Zavala v. Commissioner of Social Security, No. 3:2017cv02715 - Document 31 (N.D. Cal. 2018)

Court Description: ORDER granting 20 Motion for Summary Judgment; denying 29 Motion for Summary Judgment.In the attached order, the court grants the plaintiff's motion for summary judgment, denies the defendant's motion for summary judgment, and remains for further proceedings consistent with the order. (Beeler, Laurel) (Filed on 12/27/2018)

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Zavala v. Commissioner of Social Security Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 JOSE JESUS ZAVALA, Case No. 17-cv-02715-LB Plaintiff, 12 v. 13 14 COMMISSIONER OF SOCIAL SECURITY, 15 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING CASE Re: ECF No. 20 Defendant. 16 17 INTRODUCTION 18 Plaintiff Jose Jesus Zavala seeks judicial review of a final decision by the Commissioner of the 19 Social Security Administration denying his claim for disability benefits under Title II of the Social 20 Security Act.1 He moved for summary judgment.2 The Commissioner opposed the motion and 21 filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the matter is submitted 22 for decision by this court without oral argument. All parties consented to magistrate-judge 23 24 25 26 27 1 Compl. – ECF No. 1 at 2; Motion for Summary Judgment – ECF No. 20 at 3. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 2 Mot. – ECF No. – 20. 3 Cross-Mot. – ECF No. 29. 28 ORDER – No. 17-cv-02715-LB Dockets.Justia.com 1 jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and 2 remands for further proceedings. 3 4 5 STATEMENT 1. Procedural History On December 10, 2012, Mr. Zavala, born on December 27, 1967, and then age 44, filed a 6 7 claim for social-security disability insurance (“SSDI”) benefits under Title II of the Social 8 Security Act (“SSA”).5 He alleged a lower-back injury, with an onset date of November 28, 2012.6 9 The Commissioner denied his SSDI claim initially and on reconsideration.7 Mr. Zavala requested 10 a hearing.8 Administrative Law Judge Richard Laverdure (the “ALJ”) held two hearings in Oakland, United States District Court Northern District of California 11 12 California — one on November 25, 2014 and the other on July 8, 2015.9 Attorney Eric Patrick 13 represented Mr. Zavala at both hearings.10 The ALJ heard testimony from Mr. Zavala, vocational 14 experts (“VE”) Jo Ann Yoshioka and Jeffrey Malmuth, and medical expert (“ME”) Anthony 15 Francis.11 On July 30, 2015, the ALJ issued an unfavorable decision.12 Mr. Zavala appealed the 16 decision to the Appeals Council on September 28, 2015.13 The Appeals Council denied his request 17 for review on March 14, 2017.14 On May 10, 2017, Mr. Zavala filed this action for judicial 18 19 20 21 4 Consent Forms – ECF Nos. 7, 8, 12. 5 AR 318–324. Administrative Record (“AR”) citations refer to the page numbers in the bottom right hand corner of the Administrative Record. 6 AR 115, 318. 22 7 AR 115–123 (initial determination); AR 124–136 (reconsideration). 23 8 AR 162–63. 9 AR 47–65 (November 2014 hearing transcript); AR 66–114 (July 2015 hearing transcript). 24 10 AR 47, 66. 25 11 AR 47, 66. 26 12 AR 26–41. 13 AR 24–25. 14 AR 1–9. 27 28 ORDER – No. 17-cv-02715-LB 2 1 review15 and moved for summary judgment on June 26, 2018.16 The Commissioner opposed the 2 motion and filed a cross-motion for summary judgment on October 22, 2018.17 3 4 2. Summary of Record and Administrative Findings 5 2.1 6 2.1.1 David Chow, M.D. — Treating David Chow, M.D., a spine-care and pain-management specialist, treated Mr. Zavala on 7 8 multiple occasions from February 2011 through July 2015.18 He saw Mr. Zavala primarily for 9 “bilateral low back pain radiating into the right buttock and right posterior thigh.”19 He noted that 10 United States District Court Northern District of California Medical Records Mr. Zavala stopped working in late November 2012 due to pain.20 11 From December 2012 through July 2015, Dr. Chow repeated the following findings regarding 12 Mr. Zavala’s musculoskeletal and spine examinations: Mr. Zavala’s skin was within normal limits 13 in all limbs, except for a well-healed scar from his L5-S1 fusion.21 His “[l]umbar ranges of motion 14 were restricted by pain in all directions.”22 He had “tenderness upon palpation of the mid lumbar 15 spine overlying the L4 to S1 regions and bilateral lumbar paraspinal muscles overlying the L4 to 16 S1 facet joints.”23 His “thoracolumbar muscle spasm” and “[l]umber discogenic provocative 17 18 19 15 Compl. – ECF No. 1. 20 16 Mot. – ECF No. 20. 21 17 Cross-Mot. – ECF No. 29. 18 22 See AR 545–603, 607–738, 800, 973-74. The court does not consider Dr. Chow’s opinions from before the alleged onset date of November 28, 2012. 23 19 See AR 545–603, 607–738, 800, 973-74. 20 AR 554. 24 25 21 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. 22 26 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. 27 23 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. 28 ORDER – No. 17-cv-02715-LB 3 1 maneuvers” were both positive.24 His nerve root tension signs were negative bilaterally, muscle 2 stretch reflexes were symmetric bilaterally in the lower extremities, and Clonus, Babinski’s, and 3 Hoffmann’s signs were absent bilaterally.25 Mr. Zavala’s muscle strength was “5/5” in his bilateral 4 lower extremities.26 Dr. Chow diagnosed Mr. Zavala with the following conditions: right S1 5 radiculopathy;27 status post-percutaneous spinal-cord-stimulator trial; status post-L5-S1 lumbar 6 fusion with hardware removal; lumbar-disc protrusion; lumbar stenosis; lumbar-degenerative-disc 7 disease; lumbar-facet-joint arthropathy; lumbar sprain/strain; and gastrointestinal upset secondary 8 to industrially-related medications.28 In addition to the above findings, beginning April 2013, Mr. Zavala’s muscle strength was “4+ United States District Court Northern District of California 9 10 /5 in the right extensor halluces longus and gastrocnemius and soleus.”29 His muscle strength 11 remained “5/5” in the bilateral lower extremities.30 12 Dr. Chow noted that “[p]rolonged sitting and standing, lifting, twisting, driving, and any 13 activities” exacerbated Mr. Zavala’s conditions.31 “Lying down on [his] back, sitting, stretching, 14 and medications” mitigated them.32 15 16 17 18 24 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. 25 19 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. 20 26 21 27 22 23 24 25 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 721, 725, 728, 731, 734, 737, 973. Radiculopathy is “a nerve disorder that causes radiating pain.” Hanson v. Colvin, 760 F.3d 759, 759 (7th Cir. 2014). 28 AR 546, 552, 555, 608, 611, 614, 617, 620, 623, 626, 629, 642, 645, 648, 651, 654, 657, 660, 663 29 AR 608, 611, 614, 617, 620, 623, 626, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 725, 728, 731, 734 737, 973. 30 AR 608, 611, 614, 617, 620, 623, 626, 642, 645, 648, 651, 654, 657, 660, 663, 666, 669, 672, 675, 678, 681, 684, 687, 713, 717, 725, 728, 731, 734 737, 973. 31 26 AR 545, 551, 607, 610, 613, 616, 619, 622, 625, 628, 641, 644, 647, 650, 653, 656, 659, 662, 665, 668, 671, 674, 677, 680, 683, 686, 712, 716, 720, 724, 727, 730, 733, 736, 972. 27 32 AR 545, 551, 607, 610, 613, 616, 619, 622, 625, 628, 641, 644, 647, 650, 653, 656, 659, 662, 665, 668, 671, 674, 677, 680, 683, 686, 712, 716, 720, 724, 727, 730, 733, 736, 972. 28 ORDER – No. 17-cv-02715-LB 4 United States District Court Northern District of California 1 Throughout the course of his treatment, Dr. Chow prescribed Mr. Zavala several pain 2 medications, including OxyContin, Percocet, Soma, and Baclofen.33 He noted that OxyContin 3 provided “60% improvement of [Mr. Zavala’s] pain with 60% improvement of his activities of 4 daily living such as self-care, dressing.”34 Percocet provided 40 to 50% “improvement of [Mr. 5 Zavala’s] pain with 50% improvement of his activities of daily living.”35 Soma provided 50 to 6 80% improvement “of [his] spasms” and 50 to 80% “improvement of [his] activities of daily 7 living.”36 Baclofen was prescribed “for a short-term acute basis.”37 It provided “40% improvement 8 of his spasm with 40% improvement of his activities of daily living.”38 Baclofen was not 9 prescribed at the same time as Soma but only when Mr. Zavala was unable to get Soma.39 Mr. 10 Zavala reported that his “Oswestry Disability Index40 score [was] a 26 (52% disability) with the 11 use of Percocet, while [his] Oswestry Disability Index score [was] 37 (74% disability) without the 12 13 14 15 33 16 17 18 19 20 21 22 See AR 546 (March 2013 exam); AR 552 (January 11, 2013 exam); AR 608 (October 7, 2013 exam); AR 611 (September 11, 2013 exam); AR 614 (August 14, 2013 exam); AR 620 (June 17, 2013 exam); AR 623 (May 20, 2013 exam); AR 626 (April 23, 2013 exam); AR 629 (March 29, 2013 exam); AR 642 (October 28, 2014 exam); AR 646 (September 30, 2014 exam); AR 648 (September 2, 2014 exam); AR 651 (August 5, 2014 exam); AR 655 (July 8, 2014 exam); AR 672 (March 17, 2014); AR 675 (February 17, 2014); AR 678 (January 22, 2014); AR 682 (December 27, 2013); AR 684 (December 2, 2013); AR 687 (November 4, 2013); AR 714 (June 30, 2015); AR 718 (June 2, 2015); AR 722 (May 5, 2015); AR 726 (April 7, 2015); AR 729 (March 11, 2015); AR 732 (February 11, 2015); AR 735 (January 15, 2015); AR 737 (November 25, 2014); AR 974 (July 28, 2015). 