David E. Belman v. Carolyn W. Colvin, No. 8:2013cv01466 - Document 20 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for specifics) (mrgo)

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David E. Belman v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID E. BELMAN, 12 Plaintiff, 13 v. 14 CAROLYN W. COLVIN, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 13-1466-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On September 30, 2013, plaintiff David E. Belman filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). Both plaintiff and defendant have consented 25 to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 26 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral 27 argument. 28 1 Dockets.Justia.com 1 Plaintiff presents two disputed issues for decision: (1) whether the 2 Administrative Law Judge (“ALJ”) properly rejected the opinion of examining 3 physician, Dr. James Styner; and (2) whether the ALJ properly considered 4 plaintiff’s credibility. Memorandum in Support of Plaintiff’s Complaint (“P. 5 Mem.”) at 3-17; Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 6 2-6. 7 Having carefully studied, inter alia, the parties’s moving papers, the 8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ improperly rejected a part of the opinion of 10 plaintiff’s examining physician without providing specific and legitimate reasons 11 supported by substantial evidence for doing so. The court therefore remands this 12 matter to the Commissioner in accordance with the principles and instructions 13 enunciated in this Memorandum Opinion and Order. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was forty-two years old on his amended alleged disability 17 onset date, attended three years of college and received vocational training as a 18 emergency medical technician and physical therapy assistant. AR at 53, 64, 95, 19 269. He has past relevant work as a physical therapist assistant. Id. at 89. 20 On October 26, 2010, plaintiff filed an application for a period of disability 21 and DIB due to a cardiac condition and cervical disc herniation, which was denied 22 initially. Id. at 94, 123-26. 23 On August 9, 2011, plaintiff filed a second application for a period of 24 disability and DIB, again due to cervical disc herniations and a cardiac condition. 25 Id. at 95, 203, 268. The Commissioner denied plaintiff’s application initially and 26 upon reconsideration, after which he filed a request for a hearing. Id. at 131-34, 27 137-42, 151-52. 28 2 1 On October 5, 2012, plaintiff, represented by counsel, appeared and testified 2 at a hearing before the ALJ. Id. at 46-93. The ALJ also heard testimony from Dr. 3 Arthur Lorber, a medical expert, and Kelly Winn-Boaitey, a vocational expert. Id. 4 at 65-71, 88-92. On November 9, 2012, the ALJ denied plaintiff’s claim for 5 benefits. Id. at 30-40. 6 Applying the well-known five-step sequential evaluation process, the ALJ 7 found, at step one, that plaintiff had not engaged in substantial gainful activity 8 since April 22, 2010, the amended alleged onset date. Id. at 32. 9 At step two, the ALJ found that plaintiff suffered from the following severe 10 impairments: cervical discogenic disease with history of work-related cervical 11 sprain and disc herniation; and coronary artery disease, status post one-vessel 12 angioplasty. Id. 13 At step three, the ALJ found that plaintiff’s impairments, whether 14 individually or in combination, did not meet or medically equal one of the listed 15 impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the 16 “Listings”). Id. at 34. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 17 18 determined that plaintiff had the RFC to: lift/carry twenty pounds occasionally 19 and ten pounds frequently; stand/walk for six hours in an eight-hour workday; sit 20 for six hours in an eight-hour workday; do occasional overhead lifting with both 21 upper extremities; and engage in frequent (but not constant) handling with the 22 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 right hand. Id. In addition, the ALJ precluded plaintiff from: climbing ladders, 2 ropes, or scaffolds; and concentrated exposure to work with vibrating tools. Id. 3 The ALJ found, at step four, that plaintiff was incapable of performing his 4 past relevant work as a physical therapist assistant. Id. at 39. 