333, 1339). 24 3. Parties’ Arguments 25 As discussed above, Plaintiff argues that the ALJ improperly rejected Dr. 26 Singer’s opinion because the reasons the ALJ provided for rejecting her opinion 27 were not specific and legitimate. ECF No. 19, Joint Stip. at 9. 28 12 Defendant responds that “[t]he ALJ provided specific and legitimate reasons 1 2 explaining why she concluded that Plaintiff’s RFC best comported with the weight 3 of the evidence. Id. at 11 (citing Tr. 18-24). After citing various medical records, 4 Defendant asserts that “[t]he ALJ properly synthesized the conflicting medical 5 evidence into Plaintiff’s RFC for a reduced range of light work, subject to 6 additional postural, manipulative, and environmental limitations” and that 7 “Plaintiff’s longitudinal treatment records showed he experienced significant 8 improvement in symptoms, including pain, with treatment.” Id. at 11-13 (citations 9 omitted). Defendant concludes that “Plaintiff’s request for reversal and/or remand 10 should be denied, and the Commissioner’s final decision should be affirmed.” Id. 11 at 17. 12 13 14 4. Legal Standards a. Evaluating Medical Evidence The Social Security Administration evaluates medical evidence “according 15 to the rules pertaining to the relevant category of evidence.” 20 C.F.R. 16 § 404.153(a). The categories of evidence are: (1) objective medical evidence; (2) 17 medical opinions; (3) other medical evidence; (4) evidence from non-medical 18 sources; and (5) evidence from a prior medical finding. Id. 19 “Objective medical evidence” includes “medical signs, laboratory findings, 20 or both, as defined in § 404.1502(f).” Id. at § 404.1513(a)(1). By contrast, a 21 “medical opinion” is: 22 a statement from a medical source about what [a claimant] can still do 23 despite [their] impairment(s) and whether [they] have one or more 24 impairment-related limitations or restrictions in the following abilities: 25 (i) [An] ability to perform physical demands of work activities, 26 such as sitting, standing, walking, lifting, carrying, pushing, pulling, or 27 other physical functions (including manipulative or postural functions, 28 such as reaching, handling, stooping, or crouching); 13 1 (ii) [An] ability to perform mental demands of work activities, 2 such as understanding; remembering; maintaining concentration, 3 persistence, or pace; carrying out instructions; or responding 4 appropriately to supervision, co-workers, or work pressures in a work 5 setting; 6 7 8 9 10 11 (iii) [An] ability to perform other demands of work, such as seeing, hearing, or using other senses; and (iv) [An] ability to adapt to environmental conditions, such as temperature extremes or fumes. Id. at § 404.1513(a)(2). b. Evaluating Medical Opinions 12 There are three types of medical opinions in Social Security cases: those 13 from treating physicians, examining physicians, and non-examining physicians. 14 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citation 15 omitted). “The medical opinion of a claimant’s treating physician is given 16 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical 17 and laboratory diagnostic techniques and is not inconsistent with the other 18 substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871 19 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). “When a 20 treating physician’s opinion is not controlling, it is weighted according to factors 21 such as the length of the treatment relationship and the frequency of examination, 22 the nature and extent of the treatment relationship, supportability, consistency 23 with the record, and specialization of the physician.” Id. (citing 20 C.F.R. 24 § 404.1527(c)(2)–(6)). 25 “‘To reject [the] uncontradicted opinion of a treating or examining doctor, 26 an ALJ must state clear and convincing reasons that are supported by substantial 27 evidence.’” Id. (quoting Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 28 (9th Cir. 2008)). “This is not an easy requirement to meet: ‘the clear and 14 1 convincing standard is the most demanding required in Social Security cases.’” 