34 AR 651, 654, 657, 660, 666, 672, 675, 678, 681, 684, 713. 35 AR 651 (August 5, 2014); AR 654 (July 8, 2014); AR 657 (June 11, 2014); AR 660 (May 14, 2014); AR 666 (April 16, 2014); AR 672 (March 17, 2014); AR 678 (January 22, 2014); AR 681 (December 27, 2013); AR 714 (June 30, 2015). 36 AR 654, 657, 672, 675, 678, 681, 714. 37 AR 654, 657, 660. 38 AR 654, 657, 660, 663. 25 39 AR 663. 26 40 23 24 27 The Oswestry Disability Index is “a questionnaire which the patient himself fills out regarding his pain intensity, as well as his ability to walk, sit, stand, and lift items, among other things. . . . [It is n]o more than a vehicle for patients to self-report their symptoms[.]” Hejazi v. Colvin, No. 13-CV-11129DPW, 2014 WL 3513398, at *12 (D. Mass. July 11, 2014). 28 ORDER – No. 17-cv-02715-LB 5 1 use of Percocet.”41 He reported the same Oswestry Disability Index scores with respect to his 2 OxyContin use.42 Dr. Chow advised Mr. Zavala regarding the risks and benefits of long-term opioid use for 3 4 chronic-pain treatment, including risks relating to sleepiness, respiratory depression, cognitive 5 dysfunction, physical dependency on medication, and possibility of addiction.43 Mr. Zavala 6 continued opioid therapy despite these risks.44 Dr. Chow noted that Mr. Zavala was on an “up-to- 7 date pain contract” and his previous drug screens were “consistent with no aberrant behaviors.”45 8 In December 2012, March 2013, May 2013, January 2015, and May 2015, Mr. Zavala sought 9 early refills of his pain medications, including OxyContin and Percocet.46 On April 23, 2013, Mr. Zavala reported “an aggravation of his right lower extremity S1 United States District Court Northern District of California 10 11 radiculopathy pain with increased muscle spasms.”47 Dr. Chow recommended a “right S1 12 transforaminal epidural steroid injection” to treat Mr. Zavala’s increased pain.48 He later 13 authorized that Mr. Zavala receive the epidural-steroid injection.49 14 15 16 17 18 19 20 21 22 23 24 25 26 27 41 AR 642, 655, 737. 42 AR 642, 737. 43 AR 546 (March 2013 exam); AR 552 (January 11, 2013 exam); AR 608 (October 7, 2013 exam); AR 611 (September 11, 2013 exam); AR 614 (August 14, 2013 exam); AR 620 (June 17, 2013 exam); AR 623 (May 20, 2013 exam); AR 626 (April 23, 2013 exam); AR 629 (March 29, 2013 exam); AR 642 (October 28, 2014 exam); AR 646 (September 30, 2014 exam); AR 648 (September 2, 2014 exam); AR 651 (August 5, 2014 exam); AR 655 (July 8, 2014 exam); AR 672 (March 17, 2014); AR 675 (February 17, 2014); AR 678 (January 22, 2014); AR 682 (December 27, 2013); AR 684 (December 2, 2013); AR 687 (November 4, 2013); AR 714 (June 30, 2015); AR 718 (June 2, 2015); AR 722 (May 5, 2015); AR 726 (April 7, 2015); AR 729 (March 11, 2015); AR 732 (February 11, 2015); AR 735 (January 15, 2015); AR 737 (November 25, 2014); AR 974 (July 28, 2015). 44 AR 546, 552, 608, 611, 614, 620, 623, 626, 629, 643, 649, 651, 655, 672, 676, 679, 682, 684, 687, 714, 718, 722, 726, 729, 732, 735, 738, 974. 45 AR 642, 651, 654, 657–58, 663, 666, 675, 678, 681, 714. 46 AR 554 (December 2012); AR 546 (March 2013) (“due to inadequate pain coverage”); AR 662 (May 2013); AR 730 (January 2015) (“due to increased pain from travel”); AR 720 (sought refills one day early). 47 AR 625. 48 AR 626. 49 AR 623. 28 ORDER – No. 17-cv-02715-LB 6 In July 2013, Dr. Chow reviewed with Mr. Zavala his May 2013 urine-drug-screen results.50 1 2 They showed “the presence of prescribed medications in addition to hydrocodone and its 3 metabolites.”51 Mr. Zavala reported “50% relief of right lower extremity radiculopathy symptoms 4 since receiving his right S1 selective nerve root block.”52 As a result, Dr. Chow found Mr. Zavala 5 could continue to be treated nonsurgically.53 He recommended, however, that Mr. Zavala 6 reconsider a permanent spinal-cord-stimulator implant.54 In August 2013, Dr. Chow recommended another in-office random “12-panel urine drug 7 8 screen for ‘cause’” because Mr. Zavala’s July 2013 drug-test results revealed “presence of 9 Hydrocodone and Oxycodone.”55 Dr. Chow counseled Mr. Zavala regarding the appropriate use of 10 his prescribed medications.56 During a November 2013 visit, Dr. Chow noted that Mr. Zavala was working “full-time” as a United States District Court Northern District of California 11 12 carpenter.57 The next month, Dr. Chow took another random “12-panel urine drug screen” because 13 of Mr. Zavala’s chronic opioid-pain-medication intake.58 He also counseled Mr. Zavala regarding 14 the appropriate use of such medications.59 15 In March 2014, Mr. Zavala reported a “depressed mood” and that he “d[id] not like being 16 around other people very much.”60 He reported no plan to harm himself or others.61 His pain was 17 18 19 50 AR 616. 20 51 Id. 52 Id. 53 AR 617. 22 54 Id. 23 55 AR 614. 56 Id. 57 AR 687. 25 58 AR 684. 26 59 Id. 60 AR 671. 61 Id. 21 24 27 28 ORDER – No. 17-cv-02715-LB 7 1 at “7/10 on visual analog scale.”62 Dr. Chow sought a psychologic consultation to evaluate Mr. 2 Zavala’s “depressed mood secondary his industrial pain.”63 He also prescribed Cymbalta to treat 3 Mr. Zavala’s low-back and neuropathic pain.64 He noted that Mr. Zavala had completed his doses 4 of OxyContin, Percocet, and Soma as of March 17, 2014.65 Dr. Chow ordered another random in- 5 house urine-drug screen because of Mr. Zavala’s chronic opioid pain-medication intake.66 Dr. 6 Chow also noted that Mr. Zavala worked as a carpenter at that time.67 In August 2014, Dr. Chow noted that Mr. Zavala’s July 2014 urine-drug-screen results were 7 8 consistent with his medications.68 On November 25, 2014, Dr. Chow submitted a medical-source statement.69 He found that Mr. United States District Court Northern District of California 9 10 Zavala could stand/walk no more than two hours in an eight-hour workday and between two to 11 four hours total during the day.70 Mr. Zavala could sit no more than two hours in an eight-hour 12 workday and between four to five hours total during the day.71 He had no restrictions in regard to 13 using his hands, fingers, or feet in repetitive motions or being exposed to environmental factors 14 such as heat, cold, dust, dampness, or height.72 Mr. Zavala could occasionally lift and carry 15 between ten to twenty pounds and could never lift or carry twenty-pounds or more.73 He could 16 never climb, stoop, or reach below the knees or from waist to knees.74 He could occasionally 17 18 62 Id. 19 63 AR 669. 20 64 Id. 65 AR 671. 66 AR 673. 22 67 AR 666. 23 68 AR 650 (August 5, 2014). 69 AR 689–90. 70 AR 689. 25 71 Id. 26 72 Id. 73 AR 690. 74 Id. 21 24 27 28 ORDER – No. 17-cv-02715-LB 8 1 balance, kneel, crouch, crawl, and reach from waist to chest.75 He could frequently reach from his 2 chest to above his shoulders.76 Dr. Chow noted that Mr. Zavala took opioid-analgesic medications, 3 which caused dizziness and somnolence.77 In January 2015, Dr. Chow reported that Mr. Zavala’s October 2014 drug-screen results 4 5 showed “presence of Tizanidine and Methocarbamol” in addition to his prescribed medications.78 6 In June 2015, Dr. Chow ordered another random in-office urine-drug screen because of Mr. 7 Zavala’s opioid-pain-medication intake.79 He noted that Mr. Zavala was “a ‘moderate’ risk due to 8 chronic opioid intake.”80 2.1.2 9 On October 15, 2013, Calvin Pon, M.D. completed a consultative orthopedic-disability 10 United States District Court Northern District of California Calvin Pon, M.D. — Examining 11 evaluation for Mr. Zavala.81 Mr. Zavala reported a history of low-back injury from 2001.82 He was 12 injured while working as a carpenter.83 He had two lumbar-spine surgeries — the first in 2003, 13 and the second in 2004 for hardware removal.84 It was recommended to Mr. Zavala that he have 14 another lumbar-spine surgery, but he chose not to.85 Mr. Zavala complained of “associated left 15 lower extremity pain” and numbness.86 He had those symptoms before his surgeries as well.87 16 17 18 75 Id. 19 76 Id. 20 77 Id. 78 AR 733. 79 AR 718. 22 80 Id. 23 81 AR 604. 82 Id. 83 Id. 25 84 Id. 26 85 Id. 86 Id. 87 Id. 21 24 27 28 ORDER – No. 17-cv-02715-LB 9 1 After the lumbar-spine surgery, his symptoms “slightly improve[d].”88 Mr. Zavala never had any 2 electrodiagnostic studies.89 Mr. Zavala reported being able to sit and stand for one hour each.90 He could walk for less than 3 4 one mile.91 He could climb stairs.92 Mr. Zavala lived in a house with one step leading to the front 5 door.93 He also ambulated without aid.94 He did not cook or prepare his own meals, but he ate 6 independently.95 He needed “some assistance” with grocery shopping.96 He managed his personal 7 hygiene independently.97 In regard to housework, Mr. Zavala washed dishes, took out the garbage, 8 vacuumed, swept, and mopped the floor.98 He did not do laundry.99 He drove and put gasoline in 9 the car.100 Dr. Pon noted that, during the evaluation, Mr. Zavala sat “comfortably” in a chair, alert, and in United States District Court Northern District of California 10 11 no acute distress.101 Mr. Zavala could rise from the chair and “stand erect normally.”102 When he 12 stood, Mr. Zavala placed most of his weight on his left lower extremity.103 His gait was stable.104 13 But his gait velocity and stride length were “slightly less than normal.”105 He had a “slight limp” 14 88 Id. 89 Id. 16 90 Id. 17 91 Id. 92 Id. 93 Id. 19 94 Id. 20 95 Id. 96 Id. 97 Id. 22 98 Id. 23 99 Id. 15 18 21 100 Id. 101 AR 605. 