5 At step five, the ALJ found that there were jobs that existed in significant 6 numbers in the national economy that plaintiff could perform, including office 7 helper and information clerk. Id. at 39-40. Consequently, the ALJ concluded that 8 plaintiff did not suffer from a disability as defined by the Social Security Act. Id. 9 at 40. 10 Plaintiff filed a timely request for review of the ALJ’s decision, which was 11 denied by the Appeals Council. Id. at 3-5. The ALJ’s decision stands as the final 12 decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines that the ALJ’s findings are based on 20 legal error or are not supported by substantial evidence in the record, the court 21 may reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 “Substantial evidence is more than a mere scintilla, but less than a 25 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 26 “relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 4 1 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 2 finding, the reviewing court must review the administrative record as a whole, 3 “weighing both the evidence that supports and the evidence that detracts from the 4 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence.’” 6 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 7 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 8 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 9 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 10 1992)). 11 IV. 12 DISCUSSION 13 A. The ALJ Failed to Provide Specific and Legitimate Reasons for 14 Rejecting the Postural Limitations Opined by an Examining Physician 15 Plaintiff argues that the ALJ improperly rejected the opinion of an 16 examining physician, Dr. James Styner. P. Mem. at 3-10. Specifically, plaintiff 17 contends that the two reasons provided were legally insufficient. 18 In determining whether a claimant has a medically determinable 19 impairment, among the evidence the ALJ considers is medical evidence. 20 20 C.F.R. § 404.1527(b). In evaluating medical opinions, the regulations distinguish 21 among three types of physicians: (1) treating physicians; (2) examining 22 physicians; and (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); 23 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a 24 treating physician’s opinion carries more weight than an examining physician’s, 25 and an examining physician’s opinion carries more weight than a reviewing 26 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 27 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating physician is generally 28 5 1 given the greatest weight because the treating physician is employed to cure and 2 has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 3 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th 4 Cir. 1989). 5 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 6 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 7 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 8 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 9 opinions, the ALJ must provide specific and legitimate reasons supported by 10 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 11 specific and legitimate reasons supported by substantial evidence in rejecting the 12 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 13 non-examining physician, standing alone, cannot constitute substantial evidence. 14 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 15 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 16 813, 818 n.7 (9th Cir. 1993). 17 1. 18 Dr. Styner, an orthopedist, reviewed plaintiff’s medical records and Dr. Styner 19 examined plaintiff on September 19, 2012. AR at 947. Dr. Styner wrote a 20 summary of his examination and findings (headed Orthopedic Examination), and 21 completed a Cervical Spine Impairment Questionnaire. Id. at 947-71. During the 22 examination, Dr. Styner observed that plaintiff had reduced range of motion in the 23 rotation of the cervical spine, the flexion and abduction of the shoulders, the 24 flexion and extension of the lumbar spine, the flexion of the knees, the extension 25 and plantar flexion of the right knee, and the forefoot bilaterally. See id. at 95226 55. Dr. Styner also observed: tenderness at the right paracervical spine 27 musculature and trapezius musculature bilaterally; plica of the knee bilaterally 28 6 1 with swelling on the left and tenderness at the medial joint; knee bend limited to 2 50 percent; and tenderness of the right ankle, Achilles tendon medial and lateral at 3 the insertion. See id. Dr. Styner diagnosed plaintiff with chronic myoligamentous 4 strain of the cervical spine with MRI evidence of 5 mm herniated disc at C5-6, 5 chronic myoligamentous strain of the lumbar spine, inflammatory process of the 6 shoulders bilaterally, inflammatory process of the knees bilaterally, and residuals 7 of chronic sprain bilateral ankles. Id. at 959. 