2 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 3 Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “‘If a treating or examining doctor’s opinion is contradicted by another 4 5 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 6 reasons that are supported by substantial evidence.’” Trevizo, 871 F.3d at 675 7 (quoting Ryan, 528 F.3d at 1198). “This is so because, even when contradicted, a 8 treating or examining physician’s opinion is still owed deference and will often be 9 ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 10 weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 11 (9th Cir. 2007)). “‘The ALJ can meet this burden by setting out a detailed and 12 thorough summary of the facts and conflicting clinical evidence, stating his 13 interpretation thereof, and making findings.’” Trevizo, 871 F.3d at 675 (quoting 14 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). c. 15 RFC Finding 16 The RFC is the maximum a claimant can do despite her limitations. 20 17 C.F.R. §§ 404.1545, 416.945. In determining the RFC, the ALJ must consider 18 limitations imposed by all of a claimant’s impairments, even those that are not 19 severe, and evaluate all of the relevant medical and other evidence, including the 20 claimant’s testimony. SSR 96-8p, available at 1996 WL 374184. The ALJ is 21 responsible for resolving conflicts in the medical testimony and translating the 22 claimant’s impairments into concrete functional limitations in the RFC. Stubbs- 23 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations 24 supported by substantial evidence must be incorporated into the RFC and, by 25 extension, the dispositive hypothetical question posed to the Vocational Expert. 26 Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 27 /// 28 /// 15 1 5. Analysis 2 As an initial matter, the Court observes that the ALJ rejected only Dr. 3 Singer’s opinion that “work preclusions” stemming from Plaintiff’s neck “would 4 include activities that involve prolonged work at or above shoulder level, 5 weightbearing on the head and neck,” and “repetitive neck motions or prolonged 6 neck extension[,]” but that the ALJ took no issue with the lifting limitations Dr. 7 Singer endorsed. Tr. 705, 708. As such, the sole issue for the Court is to 8 determine whether the ALJ’s rejection Dr. Singer’s opinion regarding Plaintiff’s 9 neck related limitations was supported by substantial evidence in the record. 10 As a secondary matter, the Court observes that the ALJ discussed only 11 objective medical evidence that the ALJ found contradictory to Dr. Singer’s 12 opinion, but the ALJ did not identify or discuss any doctor’s opinion that 13 specifically contradicted the aforementioned neck related limitations endorsed by 14 Dr. Singer. Therefore, the Court finds that the specific and legitimate standard 15 applies here. Trevizo, 871 F.3d at 675. The Court finds, however, that neither of 16 the reasons provided by the ALJ for partially rejecting Dr. Singer’s opinion meet 17 this standard, or even the clear and convincing standard for the following reasons. 18 First, the ALJ overstated the limitations Dr. Singer endorsed and, thus, the 19 ALJ rejected opinions that Dr. Singer did not actually endorse. Specifically, Dr. 20 Singer did not opine “that [Plaintiff] could not bend or twist at the neck” as the 21 ALJ stated. Tr. 23. Rather, Dr. Singer opined that Plaintiff could not perform 22 “repetitive neck motions or prolonged neck extension.” Tr. 705, 708. Thus, the 23 ALJ’s rejection of Dr. Singer’s opinion establishes only that the ALJ believes that 24 an absolute bar from “bend[ing] or twist[ing] at the neck” is “too extreme [a 25 limitation] in light of the objective evidence in the record.” Tr. 23. However, an 26 absolute bar from bending and twisting at the neck is not what Dr. Singer endorsed. 27 Rather, Dr. Singer’s opinion was that Plaintiff must avoid only “repetitive” and 28 “prolonged” neck movements. Tr. 705, 708. Thus, the ALJ rejected only an 16 1 opinion that Dr. Singer did not actually endorse and not Dr. Singer’s actual 2 opinion. As such, the ALJ’s finding was not supported by the record and was, 3 therefore, not a clear and convincing or even a specific and legitimate reason to 4 reject Dr. Singer’s actual opinion. 