Jon Mark La Chance v. Nancy A. Berryhill, No. 8:2017cv01730 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered REMANDING the decision of the Commissioner denying benefits. (See document for further details.) (sbou)
Download PDF
<![CDATA[
Jon Mark La Chance v. Nancy A. Berryhill Doc. 22 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JON MARK L. C., 12 13 14 15 Case No. 8:17-cv-01730-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 On May 6, 2013, Jon Mark L. C. (“Plaintiff”) filed an application for 21 disability insurance benefits (“DIB”) alleging disability commencing March 25, 22 2013. Administrative Record (“AR”) 232-240. Plaintiff’s date last insured (“DLI”) 23 was December 31, 2016. AR 20. 24 On February 18, 2016 and May 18, 2016, an Administrative Law Judge 25 (“ALJ”) conducted a hearing at which Plaintiff, who was represented by counsel, 26 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 27 28 1 1 Dockets.Justia.com 1 2 appeared and testified, as did a vocational expert (“VE”). AR 41-106. On June 9, 2016, the ALJ issued a decision denying Plaintiff’s application. 3 AR 19-34. The ALJ found that Plaintiff suffered from medically determinable 4 severe impairments consisting of stenosis of the lumbar spine with deformity of 5 exiting L5 nerve roots, allergic rhinitis, and obesity. AR 22. The ALJ found the 6 conditions of sleep apnea, anxiety, and gastroesophageal reflux disease (“GERD”) 7 to be non-severe. Id. Despite these impairments, the ALJ determined that Plaintiff 8 had the residual functional capacity (“RFC”) to perform light work with occasional 9 postural activities. AR 25. 10 Based on this RFC and the VE’s testimony, the ALJ determined that Plaintiff 11 could perform his past relevant work as a user support analyst, classified by the 12 Dictionary of Occupational Titles (“DOT”) as skilled, sedentary work. AR 33. The 13 ALJ concluded that Plaintiff was not disabled. AR 34. 14 II. 15 STANDARD OF REVIEW 16 A district court may review the Commissioner’s decision to deny benefits. 17 The ALJ’s findings and decision should be upheld if they are free from legal error 18 and are supported by substantial evidence based on the record as a whole. 42 19 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 20 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant 21 evidence as a reasonable person might accept as adequate to support a conclusion. 22 Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 23 2007). It is more than a scintilla, but less than a preponderance. Id. (citing Robbins 24 v. Comm’r of SSA, 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 25 substantial evidence supports a finding, the reviewing court “must review the 26 administrative record as a whole, weighing both the evidence that supports and the 27 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 28 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either 2 1 affirming or reversing,” the reviewing court “may not substitute its judgment” for 2 that of the Commissioner. Id. at 720-21. 3 “A decision of the ALJ will not be reversed for errors that are harmless.” 4 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is 5 harmless if it either “occurred during a procedure or step the ALJ was not required 6 to perform,” or if it “was inconsequential to the ultimate nondisability 7 determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 1055 (9th Cir. 2006). 8 III. 9 ISSUES PRESENTED 10 Issue One: “Whether the ALJ failed to give proper weight to treating 11 physicians, selectively rejected favorable medical evidence of record, and failed to 12 support his reliance on non-treating consultants.” (Dkt. 21, Joint Stipulation [“JS”] 13 at 4.) More specifically, Plaintiff contends that the ALJ (1) failed to give specific, 14 legitimate reasons for rejecting the Medical Source Statement—Physical (AR 800- 15 805) from his general treating physician, Dr. Amirtha Ajit; (2) failed to give 16 specific, legitimate reasons for rejecting opinions by Dr. Ajit and therapist Angela 17 Rhodes that Plaintiff’s anxiety causes functional impairments; (3) failed to account 18 adequately for exertional limitations caused by Plaintiff’s obesity; and 19 (4) ultimately assessed an RFC unsupported by substantial evidence. 20 21 22 23 24 Issue Two: Whether the ALJ erred in evaluating Plaintiff’s subjective symptom testimony. (JS at 4.) Issue Three: Whether the ALJ erred in evaluating lay testimony from treating chiropractor Dr. Glandorf and therapist Ms. Rhodes. (JS at 4, 37.) Because Issues One and Three are dispositive, the Court did not address 25 Issue Two. On remand, the ALJ may wish to consider Plaintiff’s other claims of 26 legal error. 27 28 3 1 IV. 2 OVERVIEW OF PLAINTIFF’S HISTORY 3 In June 1990 (at age 25) Plaintiff was working as a long-haul truck driver and 4 injured his back. (JS at 5.) Plaintiff received treatment through workers’ 5 compensation. For approximately ten years, Plaintiff regularly visited chiropractor 6 Michael Glandorf. AR 443-643. 7 After attending some trade school courses, in approximately 2001 Plaintiff 8 obtained a job as a computer technician and repairperson. He worked for a 9 computer manufacturer in technical support for 11½ years until he was laid off in 10 11 August 2011 at age 46. AR 242-248, 260, 333, 415, 420, 870. After losing his job, in May 2012 Plaintiff sought psychotherapy with Ms. 12 Rhodes for depression and anxiety. AR 870. Also in May 2012, 2 Plaintiff treated 13 with Dr. Ajit who diagnosed back pain and spasms, anxiety, sleep apnea, elevated 14 triglyceride levels, allergic rhinitis, and obesity. AR 646. At that time, Plaintiff 15 weighed 355 pounds. AR 645-646. 16 In September and October 2012, in October and December 2013, in June 17 2014, and again in May 2015, Plaintiff received lumbar epidurals under the 18 supervision of Dr. Donald Ruhland, Plaintiff’s pain management specialist.3 AR 19 402-407, 674-681, 717-768, 773-791. 20 On March 25, 2013 (i.e., his alleged onset date), Plaintiff told Dr. Ajit that he 21 felt unable to “do anything” because of his back pain. AR 654. Dr. Ajit noted 22 positive straight leg raising test and lumbar disc displacement. AR 654-655. 23 24 25 26 27 28 Plaintiff testified that he has treated with Dr. Ajit since 2000 or 2001 (AR 72), but the record includes treatment notes dating back to 2012. AR 645. 2 Plaintiff treated with Dr. Ruhland from sometime prior to September 2012 through May 2015. See AR 402 (notes from September 7, 2012 injection, “The patient is known to me from prior L5-S1 epidural injections ….”), AR 774 (May 2015 treatment notes). 3 4 1 A May 22, 2014 MRI and x-ray showed a combination of disc disease, facet 2 arthropathy, and ligamentum flavum redundancy, contributing to moderate bilateral 3 neural foraminal stenosis and deformity of the exiting L5 nerve roots, with 4 additional effacement of the right L5 nerve root in the extraforaminal zone. AR 5 684-687. Plaintiff summarizes these findings as “a herniated disc, strained 6 ligament, and arthritis in the spine, causing bilateral pressure on the nerves.” (JS at 7 7.) 8 V. 9 DISCUSSION 10 11 12 ISSUE ONE: The ALJ’s Evaluation of the Medical Evidence. 1. Rules for Weighing Conflicting Medical Evidence. “The ALJ is responsible for resolving conflicts in the medical record.” 13 Carmickle v. Comm’r of SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). In doing so, 14 the ALJ follows the hierarchy of medical opinion articulated by the Ninth Circuit: 15 “(1) those who treat the claimant (treating physicians); (2) those who examine but 16 do not treat the claimant (examining physicians); and (3) those who neither 17 examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 18 F.3d 821, 830 (9th Cir. 1995) (as amended on April 9, 1996); see 20 C.F.R. 19 §§ 404.1527, 416.927 (weighing medical evidence for claims filed before March 20 27, 2017). 21 The opinion of the claimant’s treating physician is entitled to the greatest 22 weight because the treating physician is “employed to cure and has a greater 23 opportunity to know and observe the patient as an individual.” Magallanes v. 24 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Sprague v. Bowen, 812 F.2d 25 1226, 1230 (9th Cir. 1987)). See also Carmickle, 533 F.3d at 1164 (physicians with 26 the most significant clinical relationship with the claimant are generally entitled to 27 more weight than physicians with lesser relationships) (citing 20 C.F.R. 28 §§ 404.1527(d), 416.927(d)). 5 1 “If a treating physician’s opinion is well-supported by medically acceptable 2 clinical and laboratory diagnostic techniques and is not inconsistent with the other 3 substantial evidence in [the] case record, [it will be given] controlling weight.” 4 Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Orn v. Astrue, 495 5 F.3d 625, 631 (9th Cir. 2007)); see also 20 C.F.R. § 404.1527(c)(2). “In many 6 cases, a treating source’s medical opinion will be entitled to the greatest weight and 7 should be adopted, even if it does not meet the test for controlling weight.” Orn, 8 495 F.3d at 633 (quoting S.S.R. 96–2p, 1996 WL 362211, at 4). 