Marcos Jesus Silva v. Commissioner of Social Security Administration, No. 8:2018cv01244 - Document 20 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Marcos Jesus Silva v. Commissioner of Social Security Administration Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARCOS JESUS SILVA, ) ) Plaintiff, ) ) v. ) ) COMMISSIONER OF SOCIAL SECURITY ) ADMINISTRATION, ) ) Defendant. ) ____________________________________) NO. SA CV 18-1244-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on July 17, 2018, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on August 14, 2018. 28 Plaintiff filed a motion for summary judgment on November 21, 2018. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on December 27, 2018. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed July 20, 2018. 4 5 BACKGROUND 6 7 Plaintiff asserts disability since December 27, 2013, based on, 8 inter alia, alleged pain and weakness from lower back and neck 9 problems, fibromyalgia and osteoarthritis (Administrative Record 10 (“A.R.”) 202-07, 220, 464, 477, 558-66, 583, 896, 900, 908). The 11 Court previously remanded Plaintiff’s disability claim for further 12 administrative consideration of the opinion of one of Plaintiff’s 13 treating physicians, Dr. Murali Raju. 14 Opinion and Order of Remand and Judgment filed on August 17, 2016, in 15 Silva v. Commissioner, SA CV 16-441-E (the “Prior Action”)); see also 16 A.R. 448-51 (Dr. Raju’s opinion). 17 Prior Action, Dr. Raju had opined that Plaintiff’s lumbar degenerative 18 disc disease limits Plaintiff to standing and walking no more than 19 four hours in an eight hour workday and would cause Plaintiff to be 20 absent from work approximately twice per month. 21 did not reach any other issue then raised except to find that reversal 22 with a directive for the immediate payment of benefits would not be 23 appropriate (A.R. 662, n.2). See A.R. 655-62 (Memorandum As the Court pointed out in the See id. The Court 24 25 The Appeals Council subsequently vacated the Commissioner’s final 26 decision and remanded the case to an Administrative Law Judge (“ALJ”) 27 for further proceedings consistent with this Court’s order (A.R. 683). 28 The Appeals Council also instructed the ALJ to consolidate Plaintiff’s 2 1 claim with a subsequent claim for benefits filed on April 6, 2015 2 (id.). 3 4 On remand, a new ALJ reviewed the record and heard testimony from 5 Plaintiff and a vocational expert (A.R. 464-78, 546-96). Plaintiff 6 testified to pain and limitations of allegedly disabling severity 7 (A.R. 555-73). 8 disc disease of the cervical and lumbar spine with neural foraminal 9 narrowing and facet arthropathy, mild cerebral atrophy, fibromyalgia, The ALJ found that Plaintiff has “severe” degenerative 10 arthritis, osteoarthritis of the hip, post-concussive syndrome, 11 chronic headaches, disorder of the sacrum, obesity, bibasilar 12 atelectasis with trace right pleural effusion, hepatic steatosis 13 (mildly enlarged liver), depression, and post-traumatic stress 14 disorder (“PTSD”) (A.R. 467). 15 residual functional capacity for light work limited to: 16 (1) occasionally climbing ramps and stairs, balancing, stooping, 17 kneeling, crouching and crawling; (2) no climbing of ladders, ropes or 18 scaffolds; (3) tasks with a reasoning level of 2 or less; 19 (4) occasional direct public contact; and (5) low stress jobs defined 20 as having only occasional decision-making duties and changes in the 21 work setting. 22 “not entirely consistent with the medical evidence and other evidence 23 in the record,” and giving “greatest weight” to non-examining state 24 agency physician opinions and “least weight” to Dr. Raju’s opinion). 25 The ALJ deemed Plaintiff capable of performing work as a “marker,” 26 “power screwdriver operator,” and “housekeeping cleaner,” and, on that 27 basis, denied disability benefits through September 19, 2017 (A.R. 28 477-78 (adopting vocational expert testimony at A.R. 577-78)). The ALJ found that Plaintiff retains a See A.R. 469-76 (rejecting Plaintiff’s allegations as 3 1 In analyzing Plaintiff’s residual functional capacity, the ALJ 2 did not even mention Dr. Raju’s opinion that Plaintiff would be absent 3 from work two times per month (A.R. 475-76). 4 “exceptions” to the Appeals Council, arguing, inter alia, that the ALJ 5 failed properly to consider Plaintiff’s subjective complaints and Dr. 6 Raju’s opinions (A.R. 931-36). 7 exceptions but denied review, discerning no reason to assume 8 jurisdiction (A.R. 454). 9 exhibit” new evidence Plaintiff had submitted, finding that the Plaintiff submitted The Appeals Council considered the The Appeals Council refused to “consider and 10 evidence assertedly did not show a reasonable probability of a 11 different outcome (A.R. 454). 12 relevant certain newly submitted records postdating the ALJ’s decision 13 (A.R. 454). The Appeals Council also found not 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. section 405(g), this Court reviews the 18 Administration’s decision to determine if: (1) the Administration’s 19 findings are supported by substantial evidence; and (2) the 20 Administration used correct legal standards. 21 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 22 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 23 682 F.3d 1157, 1161 (9th Cir. 2012). 24 relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion.” 26 (1971) (citation and quotations omitted); see also Widmark v. 27 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 28 /// See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 4 1 If the evidence can support either outcome, the court may 2 not substitute its judgment for that of the ALJ. 3 Commissioner’s decision cannot be affirmed simply by 4 isolating a specific quantum of supporting evidence. 5 Rather, a court must consider the record as a whole, 6 weighing both evidence that supports and evidence that 7 detracts from the [administrative] conclusion. But the 8 9 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 11 12 DISCUSSION 13 14 After consideration of the record as a whole, the Court reverses 15 the Administration’s decision in part and remands the matter for 16 further administrative proceedings. 17 Administration materially erred in evaluating the evidence of record. As discussed below, the 18 19 I. Summary of the Medical Record. 20 21 The available medical record dates back to May of 2013 (A.R. 293- 22 302). At that time, Plaintiff presented to the emergency room for 23 lower extremity pain and weakness radiating from the low back (id.). 24 Plaintiff associated these problems with a 1994 work-related injury 25 for which Plaintiff had been treated until 1997 (id.). 26 not then have health insurance or a primary care physician (A.R. 294). 27 /// 28 /// 5 Plaintiff did 1 The record following that first emergency room visit reflects 2 consistent complaints of radiating back pain and findings of 3 degenerative disease in the lumbar and cervical spine. 