8 Based on his examination and review of plaintiff’s medical records, Dr. 9 Styner opined that plaintiff had the RFC to lift/carry fifteen pounds occasionally 10 and five pounds frequently, sit four hours in an eight-hour workday with the 11 ability to get up for 10-15 minutes each hour, and stand/walk two to three hours in 12 an eight-hour workday with the ability sit for 15-20 minutes every 30-45 minutes. 13 Id. at 961, 968. Dr. Styner precluded plaintiff from: overhead work; heavy 14 lifting/carrying/forceful exertion of the upper extremities; and repetitive or 15 prolonged bending, stooping, squatting, kneeling, climbing or walking over 16 uneven ground. Id. at 961, 970-71. 17 2. 18 Treating Physicians 19 Dr. Michael Weinstein, an orthopedic surgeon, treated plaintiff from Other Physicians 20 October 14, 2009 through at least November 11, 2010. See id. at 461, 639. At the 21 initial examination, Dr. Weinstein examined plaintiff and observed a decreased 22 range of motion in the cervical spine with regard to flexion, extension, lateral 23 rotation, and lateral bending. See id. at 462-65. On September 10, 2010, Dr. 24 Weinstein examined plaintiff and completed a Orthopaedic Permanent and 25 Stationary Report. Id. at 367-69. Dr. Weinstein observed decreased range of 26 motion in the cervical spine, and assessed plaintiff with chronic neck pain and 27 central and left sided C5-6 disc herniation. Id. at 367-68. Dr. Weinstein opined 28 7 1 that plaintiff should be restricted from lifting greater than 35 pounds, repetitive 2 lifting greater than 25 pounds, and repetitive overhead work. Id. On September 3 17, 2010, Dr. Weinstein completed a Physical Capacities form, in which he opined 4 that plaintiff could: stand for four hours a day, up to two hours at one time; sit two 5 hours a day; occasionally lift thirty-five pounds;2 and could occasionally climb, 6 balance, and reach; but plaintiff could never stoop, kneel, crouch, or crawl. See id. 7 at 815-16. 8 Dr. Afshin Mashoof, an orthopedic surgeon, treated plaintiff from January 9 31, 2011 through at least May 13, 2011. See id. at 629, 865. Dr. Mashoof 10 examined plaintiff’s cervical spine and upper extremities, and reviewed plaintiff’s 11 medical records from Hoag Hospital and Dr. Weinstein. See id. at 629-33. Dr. 12 Mashoof opined that plaintiff be restricted from heavy lifting, repetitive motion of 13 the cervical spin, and prolonged posturing of the cervical spine in one position. 14 Id. at 632. On May 13, 2011, Dr. Mashoof submitted a Supplemental Certification 15 and an Orthopedic Reevaluation. See id. at 634, 865-67. In the Supplemental 16 Certification, Dr. Mashoof opined that plaintiff should not lift greater than 35 17 pounds, should not engage in repetitive lifting of greater than 25 pounds, and 18 should not do repetitive overhead work. Id. at 634. In the Orthopedic 19 Reevaluation, Dr. Mashoof opined that plaintiff should avoid repeated head and 20 neck posturing.3 Id at 866. 21 22 2 Dr. Weinstein checked that plaintiff could occasionally lift thirty-five 23 pounds, but never lift twenty-five pounds. AR at 816. Given his consistent 24 opinion that plaintiff could lift up to 35 pounds, including on the same Physical Capacities form, the court assumes his checking of the “never” box under twenty25 five pounds was an error. 26 3 Dr. Mashoof also opined that plaintiff should not lift over five pounds. AR 27 at 866. Given that Dr. Mashoof opined that plaintiff should lift no more than 35 28 pounds in other opinions, including one rendered the same day, this court assumes 8 1 Dr. David L. Wood, an orthopedic surgeon, began treating plaintiff on 2 December 13, 2011.4 See id. at 926. Dr. Wood observed that plaintiff had varying 3 degrees of reduced range of motion in the cervical spine. See id. at 906, 916, 921. 