25 102 Id. 26 103 Id. 104 Id. 105 Id. 24 27 28 ORDER – No. 17-cv-02715-LB 10 1 on his right.106 He could squat “approximately one-half of the way down” but was “limited by low 2 back pain and right lower extremity pain and numbness.”107 He could move to an upright position 3 and get on and off the exam table normally.108 4 In regard to Mr. Zavala’s upper extremities, Dr. Pon noted that he had “relativity full active 5 ROM [range of motion]” in his neck.109 Mr. Zavala was able to “abduct and forward flex” both 6 shoulders to 150 degrees. He had full active range of motion of his elbows and wrists in flexion 7 and extension.110 Dr. Pon found the following with respect to Mr. Zavala’s manual motor-muscle 8 testing: “[s]houlder bilaterally 5/5, right grip strength 5/5, left grip strength 5/5, bilateral pinch 9 strength normal.”111 Mr. Zavala’s fine-finger movements were intact bilaterally, he could pick up a 10 coin normally with both hands, and he was able to write legibly with his right hand.112 In regard to Mr. Zavala’s lower extremities, Dr. Pon noted that he could “extend both hips to United States District Court Northern District of California 11 12 neutral, flex his left hip to approximately 70 degrees limited by low back pain, [and] flex his right 13 hip approximately 30 degrees limited by low back pain.”113 He had full active range of motion of 14 his left knee in extension and flexion, but left knee flexion was approximately 130 degrees 15 “limited by low back pain and right lower extremity pain and numbness.”114 Dr. Pon found the 16 following with respect to Mr. Zavala’s manual motor-muscle testing: “[l]eft hip 4-/5 limited by 17 low back pain, right hip 2+ to 3-/5 limited by low back pain, left knee extensors and flexors 5/5, 18 right knee extensors 5/5, right knee flexors 4/5 limited by low back pain, bilateral ankle 19 dorsiflexors and plantar flexors 5/5.”115 20 106 Id. 107 Id. 22 108 Id. 23 109 Id. 110 Id. 111 Id. 25 112 Id. 26 113 Id. 114 Id. 115 Id. 21 24 27 28 ORDER – No. 17-cv-02715-LB 11 1 Dr. Pon opined that, with respect to his history of lumbar-spine surgery, Mr. Zavala had 2 lumbar-disc disease, lumbar stenosis, lumbar-degenerative-disc disease, and lumbar-facet-joint 3 arthropathy.116 With respect to his right lower-extremity pain and numbness, Dr. Pon opined that 4 Mr. Zavala had right S1 radiculopathy.117 In support of this finding, Dr. Pon noted that Mr. Zavala 5 had a “slight limp on the right during ambulation and symptomatic limitations in his ability to 6 squat.”118 Dr. Pon further opined that Mr. Zavala had the following functional capacity: 7 [He] should be able to stand and/or walk for a total of 6 hours during an 8 hour workday. He should be able to sit for a total of 6 hours during an 8 hour workday. Stooping should be limited to occasionally. He is able to perform limited crouching, kneeling, and squatting occasionally. Climbing stairs should be limited to occasionally. Climbing ladders should be limited from rarely to occasionally. Crawling should be limited to occasionally. 8 9 10 United States District Court Northern District of California 11 There is no restriction in performing bilateral pushing and pulling arm/hand control. There is no restriction in performing pushing left leg/foot control. In spite of his complaint of right lower extremity pain and numbness, he should still be able to perform pushing right leg/foot control frequently. He should be able to lift and carry frequently 10 lbs. and occasionally 20 lbs. There is no limitation in reaching bilaterally. There is no limitation in his ability to perform gross and fine manipulative tasks with both hands. 12 13 14 15 Regarding his ability to travel, he does drive. He is also able to take public transportation.119 16 17 18 2.1.3 Jogendra Singh, M.D. — Non-Examining Jogendra Singh, M.D., a state-agency medical consultant, considered the following evidence in 19 20 support of Mr. Zavala’s claims: Mr. Zavala reported he could sit and stand for one hour each; he 21 could walk less than one mile (at most ten minutes) without aid; his gait was stable, and his 22 velocity and stride length were slightly less than normal; he had a slight limp on his right side; his 23 thoracolumbar spine with flexion at forty-five degrees was limited by pain; he had left-hip flexion 24 at seventy degrees, right hip at thirty degrees, and left knee at 130 degrees limited by pain; he 25 116 AR 606. 117 Id. 27 118 Id. 28 119 Id. 26 ORDER – No. 17-cv-02715-LB 12 1 could squat at fifty percent; he dressed and took care of his personal hygiene independently, 2 prepared his own meals, but needed help shopping; he reportedly could not cook or do housework; 3 he went outside daily and could drive; he could lift approximately eight pounds (a gallon of 4 milk).120 Dr. Singh opined that the above evidence did not support the degree of impairment 5 alleged by Mr. Zavala and found his statements were thus only partially credible.121 6 2.1.4 In March 2015, at the ALJ’s request, Eric D. Schmitter, M.D., an orthopedic surgeon, 7 United States District Court Northern District of California Eric D. Schmitter, M.D. — Non-Examining 8 submitted a medical-source statement evaluating Mr. Zavala’s alleged disability.122 Dr. Schmitter 9 opined as follows. Mr. Zavala had chronic lumbar spine pain and post-fusion L5-S1.123 10 Consequently, he could never lift or carry over twenty pounds, he could occasionally lift and carry 11 between eleven and twenty pounds, and he could frequently lift and carry up to ten pounds.124 Mr. 12 Zavala could sit, stand, and walk for up to four hours without interruption.125 He could sit, stand, 13 and walk for up to six hours total in an eight-hour workday.126 He did not need a cane to 14 ambulate.127 15 Mr. Zavala had no upper-extremity pathology.128 Accordingly, he could “continuously” 16 perform reaching, handling, fingering, feeling, pushing, and pulling with both hands.129 He also 17 had no neurologic deficit and could operate both feet “continuously.”130 18 19 120 AR 129. 121 AR 130. 122 AR 691–700. 22 123 AR 692. 23 124 Id. 125 AR 693. 126 Id. 25 127 Id. 26 128 AR 694. 129 Id. 130 Id. 20 21 24 27 28 ORDER – No. 17-cv-02715-LB 13 1 In regard to postural activities, Mr. Zavala could do the following: occasionally climb 2 ladders/scaffolds, stoop, kneel, crouch, and crawl; frequently balance; and continuously climb 3 stairs and ramps.131 Mr. Zavala could frequently tolerate exposure to unprotected heights, moving 4 mechanical parts, humidity and wetness, dust, odors, fumes, pulmonary irritants, extreme cold, 5 extreme heat, and vibrations.132 He could continuously tolerate exposure to operating a motor 6 vehicle.133 Mr. Zavala was physically capable to shop, travel alone without assistance, ambulate without 7 8 aid, use public transportation, climb “a few steps at a reasonable pace with the use of a single hand 9 rail,” prepare simple meals, feed himself, care for his personal hygiene, and manage paper/files.134 In sum, Dr. Schmitter found that Mr. Zavala’s “subjective complaints appear to exceed [the] United States District Court Northern District of California 10 11 physical finding[s].”135 He also found that Mr. Zavala was addicted to proscribed narcotics.136 Dr. 12 Schmitter opined that Mr. Zavala had the residual functional capacity (“RFC”) to perform light 13 activity only.137 14 2.2 15 Mr. Zavala previously worked as a lead carpenter.138 He last worked on November 28, 2012.139 16 He stopped working because his “pain got so bad that [he] could barely move.”140 As of July 2015, 17 he had not gone back to work or looked for any other work, including less strenuous work.141 He Mr. Zavala’s Testimony 18 19 131 AR 695. 132 AR 696. 133 Id. 22 134 AR 697. 23 135 Id. 136 Id. 137 AR 700. 25 138 AR 53. 26 139 AR 53–54. 140 AR 53. 141 AR 53–54, 71. 20 21 24 27 28 ORDER – No. 17-cv-02715-LB 14 1 received formal training as a carpenter, including attending seventeen classes over the course of 2 four years.142 3 Mr. Zavala stated that his low back pain would go up “higher, and . . . down to [his] legs.”143 It 4 was worse in his right leg than in his left.144 The pain went down to his toes on his right leg and to 5 his calf on his left leg.145 The pain was “burning [,] sharp[,] stabbing[,] numb[, and] tingly.”146 He 6 experienced numbness approximately three or four times per week.147 He felt the pain both sitting 7 down and standing up — “not [in] a specific position.”148 In 2003, Mr. Zavala had surgery on his back and then went back to work, up until the alleged 8 9 10 onset date of November 2012.149 His pain was “pretty much the same” during the course of his career, but he also experienced an “increase” in pain “down to [his] legs.”150 In January 2012, Mr. Zavala underwent a four-day trial for a spine stimulator.151 Rather than United States District Court Northern District of California 11 12 decreasing his pain, he experienced “real sharp, strong pains. Sharp, punching pain . . . like 13 electric shock” with “[e]very move” he made.152 14 Because of his pain, Mr. Zavala “continually” changed positions throughout the day.153 He 15 moved between positions of sitting, laying down, standing up, and walking “a little bit.”154 He 16 estimated that he spent eight to ten of his waking hours laying down each day.155 He also took 17 142 AR 54. 