4 A.R. 291, 294, 321, 325-26, 330, 345, 354, 373, 379, 389, 401, 411, 5 422, 426, 428, 443, 941, 945, 1238, 1431, 1433, 1435, 1554, 1624, 6 1626, 1829, 1836, 1839, 1842, 1846, 1857, 1861, 1864, 2070, 2114 7 (Plaintiff’s complaints); see also A.R. 301-02 (May, 2013 lumbar spine 8 CT scan showing degenerative changes, disc space narrowing at L4-L5 9 and L5-S1, and facet joint arthropathy); A.R. 361-62 (March, 2014 10 lumbar spine MRI showing multilevel degenerative disc disease and 11 facet arthropathy most significant at L4-L5, where there is mild to 12 moderate neural foraminal narrowing and central canal stenosis without 13 impingement, and mild fatty atrophy of the paraspinal musculature); 14 A.R. 1148-49 (April, 2015 lumbar spine MRI showing moderate to severe 15 facet arthrosis and ligamentous flavum hypertrophy at L4-L5, minimal 16 anterolisthesis of L4 on L5, moderate stenosis of the right neural 17 foramen and right lateral recess, moderate facet arthrosis at L5-S1, 18 and minimal anterolisthesis of L5 - S1); A.R. 1156-57 (December, 2015 19 lumbar spine x-ray showing narrowing disc space at L5-S1, facet 20 arthritis at L4-L5 and L5-S1, lumbar spondylosis at L3-L4, generalized 21 osteopenia, and a wedge deformity at T12); A.R. 1763-64 (August, 2016 22 lumbar spine MRI showing moderate degenerative disc disease and facet 23 spondylosis from L3-L4 through L5-S1, bilateral lateral recess 24 narrowing at L4-L5, moderate L3-L4 through L5-S1 bilateral neural 25 foraminal narrowing, and unchanged minimal anterolisthesis of L5 on 26 S1); A.R. 416 (October, 2014 cervical spine x-rays showing mild 27 degenerative changes); A.R. 1330-31 (March, 2015 cervical spine MRI 28 showing mild multilevel degenerative disc disease with mild to 6 See, e.g., 1 moderate narrowing of the spinal canal from C3-C7); A.R. 1761-63 2 (August, 2016 cervical spine MRI showing congenital narrowing of the 3 spinal canal mainly at C4-C5, mild degenerative changes, mild to 4 moderate canal stenosis at C5-C6 and mild spinal canal stenosis at C4- 5 C5, and mild to moderate left neural foraminal stenosis at C5-C6). 6 Plaintiff reportedly has used a cane for ambulation since February of 7 2013 due to weakness and pain in the right leg (A.R. 295, 345-46, 391, 8 945, 1201, 1208, 1225, 1238, 1690, 1693, 1818-19, 1857, 1981, 1994, 9 2011, 2016, 2019, 2038, 2054, 2068). 10 11 Plaintiff began regular treatment at LAC-USC Medical Center in 12 June of 2013 for alleged back and knee pain (A.R. 320-42). 13 Plaintiff’s doctor reviewed the May, 2013 lumbar spine CT scan and 14 noted on examination that Plaintiff had tenderness in the lumbar area 15 and both knees, and an unstable gait without an assistive device (A.R. 16 320-21). 17 heavy lifting, and referred for an orthopedic evaluation (A.R. 321- 18 22). 19 General Relief “disability” form for disability through April of 2014 20 (A.R. 372-73). Plaintiff was prescribed Ultram (Tramadol), ordered to avoid In January of 2014, Plaintiff’s doctor reportedly completed a This form is not in the record. 21 22 Consultative examiner Dr. Ibrahim Yashruti prepared a complete 23 orthopaedic evaluation dated February 7, 2014 (A.R. 345-50). 24 Plaintiff complained of burning, throbbing, dull and sharp back pain, 25 bilateral hip and knee pain, chest pain, weakness in the legs 26 aggravated by sitting, standing, walking, bending and lifting, 27 dizziness, nausea and problems controlling his bladder (A.R. 345). 28 Plaintiff reported injuring his back in 1994 while lifting a patient 7 1 (A.R. 345). Plaintiff reportedly had been using a cane constantly 2 since February of 2013, stating that he could not walk without the 3 cane (A.R. 345-46). 4 Ibuprofen and Methocarbamol (A.R. 345). Plaintiff was taking Tramadol, Ranitidine, 5 6 On examination, Plaintiff had limited range of motion in the 7 cervical spine, tenderness and limited range of motion in the 8 lumbosacral spine, “popping” in the low back upon palpation of the 9 knees, and positive straight leg raising, with limited effort reported 10 on several tests (A.R. 346-49). X-rays showed mild healed compression 11 at T12 and “very mild” scoliosis of L5-S1 (A.R. 349).1 12 opined that Plaintiff had no orthopedic findings to justify 13 Plaintiff’s movements and reaction to examination, and that Plaintiff 14 could ambulate without a cane (A.R. 350). 15 Plaintiff capable of medium work (i.e., lifting 50 pounds 16 occasionally, 25 “degrees” (pounds) occasionally, standing and walking 17 six hours a day, sitting six hours a day, with frequent squatting, 18 kneeling, crouching and crawling, and no limitations in reaching with 19 his arms and manipulating with his hands) (A.R. 350). 20 stated that Plaintiff would benefit from a neurologic evaluation (A.R. 21 350). Dr. Yashruti Dr. Yashruti found Dr. Yashruti 22 23 Plaintiff thereafter presented to the UC Irvine Emergency 24 Department in March of 2014 for back pain (A.R. 354-59, 361-62, 25 378-87). 26 disease and facet arthropathy most significant at L4-L5, where there A lumbar spine MRI showed multilevel degenerative disc 27 1 28 It appears that Dr. Yashruti did not review Plaintiff’s May, 2013 lumbar spine CT scan. 8 1 was mild to moderate neural foraminal narrowing, with lateral recess 2 narrowing and central canal stenosis without impingement, and mild 3 fatty atrophy of the paraspinal musculature (id.). 4 prescribed acetaminophen-hydrocodone and ordered to follow up with his 5 primary doctor (A.R. 354). Plaintiff was 6 7 Dr. Josephina Choa of AltaMed regularly treated Plaintiff from 8 May of 2014 through at least July of 2015 (A.R. 389-94, 418-41, 1014- 9 69, 1318-23). Dr. Choa diagnosed, inter alia, obesity, PTSD, lumbar 10 disc disease, neck pain, chronic radiculopathy, urinary incontinence 11 and memory loss, and referred Plaintiff to various specialists (A.R. 12 389, 392, 420, 429, 440-41, 1034, 1322). 13 14 One of those specialists was neurosurgeon Dr. Raju, who evaluated 15 Plaintiff in July of 2014 (A.R. 411-14). 16 progressively worsening back pain, radiating down both legs with 17 associated numbness and tingling and bladder incontinence (A.R. 411). 18 Dr. Raju reviewed Plaintiff’s lumbar spine MRI and noted on 19 examination that Plaintiff had decreased range of motion in his back 20 due to pain, but a gait and station “within normal limits” (with no 21 mention of whether Plaintiff was using a cane) (A.R. 411-12). 22 Raju assessed lumbago and degeneration of the lumbar or lumbosacral 23 intervertebral disc, with a note to consider facet blocks for 24 Plaintiff’s facet arthropathy and degenerative changes (A.R. 412). 25 Dr. Raju referred Plaintiff to a pain management doctor and suggested 26 follow up after the facet blocks (A.R. 413). 27 /// 28 /// 9 Plaintiff complained of Dr. 1 Plaintiff saw pain management specialist Dr. Kais Alsharif in 2 September of 2014 (A.R. 401-08). Plaintiff reported a history of 3 progressive, daily, constant back pain for over 20 years, worse with 4 physical activity, prolonged walking or standing, radiating down his 5 legs with intermittent numbness and tingling and weakness in the legs 6 (A.R. 401). 