4 Based on his exams and review of plaintiff’s medical records, Dr. Wood opined 5 that plaintiff be restricted from heavy lifting and repetitive motion of the cervical 6 spine or extremities, and engage in only “limited use” of his upper extremities and 7 “limited duration” of his activities. Id. at 912. 8 Examining Physicians 9 Dr. Neil J. Halbridge, an orthopedic surgeon, examined plaintiff on 10 December 21, 2010. See id. at 569-81. Dr. Halbridge noted that plaintiff had 11 asymmetric limitation of motion of the cervical spine and a herniated disc at the 12 C5-6 level. Id. at 574. Dr. Halbridge diagnosed plaintiff with herniated, extruded 13 disc syndrome, C5-6, left (5 mm); sleep disturbance; and gastritis secondary to 14 naproxen. Id. at 574. Dr. Halbridge opined that plaintiff should not push/pull/lift 15 greater than twenty pounds and perform no overhead work. Id. at 575. 16 Dr. John S. Godes, an internist, examined plaintiff on April 20, 2011 and 17 February 10, 2012. See id. at 612, 711. Dr. Godes also reviewed some of 18 plaintiff’s medical records. See id. at 612-13. During the April 20, 2011 physical 19 examination, Dr. Godes observed that plaintiff had decreased range of motion in 20 his neck, but otherwise normal range of motion elsewhere. See id. at 614-19. Dr. 21 Godes observed no tenderness or swelling. See id. At the February 10, 2012 22 examination, Dr. Godes observed tenderness of the lower cervical spine and 23 paravertebral and trapezius areas, bilaterally, as well as decreased range of motion 24 in the neck. Id. at 713. Dr. Godes diagnosed plaintiff with cervical discogenic 25 disease, post traumatic pain in the right wrist, and coronary artery disease, status 26 27 the five-pound limitation was a typographical error. 28 4 The ALJ failed to discuss Dr. Wood’s opined limitations. 9 1 post 1-vessel angioplasty. Id. at 715. Dr. Godes opined that plaintiff could lift 2 twenty pounds occasionally and ten pounds frequently, could stand/walk/sit for six 3 hours in an eight-hour workday, and had no other limitations. Id. at 716. 4 Non-Examining Physicians 5 Dr. A. Lizarraras, a State Agency physician, reviewed some of plaintiff’s 6 medical records on May 2, 2011. See id. at 625-27. Dr. Lizarraras opined that 7 plaintiff: could lift/carry twenty pounds occasionally and ten pounds frequently; 8 stand/walk/sit six hours in an eight-hour workday; and had no other limitations. 9 See id. at 620-24. 10 Dr. Arthur Lorber, a medical expert and orthopedic surgeon, reviewed 11 plaintiff’s medical records and questioned plaintiff at the hearing. See id. at 5512 65, 195. Dr. Lorber opined that plaintiff had the RFC to lift twenty pounds 13 occasionally and ten pounds frequently, stand/walk/sit six hours a day with normal 14 breaks, and perform occasional overhead work with upper extremities. Id. at 69. 15 Dr. Lorber further opined that plaintiff be precluded from climbing ladders, ropes, 16 or scaffolds; exposure to concentrated vibration; and constant pushing, pulling, or 17 handling of the right hand. Id. at 70. 18 3. 19 The ALJ concluded that plaintiff had the RFC to: lift/carry twenty pounds The ALJ’s Findings 20 occasionally and ten pounds frequently; stand/walk six hours and sit six hours in 21 an eight-hour workday; perform occasional overhead lifting with both upper 22 extremities; and do frequent, not constant, handling with the right hand. Id. at 34. 23 The ALJ further opined that plaintiff could never climb ladders, ropes, or scaffolds 24 and must avoid concentrated exposure to work with vibrating tools. Id. In 25 reaching that determination, the ALJ gave great weight to the opinions of Dr. 26 Lorber, Dr. Godes, and Dr. Lizarraras. Id. at 38. The ALJ gave some weight to 27 Dr. Halbridge’s opinion, less weight to Dr. Weinstein’s and Dr. Mashoof’s 28 10 1 opinions, and little weight to Dr. Styner’s opinion. Id. The ALJ discounted Dr. 2 Styner’s opinion on the bases that it was based on a one-time examination and 3 inconsistent with the record as a whole. Id. The ALJ’s reasons for rejecting Dr. 4 Styner’s opinion were, in part, not specific and legitimate and supported by 5 substantial evidence. See Lester, 81 F.3d at 830. 