9 In weighing a treating physician’s non-controlling medical opinion, the ALJ 10 considers the factors set forth in 20 C.F.R. § 404.1527(c)(2)-(6).4 Ghanim, 763 11 F.3d at 1161; see S.S.R. 96-2p (stating that a finding that a treating physician’s 12 opinion is not well-supported or inconsistent with other substantial evidence in the 13 record “means only that the opinion is not entitled to ‘controlling weight,’ not that 14 the opinion should be rejected. Treating source medical opinions are still entitled to 15 deference and must be weighed using all of the factors provided in 20 C.F.R. 16 § 404.1527.”). The factors include: (1) the length of the treatment relationship and 17 the frequency of examination; (2) the nature and extent of the treatment 18 relationship; (3) supportability of the opinion; (4) consistency of the opinion with 19 the record as a whole; (5) the specialization of the treating source; and (6) any other 20 factors brought to the ALJ’s attention that tend to support or contradict the opinion. 21 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(6). A failure to consider the statutory 22 factors in rejecting a treating physician’s opinion constitutes reversible error. 23 Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017). 24 25 26 27 28 “To reject an uncontradicted opinion of a treating physician, the ALJ must Section 404.1527 applies to claims filed before March 27, 2017. Plaintiff filed his claim on May 6, 2013, and the ALJ issued his decision on June 9, 2016. (Section 404.1520c applies to claims filed on or after March 27, 2017. Section 404.614 explains when an application is considered filed.) 4 6 1 provide ‘clear and convincing reasons that are supported by substantial evidence.’” 2 Ghanim, 763 F.3d at 1161(quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 3 Cir. 2005)). The clear and convincing standard required to reject the 4 uncontradicted opinion of a treating physician “is the most demanding required in 5 Social Security cases.” Moore v. Comm’r of SSA, 278 F.3d 920, 924 (9th Cir. 6 2002). 7 When another doctor contradicts the treating physician’s opinion, the ALJ 8 may not reject this opinion without “providing ‘specific and legitimate reasons that 9 are supported by substantial evidence.’” Ghanim, 763 F.3d at 1161 (citing Ryan v. 10 Comm’r of SSA, 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ can meet this 11 burden by “setting out a detailed and thorough summary of the facts and conflicting 12 clinical evidence, stating his interpretation thereof, and making findings. The ALJ 13 must do more than offer his conclusions. He must set forth his own interpretations 14 and explain why they, rather than the doctors’, are correct.” Thomas v. Barnhart, 15 278 F.3d 947, 957 (9th Cir. 2002) (citations omitted). 16 However, “[t]he ALJ need not accept the opinion of any physician, including 17 a treating physician, if that opinion is brief, conclusory, and inadequately supported 18 by clinical findings.” Id.; accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 19 Cir. 2001). “An ALJ may reject a treating physician’s opinion if it is based ‘to a 20 large extent’ on a claimant’s self-reports that have been properly discounted as 21 incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 22 Additionally, the ALJ accords weight to the opinions of examining, non- 23 treating physicians. As with the treating physician, the ALJ must present “clear and 24 convincing” reasons for rejecting the uncontroverted opinion of an examining 25 physician and may reject the controverted opinion of an examining physician only 26 for “specific and legitimate reasons that are supported by substantial evidence.” 27 Lester, 81 F.3d at 830-31. 28 The ALJ accords lesser weight to the opinions of non-examining physicians. 7 1 “The opinion of a non-examining physician cannot by itself constitute substantial 2 evidence that justifies the rejection of the opinion of either an examining physician 3 or a treating physician.” Id. at 831. When combined with other evidence, however, 4 the opinion of a non-examining physician can support a decision to reject the 5 opinion of a treating or examining physician. Id. (citing Magallanes, 881 F.2d at 6 751-52, summarizing Magallanes as upholding the rejection of treating physician 7 opinion based on non-examining sources where “there was an abundance of 8 evidence that supported the ALJ’s decision: the ALJ also relied on laboratory test 9 results [an MRI], on contrary reports from examining physicians, and on testimony 10 11 from the claimant that conflicted with her treating physician’s opinion.”). 2. Dr. Ajit’s Medical Source Statement. 12 In January 2016, Dr. Ajit prepared a Medical Source Statement—Physical 13 describing Plaintiff’s ability to perform work-related activities. AR 800-805. As 14 relevant here, Dr. Ajit opined that in an eight-hour day Plaintiff could sit for a total 15 of four hours, stand for a total of two hours, walk for a total of one hour, and must 16 rest for one hour. AR 801. In contrast, the ALJ found that Plaintiff could sit, stand, 17 or walk for six hours out of an eight-hour day. AR 25. Dr. Ajit also opined that 18 Plaintiff could occasionally lift 10 pounds, but the ALJ found that Plaintiff could 19 occasionally lift 20 pounds. Compare AR 25, AR 800. 20 Dr. Ajit’s opinions were contradicted by the opinions of the three state 21 agency physicians—Drs. McGuffin, Chan, and Hoang—even though they generally 22 relied on the same clinical findings. Because Dr. Ajit’s opinion is contradicted, the 23 dispositive question is whether the ALJ gave “specific, legitimate reasons” for 24 discounting Dr. Ajit’s opinion. See Lester, 81 F.3d at 830. If the ALJ provided 25 those reasons, then his decision will be upheld so long as it is free from legal error 26 and supported by substantial evidence based on the record as a whole. 27 28 The ALJ gave “reduced weight” to Dr. Ajit’s Medical Source Statement for the following five reasons: (1) it is inconsistent “with other opinion evidence … 8 1 including the assessments of the state agency medical and psychological 2 consultants (see AR 107-115; AR 117-127)” and “the consultative examiner (see 3 AR 871-878…)”; (2) Dr. Ajit “does not appear to be a specialist;” (3) it is 4 inconsistent with Dr. Ajit’s own treating notes; (4) it is a “cursory … check-box 5 report” that is “not well supported by the clinical data, progress notes, and overall 6 record”; and (5) it “appears to be tainted by the claimant’s objective to obtain a 7 report that states he is disabled ….” AR 28-29. The Court considers each of these 8 reasons below. 9 10 11 a. Reason One: Inconsistent with Other Doctors’ Opinions. i. The State Agency Physicians. Three doctors offered opinions concerning Plaintiff’s functional capabilities 12 on behalf of the state: two non-examining physicians, Drs. McGuffin and Chan, and 13 one consultative examiner (“CE”), Dr. Hoang. 14 On February 27, 2014, state agency physician Dr. McGuffin reviewed the 15 record as it existed at that time and opined that Plaintiff could perform a reduced 16 range of medium work. AR 107-115. Dr. McGuffin noted that Plaintiff had 17 “limited range of motion” of his elbow and cervical and lumbar spine, “mild limited 18 range of motion” of his wrist, and “normal range of motion” of his shoulder, knee, 19 hips, and ankle. AR 110. Additionally, Dr. McGuffin commented that Plaintiff “is 20 noted to have mildly limited range of motion. Normal gait. He doesn’t use any 21 assistive device to ambulate.” AR 112. On May 5, 2014, state agency physician 22 Dr. Chan similarly reviewed the record as it existed at that time and opined that 23 Plaintiff could perform a limited range of medium work. AR 117-127. 24 Almost two years later, on April 28, 2016, CE Dr. Hoang conducted an 25 orthopedic consultation. AR 871-878. Dr. Hoang’s observations of Plaintiff 26 include: “[he] is a well-developed, obese male in no acute distress[]” (AR 872); 27 “[n]ormal station & gait and balance[]” (id.); “[i]nspection of the cervical spine 28 revealed normal attitude and posture of the head[]” (AR 873); “[p]alpation elicited 9 1 tenderness over the bilateral para-cervical musculature right > Left[]” (id.); 2 “[i]nspection of the thoraco-lumbar spine revealed no significant deformity and no 3 pelvic tilt or listing[]” (id.); “tenderness over the right paraspinal muscles[]” (id.); 4 no muscle spasm in the cervical or thoraco-lumbar spine “visibly or palpably 5 appreciated” (id.); and a “full” “active range of motion” (or “AROM”) in all areas, 6 except “limited in Flexion.” AR 873-874. Dr. Hoang found Spurling’s test, 7 Valsalva’s maneuver, and the supine and seated straight leg raising tests negative. 8 AR 873. 9 Based on these observations, Dr. Hoang concluded in his functional 10 assessment: “[n]o clinical findings of radiculopathy[]” (AR 874); “no clinical 11 findings suggestive of nerve root compression” (id.); “[n]eurological deficits, 12 muscular atrophy and spasm were not appreciated[]” (AR 875); “[w]ell preserved” 13 basic hand functions (id.); and “[n]ormal alignment without deformities” and full 14 “AROM” in all major joints. Id. Dr. Hoang directed the Department of Social 15 Services to refer to his Medical Source Statement for “detailed functional 16 impairments.” Id. The Medical Source Statement, however, is incomplete: it 17 appears to be missing five pages5 and, in the two pages that are included, Dr. Hoang 18 does not support his check-box assessment of Plaintiff’s functional capabilities with 19 any explanation or medical findings, as instructed. AR 877-878. The two-page 20 Medical Source Statement only addresses Plaintiff’s lifting/carrying and 21 22 23 24 25 26 27 28 The last page of Dr. Hoang’s Medical Source Statement includes the notation “page 7/12” in the top right corner, indicating that five additional pages should have been included. This is consistent with the fact that the Medical Source Statement omits any mention of a number of functional capabilities that are typically assessed in such Statements. AR 878. Dr. Ajit’s Medical Source Statement includes the following sections that are omitted from Dr. Hoang’s Medical Source Statement: use of hands, use of feet, postural activities, hearing/vision, environmental limitations, activity capabilities, and several openended questions at the end of the Medical Source Statement. Compare AR 800-805 [Dr. Ajit], AR 877-878 [Dr. Hoang]. 