143 Id. 19 144 Id. 20 145 AR 54–55. 146 AR 55. 147 Id. 22 148 Id. 23 149 AR 58. 150 AR 58–59. 151 AR 55. 25 152 AR 56. 26 153 Id. 154 Id. 155 Id. 18 21 24 27 28 ORDER – No. 17-cv-02715-LB 15 1 naps about three or four times per week for one to two hours at a time.156 Mr. Zavala took 2 medication for his pain, including Percocet, Soma, OxyContin, Lyrica, and Methocarbamol.157 His 3 medications made him feel “drowsy all the time” and nauseous and made concentrating 4 difficult.158 Mr. Zavala could not help with household chores because of his pain.159 Whenever he 5 did, his pain got “really bad.”160 In July 2013, Mr. Zavala completed a function report in support his disability claims.161 He United States District Court Northern District of California 6 7 described his daily routine as follows: he gets up to make coffee; lies down and watches 8 television; visits his mother; drives short distances; goes back and lies down; his wife cooks for 9 him; he watches television; and then goes to bed.162 His wife took care of cooking, caring for their 10 kids, putting on his shoes and socks, and sometimes helped him bathe when he was in “bad 11 pain.”163 He woke up “a lot with pain.”164 He did not do household chores (including cleaning, 12 laundry, repairs, ironing, or mowing) because he was in “too much pain.”165 He could visit his 13 mom “nearby,” pick up his kids, and go to doctors’ appointments on his own.166 He went grocery 14 shopping with his wife. She carried “heavier stuff,” and he helped with “small stuff.”167 He was 15 able to pay bills, count change, handle a savings account, and use a checkbook or money orders.168 16 His pain affected his ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, 17 18 19 20 156 AR 57. 157 Id. 158 Id. As of July 2015, Mr. Zavala had been taking both OxyContin and Percocet for approximately three years. AR 95. 159 AR 58. 160 Id. 22 161 AR 468–75. 23 162 AR 469. 163 Id. 164 Id. 25 165 AR 469–70. 26 166 AR 471–72. 167 AR 471. 168 Id. 21 24 27 28 ORDER – No. 17-cv-02715-LB 16 1 complete tasks, get along with others, and remember certain information.169 It also affected his 2 mood, causing him to feel “more depressed” and “stressed out.”170 He could walk ten minutes 3 before he needed to stop and rest.171 He could not handle stress well because he was “depressed, 4 angry,” and slept “a lot.”172 He took Percocet, Dexilant, Oxycodone, Lyrica, Methocarbamol, and 5 Soma.173 His medications made him “sleepy, constipated, depressed” and caused “mood 6 swings.”174 7 2.3 8 Vocational Expert (“VE”) Jo Ann Yoshioka testified at the November 2014 hearing,175 and VE 9 Jeffrey Malmuth testified at the July 2015 hearing.176 10 United States District Court Northern District of California Vocational Expert Testimony 2.3.1 VE Jo Ann Yoshioka’s testimony 11 VE Yoshioka classified Mr. Zavala’s past work as a carpenter as medium strength and 12 performed at “the very heavy level.”177 The ALJ asked whether there were unskilled jobs at the 13 light and sedentary levels in the economy for the following hypothetical individual: “someone of 14 claimant’s age, education and work experience. . . . No ladders, ropes or scaffolds. Ramps and 15 stairs and stooping, crouching, crawling, kneeling and balancing are occasional. And no use of 16 foot pedals or controls.”178 VE Yoshioka testified that such an individual could perform the 17 following jobs: assembler of small products (706.684-022, SVP two, light); weight tester 18 19 20 169 AR 473. 170 Id. 22 171 Id. 23 172 Id. 173 AR 475. 174 Id. 25 175 AR 59–64. 26 176 AR 95–112. 177 AR 59. 178 AR 59–60. 21 24 27 28 ORDER – No. 17-cv-02715-LB 17 1 (539.485-010, SVP two, sedentary); box inspector of wooden crates (762.687-014, SVP two, 2 light); and electrical-equipment patcher (723.687-010, SVP two, sedentary).179 VE Yoshioka then considered a second hypothetical: the individual in the first hypothetical United States District Court Northern District of California 3 4 needed an “hourly change of position for up to ten minutes” (for example, if the job primarily 5 involved standing, the individual would need to sit for minutes, and vice versa).180 VE Yoshioka 6 testified that such a hypothetical individual could work as either a weight tester or electrical- 7 equipment patcher (the two sedentary jobs) because both jobs had a sit-or-stand option.181 8 VE Yoshioka considered a third hypothetical: the above hypothetical individual could not be 9 exposed to hazardous machinery (i.e., machinery that could threaten life or limb).182 She testified 10 that such a limitation would not prevent those individuals from performing the above jobs.183 11 She also testified that if a fourth hypothetical individual could only occasionally reach 12 bilaterally (waist to chest) and could never reach below the knees, bend, or stoop, that individual 13 would be precluded from all jobs (including those listed above).184 In considering a fifth hypothetical individual who could never stoop but who otherwise had no 14 15 bilateral reaching limitations, VE Yoshioka testified that such an individual could work as a box 16 inspector, but that all other jobs listed above required some stooping.185 VE Yoshioka further testified that if an individual needed to be off task approximately twenty 17 18 percent of the day due to medication side-effects, that individual would be precluded from the 19 above jobs.186 An individual who needed to take unscheduled work breaks “above and beyond the 20 21 22 179 AR 60. 23 180 AR 60–61. 181 AR 61. 182 AR 62. 25 183 Id. 26 184 AR 63. 185 Id. 186 Id. 24 27 28 ORDER – No. 17-cv-02715-LB 18 1 normal breaks to rest” would also be precluded from such jobs.187 Similarly, if the individual 2 needed not only to change positions “up to ten minutes every hour” by sitting and standing 3 intermittently but also occasionally needed to walk “away from the work station” to relieve pain, 4 that individual would be precluded from the above jobs.188 United States District Court Northern District of California 5 2.3.2 VE Jeffrey Malmuth’s testimony 6 The ALJ posed the following hypothetical: an individual with a sedentary RFC who could 7 never climb ladders, ropes, or scaffolds; could frequently use bilateral lower-extremities; needed 8 to avoid extremes of cold and industrial vibration, unprotected heights, hazardous machinery, and 9 dangerous industrial moving parts; and needed standing or stretching breaks for ten minutes every 10 hour (e.g., if the job provided a raised work bench and a stool).189 VE Malmuth testified that such 11 an individual might be able to do “telephone work,” where he wore a headset and could perform 12 work “standing as well as sitting.”190 Furthermore, such an individual could perform work as a nut 13 sorter (521.687-086, sedentary, SVP two), if performed at a raised bench.191 He estimated that, for 14 light and sedentary jobs, there would be twenty-five percent fewer jobs for an individual who 15 required a sit/stand option.192 VE Malmuth testified that if the above hypothetical individual also could not reach below the 16 17 waist and could only occasionally reach between the west and chest bilaterally, that individual 18 would not be able to perform the jobs listed above.193 Moreover, if the individual had to take 19 unscheduled work breaks between one to two hours per day to lie down, due to pain medication 20 side-effects, the individual would be precluded from all work.194 21 22 187 AR 63–64. 23 188 AR 64. 189 AR 104. 190 AR 105. 25 191 AR 106. 26 192 AR 107–08. 193 AR 111. 194 AR 112. 24 27 28 ORDER – No. 17-cv-02715-LB 19 United States District Court Northern District of California 1 2.4 Medical Expert Testimony 2 Anthony Francis, M.D. testified at the July 2015 hearing.195 Dr. Francis testified that, based on 3 his review of the record, Mr. Zavala had right S1 radiculopathy, status post-lumbar-fusion surgery 4 and post-spinal-cord stimulator.196 He noted that Mr. Zavala underwent lumbar-fusion surgery in 5 2003 and then later had the previously implanted metal surgically removed — a “sign that . . . 6 things are . . . hurting pretty badly.”197 He also noted that Mr. Zavala underwent a trial spinal-cord 7 stimulator, but it was unsuccessful.198 Dr. Francis stated that Mr. Zavala had continued 8 radiculopathy, which may return following surgery or sometimes such patients are “no better than 9 they were before the surgery.”199 He indicated that when a patient gets to the point where he needs 10 a spinal-cord stimulator, “that’s almost always a . . . salvage procedure on a pretty bad 11 situation.”200 A patient typically does not undergo such a procedure “unless they’re fairly 12 debilitated from just chronic pain.”201 Dr. Francis opined that Mr. Zavala’s case appeared to be a “failed spinal surgery case” that 13 14 “[p]robably ought to equal a 1.04(a).”202 He stated that the record contained the following 15 objective evidence indicating a 1.04(a) radiculopathy listing: lumbar spasms; lumbar range of 16 motion restricted by pain in all directions; complaints of pain in dermatomal pattern; numbness in 17 various positions; a slightly antalgic gait; tenderness upon palpation of the mid-lumbar spine 18 overlying the L4 to S1 regions; bilateral lumbar-perispinal muscles overlying the L4 to S1 facet 19 joints; positive thoracolumbar-muscle spasm upon physical examination; and lumbar-discogenic 20 21 22 195 AR 73–95. 