7 dizziness (A.R. 401). 8 Tramadol, Ibuprofen and Robaxin, and that he had not had surgery or 9 injections (A.R. 401). Plaintiff said Norco and Tramadol gave him nausea and Plaintiff also said that he then was taking On examination, Plaintiff reportedly had 10 tenderness in the lumbar spine, positive facet loading, positive 11 straight leg raising tests, positive Faber test, negative Waddell’s 12 sign, and a normal gait (with use of a cane) (A.R. 402). 13 reviewed Plaintiff’s lumbar spine MRI and assessed lumbar facet 14 syndrome, lumbar spondylosis, lumbar degenerative disc disease, lumbar 15 radiculitis and disorders of the sacrum (A.R. 403). 16 opined that Plaintiff’s presentation was consistent with lumbar 17 radiculopathy, facet arthropathy and sacroiliac dysfunction (A.R. 18 403). 19 S.I. (sacroiliac) injection (A.R. 403-04). 20 September 30, 2014, for a bilateral sacroiliac joint epidural steroid 21 injection (A.R. 405-08). Dr. Alsharif Dr. Alsharif Dr. Alsharif prescribed Tylenol #3 and recommended a bilateral Plaintiff returned on 22 23 Dr. Raju completed a one-page General Relief “Report of 24 Examination” form dated September 30, 2014 (A.R. 414). 25 stated that Plaintiff had lumbar degenerative disc disease with severe 26 pain since 1994, which was considered permanent, and rendered 27 Plaintiff unsuitable for any employment, with the following specific 28 limitations: “no lifting, prolonged sitting or walking” (A.R. 414). 10 This form 1 Plaintiff returned to Dr. Alsharif in December of 2014, reporting 2 that Tylenol #3 was helping his pain but also reporting that the 3 improvement he received from the sacroiliac injection lasted only one 4 week (A.R. 994). 5 (A.R. 995). 6 examinations (A.R. 995). 7 medications and gave Plaintiff a L5-S1 epidural injection (A.R. 996- 8 98). Plaintiff then was taking Tylenol #3 and Robaxin Findings on examination were unchanged from the prior Dr. Alsharif continued Plaintiff’s 9 10 Plaintiff followed up with Dr. Raju in January of 2015 (A.R. 11 1624-25). Plaintiff reported improving back pain but persistent neck 12 pain, and stated that his symptoms were unchanged despite having 13 epidural steroid injections since his last visit with Dr. Raju (A.R. 14 1624). 15 was able to ambulate without assistance (A.R. 1624). 16 indication whether Plaintiff then was using a cane (A.R. 1624). 17 Raju assessed cervicalgia, indicated that Plaintiff should continue 18 with his series of epidural steroid injections, and referred Plaintiff 19 for physical therapy and a cervical spine MRI (A.R. 1624-25). On examination, Plaintiff reportedly had normal strength and There is no Dr. 20 21 Dr. Raju completed a “Medical Assessment of Ability to Do 22 Work-Related Activities (Physical)” form dated January 12, 2015 (A.R. 23 448-51). 24 carry up to 20 pounds, sit for two hours at one time without 25 interruption, stand for two hours at one time without interruption, 26 walk for two hours at one time without interruption, for a total of 27 six hours sitting in a workday and four hours standing/walking in a 28 workday (A.R. 448-49). Dr. Raju opined that Plaintiff could frequently lift and Dr. Raju opined that Plaintiff could 11 1 occasionally stoop, crouch, kneel and crawl, never climb, frequently 2 balance, and occasionally push and pull depending on the weight (A.R. 3 450). 4 environments with unprotected heights, moving machinery, exposure to 5 marked changes in temperature and humidity, or dust, fumes and gases, 6 and would have “mild” restrictions in driving due to Plaintiff’s 7 narcotic medications (A.R. 451). 8 likely miss work “[a]bout twice a month” due to his condition (A.R. 9 451). Dr. Raju further opined that Plaintiff could not work in Dr. Raju opined that Plaintiff would 10 11 Plaintiff returned to Dr. Alsharif in March of 2015, reporting 12 significant improvement for only approximately two weeks from the L5- 13 S1 injection but also saying that his pain was controlled with 14 medication (A.R. 1109). 15 1110-11). 16 giving any additional injections (A.R. 1111). Examination findings were unchanged (A.R. Dr. Alsharif continued Plaintiff’s medications without 17 18 When Plaintiff returned to Dr. Raju later in March of 2015, 19 Plaintiff reported no improvement in his neck and low back pain since 20 the last visit with Dr. Raju (A.R. 1626). 21 had completed the series of epidural steroid injections with “mild 22 improvement” for only 1.5 weeks, and had attended one physical therapy 23 session without improvement (A.R. 1626). 24 unchanged (A.R. 1627). 25 cervical spine MRI, which showed mild multilevel degenerative disc 26 disease with mild to moderate narrowing of the spinal canal from C3-C7 27 (A.R. 1330-31), and “[d]iscussed with patient about continued 28 follow-up with pain management for conservative treatment options, and Plaintiff reported that he Examination results were Dr. Raju reviewed Plaintiff’s March, 2015 12 1 continuing with [physical therapy]” (A.R. 1627).2 2 3 In April of 2015, Plaintiff consulted with orthopedic surgeon Dr. 4 Adam Holleran, who reviewed Plaintiff’s March, 2015 cervical spine MRI 5 (A.R. 941-43). 6 cervical and lumbar lordosis, moderate tenderness to palpation of the 7 cervical and lumbar spine, muscle spasm, limited range of motion with 8 pain, but intact sensation and strength (A.R. 942). 9 diagnosed cervical and lumbar degenerative disc disease, requested a On examination, Plaintiff reportedly had mild loss of Dr. Holleran 10 lumbar spine MRI, prescribed Meloxicam, and referred Plaintiff for 11 pain management and physical therapy, with a note to return as needed 12 (A.R. 943).3 13 /// 14 /// 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Consultative neurologist Dr. Nancy Vu evaluated Plaintiff in March of 2015 (A.R. 945). Plaintiff complained of chronic daily diffuse and frontal headaches following a history of multiple concussions, depression, poor balance, back problems with bilateral leg numbness, pain, weakness, obesity, homelessness, tinnitis, dizziness, vertigo and an unsteady gait requiring a cane (A.R. 945). On examination, Plaintiff reportedly was anxious, tense but cooperative, depressed with slight inattention, had mild proximal leg weakness, and ambulated slowly with a cane (A.R. 945). Dr. Vu diagnosed post concussion syndrome, chronic headaches, and assessed a history of depression and poor memory with "?" re psychosis (A.R. 945). Dr. Vu ordered a brain CT scan which showed mild cerebral atrophy (A.R. 945-47). Plaintiff returned for follow up in May and August of 2015 with no reported changes (A.R. 1125-28). 3 As summarized above, Plaintiff’s April, 2015 lumbar spine MRI showed moderate to severe facet arthrosis and ligamentous flavum hypertrophy at L4-L5, minimal anterolisthesis of L4 on L5, moderate stenosis of the right neural foramen and right lateral recess, moderate facet arthrosis at L5-S1, and minimal anterolisthesis of L5 on S1 (A.R. 1148-49). 13 1 Plaintiff returned to Dr. Alsharif in June of 2015, reporting no 2 changes (A.R. 1105-08). 