5 10 1 sitting/standing/walking capabilities, without any explanation for the capability 2 assessment. AR 877-878. Accordingly, Dr. Hoang’s assessment of Plaintiff’s 3 functional capabilities appears inconclusive. Still, the ALJ describes it as a 4 “medium-level assessment.” 6 AR 29. 5 The ALJ found that Dr. Ajit’s opinions were not “consistent with other 6 opinion evidence in the file, including the assessments of the State Agency medical 7 and psychological consultants (see AR 107-115; AR 117-127)—not to mention that 8 of the consultative examiner (see AR 871-878), whose somewhat problematic 9 report I address in due course ….” AR 28. 10 The ALJ “gave partial weight to the assessments of the [non-examining] 11 State Agency medical consultants—who opined that the claimant has even fewer 12 restrictions [than the ALJ’s RFC] and can perform medium-level work activities” 13 because “they reviewed evidence—some of which was likely unavailable to other 14 sources—in the context of their special training in applying the Social Security 15 disability rules and regulations ….” AR 29. 16 Also, the ALJ gave “only partial weight to the consultative examiner’s 17 medium-level assessment (see AR 871-878) for similar reasons, as well as others 18 specific to that examiner—I find that the residual functional capacity defined 19 therein is in line with the overall evidence … and the opinion evidence in this case 20 21 22 23 24 25 26 27 28 It appears that the ALJ describes the assessment as “medium-level” based on the limited information provided. At the hearing, the ALJ asked the VE a hypothetical from the Disability Determination Services with “elements of the CE [incorporated] into it … to the extent that they were consistent.” AR 97. This hypothetical included all assessments that Dr. Hoang did provide in his Medical Source Statement: Plaintiff’s lifting/carrying and sitting/standing/walking capabilities. The ALJ added: “[the ability] to frequently climb ramps and stairs; occasionally climb ladders, ropes and scaffolds; frequently kneel, crouch and crawl; occasionally stoop” (AR 97)—assessments Dr. Hoang’s incomplete Medical Source Statement does not address. The VE assessed this hypothetic as describing “medium work.” AR 97-98. 6 11 1 has been given significant weight to the extent that it is in keeping therewith.” Id. 2 In a footnote, the ALJ explained his reasons for giving only partial weight to Dr. 3 Hoang’s assessment: 4 [T]he copy of the consultative examiner’s report on file in this matter 5 appears to be incomplete (see AR 871-878), for reasons that frankly escape 6 me—and I note in this regard that the preparation of the case file is 7 accomplished via an administrative or clerical process that is not under my 8 control—and while I note further that the claimant’s attorney did not object 9 to the admissibility of this report when given the opportunity to do so on the 10 record at the May 18, 2016 hearing—nor does it appear that the claimant has 11 ever objected to the report’s incompleteness—I recognize that both the 12 claimant and his attorney raised concerns about this examiner’s qualifications 13 and other issues as the hearing …. 14 Id. at n.1. 15 At the hearing, Plaintiff testified about several issues with Dr. Hoang’s 16 medical assessment. AR 85-91. First, Plaintiff described Dr. Hoang’s office: 17 Well, I didn’t think it was a very professional facility because they had like— 18 for the name of their facility they just had it written on a piece of computer 19 paper and taped up above the receptionist the name of the company and then, 20 you know, it was just like there was no pictures on the walls, no nothing, no 21 doctor certifications like you normally see in a doctor’s office. … It was 22 like a medical office, but it was really rundown and, you know, even the 23 elevator kind of was scaring me because it was making noises and jerking up 24 and down …. 25 AR 85-86. Plaintiff’s attorney submitted a photograph Plaintiff captured of the sign 26 he described. AR 86, 393 [paper sign with handwritten words “MCR Medical”]. 27 Additionally, Plaintiff testified about Dr. Hoang’s examination: 28 I guess it was hard for me to understand him, you know. [Attorney asks if he 12 1 had an accent.] Yes, and it was hard for me to understand him and I don’t 2 think we really communicated well and his exam was very, very limited and 3 he didn’t even make me take my shirt off and I just didn’t— [Attorney asks if 4 Dr. Hoang observed Plaintiff’s back.] No. [Attorney asks if Dr. Hoang 5 looked at any of Plaintiff’s records.] I did provide him with a copy of my 6 MRI. … He seemed to look at it but, I mean, it wasn’t—I don’t think he 7 really read it because he didn’t really have time, it didn’t seem like. He just 8 kind of thumbed through it real quick and then he just talked to me and asked 9 me questions and examined me and I was out of there in like five minutes. 10 11 … So I just didn’t think it was a very thorough exam, you know …. AR 86-87. Plaintiff further testified: 12 I didn’t feel like he understood me and it was hard for me to understand him 13 because of … a language barrier and I was kind of concerned because the girl 14 that came out before me was crying … I just didn’t really have, you know, a 15 good opinion about the examination as far as the thoroughness and that we 16 communicated effectively with each other. 17 18 AR 90. The ALJ also questioned Plaintiff about Dr. Hoang’s examination. The ALJ 19 asked if Dr. Hoang examined Plaintiff’s shoulders, elbows, wrists, and hands; 20 Plaintiff testified that Dr. Hoang only asked Plaintiff to push against his hand and 21 did not inspect Plaintiff’s elbows or shoulders. Id. The ALJ asked if Dr. Hoang 22 took any measurements of Plaintiff’s thighs, calves, and upper and lower arms; 23 Plaintiff testified that the receptionist did. AR 90-91. Finally, the ALJ asked if 24 Plaintiff discussed his medical history with Dr. Hoang. AR 91. Plaintiff testified, 25 “Yes, I did. … But I’m not sure, you know, how much of it really—you know, I 26 explained it to him and told him about when the injury occurred and I gave him a 27 copy of the MRI ….” Id. 28 During the hearing, Plaintiff’s attorney submitted to the ALJ documents 13 1 reflecting Dr. Hoang’s credentials. AR 88. Plaintiff’s attorney explained, “He [Dr. 2 Hoang] purports to be specializing in orthopedics, but his training appears to be in 3 radiology. I mean, he’s not board-certified and his license—he is California- 4 licensed, but his training is in Vietnam quite sometime back and not really relevant 5 to the field of specialty that the Court requested.” Id. The documents reflect that 6 Dr. Hoang is licensed in the state of California and graduated from the University 7 of Saigon Faculty of Medicine in January 1967. AR 394. An attached webpage 8 indicates that this University is in Vietnam. AR 396. The documents further 9 indicate that Dr. Hoang’s area of practice is radiology (not orthopedics), he is 10 proficient in Vietnamese, and he has no board certifications in any specialty area. 11 AR 394. 12 13 14 ii. Other Medical Records Included in the Administrative Record. Plaintiff argues, “Dr. Ajit’s report is based on Plaintiff’s treatment not only 15 with Dr. Ajit, but on treatment Dr. Ajit reviewed and considered including 16 chiropractic treatment, epidural injections, medication, and referral for surgical 17 evaluation. The only ‘inconsistency’ identified in the decision is the ALJ’s opinion 18 that the single report by the non-treating, one-time CE and opinion by the State 19 Agency non-examining, non-treating physicians, is more reliable (AR 27-28). This 20 is not an inconsistency, let alone an inconsistency sufficient to support rejection of 21 a treating doctor.” (JS at 10.) Plaintiff further argues, “Dr. Ajit’s treatment is 22 consistent with her own treatment, Dr. Glandorf’s, and Dr. Ruhland’s, and with the 23 evaluation by QME orthopedist Dr. Wilker ….” (JS at 23.) 24 Dr. Glandorf, treating chiropractor and workers’ compensation Qualified 25 Medical Examiner (QME), treated Plaintiff from February 2004 through August 26 2015. AR 408-643, 688-716, 792-799. During this decade of treatment, Plaintiff’s 27 symptoms waxed and waned in intensity, and Plaintiff consistently took 28 medication. Id. For example, Dr. Glandorf’s reports indicate that Plaintiff’s back 14 1 pain ranged from “sore and restricted” (AR 501) to “a charly horse in right TL 2 spine” (AR 507) to “Low back is bad and he ended up in the ER 2 weeks ago” (AR 3 511) to “Low back is sore but not as bad as it has been.” AR 513. 4 Dr. Ruhland, a pain management specialist who administered Plaintiff’s 5 epidural injections, noted that the injections treated Plaintiff’s “severe low back 6 pain with bilateral lumbar radiculopathy exacerbation,” “lumbar degenerative disk 7 disease,” and “disk protrusions.” AR 402-407, 674-675, 678-681, 717-768. In 8 2012, Dr. Ruhland reported that Plaintiff responded well to the injections but “still 9 has bilateral symptomatology.” AR 406. In 2013, Dr. Ruhland reported that 10 Plaintiff had repeatedly returned for injections and experienced worsening 11 symptoms. AR 674, 676, 678, 680. 