23 196 AR 74, 83, 89. 197 AR 75. 198 AR 74–75. 25 199 AR 75. 26 200 AR 75, 87. 201 AR 87. 202 AR 75, 87–88. 24 27 28 ORDER – No. 17-cv-02715-LB 20 United States District Court Northern District of California 1 provocative maneuvers.203 In a failed spinal-surgery case, the “main thing that . . . patients are 2 going to have is pain,” specifically pain “at a dermatomal pattern.”204 Dr. Francis stated that “it’s a 3 rare case where [a patient] ha[s] everything that’s in 1.04(a) present in the chart.”205 Furthermore, 4 radiculopathy symptoms “tend to wax and wane, come and go.”206 In other words, a patient with 5 radiculopathy “may have a fairly good exam and then the next time around they’re fairly 6 restricted.”207 Such a patient “may be able to go out and do something fairly rigorously for a day 7 or two, but then whether [that patient] can do that in competitive employment, day after day, is 8 kind of another question.”208 9 Dr. Francis did not ultimately conclude whether Mr. Zavala had a sedentary or light RFC 10 because he believed that was “up to the trier of fact.”209 He opined, however, that if Mr. Zavala 11 had a light (rather than sedentary) RFC, Mr. Zavala would be limited in the following ways: lifting 12 and carrying twenty pounds occasionally and ten pounds frequently; standing and walking for six 13 out of eight hours; sitting for six out of eight hours; climbing ramps frequently but never climbing 14 stairs; never using ropes, ladders, or scaffolds; occasionally stooping, bending, crawling, kneeling, 15 squatting, balancing; no upper-extremity limitations; frequent lower-extremity limitations; no 16 unprotected heights; and should avoid excessive industrial vibration, excessive cold, and exposure 17 to hazardous or dangerous machinery with moving parts.210 Dr. Francis further stated that it was 18 possible that an individual with Mr. Zavala’s conditions and who took the same medication 19 20 21 22 203 AR 83–85, 91. 23 204 AR 86. 205 AR 85. 206 Id. 25 207 AR 88. 26 208 AR 92. 209 AR 88–93. 210 AR 89. 24 27 28 ORDER – No. 17-cv-02715-LB 21 1 (Percocet, Soma, and OxyContin) would experience pain throughout the day and that such pain 2 might cause the individual to be off task or take unscheduled breaks throughout the day.211 3 2.5 4 The ALJ followed the five-step sequential evaluation process to determine whether Mr. Zavala 5 was disabled and concluded that he was not.212 At step one, the ALJ found that Mr. Zavala had not engaged in substantial gainful activity 6 7 since November 28, 2012, the alleged onset date.213 At step two, the ALJ found that Mr. Zavala had two severe impairments — degenerative-disc 8 9 disease, and status post-fusion and hardware removal.214 At step three, the ALJ found that Mr. Zavala did not have an impairment or combination of 10 United States District Court Northern District of California Administrative Findings 11 impairments that met or medically equaled the severity of one of the listed impairments (namely, 12 Section 1.04 for degenerative-disc disease).215 He found that Mr. Zavala had a history of lumbar 13 fusion at L5-S1 in 2003, with hardware removal in 2004.216 The medical records lacked objective 14 findings, however, showing radiculopathy, neuroanatomic distribution of pain, limitation of 15 motion of the spine, motor loss, and sensory or reflex loss “as contemplated by Section 1.04A.”217 16 Furthermore, there was no evidence of spinal arachnoiditis or lumbar spinal stenosis “as 17 contemplated by Section 1.04B and 1.04C.”218 Although the record indicated Mr. Zavala had 18 “limited range of motion of the lumbar spine and muscle spasms,” he had only “occasional 19 positive straight leg raising tests” and demonstrated “mostly 5/5 motor strength and normal 20 21 22 211 AR 94. 23 212 AR 33–41. 213 AR 34. 214 Id. 25 215 AR 35. 26 216 Id. 217 Id. 218 Id. 24 27 28 ORDER – No. 17-cv-02715-LB 22 1 sensation throughout.”219 Moreover, although Dr. Chow diagnosed Mr. Zavala with right S1 2 radiculopathy, the ALJ found “no nerve conduction studies and no objective findings of motor or 3 sensory or reflex loss in the record.”220 He also found no sufficient objective findings or medical 4 evidence to support a conclusion that Mr. Zavala was limited to a six-hour workday.221 With respect to Dr. Francis’s testimony that this “looked like a failed back surgery case,” the 5 6 ALJ credited only Dr. Francis’s opinion that Mr. Zavala had an RFC to perform light work.222 The 7 ALJ discredited Dr. Francis’s opinion that Mr. Zavala’s impairments “potentially” equaled a 8 Section 1.04 listing because “[a] ‘potential’ does not satisfy the claimant’s burden of proving 9 ‘more likely than not’” at step three of the analysis.223 Before considering the fourth step, the ALJ determined that Mr. Zavala had the residual United States District Court Northern District of California 10 11 functional capacity to perform light work, with the following limitations: lifting and carrying 12 twenty pounds occasionally and ten pounds frequently; standing and/or walking for six hours in an 13 eight-hour workday; sitting for six hours in an eight-hour workday; never climbing ladders, ropes, 14 or scaffolds and occasionally balancing, stooping, kneeling, crouching, crawling, and climbing 15 ramps or stairs; frequently using foot controls with bilateral lower extremities; never working at 16 unprotected heights or around hazards such as dangerous machinery or moving mechanical parts; 17 avoiding concentrated exposure to extreme cold and industrial vibration; and changing of position 18 from standing to sitting (and vice versa) hourly for ten minutes at his workstation.224 In making this determination, the ALJ discounted Mr. Zavala’s testimony finding it was only 19 20 partially corroborated by the medical record.225 He found that although the record indicated 21 22 219 Id. 220 Id. 221 Id. 25 222 Id. 26 223 Id. 224 Id. 225 AR 36. 23 24 27 28 ORDER – No. 17-cv-02715-LB 23 1 ongoing pain-management treatment from Dr. Chow, there were few objective findings since the 2 alleged onset date of November 28, 2012.226 For example, while Mr. Zavala 3 6 exhibited a limited range of motion of the lumbar spine and muscle spasms, and had positive straight leg raising tests occasionally, . . . he [] also demonstrated mostly 5/5 strength throughout the upper and lower extremities, no atrophy, and no decreased range of motion in the lower extremities[.] There are no imaging studies or nerve conduction studies in the record.227 7 During an October 2013 orthopedic consultative examination, Dr. Pon found that Mr. Zavala had a 8 limited range of motion in the lumbar spine and was limited by low-back pain and right lower- 9 extremity pain and numbness.228 He opined, however, that Mr. Zavala could stand and/or walk for 10 a total of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, 11 occasionally stoop, crouch, kneel, squat and crawl, occasionally climb stairs, and frequently push 12 or use foot controls with the right foot.229 Based on these findings, the ALJ concluded that while 13 the objective medical evidence showed the Mr. Zavala had a “severe” lumbar impairment, they did 14 not demonstrate “an inability to perform a range of light work (or complete disability, as alleged 15 by the claimant).230 4 United States District Court Northern District of California 5 16 The ALJ noted that Mr. Zavala sought narcotic medications refills early.231 This “at least raises 17 the question of opiate addition or drug-seeking behavior, notwithstanding that Dr. Chow 18 apparently thinks all is well.”232 The ALJ also found that certain reported activities undermined 19 Mr. Zavala’s allegations of disability as well as his testimony that he spend ten hours per day 20 laying down.233 For example, Mr. Zavala testified that he stopped working in November 2012 (his 21 22 226 AR 37. 23 227 Id. (emphasis in original). 228 Id. 229 Id. 25 230 Id. 26 231 Id. 232 AR 38. 233 Id. 24 27 28 ORDER – No. 17-cv-02715-LB 24 1 alleged onset date.234 But the record indicated that he worked as a carpenter in November 2013 2 and March 2014.235 Moreover, he reported increased pain due to increased travel in February and 3 May 2015.236 4 To the extent their opinions were consistent with his opinion, the ALJ gave “great weight” to 5 the opinions of Drs. Pon and Singh.237 He accorded “great weight” to Dr. Francis’s RFC opinion, 6 but only to the extent that he opined that Mr. Zavala could perform light work.238 The ALJ found 7 Dr. Francis’s conclusion that Mr. Zavala’s impairments equaled Listing 1.04A “entirely 8 speculative.”239 The ALJ found that Dr. Schmitter did not “adequately and persuasively explain 9 the basis for his opinion” that Mr. Zavala could perform “a range of light work (with postural 10 limitations).”240 The ALJ did not rely on that opinion.241 Finally, the ALJ considered Dr. Chow’s RFC: Mr. Zavala could stand and walk for at most United States District Court Northern District of California 11 12 two hours at one time and between two to four hours total during an eight-hour day; he could sit 13 for at most two hours at a time and between four to six hours in an eight-hour workday; he 14 occasionally could carry up to twenty pounds; he could never climb, stoop, or reach below the 15 knees or from his waist to knees; he could occasionally balance, kneel, crouch, crawl, and reach 16 from the chest to the shoulders and above the shoulders.242 The ALJ found that Dr. Chow “did not 17 reveal any basis” for his opinion, and “no other medical opinion is consistent” with it.243 18 Accordingly, the ALJ gave “little weight” to Dr. Chow’s RFC assessment.244 19 234 Id. 235 AR 38. 