3 medications with a note that a consultation with a spine surgeon (Dr. 4 Massoudi) was pending (A.R. 1107). 5 consult with another surgeon until 2016. 6 neurological surgeon Dr. Peyman Tabrizi examined Plaintiff, later 7 reviewed Plaintiff’s April, 2016 lumbar spine MRI,4 and recommended 8 against any surgical intervention in favor of “continued conservative 9 management” with physical therapy and possible rheumatology evaluation 10 Dr. Alsharif continued Plaintiff’s It appears that Plaintiff did not In March of 2016, and treatment for arthritis (A.R. 1521-22). 11 12 In October of 2015, Plaintiff began regular treatment with Dr. 13 Rye-Ji Kim and others at UC Irvine Health, after Plaintiff presented 14 to the UC Irvine emergency room in September of 2015 for neck, back 15 and right leg pain (A.R. 1227-40, 1981-2142). 16 Plaintiff’s March, 2014 lumbar spine MRI, and referred Plaintiff for 17 pain management, orthopedic, urologic, and neurologic surgery 18 consultations, and a psychiatry consultation (A.R. 1163, 1229-30). 19 /// 20 /// Dr. Kim reviewed 21 22 4 23 24 25 26 27 28 The April, 2016 lumbar spine MRI does not appear to be in the record. According to Dr. Tabrizi, this MRI showed evidence of L2 hemangioma, L3-L4 disc dessication with a 1-mm disc bulge and mild to moderate facet hypertrophy bilaterally, mild bilateral neural foraminal stenosis, L4-L5 moderate to severe facet arthrosis with ligamentum flavum hypertrophy and minimal anterolisthesis of L4 and L5, moderate stenosis of the right neural foramen and mild left neural foraminal stenosis, L5S1 dessication with subtle anterolisthesis of L5 over S1, and moderate facet hypertrophy bilaterally causing moderate bilateral neural foraminal stenosis. See A.R. 1521. 14 1 Plaintiff was treated by the Pain Medicine Specialty Group 2 monthly from December of 2015 through at least January of 2017 (A.R. 3 1426-50, 1554-61, 1574-75, 1815-47). 4 low back and leg pain radiating to the upper and lower extremities, 5 aggravated by prolonged sitting, standing, walking, lifting, bending 6 and driving (A.R. 1435). 7 injections had provided short term relief only and that Tylenol with 8 codeine prescribed by his pain doctor was not helpful (A.R. 1435). 9 examination, Plaintiff reportedly had tenderness in the paraspinal Plaintiff reported chronic neck, Plaintiff also reported that lumbar epidural On 10 muscles, positive facet maneuver, and no sensory deficits (A.R. 1436). 11 Plaintiff was assessed with lumbar and cervical radiculopathy, and 12 prescribed Norco and Gabapentin (A.R. 1432, 1434, 1436-37). 13 February of 2016, Plaintiff reported that his pain medications were 14 not effective and Plaintiff refused any further injections, so his 15 Norco dose was increased and he was given a Lidoderm patch (A.R. 16 1428-29). 17 patch was working well and his pain was controlled with medications 18 (A.R. 1426). 19 was stable on his medications (A.R. 1556, 1560). 20 October of 2016, Plaintiff reported neck pain radiating to his 21 bilateral upper extremities, low back pain radiating to the bilateral 22 lower extremities, and no desire for any spine injections or surgery 23 (A.R. 1554, 1836, 1839, 1842, 1846). 24 unchanged and his medications were continued (A.R. 1554-55, 1836-37, 25 1839-40, 1842-43, 1846-47). 26 that he had slipped and hurt his right hip two weeks earlier and he 27 was still having pain with walking (A.R. 1829). 28 ordered and his medications were continued (A.R. 1829-30). By In March of 2016, Plaintiff reported that the Lidoderm In April and May of 2016, Plaintiff’s pain reportedly From June through Examination results were In December of 2016, Plaintiff reported 15 A hip x-ray was When 1 Plaintiff returned in January of 2017, he reported that his right hip 2 was still hurting (A.R. 1826). 3 osteoarthritis and mild osteopenia (A.R. 1826, 1870-71). 4 medications were continued (A.R. 1827). A right hip x-ray showed Plaintiff’s 5 6 Meanwhile, Plaintiff presented to Dr. David Kilgore at UC Irvine 7 Health in December of 2015 for an “Integrative Medicine Consultation” 8 (A.R. 1198-1207). 9 rising from a chair, ambulated slowly with a cane, had a kyphotic On examination, Plaintiff reportedly had difficulty 10 posture, positive straight leg raising tests, limited range of motion, 11 multiple myofascial trigger points, and was unable to stand completely 12 erect (A.R. 1201). 13 pain, degenerative disc and facet arthritis, depression, pre-diabetes, 14 obesity, chronic urge urinary incontinence, and possible multi-trauma 15 early onset dementia with CT scan evidence of cerebral atrophy (A.R. 16 1202). Dr. Kilgore assessed chronic neck and low back 17 18 Plaintiff returned to Dr. Kilgore in March of 2016 for follow up 19 (A.R. 1178-89). Plaintiff reportedly had undergone “conservative” 20 treatment including medication, physical therapy and epidural 21 injections with decreased activity and without sustainable 22 improvements to pain function or quality of life (A.R. 1179). 23 Plaintiff was using Lidocaine patches, Hydrocodone and Gabapentin for 24 pain, using a cane to walk, and was taking Abilify, Sertraline and 25 Mirtazapine for depression (A.R. 1178, 1180-84). 26 homeless (A.R. 1178, 1180). 27 /// 28 /// 16 Plaintiff was 1 Consulting neurologist Dr. Mark Farag evaluated Plaintiff in June 2 of 2016 for short and long term memory issues dating back to a bicycle 3 accident in 2008 or 2009 (A.R. 1712-16). 4 reportedly had a Mini Mental Status Examination (“MMSE”) score of 5 29/30, with 2/3 recall, and a narrow base gait with cane assistance 6 (A.R. 1713-14). 7 brain CT scan, and opined that Plaintiff was experiencing normal 8 variations in mental status and attention, given Plaintiff’s ability 9 to take care of himself and navigate travel and government systems On examination, Plaintiff Dr. Farag reviewed Plaintiff’s lumbar spine MRI and 10 without assistance, opining that any primary neurological disorder is 11 at an “imperceptibly early stage” (A.R. 1715). 12 13 Consulting rheumatologist Dr. Sarah Hwang evaluated Plaintiff in 14 August and September of 2016 (A.R. 1772-81). Examination revealed 15 swelling and/or tenderness in fingers, elbows, cervical and lumbar 16 spine, knees, ankles and feet and positive trigger points (A.R. 1774). 17 Dr. Hwang assessed obesity, fibromyalgia and depression, as well as 18 spinal stenosis (A.R. 1775). 19 rheumatoid arthritis (A.R. 1780). Dr. Hwang found no evidence of 20 21 Consulting neurologist Dr. Jack Lin evaluated Plaintiff in 22 December of 2016 (A.R. 1818-24). Plaintiff reported episodes of brain 23 “fogginess” and intermittent forgetfulness, but no loss of functioning 24 from the prior neurological evaluation (A.R. 1818). Plaintiff’s MMSE 25 score was 28/30 and his recall was 2/3 (A.R. 1819). Plaintiff again 26 was noted to have a narrow base gait with cane assistance (A.R. 1819). 27 Dr. Lin found it unlikely that Plaintiff is suffering from a 28 neurocognitive disorder but referred Plaintiff for a more complete 17 1 memory workup (A.R. 1821). 