6 The first reason cited by the ALJ – that Dr. Styner only examined plaintiff 7 on one occasion – was not specific or legitimate. The regulations clearly state that 8 an ALJ must consider the opinions of treating, examining, and State Agency 9 physicians. See 20 C.F.R. § 494.1527(c), (e); Lester, 81 F.3d at 830. The fact that 10 a physician only examined a claimant on one occasion is not a specific and 11 legitimate reason to reject the opinion, but rather is a factor that can be considered 12 in assigning weight. 13 Here, the ALJ’s reason was a pretense. The ALJ stated that Dr. Styner’s 14 opinion should be given little weight because he only examined plaintiff on one 15 occasion. But the ALJ gave great weight to the opinions of Dr. Lorber, Dr. Godes, 16 and Dr. Lizarraras, none of whom were treating physicians. Indeed, Dr. Lorber 17 and Dr. Lizarraras did not even examine plaintiff, and Dr. Godes only examined 18 plaintiff twice. Based on the ALJ’s reason for rejecting Dr. Styner’s opinion, the 19 ALJ also should have not have given great weight to Dr. Lorber’s, Dr. Godes’s, 20 and Dr. Lizarraras’s opinions, as she did. 21 The second reason cited by the ALJ was similarly not specific and 22 legitimate, in part. Although inconsistency with the record may be a specific and 23 legitimate reason for rejecting a physician’s opinion, here it was not as to the 24 postural limitations opined by Dr. Styner. See Batson v. Comm’r, 359 F.3d 1190, 25 1195 (9th Cir. 2004) (holding that an ALJ may discredit physicians’ opinions that 26 are “unsupported by the record as a whole . . . or by objective medical findings”); 27 28 11 1 see also Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) (the ALJ must 2 identify the conflicting evidence and set out his reasoning). 3 Here, the medical record contains objective evidence that is consistent with 4 Dr. Styner’s opinion concerning plaintiff’s impairments and can support the 5 opined limitations. First, the medical evidence clearly reflects that plaintiff had 6 disc protrusions. An April 14, 2010 MRI showed a disc protrusion measuring 5 7 mm at the C5-C6 level and a 2 mm central disc protrusion at the C6-C7 level. AR 8 at 412. Second, the medical record shows that plaintiff consistently had a limited 9 range of motion in his cervical spine. See, e.g., id. at 391, 419, 458, 614. Finally, 10 the physical therapy records show that plaintiff experienced a slight exacerbation 11 of symptoms when he moved from a sit to stand position while holding 15-pound 12 dumbbells in each hand and experienced neck tension from driving for six hours.5 13 Id. at 803-04, 806. The objective evidence can support Dr. Styner’s standing, 14 sitting, walking, lifting, overheard reaching, and postural limitations. 15 Nonetheless, the objective medical evidence is subject to interpretation and 16 may also support the opinions of the other physicians in this case. When the 17 evidence is susceptible to more than one interpretation the ALJ must resolve the 18 conflicts, and the court will uphold the ALJ’s finding so long as it is supported by 19 substantial evidence. See Tommasetti v. Astrue, 535 F.3d 1035, 1041-42 (9th Cir. 20 2008) (“[T]he ALJ is the final arbiter with respect to resolving ambiguities in the 21 medical evidence”). Because the evidence with regard to lifting, carrying, sitting, 22 standing, and walking may reasonably support Dr. Lorber’s, Dr. Godes’s, and Dr. 23 24 25 5 Plaintiff’s condition appeared to improve with physical therapy. See, e.g., 26 803-06. At his last authorized treatment, plaintiff stated that he wanted increase 27 his lifting poundages in order to prepare to return to work. See id. at 806. From the record, it did not appear that plaintiff received authorization for further 28 physical therapy. 12 1 Lizarraras’s opinions, the court will not substitute its judgment concerning those 2 limitations. 3 But the ALJ’s rejection of Dr. Styner’s postural limitations and reliance on 4 Dr. Godes’s, Dr. Lizarraras’s, and Dr. Lorber’s opinions that plaintiff did not 5 require postural limitations was not reasonable. The evidence clearly reflects that 6 plaintiff had chronic neck pain and limited range of motion. Dr. Godes noted that 7 plaintiff suffered from neck pain and observed that plaintiff had significant 8 reduced range of motion in his neck, but did not opine any postural limitations. 