12 Plaintiff “is now suffering substantially increased symptoms in the back and down 13 the legs reaching 10/10 on the VAS scale.”7 AR 724. In May 2015, Dr. Ruhland 14 also observed Plaintiff “is now suffering increasing symptomology ….” AR 785. In June 2014, Dr. Ruhland reported that 15 Dr. Wilker, an orthopedic surgeon, examined Plaintiff and reviewed his 16 lumbar MRI in January 2015. AR 769-772. Dr. Wilker reported that the MRI 17 showed “[a] high intensity zone in the posterior annulus as well as modic changes.” 18 AR 771. Dr. Wilker concluded that Plaintiff was a candidate for decompression 19 and fusion back surgery or, if Plaintiff opted out of surgical intervention, possibly 20 an annual epidural injection would provide some relief. Id. 21 In sum, Dr. Ajit’s opinion is inconsistent with the medical opinions of the 22 three state agency physicians—but not the medical records of Drs. Glandorf, 23 Ruhland, and Wilker. The fact that the three state agency opinions contradict Dr. 24 Ajit’s assessment of Plaintiff’s functional capabilities obliged the ALJ to provide a 25 specific and legitimate reason supported by substantial evidence in the record for 26 27 28 The “VAS scale” seems to refer to the visual analogue scale, which measures pain intensity. 7 15 1 discounting Dr. Ajit’s opinion. 2 iii. 3 4 Whether Inconsistency with CE Dr. Hoang’s Assessment Constitutes a Specific and Legitimate Reason. Sometimes, the opinion of an examining, non-treating physician can 5 constitute “substantial evidence” depriving the opinion of a treating physician of its 6 controlling weight and supporting a specific and legitimate reason for discounting 7 the contradicted opinion of the treating physician. Orn, 495 F.3d at 632-33. “When 8 an examining physician relies on the same clinical findings as a treating physician, 9 but differs only in his or her conclusions, the conclusions of the examining 10 physician are not ‘substantial evidence.’” Id. at 632. However, “when an 11 examining physician provides ‘independent clinical findings that differ from the 12 findings of the treating physician,’ such findings are ‘substantial evidence.’” Id. 13 These independent clinical findings can be either “(1) diagnoses that differ from 14 those offered by another physician and that are supported by substantial evidence, 15 or (2) findings based on objective medical tests that the treating physician has not 16 herself considered.” Id. (citations omitted). 17 Dr. Hoang’s medical records indicate that he did perform several medical 18 tests on Plaintiff, including Valsalva’s maneuver, Spurling’s test, and straight leg 19 raising tests. AR 873. Given the totality of the circumstances, however, the Court 20 finds the results of these tests too unreliable to constitute substantial evidence.8 The 21 22 23 24 25 26 27 28 Even if reliable, it does not seem that these tests are independent clinical findings constituting substantial evidence. Dr. Ajit also conducted straight leg raise tests and found them positive. See, e.g., AR 655. Additionally, Dr. Hoang used Valsalva’s maneuver and Spurling’s test to assess Plaintiff’s cervical spine. AR 873. The results of these tests would not undermine Dr. Ajit’s functional assessment, because Dr. Ajit opined that Plaintiff’s lumbar spine causes his functional impairments. (AR 805.) Thus, any inconsistency introduced by these tests does not constitute a specific and legitimate reason to discount Dr. Ajit’s functional assessment. 8 16 1 administrative record as a whole does not support a finding that differences 2 between the assessments of Dr. Hoang and Dr. Ajit provide a specific and 3 legitimate reason to discount Dr. Ajit’s opinion in favor of that of Dr. Hoang. 4 Plaintiff described a five-minute examination frustrated by a language barrier (AR 5 85-91); Dr. Hoang’s assessment of Plaintiff’s functional capabilities is incomplete 6 (AR 870-878); documents submitted by Plaintiff’s attorney cast doubt on Dr. 7 Hoang’s qualifications (AR 394-398); and Dr. Ajit’s opinions are more consistent 8 with the treatment records of Drs. Glandorf, Wilker, and Ruhland than Dr. Hoang’s 9 opinions. Thus, the examination of Dr. Hoang does not constitute substantial 10 11 evidence for the purpose of discounting the contrary opinion of Dr. Ajit. iv. Whether Inconsistency with the Non-Examining 12 Physicians’ Assessments Constitutes a Specific and 13 Legitimate Reason. 14 Non-examining physicians’ opinions “with nothing more” cannot constitute 15 substantial evidence to support rejecting the opinion of an examining or treating 16 physician. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995); Lester, 81 F.3d 17 at 830. However, this does not mean that the opinions of non-examining sources 18 and medical advisors are always entitled to “little” or no weight. Andrews, 53 F.3d 19 at 1041. Reports of a non-examining source “need not be discounted and may serve 20 as substantial evidence when they are supported by other evidence in the record and 21 are consistent with it.” Id. 22 The non-examining sources, Drs. McGuffin and Chan, conducted their 23 reviews of Plaintiff’s medical records on February 27, 2014 and May 5, 2014, 24 respectively. The non-examining sources reached their conclusions before, for 25 example: Plaintiff received the results of his MRI and x-ray, dated May 22, 2014 26 (AR 682-687); Dr. Wilker conducted his initial orthopedic evaluation of Plaintiff on 27 January 1, 2015, recommending surgical intervention for discogenic back pain (AR 28 769-772); Dr. Ruhland conducted further pain management treatment, such as the 17 1 May 1, 2015 lumbar epidural (AR 773-791); Dr. Glandorf issued updated medical 2 reports from October 2014, July 2015, and August 2015, reporting muscle spasms, 3 pain present “on all planes of motion,” and positive Kemp’s, Milgram’s, and 4 straight leg raise tests (AR 792-799); Plaintiff received further treatment for 5 gastrointestinal issues from March to July 2015 (AR 806-832); and Dr. Ajit 6 provided recent medical records. AR 833-869. This list is not exhaustive of all 7 medical records in the administrative record postdating the conclusions of Drs. 8 McGuffin and Chan. 9 Additionally, the record includes evidence that Plaintiff’s symptoms 10 worsened after Drs. McGuffin and Chan reached their conclusions. See e.g., AR 11 724 (Dr. Ruhland’s June 2014 report that Plaintiff “is now suffering substantially 12 increased symptoms in the back and down the legs reaching 10/10 on the VAS 13 scale.”); AR 795 (Dr. Glandorf’s August 2015 report that Plaintiff “presents with 14 elevated back pain rated 9/10 that extends to both hips and down the left leg. He is 15 using his dad’s walker and has difficulty ambulating.”). In contrast, the functional 16 assessment of Dr. Ajit is from two years later, 2016—the same year the ALJ issued 17 his decision. Thus, the conclusions of Drs. McGuffin and Chan—unlike those of 18 Dr. Ajit—do not contemplate the most recent evidence in the record and thus do not 19 accurately capture Plaintiff’s functional capabilities at the time the ALJ issued his 20 decision on June 9, 2016. As such, inconsistency with the assessments of Drs. 21 McGuffin and Chan does not constitute a specific and legitimate reason to reject the 22 opinion of Dr. Ajit. 23 In sum, per the unique facts of this case, the fact that the three state agency 24 opinions contradict Dr. Ajit’s assessment of Plaintiff’s functional capabilities does 25 not constitute a specific and legitimate reason, supported by substantial evidence, to 26 reject Dr. Ajit’s assessment. 27 28 b. Reason Two: Dr. Ajit’s Lack of Specialization. The ALJ afforded the medical opinion of Dr. Ajit reduced weight because, 18 1 “Dr. Ajit does not appear to be a specialist—such as an orthopedist who could offer 2 a trained perspective on the nature of the claimant’s spinal impairment or a mental 3 health professional who could provide unique insight into his mental issues ….” 4 AR 28. 5 Plaintiff argues, “This criticism is rebutted by Dr. Ajit’s extensive treatment 6 and examination of Plaintiff, which includes her review and consideration of 7 Plaintiff’s treatment by the workers’ compensation chiropractor QME [Dr. 8 Glandorf], the specialist delivering epidural injections [Dr. Ruhland], and the 9 orthopedic surgeon recommending surgery or significant annual epidural injections 10 [Dr. Wilker].” (JS at 10.) Plaintiff also questions the credentials of the specialist, 11 orthopedist Dr. Hoang. (See JS at 9-10, describing his medical office identified by 12 a “half-fallen paper sign,” the appointment lasted five minutes, and “his training 13 was in radiology, was taken in Vietnam, was remote in time, and was not relevant 14 to the impairment”); see also AR 85-91, 393-398. 15 The opinions of specialists are accorded greater weight than those of general 16 practitioners. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (finding that 17 because the doctor “is a specialist, his opinion is owed greater weight as a matter of 18 regulation”) (citing 20 C.F.R. § 404.1517(c)(5)). This factor alone, however, “does 19 not constitute a sufficient reason for giving little weight to [the treating physician’s] 20 opinions ….” Price v. Colvin, 635 F. App’x 379, 380 (9th Cir. 2016) (finding the 21 ALJ did not provide specific and legitimate reasons for discounting the opinion of 22 the treating physician where the ALJ noted the physician is not a specialist and the 23 physician’s opinion is inconsistent with the claimant’s daily activities). Thus, the 24 fact that Dr. Ajit is not a specialist does not alone constitute sufficient reason to 25 discount her opinion; this reason must be viewed in light of other reasons given. 