2 3 Plaintiff consulted in March and June of 2017 with neurologist 4 Dr. Chuang Kuo Wu for memory issues (A.R. 1999-2004, 2091-98). 5 April, 2017 brain MRI showed no acute lesions but mild cerebral 6 cortical atrophy (A.R. 2000, 2061). 7 (A.R. 2054-55). 8 neurocognitive disorder (A.R. 2001).5 An A May, 2017 EEG study was normal Dr. Wu assessed memory loss and possible mild 9 10 State agency physicians reviewed Plaintiff’s claim while the 11 Prior Action was pending and found Plaintiff capable of light work as 12 of May of 2016 (A.R. 628-49). 13 did not review Dr. Raju’s January, 2015 opinion stating that Plaintiff 14 had greater limitations and would be absent from work twice each 15 month. 16 that there was no opinion evidence for review). 17 physicians reconsidered Plaintiff’s claim in September of 2016 – after 18 this Court’s remand order in the Prior Action but before the Appeals However, the state agency physicians See A.R. 633, 644, 647 (state agency physicians indicating State agency 19 5 20 21 22 23 24 25 26 27 28 The record also contains a “Mental Assessment” form dated August 8, 2017, by Sandra P. Klein, Ph.D. (A.R. 2151-55). There are no treatment notes from Dr. Klein. Dr. Klein diagnosed an “unspecified neurocognitive disorder” based on the presence of cerebral atrophy, depression, chronic neck and low back pain, and possible post-multi-trauma early dementia (A.R. 2154). Dr. Klein opined that Plaintiff has various limits in his understanding and memory, concentration and persistence, social interaction and adaptation (A.R. 2151-54). Dr. Klein explained, “Mr. Marcos Silva exhibits impaired sustained & divided attention ability. This undermines most other cognitive domains and exacerbates his previous limited cognitive ability. Chronic pain and depression contributes [sic] to an inability to problem solve, make decisions, remember detailed instructions, and follow-through on completing tasks at hand. Physical limitations also contribute to an inability to perform tasks normally.” (A.R. 2155). 18 1 Council remanded the case (A.R. 655-62, 683). At that time, the state 2 agency physicians again found Plaintiff capable of light work and 3 again failed to acknowledge Dr. Raju’s opinion. 4 (stating there was no opinion evidence for review). See A.R. 663-79 5 6 II. Summary of Plaintiff’s Testimony and Statements. 7 8 9 At the most recent administrative hearing in August of 2017, Plaintiff testified that he received government relief and lived in 10 his car (A.R. 550-51). Plaintiff said that in 1989, he and his 11 brother walked in on a robbery and were shot. 12 times, causing him to lose 60 percent of his feeling on his left side, 13 and his brother was shot once, leaving his brother a paraplegic (A.R. 14 555-56). Plaintiff was shot five 15 16 Plaintiff complained of daily neck pain radiating to his lower 17 back, head and arms following several car accidents, pain and weakness 18 in his arms and hands following a bicycle accident, difficulty 19 breathing upon bending due to fractured ribs that did not heal 20 correctly, trouble gripping his walking cane, daily mid-back pain 21 radiating down to his legs aggravated by walking, sitting and lying 22 down, leg pain and weakness, and knee pain from several falls 23 radiating down to his foot aggravated by walking and standing, worse 24 on the right side than the left (A.R. 558-65). 25 has used a cane constantly since 2012 on his right side because he has 26 problems balancing and has fallen, and he does not want to put all his 27 weight on his right knee (A.R. 565-68). 28 could stand for five minutes without a cane but insisted he would need 19 Plaintiff said that he Plaintiff estimated that he 1 the cane when he moves (A.R. 568). Plaintiff said when he tries to 2 walk without a cane he drags his feet and stumbles (A.R. 568). 3 Plaintiff said that he suffers back pain from sitting continuously and 4 must either lie down or move around to relieve the pain (A.R. 568-69). 5 Plaintiff estimated that he could sit continuously for 30 minutes 6 (A.R. 569). 7 every hour during a typical day (A.R. 570). 8 bus to his brother’s house to shower and get his mail (A.R. 570-71). 9 Plaintiff said he has trouble sleeping, feels depressed, has problems Plaintiff said that he lies down for 15 to 20 minutes Plaintiff could take the 10 concentrating and thinking, and cannot remember what he reads (A.R. 11 555, 572-73). 12 13 In a Function Report form dated in April of 2016, Plaintiff 14 reported that he was homeless, ate two “ready made” meals a day, took 15 public transportation, shopped 10 to 15 minutes a day for food, and 16 tried to take short walks and exercise if possible (A.R. 879-81). 17 Plaintiff reported that he had trouble bending, stooping, sitting, 18 standing and walking, that rheumatoid arthritis in his hands made it 19 hard to care for his hair or shave or hold things,6 and that he had 20 trouble with his concentration and memory and getting along with 21 others (A.R. 879, 882-83). 22 cane and could walk 200 feet before needing to rest up to 30 minutes 23 /// 24 /// 25 /// Plaintiff reported that he walked with a 26 27 28 6 This Function Report predates Plaintiff’s rheumatology examination, where he was found to have swelling and tenderness in his fingers and assessed with fibromyalgia (A.R. 1777-80). 20 1 (A.R. 883-84).7 2 3 III. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 4 Regarding the Severity of Plaintiff’s Symptoms Without Stating 5 Legally Sufficient Reasons for Doing So. 6 7 Where, as here, an ALJ finds that a claimant’s medically 8 determinable impairments reasonably could be expected to cause some 9 degree of the alleged symptoms of which the claimant subjectively 10 complains, any discounting of the claimant’s complaints must be 11 supported by “specific, cogent” findings. 12 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 13 (9th Cir. 1995); 14 Cir. 1996) (indicating that ALJ must state “specific, clear and 15 convincing” reasons to reject a claimant’s testimony where there is no See Berry v. Astrue, 622 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 16 17 18 19 20 21 22 23 24 25 26 27 28 7 In a Function Report form from December of 2013, when Plaintiff was not homeless, Plaintiff reported that on a typical day he woke up, ate, showered, took his medications, tried to read, watched television, listened to the radio, took a short walk if he could, and made a sandwich for lunch (A.R. 239). Plaintiff reportedly could make sandwiches and canned soup, drive, and shop in stores for 30 minutes (A.R. 241-42). Plaintiff reportedly did not go to places where he has to sit, stand or walk for prolonged times (A.R. 244). Plaintiff indicated that he had trouble lifting, could walk one block or less before needing to rest for 15 minutes or more, needed a cane for assistance when he walked, and could pay attention for five to 10 minutes (A.R. 244-45). Similarly, in an undated Pain Questionnaire, Plaintiff reported that he could only do minimal walking, driving and shopping, and no household chores, but he could make cold sandwiches and warm soups in the microwave (A.R. 228-29). Plaintiff reported that he could walk less than one block, stand for five to 10 minutes, and sit for 15 to 30 minutes at a time (A.R. 229). 