Juan J Godinez v. Commissioner of Social Security Administration, No. 8:2017cv00194 - Document 22 (C.D. Cal. 2017)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)
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Juan J Godinez v. Commissioner of Social Security Administration Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CASE NO. SACV 17-0194 SS JUAN J. GODINEZ, 11 Plaintiff, 12 v. 13 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 14 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 Juan J. Godinez (“Plaintiff”) seeks review of the final 21 22 decision 23 “Commissioner” or “Agency”) denying his application for social 24 security benefits. 25 § 636(c), to the jurisdiction of the undersigned United States 26 1 27 28 of the Acting Commissioner of Social Security (the The parties consented, pursuant to 28 U.S.C. Nancy A. Berryhill, Acting Commissioner of Social Security, is substituted for the Commissioner of Social Security Administration, whom Plaintiff named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 Magistrate Judge. (Dkt. Nos. 13, 17, 18). For the reasons stated 2 below, the decision of the Commissioner is REVERSED and this case 3 is REMANDED for further administrative proceedings consistent with 4 this decision. 5 6 II. 7 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 8 9 To qualify for disability benefits, a claimant must 10 demonstrate a medically determinable physical or mental impairment 11 that prevents the claimant from engaging in substantial gainful 12 activity and that is expected to result in death or to last for a 13 continuous period of at least twelve months. 14 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 15 The impairment must render the claimant incapable of performing 16 work 17 employment that exists in the national economy. 18 180 19 § 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. 20 21 To decide if a claimant is entitled to benefits, an ALJ 22 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 23 The steps are: 24 25 (1) Is the claimant presently engaged in substantial gainful 26 activity? If so, the claimant is found not disabled. 27 not, proceed to step two. 28 2 If 1 (2) Is the claimant’s impairment severe? 2 claimant is found not disabled. 3 If not, the three. 4 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 5 specific impairments described in 20 C.F.R. Part 404, 6 Subpart P, Appendix 1? 7 disabled. 8 (4) 9 If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If so, the claimant is found not disabled. 10 If not, proceed to step five. 11 (5) Is the claimant able to do any other work? 12 claimant is found disabled. 13 If not, the If so, the claimant is found not disabled. 14 15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 16 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 17 (g)(1), 416.920(b)-(g)(1). 18 The claimant has the burden of proof at steps one through four 19 20 and the 21 Bustamante, 262 F.3d at 953-54. 22 affirmative duty to assist the claimant in developing the record 23 at every step of the inquiry. 24 claimant meets his or her burden of establishing an inability to 25 perform past work, the Commissioner must show that the claimant 26 can perform some other work that exists in “significant numbers” 27 in 28 residual functional capacity (“RFC”), age, education, and work the Commissioner national has economy, the burden of 3 at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s 1 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 may do so by the testimony of a VE or by reference to the Medical- 4 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 5 Appendix 2 (commonly known as “the grids”). 6 240 F.3d 1157, 1162 (9th Cir. 2001). 7 exertional (strength-related) and non-exertional limitations, the 8 Grids are inapplicable and the ALJ must take the testimony of a 9 vocational expert (“VE”). The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 10 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 11 1988)). 12 13 III. 14 THE ALJ’S DECISION 15 The ALJ employed the five-step sequential evaluation process 16 17 in evaluating Plaintiff’s case. 18 Plaintiff has not engaged in substantial gainful activity since 19 October 15, 2013, the application date. 20 the ALJ found that Plaintiff’s cervical stenosis post decompression 21 and 22 stenosis, thoracic degenerative disc disease with stenosis, distal 23 polyneuropathy 24 impairments. 