26 Moreover, the ALJ stated that an orthopedist could provide better insight into 27 Plaintiff’s spinal issues than Dr. Ajit—but also recognized that the CE orthopedist, 28 Dr. Hoang, does not have a completed functional assessment in the administrative 19 1 record and that Plaintiff had cast doubt on Dr. Hoang’s qualifications as an 2 orthopedist. AR 29, 393-398. The ALJ admitted into the record a packet compiled 3 by Plaintiff’s attorney showing that Dr. Hoang was trained in radiology—not 4 orthopedics—in Vietnam in 1967 and is not board-certified in any specialty. AR 5 88, 394-398. Because it does not appear that Dr. Hoang is an orthopedic specialist 6 or that his incomplete functional assessment provided any unique, reliable insight 7 into Plaintiff’s spinal issues, Dr. Ajit’s lack of specialization does not constitute a 8 reason discount her opinion in favor of that of Dr. Hoang. This reason is further 9 weakened by the fact that, as described previously, Dr. Ajit’s opinion is consistent 10 11 12 with those of other examining specialists, Drs. Ruhland and Wilker. c. Reason Three: Inconsistency with Own Notes, Exams, and Treatment. 13 Legitimate inconsistencies and ambiguities in the treating physician’s 14 analysis, or conflicting lab test results, reports, or testimony, can provide sufficient 15 reasons to devalue the doctor’s report. Shavin v. Comm’r of SSA, 488 F. App’x 16 223, 224 (9th Cir. 2012) (citing Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th 17 Cir. 1992); Lester, 81 F.3d at 831); see also Ghanim, 763 F.3d at 1161 (“A conflict 18 between treatment notes and a treating provider’s opinions may constitute an 19 adequate reason to discredit the opinions of a treating physician or another treating 20 provider.”). In considering whether inconsistency between a treating physician’s 21 notes and opinion constitutes a specific and legitimate reason for discounting the 22 opinion, the notes “must be ‘read in context of the overall diagnostic picture’ the 23 provider draws.” Ghanim, 763 F.3d at 1162 (quoting Holohan v. Massanari, 246 24 F.3d 1195, 1205 (9th Cir. 2001)). 25 Here, the ALJ found the following inconsistencies: 26 Dr. Ajit’s progress notes, as discussed further below, reflect largely routine 27 treatment, which tends to undercut the notion that the claimant is as limited 28 as Dr. Ajit suggests given that, if he was, one might reasonably expect to see 20 1 more aggressive care. … Indeed, in rather stark contrast to the fairly dire 2 pronouncements in Dr. Ajit’s functional assessments, it must be noted that 3 the doctor’s actual treatment records repeatedly indicate that the claimant 4 should—and thus presumably can—engage in regular exercise (see, for 5 example, AR 653; AR 837, 841, 849; compare AR 852 (“Regular exercise as 6 tolerated.”)), which instructions are at least arguably at odds with the 7 expansive set of limitations set forth in Dr. Ajit’s functional assessments. 8 AR 28. In sum, the ALJ identified two inconsistencies between Dr. Ajit’s medical 9 opinion and her treatment notes: (1) lack of aggressive treatment, and (2) exercise 10 11 12 recommendations. i. Lack of Aggressive Treatment. Concerning the lack of aggressive treatment, Plaintiff argues that “strong, 13 daily pain medication and epidural injections are not conservative treatment.” (JS 14 at 11.) Plaintiff cites Revels v. Berryhill, a fibromyalgia case in which the Ninth 15 Circuit held that the ALJ erred in rejecting the claimant’s testimony on the ground 16 that she received “conservative” treatment because “[w]e have previously 17 ‘doubt[ed] that epidural steroid shots to the neck and lower back qualify as 18 ‘conservative’ medical treatment.’” 874 F.3d 648, 667 (9th Cir. 2017) (quoting 19 Garrison, 759 F.3d at 1015 n.20). Plaintiff also argues that failure to recommend a 20 more aggressive treatment is not alone a legitimate reason to discount a treating 21 physician’s opinion. (JS at 11, citing Trezivo, 871 F.3d at 678.) 22 The record shows that Dr. Ajit prescribed Plaintiff pain medication, ordered 23 that Plaintiff undergo diagnostic imaging, advised Plaintiff to confer with a pain 24 management specialist, and referred Plaintiff to an orthopedic surgeon. AR 644- 25 673, 833-869. The fact that Plaintiff chose to forego surgery and continue epidural 26 injections does not introduce a legitimate inconsistency in Dr. Ajit’s medical 27 28 21 1 opinions.9 In fact, referring Plaintiff to a pain management specialist and an 2 orthopedic surgeon is consistent with the opinion that Plaintiff exhibited functional 3 limitations warranting aggressive care. Thus, Plaintiff’s treatment regimen as 4 overseen by Dr. Ajit is not legitimately inconsistent with her medical opinions of 5 Plaintiff’s functional limitations. See Shavin, 488 F. App’x at 224 (9th Cir. 2012) 6 (finding no legitimate internal inconsistency in the treating physician’s analysis 7 where the ALJ considered the physician’s treatment “comparatively conservative,” 8 but the alternative was “drastic, invasive surgery that promised a limited 9 prognosis.”). 10 ii. Exercise Recommendation. 11 Plaintiff argues that the ALJ misstated the meaning of Dr. Ajit’s 12 recommendation that Plaintiff exercise: “Plaintiff was engaging in therapeutic 13 stretching and limited exercise as tolerated, on the recommendation of his treating 14 physicians. This is not a factor on which to base criticism of Dr. Ajit’s opinion 15 about Plaintiff’s RFC.” (JS at 11, citing Vertigan v. Halter, 260 F.3d 1044, 1050 16 (9th Cir. 2001) (noting a claimant may perform “activities despite pain for 17 therapeutic reasons, but that does not mean []he could concentrate on work despite 18 the pain or could engage in similar activity for a longer period given the pain 19 involved.”).) Plaintiff also argues the ALJ failed to describe how Plaintiff’s 20 exercise related to his RFC. (JS at 24-25, citing Trevizo 871 F.3d at 678, 682; 21 Waldon v. Colvin, No. 15-0631, 2016 WL 4501074, at *4 (S.D. Cal. Aug. 29, 22 2016) (“a social security claimant may engage in exercise for therapeutic reasons 23 despite pain”).) 24 25 26 27 28 In the context of treating Plaintiff’s obesity, Dr. Ajit recommended, “Regular The decision of Plaintiff to decline surgery does not render Dr. Ajit’s treatment records internally inconsistent. (In contrast, a claimant’s decision not to follow or receive recommended treatment can be considered in assessing subjective symptom testimony. See 20 C.F.R. § 416.930(b).) 9 22 1 exercise as tolerated” and also noted, “Advised low calorie diet and regular 2 exercise.” See AR 653, 837, 841, 849, 852. In her Medical Source Statement, Dr. 3 Ajit opined that Plaintiff is “unable to sit, stand, or walk for long periods of time” 4 but can walk a block at a reasonable pace and can climb several steps at a 5 reasonable pace using a handrail. AR 805. In occasionally recommending that 6 Plaintiff should “exercise as tolerated” to manage his obesity, Dr. Ajit does not 7 legitimately contradict her assessment of Plaintiff’s functional abilities; the extent 8 of the prescribed exercise is unspecified, and this recommendation appears in the 9 ordinary context of obesity management strategies. See Trevizo, 871 F.3d at 677 10 (the ALJ erred in finding the treating physician’s opinion contradicted by his 11 treatment notes, where the opinion assessed functional limitations from her back 12 pain and also counseled her about weight loss, exercise, and diet); Holohan, 246 13 F.3d at 1205 (the ALJ erred in rejecting the opinion of claimant’s treating 14 psychiatrist on the basis that his opinion conflicted with his treatment notes because 15 the treating psychiatrist’s “statements must be read in [context of] the overall 16 diagnostic picture he draws”). 17 Thus, the two inconsistencies identified—lack of aggressive treatment and 18 recommended exercise—do not provide a specific and legitimate reason to discount 19 the opinions of Dr. Ajit. 20 d. Reason Four: Check-Box Report Lacking Support. 21 The ALJ found as follows: 22 Dr. Ajit’s more restrictive limitations—which, it must be noted, are set forth 23 in a cursory form that essentially amounts to a check-box report with little in 24 the way of detailed explanation or discussion of specific findings (compare 25 AR 805 for example, with AR 800-805 generally)—are not supported by the 26 medical evidence discussed herein, including Dr. Ajit’s own exam findings, 27 which often reflect scant significant data, let alone anything of an order of 28 magnitude on par with the extensive limitations described in the doctor’s 23 1 2 functional assessments (see generally AR 644-673, 833-869). AR 28. 3 Plaintiff argues, “the format of Dr. Ajit’s opinion does not render it a simple 4 check-the-box conclusion that lacks sufficient explanation.” (JS at 24.) Dr. Ajit’s 5 opinion is not conclusory because “Dr. Ajit reiterated the diagnosis of bulging discs 6 and disc extrusion, the MRI, injections, and many years of disabling symptoms. In 7 addition, as noted above, Dr. Ajit treated Plaintiff, evaluated his pain management, 8 and referred him to specialists, among other incidents of treatment in the record 9 (AR 800-805).” (JS at 11.) 