21 1 evidence of malingering).8 2 suffice. 3 (the ALJ’s credibility findings “must be sufficiently specific to 4 allow a reviewing court to conclude the ALJ rejected the claimant’s 5 testimony on permissible grounds and did not arbitrarily discredit the 6 claimant’s testimony”) (internal citations and quotations omitted); 7 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 8 must “specifically identify the testimony [the ALJ] finds not to be 9 credible and must explain what evidence undermines the testimony”); 10 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 11 which symptom testimony is not credible and what facts in the record 12 lead to that conclusion.”); see also Social Security Ruling 16-3p 13 (eff. March 28, 2016).9 14 /// 15 /// Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 16 17 18 19 20 21 22 23 24 25 26 27 28 8 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 9 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). SSR 16–3p superseded SSR 96–7p, but may have “implemented a change in diction rather than substance.” R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 22 1 Here, the ALJ discounted Plaintiff’s testimony and statements as 2 “not entirely consistent with the medical evidence and other evidence 3 in the record” (A.R. 473-74). 4 statements concerning the intensity, persistence and limiting effects 5 of his symptoms on his ability to ambulate assertedly were 6 inconsistent with the objective medical evidence; (2) the degree of 7 Plaintiff’s subjective complaints assertedly was “not comparable” to 8 the “conservative” treatment Plaintiff sought; (3) Plaintiff’s 9 activities of daily living (e.g., taking nightly walks, using public The ALJ stated: (1) Plaintiff’s 10 transportation and shopping in stores for food) assertedly were 11 inconsistent with Plaintiff’s alleged limitations; and (4) Plaintiff’s 12 alleged memory loss assertedly was “inconsistent” with the objective 13 medical record (A.R. 474-75). 14 15 With regard to the second stated reason, a limited course of 16 treatment sometimes can justify the rejection of a claimant’s 17 testimony, at least where the testimony concerns physical problems. 18 See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack 19 of consistent treatment, such as where there was a three to four month 20 gap in treatment, properly considered in discrediting claimant’s back 21 pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 22 (in assessing the credibility of a claimant’s pain testimony, the 23 Administration properly may consider the claimant’s failure to request 24 treatment and failure to follow treatment advice) (citing Bunnell v. 25 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. 26 Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility 27 factors in assessing pain testimony include limited treatment and 28 minimal use of medications); see also Johnson v. Shalala, 60 F.3d 23 1 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during 2 half of the alleged disability period, and evidence of only 3 “conservative treatment” when the claimant finally sought treatment, 4 sufficient to discount claimant’s testimony). 5 6 In the present case, however, it is highly doubtful Plaintiff’s 7 treatment accurately may be characterized as “conservative” within the 8 meaning of Ninth Circuit jurisprudence (even though Plaintiff’s 9 doctors sometimes used the term “conservative” to reference any 10 treatment not involving surgery, see A.R. 1521, 1627). As detailed 11 above, the record shows that Plaintiff regularly sought treatment from 12 several providers throughout the alleged disability period, followed 13 up as ordered and complied with all non-surgical treatment 14 suggestions, including physical therapy, narcotic pain medication and 15 multiple epidural injections.10 16 surgery for Plaintiff’s lumbar spine, Plaintiff’s treatment does not 17 appear to have been “routine” or “conservative,” as those terms are 18 employed in case law. 19 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious 20 whether the consistent use of [Norco] (for several years) is Although doctors have not recommended See, e.g., Childress v. Colvin, 2014 WL 21 22 10 23 24 25 26 27 28 While Plaintiff reported in March of 2015 to Dr. Alsharif that medications controlled his pain (A.R. 1109), Plaintiff reported to Dr. Raju that same month that he had no improvement in his pain (A.R. 1626). Plaintiff also reported from March through May of 2016 either that Norco and Lidocaine patches were controlling his pain or that he was stable on his medications (A.R. 1426, 1556, 1560). However, any relief Plaintiff reportedly experienced appears to have been only temporary since Plaintiff reported radiating neck and back pain not relieved by medications from June of 2016 onward (A.R. 1554, 1826, 1836, 1839, 1842, 1846, 2070, 2114). 24 1 ‘conservative’ or in conflict with Plaintiff’s pain testimony”); 2 Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) 3 (“It would be difficult to fault Plaintiff for overly conservative 4 treatment when he has been prescribed strong narcotic pain 5 medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. 6 Sept. 16, 2011) (refusing to characterize as “conservative” treatment 7 including use of narcotic pain medication and epidural injections). 8 9 With regard to the third stated reason, inconsistencies between 10 admitted activities and claimed incapacity properly may impugn the 11 accuracy of a claimant’s testimony and statements under certain 12 circumstances. 13 (9th Cir. 2012) (ALJ properly discredited pain allegations as 14 contradicting claimant’s testimony that she gardened, cleaned, cooked, 15 and ran errands); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th 16 Cir. 2008) (claimant’s “normal activities of daily living, including 17 cooking, house cleaning, doing laundry, and helping her husband in 18 managing finances” provided sufficient explanation for discounting 19 claimant’s testimony). 20 Circuit opinions discussing when a claimant’s admitted activities may 21 and may not justify a discounting of the claimant’s testimony and 22 statements. 23 Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a 24 plaintiff has carried on certain daily activities, such as grocery 25 shopping, driving a car, or limited walking for exercise, does not in 26 any way detract from her credibility as to her overall disability”); 27 see also Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) 28 (daily activities of cooking, cleaning, vacuuming, washing dishes, See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 Yet, it is difficult to reconcile Ninth Compare Stubbs-Danielson v. Astrue with Vertigan v. 25 1 shopping and cleaning a cat’s litter box insufficient to discount the 2 claimant’s subjective complaints). 