236 Id. 22 237 Id. 23 238 Id. 239 Id. 240 Id. 25 241 Id. 26 242 Id. 243 AR 38–39. 244 AR 39. 20 21 24 27 28 ORDER – No. 17-cv-02715-LB 25 At step four, the ALJ concluded that Mr. Zavala was unable to perform his past work as a 1 2 carpenter (which was medium work).245 At step five, the ALJ determined that, given Mr. Zavala’s age, education, work experience, and 3 4 RFC, and based on the VE Malmuth’s testimony, Mr. Zavala could successfully adjust “to other 5 work that exists in significant numbers in the national economy.”246 6 7 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 8 United States District Court Northern District of California 9 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 10 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 11 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 12 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. 13 § 405(g). “Substantial evidence means more than a mere scintilla but less than a preponderance; it 14 is such relevant evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should 16 uphold “such inferences and conclusions as the [Commissioner] may reasonably draw from the 17 evidence.” Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the 18 administrative record supports the ALJ’s decision and a different outcome, the court must defer to 19 the ALJ’s decision and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097– 20 98 (9th Cir. 1999). “Finally, [a court] may not reverse an ALJ’s decision on account of an error 21 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 22 23 GOVERNING LAW 24 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 25 physical or mental impairment which can be expected to result in death or which has lasted or can 26 27 245 Id. 28 246 AR 40. ORDER – No. 17-cv-02715-LB 26 1 be expected to last for a continuous period of not less than twelve months,” and (2) the 2 “impairment or impairments are of such severity that he or she is not only unable to do his 3 previous work but cannot, considering his age, education, and work experience, engage in any 4 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 5 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 6 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 7 C.F.R. § 404.1520). 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. For steps one through four, the burden of proof is on the claimant. At step five, the 26 burden shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 27 1419 (9th Cir. 1986). 28 ORDER – No. 17-cv-02715-LB 27 ANALYSIS 1 Mr. Zavala contends that the ALJ erred by failing to (1) provide specific and legitimate 2 3 reasons for rejecting the opinion of his treating physician, and (2) properly consider Mr. Zavala’s 4 testimony.247 The court considers each argument in turn. 5 6 1. Whether the ALJ Properly Weighed Medical-Opinion Evidence Mr. Zavala argues that the ALJ erred in failing to properly weigh the opinion of Dr. Chow, Mr. 7 8 Zavala’s treating physician. The court agrees. The court first discusses the law governing the 9 ALJ’s weighing of medical-opinion evidence and then analyzes the medical-opinion evidence 10 under the appropriate standard. The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving United States District Court Northern District of California 11 12 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 13 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 14 including each medical opinion in the record, together with the rest of the relevant evidence. 15 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 16 court [also] must consider the entire record as a whole and may not affirm simply by isolating a 17 specific quantum of supporting evidence.”) (internal quotation marks and citation omitted). “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 18 19 guide [the] analysis of an ALJ’s weighing of medical evidence.”248 Ryan v. Comm’r of Soc. Sec., 20 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations 21 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 22 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 23 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 24 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 25 26 247 27 248 28 Mot. – ECF No. 20 at 5–17. The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the date of the ALJ’s hearing, November 16, 2016. ORDER – No. 17-cv-02715-LB 28 1 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 2 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). United States District Court Northern District of California 3 An ALJ may disregard the opinion of a treating physician, whether or not controverted. 4 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 5 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 6 evidence.” Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted). By contrast, if 7 the ALJ finds that the opinion of a treating physician is contradicted, a reviewing court will 8 require only that the ALJ provide “specific and legitimate reasons supported by substantial 9 evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation 10 marks and citation omitted); see also Garrison, 759 F.3d at 1012 (“If a treating or examining 11 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 12 providing specific and legitimate reasons that are supported by substantial evidence.”) (internal 13 quotation marks and citation omitted). The opinions of non-treating or non-examining physicians 14 may serve as substantial evidence when the opinions are consistent with independent clinical 15 findings or other evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 16 An ALJ errs, however, when he “rejects a medical opinion or assigns it little weight” without 17 explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es] 18 it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 19 759 F.3d at 1012–13. 20 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 21 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 22 Security] Administration considers specified factors in determining the weight it will be given.” 23 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 24 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 25 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. § 26 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any 27 medical opinion, not limited to the opinion of the treating physician, include the amount of 28 relevant evidence that supports the opinion and the quality of the explanation provided[,] the ORDER – No. 17-cv-02715-LB 29 1 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 2 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)). 3 The ALJ gave little weight to treating physician Dr. Chow’s RFC assessment.249 He found: 4 Dr. Chow did not explain why the claimant can only sit for 2 to 4 hours or stand/walk for only 4 to 6 hours, as opposed to sitting, standing, and walking during a full 8hour day. Further, he did not explain why reaching (rather than lifting/carrying) from the waist to chest is limited to occasionally. The medical evidence, including his own treatment records, does not reveal any basis for that opinion. Further, no other medical opinion is consistent with Dr. Chow’s opinion. Notably, Dr. Chow’s treatment notes repeatedly indicate that the claimant’s “work status” and “work restrictions” were “as per permanent and stationary report” []. Although I requested this report, it has not been produced. [] Thus, I find insufficient objective medical evidence to support the degree of limitation opined by Dr. Chow, and accord his opinion little weight.250 5 6 7 8 9 10 The ALJ’s first reason for discounting Dr. Chow’s opinion — that he “did not explain why” United States District Court Northern District of California 11 12 Mr. Zavala had certain restrictions around sitting, standing, walking, and reaching — is not a 13 specific and legitimate reason. Treating sources cannot be rejected solely because they “are not 14 well-supported by medically acceptable clinical and laboratory . . . techniques.” SSR 96-2p.251 See 15 also Bennett v. Colvin, 202 F. Supp. 3d 1119, 1133 (N.D. Cal. 2016) (holding that a “fail[ure] to 16 reveal the type of significant and laboratory abnormalities one would expect if the claimant were 17 in fact disabled” did not constitute a specific and legitimate reason for rejecting a physician’s 18 opinion because the ALJ failed to “specify which clinical and laboratory abnormalities one should 19 expect” or “any other support for this conclusion”). The ALJ’s second reason for discounting Dr. Chow’s opinion — that “no other medical 20 21 opinion is consistent with Dr. Chow’s opinion” — is boilerplate and inaccurate. Here, for instance, 22 ME Dr. Francis provided an opinion consistent with Dr. Chow’s. Specifically, ME Francis opined 23 that the standing, sitting, and walking limitations evaluated by Dr. Chow could be reasonable.252 24 25 26 27 249 AR 38–39. 