10 The ALJ may discredit treating physicians’ opinions that are conclusory, 11 brief, or unsupported by medical evidence. Batson v. Comm’r of SSA, 359 F.3d 12 1190, 1195 (9th Cir. 2004); Matney, 981 F.2d at 1019. See also Crane v. Shalala, 13 76 F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected doctor’s opinion because 14 they were check-off reports that did not contain any explanation of the bases of 15 their conclusions); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) 16 (expressing preference for individualized medical opinions over check-off reports). 17 A treating physician’s opinion, however, is not conclusory or unsupported 18 where treating records comprise a significant portion of the record and consistently 19 speak to the claimant’s impairments. Kassebaum v. Comm’r of SSA, 420 F. App’x 20 769, 773 (9th Cir. 2011). Also, a check-box report by a treating physician is 21 “entitled to weight that an otherwise unsupported and unexplained check-box form 22 would not merit” due to the physician’s significant experience with the claimant 23 and supporting records. Garrison, 759 F.3d at 1013; see also Esparza v. Colvin, 24 631 F. App’x 460, 462 (9th Cir. 2015) (“Although the treating physician’s opinions 25 were in the form of check-box questionnaires, that is not a proper basis for rejecting 26 an opinion supported by treatment notes.”). 27 28 Moreover, the ALJ’s finding that the treating physician’s assessment is not supported by medical evidence must itself be supported by the administrative 24 1 record and explicit findings; otherwise, the ALJ does not provide “specific and 2 legitimate reasons supported by substantial evidence in the record” for rejecting the 3 treating physician’s opinion. Jones v. Astrue, 503 F. App’x 516, 517 (9th Cir. 4 2012) (finding error where an ALJ rejected a treating physician’s report on the 5 ground that “it is unsupported by objective findings and is inconsistent with the 6 claimant’s own reports of her activities,” because it was not clear what specifically 7 made the record insufficient to support the opinion); see also Orn, 495 F.3d at 634 8 (“The primary function of medical records is to promote communication and 9 recordkeeping for health care personnel—not to provide evidence for disability 10 determinations. We therefore do not require that a medical condition be mentioned 11 in every report to conclude that a physician’s opinion is supported by the record.”). 12 Dr. Ajit’s Medical Source Statement generally appeared in the form of a 13 check-box report, but Dr. Ajit supported her check-box conclusions with her 14 diagnosis of Plaintiff—confirmed by MRI imaging—and Plaintiff’s treatment 15 regimen. AR 805. Specifically, Dr. Ajit opined, “[Plaintiff is] unable to sit, stand, 16 or walk for long periods of time due to bulging discs in lumbar spine at L3/L4, 17 L4/L5 and disc extension as L5/S1, all confirmed by MRI. Has been going for 18 epidural injections for the past several years.” Id. In turn, Dr. Ajit’s diagnoses are 19 supported by years of treatment and accompanying records. With these supporting 20 records, Dr. Ajit’s medical opinion warrants more weight than an unexplained, 21 unsupported check-the-box form. Thus, the format of Dr. Ajit’s Medical Source 22 Statement does not constitute a specific and legitimate reason to discount her 23 medical opinion. 24 25 Moreover, the ALJ did not support with medical evidence his finding that Dr. Ajit’s assessment is unsupported by medical evidence. The ALJ found: 26 [P]rohibitively restrictive assessments such as those provided by Dr. Ajit are 27 not well supported by the clinical data, progress notes, and overall record— 28 which, as detailed above and below, show that the claimant’s conditions are 25 1 generally managed with conservative measures at most—nor are they 2 consistent with other opinion evidence in the file, including the assessments 3 of the State Agency medical and psychological consultants (see AR 107-115, 4 AR 117-127)—not to mention that of the consultative examiner …. 5 AR 28. In other words, the ALJ found Dr. Ajit’s opinion unsupported by the 6 overall record for two reasons: (1) Plaintiff’s condition is managed with 7 “conservative” epidural injections, and (2) the state consultants offered 8 contradictory assessments of Plaintiff’s functional capabilities. Both rationales 9 have been discussed and rejected in previous sections. 10 e. Reason Five: Lack of Reliability and Neutrality. 11 The ALJ found as follows: 12 Dr. Ajit’s opinions at least arguably appear to be tainted by the claimant’s 13 objective to obtain a report that states that he is disabled in order to receive 14 benefits or other special consideration in this and/or another context (see, for 15 example, AR 646 (Dr. Ajit notes claimant was “advi[s]ed [about] short term 16 disability”); see also, for example, AR 843 (Dr. Ajit notes that “[l]etter [was] 17 written for [the claimant] to be excused from jury duty”)). In effect, Dr. Ajit, 18 for example, in offering a “disability”-related opinion, appears to be actively 19 assisting the claimant’s attempt to obtain benefits or other consideration, 20 rather than simply treating him or offering an objective opinion corroborated 21 by treatment notes. Such opinions lack neutrality and reliability. 22 23 AR 29. Plaintiff argues, “This criticism, without more, would require any treating 24 physician or other provider who is asked to certify a patient’s inability to work (or 25 to sit for hours on end at jury duty) be disqualified from opining about their 26 patient’s limiting pain.” (JS at 12.) Plaintiff also argues that the ALJ provided no 27 evidence to support his assumption. (Id.) 28 “The purpose for which medical reports are obtained does not provide a 26 1 legitimate basis for rejecting them. An examining doctor’s findings are entitled to 2 no less weight when the examination is procured by the claimant than when it is 3 obtained by the Commissioner.” Lester, 81 F.3d at 832 (citing Ratto v. Secretary, 4 839 F.Supp. 1415, 1426 (D.Or. 1993) (“The Secretary may not assume that doctors 5 routinely lie in order to help their patients collect disability benefits.”)). See also 6 Booth v. Barnhart, 181 F.Supp.2d 1099, 1105-06 (C.D. Cal. 2002) (“the ALJ may 7 not disregard a physician’s medical opinion simply because it was initially elicited 8 in a state workers’ compensation proceeding”). “This skepticism of a treating 9 physician’s credibility flies in the face of clear circuit precedent.” Reddick, 157 10 11 F.3d at 726 (citing Lester, 81 F.3d at 833). To reject an opinion on this basis, the ALJ must cite actual evidence 12 demonstrating impropriety. Lester, 81 F.3d at 832 (citing Ratto, 839 F.Supp. at 13 1426). The Ninth Circuit has found a determination of untrustworthiness 14 permissible, for example, when the medical opinion was obtained solely for the 15 hearing, there was no objective medical basis for the doctor’s opinion, and the 16 report was inconsistent with the doctor’s own treatment notes. Saelee v. Chater, 94 17 F.3d 520, 523 (9th Cir. 1996) (per curiam). 18 Here, the ALJ did not provide actual evidence to support his determination of 19 impropriety. Advising a patient about short-term disability and writing a letter to 20 excuse a patient from jury duty is consistent with a legitimate belief that a patient is 21 functionally limited. Additionally, these notes appear in the records of only two 22 visits; it does not seem likely that Plaintiff saw Dr. Ajit consistently for years to 23 obtain a “disability-related opinion.” This does not constitute a specific and 24 legitimate reason for discounting the medical opinion of Dr. Ajit. 25 26 27 28 f. The ALJ Has Not Provided Specific and Legitimate Reasons to Discount Dr. Ajit’s Opinion. In sum, the reasons set forth by the ALJ for discounting the medical opinion of Plaintiff’s treating physician, Dr. Ajit—(1) contradicted by three state medical 27 1 sources, (2) lack of specialization, (3) inconsistency with treating notes and 2 conservative treatment, (4) use of check-the-box form and lack of support, and 3 (5) untrustworthiness—do not constitute specific and legitimate reasons supported 4 by substantial evidence in the record to discount Dr. Ajit’s medical opinion. It is 5 unclear that Dr. Ajit’s opinion ever lost its presumptive controlling weight. Her 6 opinions were contradicted only by (1) two non-examining doctors who relied on 7 Dr. Ajit’s own records and (2) a CE who performed a five-minute examination with 8 poor English skills and submitted an incomplete report. In contrast, years of 9 treatment records and objective medical tests corroborated Dr. Ajit’s medical 10 opinion, and the record is devoid of any evidence of malingering. 3. Dr. Ajit’s and Ms. Rhodes’ Anxiety Findings. 11 12 Plaintiff testified that he suffers from mental impairments including anxiety, 13 depression, and obsessive-compulsive disorder (“OCD”). AR 79-80. Plaintiff 14 further testified that Dr. Ajit prescribes Plaintiff medication for his anxiety and 15 OCD, and Plaintiff regularly sees Licensed Marriage and Family Therapist 16 (“LMFT”), Angela Rhodes, M.S., to cope with these impairments and the stress of 17 his job situation. Id. 18 Dr. Ajit did not provide any formal or informal medical opinion regarding 19 Plaintiff’s mental functional capacity, but her treatment records indicate that she 20 diagnosed Plaintiff with anxiety and OCD and consistently prescribed him 21 medication. AR 800-805, 833-856. Ms. Rhodes also did not provide a functional 22 assessment, but she did provide a letter describing her treatment of Plaintiff. AR 23 870. Non-treating, non-examining state agency psychologists David Deaver, Ph.D., 24 and Peter Bradley, Ph.D., both reviewed the record and opined that Plaintiff has no 25 severe mental impairment and his anxiety does not restrict his daily living. AR 26 111, 122. 