9 AR at 612, 614, 713. Similarly, both Dr. Lorber and Dr. Lizarraras acknowledged 10 plaintiff’s history of neck pain and reduced range of motion but did not opine 11 limitations. Dr. Lorber testified that Dr. Wood found that plaintiff had a full range 12 of motion in his neck at his January 10, 2012 visit, but that was not accurate. See 13 AR at 68. Although close to normal, plaintiff still experienced a decreased range 14 of motion in the forward flexion. Id. at 921. Moreover, Dr. Lorber disregarded or 15 did not notice the fact that plaintiff again experienced decreased range of motion 16 in the lateral rotation of his cervical spine after the January 2012 examination. See 17 id. at 952. Dr. Godes’s, Dr. Lorber’s, and Dr. Lizarraras’s opinions are therefore 18 inconsistent with the objective medical evidence, which supports postural 19 limitations. 20 The court also notes that the ALJ rejected Dr. Weinstein’s opined postural 21 limitations on the same ground, which as discussed above, is not supported by 22 substantial evidence. See AR at 38. In addition, the ALJ failed to discuss the fact 23 that Dr. Dr. Mashoof also opined similar postural limitations. See AR at 871. 24 This was error. Indeed, three orthopedic specialists viewed the same evidence and 25 opined that plaintiff required postural limitations. The ALJ did not appear to give 26 the specialists more weight, and instead gave their opinions less weight than those 27 of internist Dr. Godes, to the extent she acknowledged them. See Reed v. 28 Massanari, 270 F.3d 838, 845 (9th Cir. 2001) (noting that the agency generally 13 1 gives more weight to specialists than to the opinion of a medical source who is not 2 a specialist). These additional opinions further show that the ALJ’s determination 3 that Dr. Styner’s opinion concerning plaintiff’s postural limitations was 4 inconsistent with the medical evidence was not supported by substantial evidence. 5 In sum, the ALJ cited one specific and legitimate reason for rejecting Dr. 6 Styner’s opinion concerning plaintiff’s limitations relating to lifting, carrying, 7 sitting, standing, walking, and overhead work. But the ALJ failed to cite specific 8 and legitimate reasons supported by substantial evidence for rejecting the portion 9 of Dr. Styner’s opinion concerning postural limitations. Accordingly, the ALJ 10 erred in discounting that portion of Dr. Styner’s opinion. 11 B. The ALJ Erred in Part in Discounting Plaintiff’s Credibility 12 Plaintiff argues that the ALJ failed to make a proper credibility 13 determination. P. Mem. at 10-17. Specifically, plaintiff contends that the ALJ 14 failed to provide clear and convincing reasons for discounting his credibility. Id. 15 The ALJ must make specific credibility findings, supported by the record. 16 Social Security Ruling (“SSR”) 96-7p.6 To determine whether testimony 17 concerning symptoms is credible, the ALJ engages in a two-step analysis. 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 19 must determine whether a claimant produced objective medical evidence of an 20 underlying impairment “‘which could reasonably be expected to produce the pain 21 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 22 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 23 24 25 26 27 28 6 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan, 246 F.3d at 1203 n.1 (internal citations omitted). 14 1 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 2 symptoms only by offering specific, clear and convincing reasons for doing so.” 3 Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 4 2003). The ALJ may consider several factors in weighing a claimant’s credibility, 5 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 6 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 7 of treatment; and (3) a claimant’s daily activities. Tommasetti, 533 F.3d at 1039; 8 Bunnell, 947 F.2d at 346-47. 9 At the first step, the ALJ found that plaintiff’s medically determinable 10 impairments could reasonably be expected to cause the symptoms alleged. AR at 11 37. At the second step, because the ALJ did not find any evidence of malingering, 12 the ALJ was required to provide clear and convincing reasons for discounting 13 plaintiff’s credibility. Here, the ALJ discounted plaintiff’s credibility because: (1) 14 plaintiff received conservative care; and (2) his daily activities were inconsistent 15 with the alleged functional limitations. Id. at 37-38. 