25 Plaintiff does not have an impairment or combination of impairments 26 that meet or medically equal the severity of any of the listings 27 enumerated in the regulations. (AR 24-26). fusion, lumbar and At step one, the ALJ found that degenerative low (AR 23). disc intellectual (AR 23). disease At step two, with functioning foraminal are severe At step three, the ALJ determined that 28 4 1 The ALJ then assessed Plaintiff’s RFC and concluded that he 2 can perform sedentary work, as defined in 20 C.F.R. § 416.967(a),2 3 except: 4 5 [Plaintiff can] stand and walk with normal breaks for up 6 to two hours in an eight-hour day; sit for normal breaks 7 for a total of six hours in an eight-hour day with the 8 ability to change positions every 45 minutes and stand 9 and stretch every three to four minutes at the work 10 station; frequently use the bilateral upper extremities 11 for pushing and pulling, reaching in all directions, 12 grasping, handling and fingering; pushing and pulling 13 occasionally in 14 occasionally climbing 15 crawling; limited to moderately complex tasks with a 16 reasoning level of three or below. the lower extremities ladders, ropes, bilaterally; scaffolds or 17 18 (AR 26). 19 perform any past relevant work. 20 RFC, age, education, work experience and the VE’s testimony, the 21 ALJ determined at step five that there are jobs that exist in 22 significant numbers in the national economy that Plaintiff can 23 perform, 24 At step four, the ALJ found that Plaintiff was unable to including assembler (AR 30). and 26 27 28 worker. (AR 30-31). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a). 2 25 table Based on Plaintiff’s 5 1 Accordingly, the ALJ found that Plaintiff was not under a 2 disability as defined by the Social Security Act since October 15, 3 2013, the date the application was filed. (AR 31). 4 5 IV. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. “[The] court may set 10 aside the Commissioner’s denial of benefits when the ALJ’s findings 11 are based on legal error or are not supported by substantial 12 evidence in the record as a whole.” 13 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 14 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 15 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 16 17 “Substantial evidence is more than a scintilla, but less than 18 a preponderance.” 19 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 20 evidence which a reasonable person might accept as adequate to 21 support a conclusion.” 22 evidence supports a finding, the court must “‘consider the record 23 as a whole, weighing both evidence that supports and evidence that 24 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 25 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 26 1993)). 27 or reversing that conclusion, the court may not substitute its 28 judgment for that of the Commissioner. Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 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 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Not Supported By Substantial Evidence 8 9 Plaintiff testified that he is unable to work due to neck and 10 11 back pain, weakness in his legs and tingling in his hands. (AR 12 51-52, 55, 58). 13 for two hours during the day. 14 ambulate in the morning before his back gets stretched out. 15 55). 16 needing to change positions. 17 fingering and reaching because of tingling and weakness in his arms 18 and hands. To relieve the pain, Plaintiff needs to lay down (AR 53). He needs a walker to (AR Plaintiff can walk or sit for about thirty minutes before (AR 57). He also has difficulty (AR 58-59). 19 20 Plaintiff asserted that due to his pain, he has difficulty 21 putting on his shoes and socks, preparing meals and picking up 22 trash off the floor. 23 only once a day because he has trouble standing for very long. 24 191). 25 only for thirty minutes at a time. 26 for groceries for twenty to thirty minutes. 27 impairments limit his ability to lift, squat, bend, stand, reach, 28 walk, sit, kneel, climb, concentrate and follow instructions. (AR 190-91). He can prepare his own meals (AR Once a week he is able to perform some household chores but 7 (AR 191). He is able to shop (AR 192). His (AR 1 194). He can walk for only a couple blocks before needing to rest 2 for five minutes. 3 the pain gets worse. (AR 194). He uses a walker on occasion when (AR 195). 4 5 The ALJ found that Plaintiff was “not entirely credible”: 6 7 The medical evidence of record does not entirely support 8 the credibility of [Plaintiff’s] allegations regarding 9 his impairments. The objective medical findings reveal 10 some limitations, 11 [Plaintiff]. 12 of 13 successful 14 [Plaintiff] was 15 condition. He was noted as being independent in his 16 ability to ambulate, carry, move and handle objects. The 17 undersigned 18 experience pain; however, he testified that he is able 19 to walk for up to half an hour at a time and drive a car. back but not to the extent alleged by The record shows [Plaintiff] has a history and neck pain, cervical notes which fusion noted the to in have record was treated 2014. a Post-surgery improvement shows with in [Plaintiff] his does 20 21 (AR 28-29; see id. 26-27) (citation omitted). 