27 28 In assessing Plaintiff’s mental impairments, the ALJ gave “great weight” to the state agency psychologists, “who indicated that the claimant’s mental 28 1 impairment is ‘Non Severe’ … and causes no significant limitations whatsoever …. 2 [T]hey reviewed evidence—some of which was likely unavailable to other 3 sources—in the context of their special training in applying the Social Security 4 disability rules and regulations….” AR 29-30. The ALJ considered the 5 assessments of the state agency psychologists “essentially uncontroverted by any 6 other opinion evidence” and “consistent with the overall record[.]” Id. The ALJ 7 explained that the opinions of the state agency psychologists are “uncontroverted” 8 because: 9 [T]he treatment records regarding the claimant’s mental impairment provide 10 even less support for claims of disabling limitations, as they indicate that this 11 issue has been managed with little more than medications (apparently 12 prescribed by Dr. Ajit) and routine counseling, the latter of which, as noted 13 above, the claimant’s therapist reports has contributed to the fact that the 14 claimant “has made progress in reducing his depression [and] is continuing to 15 work on self acceptance and reducing anxiety” (AR 870). 16 AR 31. The ALJ found that Ms. Rhodes’ letter was “not clearly incompatible with 17 the conclusion that the claimant has not had any significant limitations in his ability 18 to perform the mental aspects of work ….” AR 30 n.2. 19 Plaintiff argues the ALJ erred in relying on the state agency psychologists in 20 assessing Plaintiff’s mental RFC and considering their opinions “uncontroverted” 21 without “explain[ing] how or why this was so (AR 29-30).” (JS at 12-13.) Further, 22 Plaintiff contends the ALJ erred in discounting the opinions of Dr Ajit and Ms. 23 Rhodes regarding Plaintiff’s mental impairments because “the ALJ incorrectly 24 stated that Plaintiff had ‘quite good range of activities of daily living’….” (JS at 25 13.) 26 However, as the ALJ explicitly recognized, the opinions of the state agency 27 psychologists, both of whom opined that Plaintiff had no significant mental 28 functional limitations, constitute the only medical opinions in the record explicitly 29 1 addressing Plaintiff’s mental functional capabilities. AR 30. Ms. Rhodes and Dr. 2 Ajit did not provide any formal or informal medical opinions on how Plaintiff’s 3 mental functional limitations impede his ability to work. Ms. Rhodes’ letter 4 indicates that she conducted psychotherapy with Plaintiff to reduce “his depression, 5 anxiety, and negative self-talk” and Plaintiff has “made progress in reducing 6 through his depression” while he continues to “work on self-acceptance and 7 reducing anxiety.” AR 870. It does not address how Plaintiff’s mental 8 impairments impede his ability to work, if at all. Likewise, Dr. Ajit diagnosed 9 Plaintiff with anxiety and OCD and prescribed him medication but did not offer any 10 opinion on how Plaintiff’s mental impairments affect his functional capabilities. 11 See AR 800-805. 12 These opinions do not oppose those of the state consultants. In other words, 13 the ALJ can accept that Plaintiff has OCD, anxiety, and depression—as reflected in 14 the opinions of Dr. Ajit and Ms. Rhodes—while also accepting the ultimate 15 conclusions of the state consultants that these impairments do not cause any 16 significant functional limitations. The ALJ explained as much. See AR 31. Thus, 17 the ALJ did not err in failing to give specific, legitimate reasons for “rejecting” 18 opinions by Dr. Ajit and Ms. Rhodes because neither source provided any formal or 19 informal assessment of how Plaintiff’s mental impairments limit his functionality; 20 instead, he explained their consistency with the opinions of the state consultants. 21 4. Exertional Limitations Caused by Plaintiff’s Obesity. 22 In assessing Plaintiff’s RFC, the ALJ found, “while objective data such as 23 blood pressure readings and height and weight statistics generally confirm the 24 claimant’s hypertension and obesity, there is no significant sign of end organ 25 damage or other pertinent complications associated with these conditions, let alone 26 anything to corroborate the inability to do light-level work ….” AR 27. The ALJ 27 also noted, “he does not appear to have had any significant operations in the period 28 at issue, such as a gastric bypass procedure to treat his obesity ….” AR 31. 30 1 Plaintiff contends that, despite the restriction to light work, the ALJ erred in 2 failing to account adequately for exertional limitations caused by Plaintiff’s obesity. 3 Plaintiff argues, “it is clear that Plaintiff’s struggle to maintain a healthy weight 4 impacted his lower back pain, as well as his hypertension. … Plaintiff’s obesity has 5 a quantifiable negative impact on his RFC. The ALJ should have developed the 6 record further regarding the impact of Plaintiff’s weight on his back pain, in 7 addition to the equally obvious relationship between sleep apnea and weight.” (JS 8 at 12.) Plaintiff also contends, “The Ninth Circuit held that pursuant to S.S.R. 02- 9 1p,10 an ALJ must consider obesity in determining an RFC based on the 10 information in the case record.” (JS at 12, citing Burch, 400 F.3d at 683; Celaya v. 11 Halter, 332 F.3d 1177 (9th Cir. 2003).) 12 In Burch v. Barnhart, however, the Ninth Circuit rejected the claimant’s 13 contentions that the ALJ erred in failing to consider “the interactive effects that 14 obesity has on her other impairments and the combined effect of those 15 impairments.” 400 F.3d at 681-82. The Ninth Circuit distinguished Celaya v. 16 Halter—there, the claimant appeared pro se and the ALJ was obligated to develop 17 the record further regarding her obesity. Id. at 682. In contrast, the Burch claimant 18 was represented by counsel, did not testify or present evidence that her obesity 19 impaired her ability to work, and did not set forth evidence of any functional 20 limitations caused by her obesity that the ALJ failed to consider. Id. 682-84. Still, 21 22 23 24 25 26 27 28 The ALJ explicitly considered Plaintiff’s obesity pursuant to Social Security Ruling 02-1p in assessing whether Plaintiff provided evidence of a listinglevel condition. The ALJ considered whether Plaintiff’s obesity “might, by itself, be equivalent in severity to a listed condition, as well as whether it could elevate other impairments to listing-level significance.” AR 25. The ALJ found, “there this no medical evidence that either alternative applies” because there is “no evidence that any source explicitly linked the claimant’s obesity to any specific alleged functional limitation …. Moreover, the State Agency medical consultants had evidence of the claimant’s obesity before them and did not find a listing-level condition ….” Id. 10 31 1 the ALJ expressly considered the claimant’s obesity in finding she had the RFC to 2 perform light work—this sufficed. Id. at 684. 3 This case is more akin to Burch than Celaya. Plaintiff was represented by 4 counsel. During the hearing, Plaintiff’s counsel developed Plaintiff’s testimony on 5 a range of impairments—such as his allergies, his anxiety and OCD, and his 6 stomach, sleep, back, and wrist issues. AR 65-90. However, neither Plaintiff nor 7 his counsel mentioned Plaintiff’s obesity or offered evidence that his obesity 8 aggravates the mentioned impairments. Plaintiff has not pointed to any evidence in 9 the record that the ALJ failed to consider showing his obesity caused functional 10 limitations beyond those recognized by the RFC. As in Burch, based on the record 11 and the hearing, the ALJ was under no further obligation to develop the record on 12 Plaintiff’s obesity and his consideration was legally sufficient. 13 14 5. The ALJ’s RFC Conclusion. The ALJ concluded that Plaintiff has the RFC to perform light work as 15 defined in 20 C.F.R. § 404.1567(b) and that Plaintiff can: occasionally lift and/or 16 carrying of 20 pounds, frequently lift and/or carry 10 pounds, sit, stand, and/or walk 17 for six hours in an eight-hour day, occasionally climb ramps and stairs (but never 18 ladders or scaffolds), and occasionally stoop, kneel, crouch and crawl. AR 25. 19 Additionally, the ALJ found Plaintiff must avoid “concentrated” exposure to dust, 20 fumes, and poor ventilation. Id. The ALJ determined, “a restriction to light-level 21 work is most consistent with the claimant’s medical records, activities of daily 22 living, treatment history, and other data discussed herein—and the opinion evidence 23 in this case has been given significant weight to the extent that it is in keeping 24 therewith.” AR 29. 25 The ALJ’s findings and decision should be upheld if they are free from legal 26 error and are supported by substantial evidence based on the record as a whole. 42 27 U.S.C. § 405(g); Parra, 481 F.3d at 746. Because the ALJ did not provide specific 28 and legitimate reasons supported by substantial evidence to discount the medical 32 1 opinion of Dr. Ajit, this Court cannot conclude that the assessed RFC is free of 2 prejudicial legal error. At the hearing, the VE testified that, considering Dr. Ajit’s 3 Medical Source Statement, Plaintiff could not complete his past work or any other 4 work in the national economy. AR 103-104. 