3 4 Contrary to the ALJ’s stated findings in the present case, 5 Plaintiff’s admitted activities of taking short daily walks, using 6 public transportation, shopping for 10 to 15 minutes a day for food, 7 and making “ready made” meals when he is not homeless, do not properly 8 undermine Plaintiff’s subjective complaints. 9 874 F.3d 648, 667-68 (9th Cir. 2017) (ALJ erred in finding disparity See Revels v. Berryhill, 10 between claimant’s reported activities and symptom testimony where the 11 claimant indicated she could use the bathroom, brush her teeth, wash 12 her face, take her children to school, wash dishes, do laundry, sweep, 13 mop, vacuum, go to doctor’s appointments, visit her mother and father, 14 cook, shop, get gas, and feed her dogs; ALJ failed to acknowledge the 15 claimant’s explanation, consistent with her symptom testimony, that 16 she could complete only some tasks in a single day and regularly 17 needed to take breaks). 18 Plaintiff’s admitted activities and Plaintiff’s claimed incapacity. There is no material inconsistency between 19 20 With regard to the first and fourth stated reasons, asserted 21 inconsistencies between a claimant’s subjective complaints and the 22 objective medical evidence can be a factor in discounting a claimant’s 23 subjective complaints, but cannot “form the sole basis.” 24 Barnhart, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 25 (9th Cir. 2001). 26 medical evidence and a claimant’s subjective complaints, the ALJ must 27 make a specific finding identifying the testimony the ALJ finds not 28 credible and linking the rejected testimony to parts of the medical See Burch v. Where there is an alleged inconsistency between the 26 1 record supporting the ALJ’s non-credibility determination. See 2 Brown-Hunter v. Colvin, 806 F.3d at 494 (holding it was legal error 3 for ALJ to fail to make such a link) (citations omitted). 4 5 Here, the ALJ stated that, although Plaintiff complained he had 6 limited ambulation and used a cane, several examinations reportedly 7 noted a normal gait and station, and full motor strength and intact 8 sensation in the lower extremities (A.R. 474). 9 that, although Plaintiff complained of memory loss, Plaintiff’s mental The ALJ also stated 10 status examinations “did not demonstrate cognitive deficits” (A.R. 11 474-75). 12 of the medical record as a whole, which also includes findings of 13 lumbar radiculopathy (A.R. 403, 1432, 1434, 1436-37), lumbar stenosis 14 (A.R. 361-62, 1148-49, 1521, 1775), mild leg weakness (A.R. 945), and 15 fibromyalgia (signs and symptoms of which include “cognitive or memory 16 problems” and “muscle weakness”; see SSR 12-2p at *3 & n.9 (discussing 17 fibromyalgia diagnostic criteria)) (A.R. 1775), and assessment of 18 memory loss and possible mild neurocognitive disorder based in part on 19 Plaintiff’s brain MRI (A.R. 2000-01). 20 findings cited by the ALJ are not inconsistent with Plaintiff’s 21 claimed problems with balancing and walking limitations. 22 findings are not a legally sufficient reason to discount Plaintiff’s 23 subjective complaints. 24 at *8-11 (S.D. Cal. Jan. 26, 2018), adopted, 2018 WL 1101087 (S.D. 25 Cal. Feb. 26, 2018) (finding ALJ erred in failing to articulate 26 consideration of fibromyalgia’s unique symptoms in concluding evidence 27 undermined Plaintiff’s statements alleging disabling pain and weakness 28 and memory problems); see generally Revels v. Berryhill, 874 F.3d at These isolated findings do not accurately capture the tenor In any event, the isolated The ALJ’s See, e.g., Cash v. Berryhill, 2018 WL 571940, 27 1 656-57 (explaining that those suffering from fibromyalgia have muscle 2 strength, sensory functions, and reflexes that are normal, and 3 experience symptoms including widespread pain and cognitive or memory 4 problems that “wax and wane”); Garrison v. Colvin, 759 F.3d 995, 1017 5 (9th Cir. 2014) (“[I]t is error to reject a claimant’s testimony 6 merely because symptoms wax and wane in the course of treatment. 7 Cycles of improvement and debilitating symptoms are a common 8 occurrence, and in such circumstances it is error for an ALJ to pick 9 out a few isolated instances of improvement . . . and to treat them as 10 a basis for concluding a claimant is capable of working.”) (citing 11 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). 12 13 Defendant cites to: (1) Dr. Yashruti’s observation that Plaintiff 14 declined to walk on his toes, heels or squat, and declined other 15 physical testing – where Dr. Yashruti had found no orthopedic evidence 16 to justify Plaintiff’s movements (without reviewing Plaintiff’s lumbar 17 spine CT scan showing degeneration) (A.R. 346-50);11 and (2) asserted 18 absence from the record of a prescription for a cane (but see A.R. 19 1690, 1693 (Dr. Kim’s record noting that the pharmacy had ordered a 20 large handle cane for Plaintiff)). 21 asserted lack of cooperation with Dr. Yashruti and “self-prescription” 22 of his cane are reasons to discount Plaintiff’s subjective statements. 23 See Defendant’s Motion, pp. 3-4. 24 matters as reasons to discount Plaintiff’s credibility (see A.R. 473- Defendant argues that Plaintiff’s Because the ALJ did not specify such 25 26 11 27 28 The ALJ discounted Dr. Yashruti’s opinion that Plaintiff was capable of performing medium work as not consistent with the medical record as a whole or more recent diagnostic studies (A.R. 475). 28 1 75), the Court cannot uphold the credibility determination on the 2 basis of such considerations. 3 847 (9th Cir. 2001) (the court “cannot affirm the decision of an 4 agency on a ground that the agency did not invoke in making its 5 decision”). See Pinto v. Massanari, 249 F.3d 840, 6 7 The Court is unable to conclude that the ALJ’s failure to state 8 legally sufficient reasons for discounting Plaintiff’s credibility was 9 harmless. “[A]n ALJ’s error is harmless where it is inconsequential 10 to the ultimate non-disability determination.” Molina v. Astrue, 674 11 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). 12 Here, the vocational expert testified that, if someone were off task 13 20 percent of the work day, there would be no jobs the person could 14 perform (A.R. 583). 15 jobs performable by a person as limited as Plaintiff claims to be 16 (A.R. 577-92). The vocational expert did not testify there are 17 18 IV. The ALJ Also Erred in Evaluating the Medical Evidence. 19 20 In determining Plaintiff’s residual functional capacity, the ALJ 21 summarized: (1) Dr. Raju’s January, 2015 “Medical Assessment of 22 Ability to Do Work-Related Activities (Physical)” form finding 23 Plaintiff capable of performing a limited range of light work (A.R. 24 448-51); and (2) Dr. Raju’s September, 2014 General Relief “Report of 25 Examination” form, indicating that Plaintiff is unsuitable for any 26 employment and limited to “no lifting, prolonged sitting or walking” 27 (A.R. 414). 