22 23 1. Standards 24 25 When assessing a claimant’s credibility regarding subjective 26 pain or intensity of symptoms, the ALJ must engage in a two-step 27 analysis. 28 First, the ALJ must determine if there is medical evidence of an Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). 8 1 impairment that could reasonably produce the symptoms alleged. 2 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 3 analysis, the claimant is not required to show that her impairment 4 could reasonably be expected to cause the severity of the symptom 5 she has alleged; she need only show that it could reasonably have 6 caused some degree of the symptom.” 7 (citation omitted). “Nor must a claimant produce objective medical 8 evidence of the pain or fatigue itself, or the severity thereof.” 9 Id. (citation omitted). “In this Id. (emphasis in original) 10 11 If the claimant satisfies this first step, and there is no 12 evidence of malingering, the ALJ must provide specific, clear and 13 convincing reasons for rejecting the claimant’s testimony about 14 the symptom severity. 15 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 16 claimant’s testimony regarding the severity of her symptoms only 17 if he makes specific findings stating clear and convincing reasons 18 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 19 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 20 based on affirmative evidence thereof, he or she may only find an 21 applicant 22 credibility and stating clear and convincing reasons for each.”). 23 “This is not an easy requirement to meet: The clear and convincing 24 standard is the most demanding required in Social Security cases.” 25 Garrison, 759 F.3d at 1015 (citation omitted). not Trevizo, 874 F.3d at 678 (citation omitted); credible by making specific findings as to 26 27 28 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 9 1 (1) ordinary techniques of credibility evaluation, such 2 as 3 inconsistent 4 other testimony by the claimant that appears less than 5 candid; 6 failure to seek treatment or to follow a prescribed 7 course 8 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 9 10 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 11 omitted). 12 conduct, or internal contradictions in the claimant’s testimony, 13 also may be relevant. 14 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 15 1997). 16 treating and examining physicians regarding, among other matters, 17 the functional restrictions caused by the claimant’s symptoms. 18 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 19 it is improper for an ALJ to reject subjective testimony based 20 “solely” on its inconsistencies with the objective medical evidence 21 presented. 22 (9th Cir. 2009) (citation omitted). Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 23 24 Further, the ALJ must make a credibility determination with 25 findings that are “sufficiently specific to permit the court to 26 conclude that the ALJ did not arbitrarily discredit claimant’s 27 testimony.” 28 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 10 1 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 2 credible must be sufficiently specific to allow a reviewing court 3 to conclude the adjudicator rejected the claimant’s testimony on 4 permissible grounds and did not arbitrarily discredit a claimant’s 5 testimony regarding pain.”) (citation omitted). 6 interpretation of a claimant’s testimony may not be the only 7 reasonable one, if it is supported by substantial evidence, “it is 8 not [the court’s] role to second-guess it.” 9 261 F.3d 853, 857 (9th Cir. 2001). Although an ALJ’s Rollins v. Massanari, 10 2. 11 Objective Evidence Supports Plaintiff’s Subjective Symptoms 12 13 14 The ALJ contends that “the objective findings in this case 15 fail to provide strong support for [Plaintiff’s] allegations of 16 disabling 17 disagrees. symptoms and limitations.” (AR 27). The Court 18 19 Initially, it is problematic that the ALJ failed to indicate 20 which of Plaintiff’s allegations are not supported by objective 21 findings. 22 2001) (“[T]he ALJ must specifically identify the testimony she or 23 he 24 undermines the testimony.”); accord Brown-Hunter, 806 F.3d at 493. 25 Furthermore, there is significant evidence in the medical record 26 that supports Plaintiff’s alleged limitations. 27 2013, Carlos T. Garcia, D.C., reported that Plaintiff has had 28 recurring severe neck and back pain and stiffness for over two finds See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. not to be credible and 11 must explain what evidence On November 8, 1 years. (AR 363). Plaintiff periodically requires the use of a 2 walker for support. 3 Field Office noted that Plaintiff needed a walker to ambulate. 