250 AR 38–39. 251 SSR 96-2p has since been rescinded (as of March 27, 2017) but was in effect at the time of Mr. Zavala’s ALJ hearings. 252 AR 92–94. 28 ORDER – No. 17-cv-02715-LB 30 1 He also testified that, based on his review of the record, Mr. Zavala had right S1 radiculopathy, 2 status post lumbar-fusion surgery and post spinal-cord stimulator.253 He stated Mr. Zavala’s 3 lumbar surgeries were a “sign that . . . things are . . . hurting pretty badly.”254 Moreover, he 4 testified that a patient typically does not undergo a “salvage” spinal-cord-stimulator procedure 5 “unless they’re fairly debilitated from just chronic pain.”255 ME Francis found that the following evidence indicated Mr. Zavala had debilitating United States District Court Northern District of California 6 7 radiculopathy: lumbar spasms; lumbar range of motion restricted by pain in all direction; 8 complaints of pain in dermatomal pattern; numbness in various positions; a slightly antalgic gait; 9 tenderness upon palpation of the mid-lumbar spine overlying the L4 to S1 regions; bilateral 10 lumbar perispinal muscles overlying the L4 to S1 facet joints; positive thoracolumbar muscle 11 spasm upon physical examination; and lumbar discogenic provocative maneuvers.256 With respect 12 to a failed spinal surgery case, the “main thing that . . . patients are going to have is pain,” 13 specifically pain “at a dermatomal pattern.”257 In sum, ME Francis testified that Mr. Zavala might 14 have a light RFC.258 But he also testified that Mr. Zavala’s case appeared to be a “failed spinal 15 surgery case” that “[p]robably ought to equal a 1.04(a) [listing].”259 Cf. Carter v. Astrue, No. C 16 08-5095 VRW, 2009 WL 2084446, at *2–4 (N.D. Cal. July 14, 2009) (where ME Francis testified 17 that nothing in the medical record “indicated motor weakness, loss of reflexes or a demonstrable 18 dermatome change supporting radiculopathy” and that the plaintiff’s case was “‘not the most 19 severe chronic pain case that we’ve seen’ because ibuprofen, not narcotic pain medication, was 20 used”). 21 22 253 AR 74, 83, 89. 254 AR 75. 255 AR 87. 25 256 AR 83–85, 91. 26 257 AR 86. 258 AR 88–91. 259 AR 75, 87–88. 23 24 27 28 ORDER – No. 17-cv-02715-LB 31 Here, the ALJ discredited Dr. Francis’s testimony only to the extent that it was consistent with United States District Court Northern District of California 1 2 Dr. Chow’s opinion.260 But the ALJ’s reasoning for doing so was contradictory. The ALJ 3 discredited Dr. Francis’s opinion that the severity of Mr. Zavala’s impairments equaled a 1.04(a) 4 listing because he found it was “entirely speculative.”261 But, by the same logic, Dr. Francis’s 5 opinion that Mr. Zavala might have a light RFC was also entirely speculative.262 The ALJ erred in 6 discrediting Dr. Francis’s opinion to the extent that it was consistent with Dr. Chow’s assessment. 7 Furthermore, the ALJ found that the opinions of one-time examining physician Dr. Pon and 8 non-examining state-agency medical consultant Dr. Singh were inconsistent with Dr. Chow’s 9 opinion and accordingly afforded those opinions “great weight.”263As the Ninth Circuit noted in 10 Orn, however, “[w]hen an examining physician relies on the same clinical findings as a treating 11 physician, but differs only in his or her conclusions, the conclusions of the examining physician 12 are not ‘substantial evidence.’” 495 F.3d at 632. Here, Dr. Pon’s opinion confirmed the diagnoses 13 of radiculopathy, lumbar-disc disease, lumbar stenosis, lumbar-degenerative-disc disease, and 14 lumbar-facet-joint arthropathy.264 His opinion differed from treating-physician Dr. Chow’s only as 15 to the severity and impact of those impairments. As such, under Orn, to the extent that the 16 conclusions of Dr. Pon, as opposed to his “clinical findings,” differ from Dr. Chow’s conclusions, 17 they are not substantial evidence. See id. Similarly, with respect to non-examining medical 18 consultant Dr. Singh, “[t]he opinion of a nonexamining medical advisor cannot by itself constitute 19 20 260 AR 38. 21 261 Id. 22 262 23 24 25 26 AR 88–89 (ALJ: “So, if I pressed you a little harder and said do you have an opinion about an RFC, are you able to formulate one out of this, if I decide it’s not a listing level case?” ME Francis: “If it’s not a listing level, then the question is going to be – I mean what we have here is kind of an ongoing radiculopathy that is probably intermittent. Sort of waxes and wanes. Probably better on some days than others. . . . So, the question is going to be would he be either at a light or a sedentary. So, what I’ll do is I’m going to give you a light RFC. That would be the maximum RFC that he would be reasonably expected to function at, based on the accommodation of having an S1 radiculopathy present, status post surgery.”); id. at 91 (ALJ: “So, which way are you going?” ME Francis: “Well, I went all over the map. I said it could equal a 1.04(a). Then I gave a light RFC. So, I think it’s up to the trier of fact whichever way the trier of fact deems it should go.”). 27 263 AR 38. 28 264 AR 606. ORDER – No. 17-cv-02715-LB 32 United States District Court Northern District of California 1 substantial evidence that justifies the rejection of an examining or treating physician.” Morgan v. 2 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). Although the ALJ gave Dr. 3 Singh’s opinion “great weight,” it does not constitute substantial evidence to support the limited 4 weight given to Dr. Chow’s opinion. The ALJ accordingly erred in discounting Dr. Chow’s 5 opinion. 6 The ALJ’s third reason for discounting Dr. Chow’s opinion — that “insufficient medical 7 evidence” supported the “degree of limitation” in Dr. Chow’s assessment — is itself insufficient. 8 The ALJ did not consider the factors discussed in Orn. As stated above, where an ALJ does not 9 give a treating physician’s opinion “‘controlling weight’ because it is not ‘well-supported’ or 10 because it is inconsistent with other substantial evidence in the record” — both of which are 11 grounds that the ALJ gives here — then the Social Security regulations “consider[] specified 12 factors in determining the weight [that opinion] will be given.” Orn, 495 F.3d at 631. “Those 13 factors include the [l]ength of the treatment relationship and the frequency of examination’ by the 14 treating physician; and the ‘nature and extent of the treatment relationship’ between the patient 15 and the treating physician.” Id. (quoting 20 C.F.R. § 404.1527(b)(2)(i)–(ii)) (alteration in original). 16 Here, Dr. Chow treated Mr. Zavala on a nearly monthly basis — more than forty times total — 17 beginning February 2011 through at least July 2015.265 He evaluated whether Mr. Zavala’s 18 conditions could continue to be treated non-surgically, including by authorizing an epidural- 19 steroid injection.266 He also closely monitored Mr. Zavala’s opioid-drug intake to ensure it was 20 compatible with Mr. Zavala’s level of pain.267 The ALJ discussed none of facts. Their absence 21 from the analysis here further undermines the ALJ’s reasoning on this crucial point. 22 23 265 See AR 545–603, 607–738, 800, 973-74. 24 266 AR 623. 267 25 26 27 28 See AR 546 (March 2013 exam); AR 552 (January 11, 2013 exam); AR 608 (October 7, 2013 exam); AR 611 (September 11, 2013 exam); AR 614 (August 14, 2013 exam); AR 620 (June 17, 2013 exam); AR 623 (May 20, 2013 exam); AR 626 (April 23, 2013 exam); AR 629 (March 29, 2013 exam); AR 642 (October 28, 2014 exam); AR 646 (September 30, 2014 exam); AR 648 (September 2, 2014 exam); AR 651 (August 5, 2014 exam); AR 655 (July 8, 2014 exam); AR 672 (March 17, 2014); AR 675 (February 17, 2014); AR 678 (January 22, 2014); AR 682 (December 27, 2013); AR 684 (December 2, 2013); AR 687 (November 4, 2013); AR 714 (June 30, 2015); AR 718 (June 2, 2015); ORDER – No. 17-cv-02715-LB 33 1 2. Whether the ALJ Failed to Properly Consider Mr. Zavala’s Testimony Mr. Zavala contends that the ALJ erred in discrediting his testimony.268 In assessing a United States District Court Northern District of California 2 3 claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “First, 4 the ALJ must determine whether there is ‘objective medical evidence of an underlying impairment 5 which could reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting 6 Ligenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Second, if the claimant produces that 7 evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear and 8 convincing reasons” for rejecting the claimant’s testimony regarding the severity of the claimant’s 9 symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not 10 ‘required to believe every allegation of disabling pain, or else disability benefits would be 11 available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Id. (quoting Fair 12 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may consider in weighing a 13 claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between 14 testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek 15 treatment or follow a prescribed course of treatment.” Orn, 495 F.3d at 636 (internal quotation 16 marks omitted). “[T]he ALJ must identify what testimony is not credible and what evidence 17 undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) 18 (citing Lester, 81 F.3d at 834); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 19 7369300, at *12 (N.D. Cal. Dec. 20, 2016). The ALJ found the following regarding Mr. Zavala’s testimony: 20 The treatment records show that the claimant has regularly sought narcotic pain medication refills early [], which at least raises the question of opiate addiction or drug-seeking behavior, notwithstanding that Dr. Chow apparently thinks all is well. 21 22 [A]lthough the claimant testified that he stopped working November 2012, the treatment records report him working full-time as a carpenter in November 2013 and March 2014 []. Further the claimant reported increased pain due to travel in February and May [] 2015[]. These reported activities undermine his allegations of disability 23 24 25 26 27 AR 722 (May 5, 2015); AR 726 (April 7, 2015); AR 729 (March 11, 2015); AR 732 (February 11, 2015); AR 735 (January 15, 2015); AR 737 (November 25, 2014); AR 974 (July 28, 2015). 