16 The ALJ’s first ground for an adverse credibility finding was that plaintiff 17 received conservative treatment and his symptoms were managed by medications. 18 Id. at 37; see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of 19 ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 20 severity of an impairment.”). The evidence supports the ALJ’s determination that 21 plaintiff received and improved with conservative treatment. Although Dr. 22 Weinstein and Dr. Haldridge contemplated the possibility of future surgical 23 treatment and Dr. Mashoof recommended epidural steroid injections, plaintiff did 24 not receive these treatments. See AR at 574, 632. Instead, the treating physicians 25 treated plaintiff with physical therapy, chiropractic care, massages, and 26 medication. See, e.g., id. at 368, 465, 803-06. Treatment with pain medication, 27 physical therapy, and chiropractic care is generally viewed as conservative. See, 28 e.g., Huizar v. Comm’r, 428 Fed. Appx. 678, 680 (9th Cir. 2011) (finding that 15 1 plaintiff responded favorably to conservative treatment, which included “the use 2 of narcotic/opiate pain medications); Tommasetti, 533 F.3d at 1040 (characterizing 3 physical therapy as conservative); Lane v. Colvin, 2013 WL 3449631, at *2 (C.D. 4 Cal. Jul. 9, 2013) (chiropractic treatment is conservative). The court recognizes 5 that plaintiff’s medications included hydrocodone, which is often not 6 characterized as conservative. See Lasane v. Colvin, 2013 WL 3121315, at *4 7 (C.D. Cal. Jun. 19, 2013); see also Abbott v. Astrue, 391 F. App’x 554, 560 (7th 8 Cir. 2010) (characterizing hydrocodone as a “strong pain reliever”). But the ALJ 9 correctly noted that plaintiff took hydrocodone only occasionally. AR at 37, 378. 10 The ALJ cited plaintiff’s daily activities as a second reason for finding him 11 less credible. Id. at 37. Specifically, the ALJ noted that plaintiff engaged in a 12 “somewhat normal level of daily activity and interaction,” including personal care, 13 pet care, cooking, cleaning, laundry, paying bills, watching television, driving, and 14 shopping. Id. The ALJ found some of the physical and mental abilities required 15 to perform his daily activities were “the same as those necessary for obtaining and 16 maintaining employment.” Id. But “the mere fact a [claimant] has carried on 17 certain daily activities, such as grocery shopping, driving a car, or limited walking 18 for exercise, does not in any way detract from [his] credibility as to [his] overall 19 disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant 20 does not need to be “utterly incapacitated.” Fair v. Bowen, 885 F.2d 597, 603 (9th 21 Cir. 1989). While a plaintiff’s ability “to spend a substantial part of his day 22 engage in pursuits involving the performance of physical functions that are 23 transferable to a work setting” may be sufficient to discredit him, here, there is no 24 evidence that plaintiff was spending a substantial part of his day engaging in his 25 listed daily activities or that the physical demands of his daily activities were 26 transferable. See Morgan, 169 F.3d at 600. Therefore, it appears that the ALJ 27 discounted plaintiff’s credibility simply because he was physically and mentally 28 capable of performing some daily activities, which was an insufficient reason. 16 1 To the extent that the ALJ’s reason for finding plaintiff less credible was 2 that plaintiff’s daily activities were not consistent with his alleged symptoms, that 3 reason is also not supported by the evidence. See Tommasetti, 533 F.3d at 1039 4 (inconsistency between a claimant’s alleged symptoms and her daily activities may 5 be a clear and convincing reason to find a claimant less credible); Bunnell, 947 6 F.2d at 346-47 (same). In his Exertion Questionnaire, plaintiff reported that his 7 daily activities primarily consisted of household chores, including taking care of 8 his dog. AR at 295. Plaintiff did not have a problem walking his dog, but each 9 walk was only about a quarter mile. Id. Plaintiff limited how much he lifted to 10 only household items and groceries. Id. at 296. Plaintiff reported that he shopped 11 at the grocery store about once a week, washed his own clothes, and did normal 12 chores. Id. At the hearing, plaintiff testified that he cleans his house but that it is 13 not large and he required time to rest between rooms. Id. at 83. Plaintiff testified 14 that the muscles in his neck area would tighten up with activities involving the 15 upper body, including lifting, carrying, and walking for a prolonged period of 16 time. AR at 73-74. Plaintiff further testified that he can probably sit for about 17 two hours but would need to rest in order take to take pressure off his neck. Id. at 18 76. Thus, plaintiff’s alleged symptoms were not inconsistent with his reported 19 daily activities. 