4 168); see 20 C.F.R. § 416.929(c)(3) (ALJ must “consider all of the 5 evidence 6 employees”). (AR 363). presented, On November 14, 2013, the Agency’s including . . . observations by (AR [Agency] 7 8 9 On May 21, 2014, Plaintiff reported nearly constant and worsening lower back pain, with pain and numbness radiating to his (AR 374). On examination, John S. Godes, M.D.,3 found 10 legs. 11 tenderness of the lower lumbar spine and paravertebral areas, 12 bilaterally, with “marked limitation of motion.” 13 Forward flexion was limited to 20/90 degrees, extension to 5/25 14 degrees and lateral flexion to 5/25 degrees. 15 Plaintiff’s low back pain, Dr. Godes could not perform a straight- 16 leg-raising test. 17 limp.” 18 lower back pain, radiating to his lower extremities with tingling 19 and numbness. 20 and ambulated with an unstable gait. 21 unstable gait was also observed on September 18 and October 3, 22 2014, along with difficulty with fine motor motion and activity in 23 both hands. (AR 378). (AR 377). (AR 377, 379). (AR 377). Due to Plaintiff ambulated with a “marked On August 28, 2014, Plaintiff reported sharp (AR 413). He had weakness in his lower extremities (AR 413-14). Plaintiff’s (AR 406, 410). 24 The 25 26 ALJ stated that Plaintiff’s condition improved following his October 2014 surgery. (AR 28, 29). However, the evidence does 27 3 28 The ALJ gave Dr. Garcia’s opinion “great weight.” 12 (AR 28). 1 not support this statement. On November 21, 2014, Plaintiff 2 reported difficulty ambulating and diffuse numbness in his legs. 3 (AR 500). He uses a walker because of significant stability issues. 4 (AR 500). 5 501). 6 and impaired strength. 7 complained of low back pain and poor balance. 8 reported using a walker due to difficulty walking, particularly in 9 the mornings. He exhibited a broad-based gait with short steps. (AR On December 17, 2014, Plaintiff had reduced range of motion (AR 483-84). (AR 507). On June 3, 2015, Plaintiff (AR 507). He Plaintiff complained of numbness and 10 tingling in his lower extremities, bilaterally. 11 examination, Peyman Tabrizi, M.D., found that Plaintiff ambulates 12 “quite poorly.” 13 to walk on his heels or toes. 14 motor loss, sensory loss and deep tendon reflex loss. 15 08). (AR 507). (AR 507). On His feet are everted, and he is unable (AR 507). Dr. Tabrizi also found (AR 507- 16 These 17 medical records are consistent with Plaintiff’s 18 allegations of disabling pain, numbness and tingling in his back 19 and lower extremities. 20 at *5 (S.S.A. Oct. 25, 2017) (“objective medical evidence is a 21 useful indicator to help make reasonable conclusions about the 22 intensity and persistence of symptoms, including the effects those 23 symptoms may have on the ability to perform work-related activities 24 for an adult”); see also Diedrich v. Berryhill, 874 F.3d 634, 642 25 See Social Security Ruling (“SSR”) 16-3p,4 Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray, 554 F.3d at 1224. They “reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Id. (citation omitted). 4 26 27 28 13 1 (9th Cir. 2017) (finding it “improper for the ALJ to discount 2 Diedrich’s testimony by cherry picking the absence of certain 3 symptoms”) (citation and alteration omitted); Garrison, 759 F.3d 4 at 1017 & n.23 (ALJ may not cherry-pick from mixed results). 5 6 3. Plaintiff’s Daily Activities Do Not Detract From His Credibility 7 8 9 The ALJ also asserts that Plaintiff’s statements regarding 10 his subjective symptoms and his daily activities are inconsistent. 11 (AR 29). 12 for only a half hour or drive a car is inconsistent with Plaintiff’s 13 allegations of disabling pain. 14 (ALJ must “identify specifically which of [claimant’s] statements 15 she found not credible and why”); Holohan, 246 F.3d at 1208 (same). 16 In any event, Plaintiff’s testimony that he can walk for half an 17 hour is consistent with his statements that he can walk or sit for 18 thirty minutes before needing to change positions, perform some 19 household chores but only for thirty minutes, and shop for only 20 twenty to thirty minutes. 21 that he is able to drive a car, the ALJ did not inquire as to how 22 long he could drive without disabling pain. However, the ALJ fails to explain how being able to walk See Brown-Hunter, 806 F.3d at 493 (AR 57, 191-92). While Plaintiff stated (AR 53). 23 24 Nor does the ALJ explain how Plaintiff’s daily activities are 25 transferable to a work setting. “[I]f a claimant is able to spend 26 a substantial part of his day engaged in pursuits involving the 27 performance of physical functions that are transferable to a work 28 setting, a specific finding as to this fact may be sufficient to 14 1 discredit an allegation of disabling excess pain.” Fair, 885 F.2d 2 at 603 (emphasis in original). However, the ALJ “must make specific 3 findings relating to the daily activities and their transferability 4 to conclude that a claimant’s daily activities warrant an adverse 5 credibility determination.” 