5 Similarly unpersuasive was the ALJ’s rejection of Dr. Singer’s opinion that 6 Plaintiff could not “perform activities at or above shoulder level” because such a 7 limitation “is too extreme in light of the objective medical findings in the record.” 8 Tr. 23. Again, Dr. Singer did not opine that Plaintiff could not perform all 9 activities at or above his shoulders. Rather, the record reveals that Dr. Singer 10 opined that Plaintiff could not perform “prolonged work at or above shoulder 11 level.” Tr. 705, 708 (emphasis added). Thus, Dr. Singer opined that Plaintiff can 12 perform some work at or above shoulder level, but not “prolonged” work in this 13 fashion, whereas the ALJ assessed only whether Plaintiff could perform any work in 14 this fashion. Id. As such, the ALJ rejected another opinion that Dr. Singer did not 15 actually endorse. Therefore, the ALJ’s finding was not supported by the record 16 and was, consequently, not a clear and convincing or even a specific and legitimate 17 reason to reject Dr. Singer’s actual opinion. 18 Second, the ALJ relied on only some evidence in the record to support her 19 partial rejection of Dr. Singer’s opinion, while ignoring other evidence that 20 supports Dr. Singer’s opinion. See Holohan v. Massanari, 246 F.3d 1195, 1207-08 21 (9th Cir. 2001) (holding an ALJ cannot selectively rely on some entries in plaintiff’s 22 records while ignoring others). For example, the ALJ cited four pages in Plaintiff’s 23 medical records for the proposition that “the record indicates that [Plaintiff’s] 24 condition improved following his cervical spine surgery in December 2014,” 25 despite evidence that Plaintiff “continues to have diminished range of motion in 26 the cervical spine with some muscle spasms.” Id. (citing Tr. 400, 408, 411, 687). 27 28 However, an inspection of the medical records cited by the ALJ, indicates that Plaintiff still had pain, numbness, and spasms after his surgeries that were 17 1 severe enough for Plaintiff to seek additional surgery and physical therapy, and for 2 Plaintiff’s doctors to continue prescribing Plaintiff opioid pain killers and muscle 3 relaxers. For example, Plaintiff’s medical records in the page range cited by the 4 ALJ indicate that, following Plaintiff’s surgeries, Plaintiff: 5 • Suffered from “chronic” neck, left shoulder, and low back pain for 6 which Plaintiff is prescribed the opioid pain reliever Norco and the opioid 7 muscle relaxer Baclofen; 8 • Suffered from “chronic left shoulder pain with left upper extremity 9 weakness after surgical procedure many years ago. [Plaintiff] wants to go 10 to physical therapy for rehab of his left shoulder and left upper extremity 11 to try to reduce the pain and increase the range of motion and muscle 12 tone. Will do referral to physical therapy”; 13 • Suffered from “some fingerpad [sic] numbness of the thumb and pointer 14 finger” and Plaintiff was reportedly “still taking baclofen and Neurontin. 15 His other complaint is back pain” and his back “occasionally locks up on 16 him”; 17 • Reported that the “pads on his thumb and first finger still feel numb” and 18 Plaintiff reportedly “did ask about his back stating that he is wondering, if 19 he qualifies for back surgery” because his back “occasionally locks up on 20 him and [he] feels a crunching with twisting” and “severe pain when it 21 does lock up”; 22 • Presented with “palpation of the cervical paraspinals reveals moderate 23 C6-7 paraspinal muscle spasms” and “Palpation of the bilateral trapezius 24 are mildly tender”; 25 • Presented with a “4/5 weakness of [the] left shoulder abduction, left 26 elbow flexion, left elbow extension, left wrist extension, and bilateral 27 finger abduction” was noted; and 28 18 1 2 3 4 • Presented with “decreased Wartengerg pinwheel sensation in bilateral hands with the right hand more decreased sensation than the left hand.” Tr. 400, 402-03, 408-09, 411, 687 (capitalization normalized). Moreover, many of Plaintiff’s symptoms noted above that the ALJ did not 5 consider or discuss were consistent with the symptoms Dr. Singer noted in her 6 examination notes, which the ALJ also did not consider or discuss. For example, 7 Dr. Singer noted pain and tenderness in Plaintiff’s neck, left scapular area, left 8 pectoral area, left elbow, and left forearm, and noted that Plaintiff also reported 9 numbness in his left hand. Tr. 694-95, 697. Dr. Singer’s examination notes also 10 indicated that Plaintiff presented with shaky hands; tenderness, discomfort, and 11 atrophy in Plaintiff’s supraspinatus area bilaterally, and left pectoralis area; 12 “essentially absent reflexes of the upper extremities”; and “positive Tinel’s on the 13 right.” Tr. 697, 699. 