5 ISSUE THREE: The ALJ’s Consideration of Third-Party Testimony. 6 “Medical opinions are statements from acceptable medical sources that 7 reflect judgments about the nature and severity of your impairment(s), including 8 your symptoms, diagnosis and prognosis, what you can still do despite 9 impairment(s), and your physical or mental restrictions.” 20 C.F.R. 10 § 404.1527(a)(1). Certain medical professionals are not considered an “acceptable 11 medical source” and are not entitled to the deference afforded an “acceptable 12 medical source.” 20 C.F.R. § 404.1513(a);11 see Molina v. Astrue, 674 F.3d 1104, 13 1111 (9th Cir. 2012). Only licensed physicians and certain other qualified 14 specialists—including certified psychologists, licensed optometrists, licensed 15 podiatrists, and qualified speech-language pathologists—are considered “acceptable 16 medical sources.” Id. (citing 20 C.F.R. § 404.1513(a), (d)). 17 18 Evidence from sources that do not qualify as “acceptable medical sources” must still be considered: 19 [T]here is a requirement to consider all relevant evidence in an individual’s 20 case record, the case record should reflect the consideration of opinions from 21 medical sources who are not ‘acceptable medical sources’ and from ‘non- 22 medical sources’ who have seen the claimant in their professional capacity. 23 ... [T]he adjudicator generally should explain the weight given to opinions 24 from these ‘other sources,’ or otherwise ensure that the discussion of the 25 26 27 28 In this section, any citation to 20 C.F.R. § 404.1513 refers to the version of the regulation in effect from September 3, 2013 to March 26, 2017—the period during which Plaintiff filed his claim. 11 33 1 evidence in the determination or decision allows a claimant or subsequent 2 reviewer to follow the adjudicator’s reasoning, when such opinions may have 3 an effect on the outcome of the case. 4 S.S.R. 06–03p, 2006 WL 2329939; see 20 C.F.R. § 404.1527(b) (“In determining 5 whether you are disabled, we will always consider the medical opinions in your 6 case record together with the rest of the relevant evidence we receive.”); 20 C.F.R. 7 § 404.1527(f)(1) (“Opinions from medical sources who are not acceptable medical 8 sources and from nonmedical sources may reflect the source’s judgment about 9 some of the same issues addressed in medical opinions from acceptable medical 10 sources. Although we will consider these opinions using the same factors … not 11 every factor for weighing opinion evidence will apply in every case ….”). 12 “The ALJ may discount testimony from these ‘other sources’ if the ALJ 13 ‘gives reasons germane to each witness for doing so.’” Molina, 674 F.3d at 1111 14 (citations omitted). 15 Plaintiff argues, “This record includes written testimony from two medical 16 providers who are not considered acceptable medical sources (AMS) under the 17 regulations. The ALJ erred in failing to consider this lay testimony.” (JS 36.) 18 Specifically, Plaintiff contends that the ALJ failed to consider the written testimony 19 of (1) Dr. Glandorf, Plaintiff’s treating chiropractor, and (2) Ms. Rhodes, Plaintiff’s 20 therapist. 21 22 1. Dr. Glandorf. The ALJ did not explicitly discuss Dr. Glandorf in his findings. The 23 Commissioner contends, however, the fact that the ALJ cited broadly to Dr. 24 Glandorf’s treatment records reflects the ALJ’s consideration of Dr. Glandorf’s 25 opinion. (JS at 38.) The Commissioner argues, Dr. Glandorf did not “provide[] 26 any assessment of Plaintiff’s functional limitations. Plaintiff merely refers to 27 treatment records from chiropractor Glandorf, and Plaintiff admits that the ALJ 28 referred to exhibits that reflected this treatment, indicating that the ALJ did, indeed, 34 1 2 consider these records.” (Id.) While Dr. Glandorf did not complete a formal functional assessment of 3 Plaintiff’s for the Social Security Administration’s Office of Disability 4 Adjudication and Review, he did complete a Disability Determination Services 5 Range of Motion form in 2013 for Dr. Ajit, indicating that Plaintiff only has a 6 normal range of motion in his ankles. AR 644. Also, Dr. Glandorf’s treatment 7 notes include informal assessments of Plaintiff’s functional capabilities. For 8 example, Dr. Glandorf repeatedly opined that sitting and standing for extended 9 periods of time increases Plaintiff’s pain, as do rotational movements; Plaintiff 10 especially cannot stand on hard surfaces for prolonged periods of time. See, e.g., 11 AR 412, 417, 424, 426, 433, 436, 439, 441,452, 454, 590. This contrasts with the 12 ALJ’s finding that Plaintiff can sit, stand, and/or walk for six hours in an eight-hour 13 day (AR 25) and supports Dr. Ajit’s finding that Plaintiff can sit for a total of four 14 hours, stand for a total of two hours, and walk for a total of one hour in an eight- 15 hour day, and can only sit, stand, or walk for twenty minutes at one time. AR 801. 16 As such, Dr. Glandorf provided informal functional assessments, which the 17 ALJ implicitly rejected by discounting Dr. Ajit’s opinion as unsupported by the 18 record. The citations to Dr. Glandorf’s treatment notes in the ALJ’s decision do not 19 suffice as a rationale of this rejection. Dr. Glandorf’s treatment notes comprise 20 nearly 300 pages—or one third of the entire record—reflecting a decade of 21 treatment. The ALJ cited to Dr. Glandorf’s notes for the proposition that Plaintiff 22 wishes to avoid surgery (AR 31); that Plaintiff underwent nasal surgery a decade 23 ago (id.); and that there is objective evidence confirming Plaintiff’s spinal 24 impairments. AR 27. The ALJ also included Dr. Glandorf’s treatment records in 25 sweeping citations: the ALJ cited to AR 402-878 for the proposition that Plaintiff 26 has undergone only modest treatment (AR 30) and to AR 402-681, 688-799, and 27 871-878 for the proposition that Plaintiff’s physical and mental examination 28 findings are unremarkable. AR 27. Dr. Glandorf’s assessments are not cited 35 1 elsewhere and not explicitly discussed at all. As such, the ALJ erred in failing to 2 provide any reasons (germane or otherwise) for discounting Dr. Glandorf’s 3 assessment. 4 2. Ms. Rhodes. 5 The ALJ addressed Ms. Rhodes’ letter in a footnote. AR 30. The ALJ 6 acknowledged, Ms. Rhodes “noted that the claimant ‘has made progress in reducing 7 his depression [and] is continuing to work on self acceptance and reducing anxiety’ 8 (AR 870). While not a formal functional assessment, Ms. Rhodes’ opinions are 9 frankly not clearly incompatible with the conclusion that the claimant has not had 10 any significant limitations in his ability to perform the mental aspects of work at 11 any time material hereto and I give them accordingly significant weight to the 12 extent that they are consistent with the residual functional capacity in Finding # 5 in 13 keeping herewith.” AR 30 n.2. 14 As discussed earlier, Ms. Rhodes did not provide an assessment of Plaintiff’s 15 mental functioning capabilities; instead, her letter explains that Plaintiff has been 16 attending psychotherapy and has been making progress in reducing his depression 17 and opening himself to new ideas. AR 870. The ALJ did not discount Ms. Rhodes’ 18 opinion; in fact, he found the letter consistent with the opinions of the state 19 consultants and gave it “significant weight” to the extent it supports the ultimate 20 RFC finding, which included no mental restrictions. AR 30 n.2. The ALJ did not 21 need to provide germane reasons for discounting Ms. Rhodes’ opinion, because he 22 did not discount it. 23 WHETHER TO REMAND FOR FURTHER PROCEEDINGS OR WITH 24 INSTRUCTIONS TO CALCULATE AND AWARD BENEFITS. 25 “The decision whether to remand a case for additional evidence, or simply to 26 award benefits[,] is within the discretion of the court.” Sprague, 812 F.2d at 1232. 27 “[I]f additional proceedings can remedy defects in the original administrative 28 proceeding, a social security case should be remanded” for further proceedings. 36 1 Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th 2 Cir. 1981)). Conversely, a court will remand for the calculation and award of 3 benefits “when it is clear from the record that a claimant is entitled to benefits ….” 4 Id. Specifically, each component of the following standard must be satisfied to 5 remand with instructions to calculate and award benefits: “(1) the record has been 6 fully developed and further administrative proceedings would serve no useful 7 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 8 evidence, whether claimant testimony or medical opinion; and (3) if the improperly 9 discredited evidence were credited as true, the ALJ would be required to find the 10 11 claimant disabled on remand[.]” Id. at 1020. Here, the first component of this standard is not satisfied. The administrative 12 record contains a number of gaps. Specifically, it does not contain the complete, 13 reliable assessment of an examining state agency physician. The administrative 14 record can be developed by ordering the thorough medical examination of Plaintiff 15 by a qualified state agency physician and ensuring that the report from this 16 examination is included in full. 17 VI. 18 CONCLUSION 19 For the reasons stated above, IT IS ORDERED that judgment shall be 20 entered REMANDING the decision of the Commissioner denying benefits. 21 22 23 24 25 DATED: November 08, 2018 ______________________________ KAREN E. SCOTT United States Magistrate Judge 26 27 28 37
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