6 Cir. 2007) (citation and alteration omitted). 7 neither made specific findings nor pointed to any record evidence 8 to support his conclusion that Plaintiff’s daily activities were 9 “transferable” to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Here, the ALJ See Orn, 495 F.3d at 639. 10 11 Defendant points to Plaintiff’s reported daily activities, 12 including gardening, 13 vacuuming, emptying the trash, using a weeder, sweeping, mopping 14 and running errands as evidence that Plaintiff is able to function 15 in a work setting. 16 these daily activities in his decision, they were not included in 17 his credibility analysis. 18 Court is “constrained to review the reasons the ALJ asserts.” 19 Burrell, 775 F.3d at 1138 (citation omitted). 20 misstated Plaintiff’s reported activities. While Plaintiff is able 21 occasionally to do some household chores, his impairments limit 22 him to thirty minutes before needing to rest. 23 does not explain how such occasional chores are transferable to an 24 eight-hour 25 incapacitated’ in order to be disabled.” 26 F.3d 1044, 1050 (9th Cir. 2001). workday. washing dishes, doing (Dkt. No. 20 at 5-6). laundry, cleaning, While the ALJ cited (Compare AR 25, 27, with id. 29). “One does 27 28 15 not need The Further, the ALJ (AR 191). to be The ALJ ‘utterly Vertigan v. Halter, 260 1 The ALJ by failed to provide substantial clear evidence, and convincing for rejecting is remanded reasons, Plaintiff’s 2 supported 3 subjective 4 proceedings. 5 symptoms in accordance with SSR 16-3p, taking into account the full 6 range of medical evidence. symptoms. The matter for further On remand, the ALJ shall reevaluate Plaintiff's 7 8 9 B. The ALJ Failed To Properly Weigh The Treating Physicians’ Opinions 10 11 An ALJ must afford the greatest weight to the opinion of the 12 claimant's treating physician. The opinions of treating physicians 13 are entitled to special weight because the treating physician is 14 hired to cure and has a better opportunity to know and observe the 15 claimant as an individual. 16 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 17 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 18 Where the treating doctor’s opinion is not contradicted by another 19 doctor, it may be rejected only for “clear and convincing” reasons. 20 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 21 Even if the treating physician’s opinion is contradicted by another 22 doctor, the ALJ may not reject this opinion without providing 23 specific, legitimate reasons, supported by substantial evidence in 24 the record. 25 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 26 treating physician’s opinion is not given ‘controlling weight’ 27 because it is not ‘well-supported’ or because it is inconsistent 28 with other substantial evidence in the record,” the ALJ shall Connett v. Barnhart, 340 F.3d 871, 874 Id. at 830–31; see Orn, 495 F.3d at 632; Ryan v. 16 “If a 1 consider “specified factors in determining the weight it will be 2 given[, including] . . . the length of the treatment relationship 3 and the frequency of examination by the treating physician[ ] and 4 the nature and extent of the treatment relationship between the 5 patient and the treating physician.” Orn, 495 F.3d at 631 (citation 6 omitted); see 20 C.F.R. §§ 404.1527(d)(2) (listing factors to 7 consider), 416.927(d)(2) (same). 8 1. 9 Dr. Meka 10 11 Dr. Meka opined that Plaintiff can sit, stand or walk up to 12 two hours in an eight-hour day and has “limited” use of his hands. 13 (AR 476). 14 “little weight,” finding that “it is more restrictive than the 15 testimony of [Plaintiff] regarding his activities of daily living.” 16 (AR 29). 17 evidence. In a single-sentence analysis, the ALJ gave this opinion The ALJ’s analysis is not supported by substantial 18 First, 19 the analysis single-sentence fails to 21 sufficiently specific reasoning to allow a reviewing court to 22 conclude that an ALJ rejected a treating physician’s opinion for 23 legitimate reasons supported by substantial evidence. The ALJ does 24 not 25 opinion. Plaintiff’s the ALJ testimony does sufficient analysis. how conclusion provide 20 explain A ALJ’s not contradicts Dr. provide Meka’s 26 27 28 Second, misstated Dr. Meka’s opinion. The ALJ contends that Dr. Meka found that Plaintiff can “never use [his] 17 1 upper extremities.” 2 labeled “N”, which the form does not define, he clearly wrote 3 “limited” 4 manipulate and reach with his hands. 5 question about Dr. Meka’s opinion, the ALJ had a duty to develop 6 the record. 