14 Accordingly, the ALJ failed to consider or discuss the above evidence when 15 rejecting Dr. Singer’s opinion due to indications that Plaintiff’s condition improved 16 following Plaintiff’s December 2014 surgery. Because much of this evidence was 17 consistent with the evidence the ALJ did not consider or discuss in Dr. Singer’s 18 opinion, the ALJ’s rejection of Dr. Singer’s opinion due to Plaintiff’s purported 19 improvement following his December 2014 surgery was not a clear and convincing 20 or even a specific and legitimate reason to reject Dr. Singer’s opinion. 21 Similarly, the ALJ’s rejection of Dr. Singer’s opinion because Plaintiff’s 22 “neurological symptoms waxed and waned” fails because the ALJ again selectively 23 relied on only some evidence in the record when making this finding. Tr. 23 (citing 24 Tr. 1333, 1339). For example, in the two pages cited by the ALJ in support of the 25 proposition that Plaintiff’s symptoms waxed and waned, the ALJ ignored notations 26 that in June and July of 2017, when the examinations correlating with those records 27 took place, Plaintiff was reportedly “[p]ositive for back pain (chronic) and limb 28 pain (left upper extremity pain)[,]” and he presented with “decreased [range of 19 1 motion (“ROM”)] with neck forward flexion and lateral flexion; decreased ROM 2 with left shoulder abduction, internal rotation, and external rotation.” Tr. 1333, 3 1339. Plaintiff was diagnosed with “cervicalgia[,]” a “[s]prain of ligaments of [his] 4 cervical spine[,]” and arthropathy in Plaintiff’s shoulder region. Tr. 1440. 5 Because the ALJ selectively relied on only some evidence and failed to consider or 6 discuss the above evidence when rejecting Dr. Singer’s opinion due to the waxing 7 and waning of Plaintiff’s symptoms, the ALJ’s rejection of Dr. Singer’s opinion for 8 this reason was not a clear and convincing or even a specific and legitimate reason 9 to reject Dr. Singer’s opinion. 10 Accordingly, because the ALJ’s reasons for partially rejecting Dr. Singer’s 11 opinion were not clear and convincing or even specific and legitimate, the Court 12 finds that the ALJ’s rejection of Dr. Singer’s opinion was erroneous. This error 13 was harmful because Dr. Singer’s opinion constitutes substantial evidence that 14 Plaintiff had greater limitations than the ALJ found in the ALJ’ RFC assessment. 15 Additionally, the VE’s responses to the ALJ’s hypothetical question, were 16 not supported by substantial evidence. This is because the ALJ failed to properly 17 consider Dr. Singer’s opinion that Plaintiff had greater limitations than the ALJ’s 18 RFC finding provided, which, in turn, provided the improper basis for the ALJ’s 19 dispositive hypothetical question posed to the VE. 20 Therefore, the Court finds that remand for further proceedings is 21 appropriate so that the ALJ may reconsider Dr. Singer’s opinion and Plaintiff’s 22 RFC in light of Dr. Singer’s opinion. Because the Court remands as to this issue, it 23 does not consider Plaintiff’s remaining assignments of error. 24 IV. CONCLUSION 25 Because the Commissioner’s decision is not supported by substantial 26 evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 27 REVERSED and this case is REMANDED for further administrative proceedings 28 under sentence four of 42 U.S.C. § 405(g). See Garrison, 759 F.3d at 1009 20 1 (holding that under sentence four of 42 U.S.C. § 405(g), “[t]he court shall have 2 power to enter . . . a judgment affirming, modifying, or reversing the decision of the 3 Commissioner . . . , with or without remanding the cause for a rehearing.”) 4 (citation and internal quotation marks omitted). 5 6 IT IS SO ORDERED. 7 8 9 10 DATED: 12/14/2020 ________________________________ HONORABLE SHASHI H. KEWALRAMANI United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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