20 Accordingly, plaintiff’s daily activities were not a sufficient reason for 21 discounting his credibility. But the ALJ cited one clear and convincing reason – 22 plaintiff’s conservative treatment. Whether this one reason was by itself sufficient 23 in light of the ALJ’s misinterpretation of plaintiff’s daily activities is a close 24 question. Cf. Batson, 359 F.3d at 1195-97 (ALJ erred in relying on one of several 25 reasons in support of an adverse credibility determination, but such error was 26 harmless because the ALJ’s remaining reasons and ultimate credibility 27 determination were adequately supported by substantial evidence in the record). 28 The court need not decide this, given that the court has found the ALJ erred in 17 1 rejecting the postural limitations opined by Dr. Styner and others. On remand, the 2 ALJ should reconsider plaintiff’s credibility in light of all of the evidence in the 3 record. 4 V. 5 REMAND IS APPROPRIATE 6 The decision whether to remand for further proceedings or reverse and 7 award benefits is within the discretion of the district court. McAllister v. Sullivan, 8 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 9 discretion to direct an immediate award of benefits where: “(1) the record has been 10 fully developed and further administrative proceedings would serve no useful 11 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 12 evidence, whether claimant testimony or medical opinions; and (3) if the 13 improperly discredited evidence were credited as true, the ALJ would be required 14 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 15 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 16 instructions to calculate and award benefits). But where there are outstanding 17 issues that must be resolved before a determination can be made, or it is not clear 18 from the record that the ALJ would be required to find a plaintiff disabled if all the 19 evidence were properly evaluated, remand for further proceedings is appropriate. 20 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 21 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 22 further proceedings when, even though all conditions of the credit-as-true rule are 23 satisfied, an evaluation of the record as a whole creates serious doubt that a 24 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 25 Here, remand is required because the ALJ erred in failing to properly 26 evaluate Dr. Styner’s opinion about postural limitations but it is not clear that, 27 even with those postural limitations, the ALJ would be required to find plaintiff 28 disabled. See, e.g., AR at 90-92 (vocational expert did not testify regarding RFC 18 1 hypothetical with added postural limitations). On remand, the ALJ shall 2 reconsider the opinion provided by Dr. Styner concerning postural limitations, as 3 well as Dr. Weinstein’s and Dr. Mashoof’s opinions concerning postural 4 limitations and Dr. Wood’s opinion, and either credit their opinions or provide 5 specific and legitimate reasons supported by substantial evidence for rejecting 6 them. The ALJ shall also reconsider plaintiff’s credibility in light of all the 7 evidence in the record. The ALJ shall then assess plaintiff’s RFC and proceed 8 through steps four and five to determine what work, if any, plaintiff is capable of 9 performing. 10 VI. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment shall be entered 13 REVERSING the decision of the Commissioner denying benefits, and 14 REMANDING the matter to the Commissioner for further administrative action 15 consistent with this decision. 16 17 DATED: November 6, 2014 18 19 SHERI PYM United States Magistrate Judge 20 21 22 23 24 25 26 27 28 19

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