28 268 Mot. – ECF No. 20 at 13–17. ORDER – No. 17-cv-02715-LB 34 1 as well has [sic] his testimony that he spends 10 hours per day laying down (between 6 am and 11 pm). 2 Thus, after careful consideration of the entire record, I find that the claimant is capable of performing work within the residual functional capacity established herein.269 3 4 5 The ALJ gave two reasons for discounting Mr. Zavala’s testimony — his (1) purported “drug- 6 seeking behavior,” and (2) activities of daily living.270 The court considers each in turn. United States District Court Northern District of California 7 First, “[w]hen a claimant has a nonmedical motive to exaggerate symptoms in order to obtain 8 drugs, an ALJ may permissibly discredit the claimant.” Jaureque v. Colvin, No. 11-06358, 2013 9 WL 1149587, at *5 (N.D. Cal. Mar. 19, 2013) (citing Edland v. Massanari, 253 F.3d 1152, 1157 10 (9th Cir. 2001) (holding that the likelihood claimant exaggerated his pain complaints to his 11 physician to obtain painkillers was a clear and convincing reason to discredit claimant)). “Thus, a 12 court must defer to an ALJ’s reasonable interpretation that a claimant has engaged in drug-seeking 13 behavior and is therefore not entirely credible.” Potter v. Colvin, No.:3-14-cv-02562-JSC, 2015 14 WL 1966715, at *21 (N.D. Cal. Apr. 29, 2015) (citing Massey v. Comm’r Sec. Sec. Admin., 400 F. 15 App’x 192, 194 (9th Cir. 2010). Although such behavior may constitute a clear and convincing 16 reason to discredit a claimant, see Jaureque, 2013 WL 1149587, at *5, when discounting pain 17 testimony, an ALJ must “point to specific facts which demonstrate that [the claimant] is in less 18 pain than [he] claims,” Potter, 2015 WL 1966715, at *21; Vasquez, 572 F.3d at 591–92. For 19 example, in Edland, the ALJ concluded the claimant was likely not credible because he was 20 deceiving a specific doctor about his need for pain medication due to a “Valium addiction.” 253 21 F.3d at 1157–58. Similarly, in Alexander v. Commissioner of Social Security, the record indicated 22 the claimant was barred from seeking narcotics from certain doctors, and multiple doctors 23 questioned her underlying diagnoses and suggested her pain complaints were hyperbolic. 373 F. 24 App’x 741, 743–44 (9th Cir. 2010). 25 26 27 269 AR 37–38. 270 AR 37–38. 28 ORDER – No. 17-cv-02715-LB 35 United States District Court Northern District of California 1 Here, in contrast, the ALJ stated that “the treatment records show that the claimant has 2 regularly sought narcotic pain medication refills early . . . which at least raises the question of 3 opiate addition or drug-seeking behavior.”271 While Dr. Chow did note that Mr. Zavala sought 4 refills early on occasion, in at least one instance, Mr. Zavala sought a refill only one day early.272 5 On two other occasions, Mr. Zavala sought early refills “due to inadequate pain coverage”273 and 6 “increased pain from travel.”274 Furthermore, Dr. Chow consistently reported that Mr. Zavala was 7 on an “up-to-date pain contract” and his drug screens were “consistent with no aberrant 8 behaviors.”275 The ALJ did not sufficiently analyze how the record demonstrates that Mr. Zavala 9 “is in any less pain than [he] claims to be.” Potter, 2015 WL 1966715, at *22. Moreover, the 10 record contains significant evidence that Mr. Zavala sought drugs to treat his underlying pain. Id.; 11 cf. Carter, 2009 WL 2084446, at *2–4 (where ME Francis testified that that the plaintiff’s case 12 was “‘not the most severe chronic pain case that we’ve seen’ because ibuprofen, not narcotic pain 13 medication, was used.”). Because the ALJ did not adequately analyze conflicting evidence 14 regarding Mr. Zavala’s purported drug-seeking behavior, this does not constitute a clear and 15 convincing reason to discount his testimony. See Potter, 2015 WL 1966715, at *22. 16 Second, the ALJ explained that Mr. Zavala’s reported travel and work performed after the 17 alleged onset date undermined his claimed disability.276 One the one hand, with respect to Mr. 18 Zavala’s travel, the Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in 19 concluding that daily activities are inconsistent” with eligibility for disability benefits. Garrison, 20 759 F.3d at 1017. In Garrison, the Ninth Circuit recognized that “disability claimants should not 21 be penalized for attempting to lead normal lives in the face of their limitations,” and found that 22 “only if her level of activity were inconsistent with a claimant’s claimed limitations would these 23 24 271 AR 37–38. 25 272 AR 720. 273 AR 546. 274 AR 730. 27 275 AR 642, 651, 654, 657–58, 663, 666, 675, 678, 681, 714. 28 276 AR 37–38. 26 ORDER – No. 17-cv-02715-LB 36 United States District Court Northern District of California 1 activities have any bearing on her credibility.” Id. at 1016 (quotations and citations omitted); see 2 also Smolen, 80 F.3d at 1287 n.7 (“The Social Security Act does not require that claimants be 3 utterly incapacitated to be eligible for benefits, and many home activities may not be easily 4 transferable to a work environment where it might be impossible to rest periodically or take 5 medication.”). Mr. Zavala’s reported travel thus does not constitute a sufficient reason for 6 discounting his testimony. 7 On the other hand, if Mr. Zavala engaged in work after the alleged onset date, then his 8 “misleading testimony to the contrary would easily qualify as a ‘clear and convincing’ reason 9 justifying the ALJ’s adverse credibility determination.” Slotnick v. Colvin, No. C 13-02283 RS, 10 2015 WL 2251266, at *5 (N.D. Cal. May 13, 2015). But it is not clear from the record whether 11 Mr. Zavala in fact worked full- or part-time as a carpenter (or in any other capacity) after the 12 alleged onset date.277 Because the record is ambiguous regarding Mr. Zavala’s work history from 13 November 2012 through July 2015, this case will be remanded for further proceedings. Benecke v. 14 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (“Remand for further administrative proceedings is 15 appropriate if enhancement of the record would be useful.”). On remand, the ALJ should consider 16 any additional evidence submitted by the parties (including, if Mr. Zavala so elects, further 17 testimony) relevant to Mr. Zavala’s history of paid employment from November 2012 through the 18 date of the July 15 hearing. See Slotnick, 2015 WL 2251266, at *5. Based on that evidence, the 19 ALJ should reconsider the accuracy (or lack thereof) of Mr. Zavala’s hearing testimony and 20 reassess his credibility accordingly. See id. If the ALJ again finds that Mr. Zavala misstated his 21 work history, depending on the exact content of the additional evidence to that effect, Mr. Zavala’s 22 description of the intensity, persistence, and limiting effects of his symptoms may permissibly be 23 discredited. See id. If, in contrast, the evidence demonstrates that Mr. Zavala’s testimony was not 24 inaccurate, the ALJ will lack any clear and convincing reason to make an adverse credibility 25 determination and must give appropriate weight to Mr. Zavala’s description of the intensity, 26 persistence, and limiting effects of his impairments. See id. 27 28 277 AR 666 (Dr. Chow noted that Mr. Zavala worked as a carpenter); AR 687 (same). ORDER – No. 17-cv-02715-LB 37 1 Moreover, because the ALJ’s discrediting of Mr. Zavala’s testimony was based in part on his 2 assessment of the medical evidence, including Dr. Chow’s and Dr. Francis’s evaluations, the court 3 remands on this ground, too. The ALJ can reassess Mr. Zavala’s credibility on remand in context 4 of the entire record. 5 6 CONCLUSION 7 The court grants Mr. Zavala’s motion for summary judgment, denies the Commissioner’s cross- 8 motion for summary judgment, and remands this case for further proceedings consistent with this 9 order. United States District Court Northern District of California 10 11 IT IS SO ORDERED. 12 Dated: December 27, 2018 ______________________________________ LAUREL BEELER United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – No. 17-cv-02715-LB 38

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