28 Raju’s opinions, which the ALJ described as finding Plaintiff “capable See A.R. 475. The ALJ gave the “least weight” to Dr. 29 1 of less than sedentary exertional work,” reasoning: 2 3 Although Dr. Raju is a treating physician who had a treating 4 relationship with the claimant since 2014, the findings from 5 his examinations of the claimant were generally mild. 6 instance, Dr. Raju noted the claimant exhibited decreased 7 lumbar flexion and extension due to pain, but he found he 8 claimant was neurologically intact and observed the claimant 9 ambulate without assistance. For The undersigned has given 10 least weight to Dr. Raju because his opinions are 11 inconsistent and not well-supported by his objective 12 findings. 13 14 (A.R. 475-76 (internal citations omitted)). 15 16 The vocational expert had testified that, if a person were absent 17 two times a month there would be no jobs that person could perform 18 (A.R. 581; see also A.R. 88-89 (vocational expert also testifying in 19 prior administrative hearing that a person could not maintain 20 employment if absent two days a month)). 21 despite the Court’s remand order in the Prior Action finding that the 22 former ALJ provided insufficient reasons for rejecting Dr. Raju’s 23 opinion regarding Plaintiff’s absenteeism, on remand the new ALJ did 24 not even acknowledge Dr. Raju’s opinion regarding Plaintiff’s 25 absenteeism (A.R. 475-76). 26 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not reject ‘significant 27 probative evidence’ without explanation”) (quoting Vincent v. Heckler, 28 739 F.2d 1393, 1395 (9th Cir. 1984)). Despite this testimony and This was error. 30 See Flores v. Shalala, 49 The “ALJ’s written decision 1 must state reasons for disregarding [such] evidence.” Flores v. 2 Shalala, 49 F.3d at 571. 3 totally ignore a treating doctor and his or her notes, without even 4 mentioning them.” 5 2015) (citing Garrison v. Colvin, 759 F.3d at 1012); Lingenfelter v. 6 Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (“Of course, an ALJ 7 cannot avoid these requirements [to state specific, legitimate 8 reasons] by not mentioning the treating physician’s opinion and making 9 findings contrary to it.”); Salvadore v. Sullivan, 917 F.2d 13, 15 “[A]n ALJ cannot in its [sic] decision Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 10 (9th Cir. 1990) (implicit rejection of treating physician’s opinion 11 cannot satisfy Administration’s obligation to set forth “specific, 12 legitimate reasons”).12 13 14 V. Remand for Further Administrative Proceedings is Appropriate. 15 16 Remand is appropriate because the circumstances of this case 17 suggest that further development of the record and further 18 administrative review could remedy the ALJ’s errors. 19 Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 20 537 U.S. 12, 16 (2002) (upon reversal of an administrative 21 determination, the proper course is remand for additional agency See McLeod v. 22 23 24 25 26 27 28 12 The ALJ’s reasoning that Dr. Raju’s form opinions were “inconsistent” could be a specific and legitimate reason for rejecting certain of Dr. Raju’s opinions. See Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly gave minimal evidentiary weight to treating physician’s checklist opinion that did not have supportive objective evidence, and was contradicted by other statements); compare A.R. 414 with A.R. 448-49. Even so, under the circumstances of the remand, the ALJ should have at least addressed Dr. Raju’s opinion that Plaintiff would miss two days of work per month. 31 1 investigation or explanation, except in rare circumstances); Leon v. 2 Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a 3 directive for the immediate calculation of benefits is a “rare and 4 prophylactic exception to the well-established ordinary remand rule”); 5 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the 6 district court concludes that further administrative proceedings would 7 serve no useful purpose, it may not remand with a direction to provide 8 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 9 Cir. 2014) (remand for further administrative proceedings is the 10 proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 11 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 12 (remand for further proceedings rather than for the immediate payment 13 of benefits is appropriate where there are “sufficient unanswered 14 questions in the record”); Connett v. Barnhart, 340 F.3d 871, 876 (9th 15 Cir. 2003) (remand is an option where the ALJ fails to state 16 sufficient reasons for rejecting a claimant’s excess symptom 17 testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 18 (citing Connett for the proposition that “[w]hen an ALJ’s reasons for 19 rejecting the claimant’s testimony are legally insufficient and it is 20 clear from the record that the ALJ would be required to determine the 21 claimant disabled if he had credited the claimant’s testimony, we 22 remand for a calculation of benefits”) (quotations omitted); see also 23 Brown-Hunter v. Colvin, 806 F.3d at 495-96 (discussing the narrow 24 circumstances in which a court will order a benefits calculation 25 rather than further proceedings); Ghanim v. Colvin, 763 F.3d 1154, 26 1166 (9th Cir. 2014) (remanding for further proceedings where the ALJ 27 failed to state sufficient reasons for deeming a claimant’s testimony 28 not credible); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) 32 1 (a court need not “credit as true” improperly rejected claimant 2 testimony where there are outstanding issues that must be resolved 3 before a proper disability determination can be made). 4 significant unanswered questions in the present record.13 There remain 5 6 Plaintiff asks that the Court direct the Administration to 7 “credit as true” Dr. Raju’s opinion that Plaintiff would be absent 8 from work two days per month. 9 conflict regarding the availability of a remedy crediting as true Ninth Circuit authorities are in 10 improperly rejected evidence when remanding for further administrative 11 proceedings. 12 (C.D. Cal. May 31, 2017) (and cases cited therein). 13 available, the “credit as true” remedy would not be appropriate here. 14 The bases for Dr. Raju’s opinion should be explored on remand. 15 Garrison v. Colvin, 759 F.3d at 1020 (court will credit-as-true 16 medical opinion evidence only where, inter alia, “the record has been 17 fully developed and further administrative proceedings would serve no 18 useful purpose”). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// See Baltazar v. Berryhill, 2017 WL 2369363, at *7-9 Even if See 25 26 27 28 13 For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff’s testimony and the treating physician’s opinions were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 33 1 CONCLUSION 2 3 For all of the foregoing reasons,14 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: February 15, 2019. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 14 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 34
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