7 2001) 8 triggered . . . when there is ambiguous evidence or when the record 9 is inadequate to allow for proper evaluation of the evidence.”). in (“An his (AR 29). assessment While Dr. Meka checked a column of Plaintiff’s ability (AR 476). to grasp, If the ALJ had a Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. ALJ’s duty to develop the record further is 10 Plaintiff testified that he can walk or sit for only thirty 11 12 minutes before needing to rest. (AR 57). Plaintiff also testified 13 that he has difficulty fingering and reaching because of tingling 14 and weakness in his arms and hands. 15 he could reach at or below shoulder level only ten minutes before 16 needing to rest for fifteen minutes. 17 opinion is consistent with this testimony. (AR 58-59). He stated that (AR 58-59). Dr. Meka’s 18 In sum, the ALJ did not provide specific and legitimate 19 20 reasons for rejecting Dr. Meka’s opinion. 21 reevaluate the weight to be afforded Dr. Meka’s opinion. 22 ALJ 23 controlling weight, the ALJ may not reject the opinion without 24 providing specific and legitimate reasons supported by substantial 25 evidence in the record. finds appropriate reasons 26 27 28 18 for On remand, the ALJ shall not giving the If the opinion 1 2. Dr. Multani 2 3 Dr. Multani opined that Plaintiff can occasionally lift and 4 carry up to fifty pounds and frequently lift and carry up to twenty 5 pounds. 6 upper extremities. 7 stand or walk up to thirty minutes in an eight-hour day. 8 Plaintiff can never climb, can only occasionally balance, stoop, 9 crouch, kneel or crawl, and would likely miss more than three days 10 (AR 478). of work each month. Plaintiff is limited in his ability to use his (AR 478-79). He can sit up to one hour and (AR 479). (AR 480-81). 11 12 In a single-sentence conclusion, the ALJ gave this opinion 13 “little weight,” finding that “it is more restrictive than the 14 testimony of [Plaintiff] and unsupported by the medical evidence 15 of record that showed a successful cervical fusion. 16 ALJ’s analysis is not supported by substantial evidence. 17 single-sentence conclusion does not provide sufficiently specific 18 reasoning to allow a reviewing court to conclude that an ALJ 19 rejected a treating physician’s opinion for legitimate reasons 20 supported by substantial evidence. 21 Plaintiff’s testimony or the cervical fusion surgery contradicts 22 Dr. Multani’s opinion. (AR 29). The Again, a The ALJ does not explain how 23 24 Second, while there are some discrepancies between Dr. 25 Multani’s opinion and Plaintiff’s testimony, in other regards they 26 are quite similar. 27 is limited in his ability to use his upper extremities and to 28 climb, balance, stoop, crouch, kneel and crawl. Both Dr. Multani and Plaintiff agree that he 19 (Compare AR 58- 1 59, 194 with id. 478-80). While they appear to disagree on the 2 number of hours in an eight-hour workday that Plaintiff can sit, 3 stand or walk, they agree generally that Plaintiff can stand or 4 walk an hour or less before needing to rest. 5 191-92, with id. 479). (Compare AR 53, 57, 6 7 Finally, the medical evidence does not support the ALJ’s 8 conclusion that Plaintiff’s cervical fusion surgery “successfully” 9 alleviated his functional impairments. Following his October 2014 10 surgery, Plaintiff still had difficulty ambulating, needing a 11 walker on occasion. 12 his lower extremities continued. 13 he had reduced range of motion and impaired strength. 14 84). 15 everted feet and motor, sensory and deep tendon reflex loss. 16 507-08). (AR 500, 507). The numbness and tingling in (AR 500, 507). In December 2014, (AR 483- In June 2015, Plaintiff was ambulating “quite poorly,” with (AR 17 In sum, the ALJ failed to provide specific and legitimate 18 19 reasons for rejecting Dr. Multani’s opinion. On remand, the ALJ 20 shall reevaluate the weight to be afforded Dr. Multani’s opinion. 21 If the ALJ finds appropriate reasons for not giving the opinion 22 controlling weight, the ALJ may not reject the opinion without 23 providing specific and legitimate reasons supported by substantial 24 evidence in the record.5 25 26 5 27 28 Plaintiff also argues that the ALJ erred by failing to properly consider listings 1.04A and 1.04C. (Dkt. No. 19 at 6-11). Plaintiff similarly contends that the ALJ erred in crediting the Medical Expert’s opinion on these listings. (Id. at 15-16). However, it is unnecessary to reach 20 1 VI. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 5 the decision of the Commissioner and REMANDING this matter for 6 further proceedings consistent with this decision. 7 ORDERED that the Clerk of the Court serve copies of this Order and 8 the Judgment on counsel for both parties. IT IS FURTHER 9 10 DATED: December 11, 2017 11 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's arguments on these grounds, as the matter is remanded for the alternative reasons discussed at length in this Order. 21
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