Quiambao v. Berryhill, No. 3:2017cv02305 - Document 16 (S.D. Cal. 2018)

Court Description: ORDER granting Plaintiff's 12 Motion for Summary Judgment and 12 Motion for Reversal or Remand; denying Defendant's 13 Cross-Motion for Summary Judgment. Court remands this action for further proceedings consistent with this Order. Signed by Judge Cynthia Bashant on 7/26/2018. (cc: Social Security) (jah)
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Quiambao v. Berryhill Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARLEEN Y. QUIAMBAO, Plaintiff, 12 13 Case No. 17-cv-02305-BAS-RBB ORDER: (1) GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF No. 12); v. 14 15 16 17 (2) DENYING THE COMMISSIONER’S CROSSMOTION FOR SUMMARY JUDGMENT (ECF No. 13); AND NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. (3) REMANDING ACTION FOR FURTHER PROCEEDINGS 18 19 20 21 Plaintiff Arleen Quiambao seeks judicial review of a final decision by the 22 Acting Commissioner of Social Security (“Commissioner”) denying his application 23 for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 24 §§ 401-434. The Court has jurisdiction to review the Commissioner’s final decision 25 pursuant to 42 U.S.C. § 405(g). 26 Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 12) 27 and the Commissioner’s Cross-Motion for Summary Judgment (ECF No. 13). 28 Plaintiff moves for summary judgment on the grounds that the Administrative Law –1– 17cv2305 Dockets.Justia.com 1 Judge (“ALJ”) committed a reversible error by incorrectly rejecting a treating 2 physician’s medical opinion and improperly weighing a nonexamining physician’s 3 opinion. (Pl.’s Mot. 13:8-22.) Plaintiff requests that the Court remand his case for 4 the payment of benefits or, alternatively, further administrative proceedings. (Id. 5 13:23-14:4.) 6 decision is appropriate because the ALJ permissibly rejected the treating physician’s 7 opinion and properly relied on the nonexamining physician’s testimony. (Def.’s Mot. 8 3:21-4:5.) Conversely, the Commissioner argues that upholding the ALJ’s 9 The Court finds these motions are suitable for determination on the papers 10 submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 11 For the reasons that follow, the Court GRANTS Plaintiff’s Motion for Summary 12 Judgment, DENIES the Commissioner’s Cross-Motion for Summary Judgment, and 13 REMANDS this matter to the agency for further proceedings. 14 I. BACKGROUND 15 Plaintiff alleges he became unable to work due to his disabling conditions on 16 June 1, 2013, when he was 47 years old. (Administrative Record (“AR”) 164-67, 17 ECF No. 7.) Prior to allegedly becoming unable to work, Plaintiff worked as a sheet 18 metal mechanic where he manufactured, repaired, and painted airplane parts. (AR 19 195.) He started this position in 2005, and testified that he stopped working in April 20 2013 due to his health conditions. (AR 39.) Before that job, he worked as an aviation 21 mechanic for the U.S. Navy for 20 years. (AR 49, 188.) He was honorably 22 discharged from the military in 2004. (AR 49, 188.) Plaintiff has a 12th grade 23 education. (AR 39.) 24 According to the administrative record and hearing testimony, Plaintiff suffers 25 from: lower and upper back pain with two millimeter degenerative disc disease at L4- 26 5; neck pain with mild multilateral degenerative disc disease at C3-4 through C3-5/6; 27 left shoulder pain; left thigh pain due to meralgia paresthetica resulting from the 28 superficial femoral nerve entrapment; right knee pain with patellar chondromalacia; –2– 17cv2305 1 obstructive sleep apnea; obesity; allergic rhinitis; bilateral hearing loss; anxiety; 2 hypertension; and hyperlipidemia. (AR 22-23, 64, 153-55.) 3 Plaintiff had a benign parotid tumor surgically removed from his neck in 1991, 4 and he underwent hyperhidrosis back surgery in 2001. (AR 303.) He reported 5 experiencing allergy problems that started sometime after he joined the Navy. (AR 6 275-76.) Medical records indicate he was diagnosed with and treated for bilateral 7 hearing loss as early as August 2004, allergic rhinitis and hyperlipidemia as early as 8 August 2005, and hypertension as early as October 2013. (AR 291, 474-75, 479.) 9 He reported experiencing right knee pain regularly starting in February 2009. (AR 10 456-58.) Plaintiff was diagnosed with and treated for left thigh pain due to meralgia 11 paresthetica no later than May 2011, obstructive sleep apnea no later than July 2011, 12 and anxiety and obesity no later than September 2013. (AR 295-96, 405, 438, 447- 13 48.) An MRI conducted in June 2014 revealed two millimeter degenerative disc 14 disease in Plaintiff’s spine at L4-5. (AR 561.) Subsequently, an MRI conducted in 15 March 2015 showed mild multilateral degenerative disc disease in his neck at C3-4 16 through C3-5/6. (AR 786-94.) 17 Plaintiff received ongoing medical care for his conditions from the U.S. 18 Department of Veterans Affairs (“VA”). As early as August 2005, the VA awarded 19 Plaintiff a service-connected disability rating of 30%. (AR 473.) At some point 20 between October 2013 and July 2014, Plaintiff’s VA disability rating was increased 21 to 70%. (AR 288-89, 893.) 22 In addition, Plaintiff was examined and treated by physicians who were 23 independent from the VA. Plaintiff received physical therapy from Silver Strand 24 Spine & Sport from September 2013 through April 2016, and was seen by Dr. Ziad 25 Abu Khaled Tamimi there. (AR 486, 673.) Dr. Glen Balfour, a neurologist and spinal 26 cord injury specialist, began treating Plaintiff as early as January 2015. (AR 748.) 27 As of August 2016, Dr. Balfour was still treating Plaintiff. (AR 156.) Additionally, 28 Dr. Richard B. Mantell examined Plaintiff in early 2016. (AR 731-33.) –3– 17cv2305 1 Plaintiff filed an application for disability insurance benefits under Title II of 2 the Social Security Act (“Act”) on November 13, 2013. 3 application was denied on initial administrative review and on reconsideration. 4 Plaintiff requested his claim be heard before an ALJ. (AR 20.) Plaintiff appeared 5 and testified at a hearing before ALJ Keith Dietterle on May 26, 2016. Dr. Lowell 6 Sparks, Jr., a reviewing medical expert, and Victoria Rei, an impartial vocational 7 expert, also testified. (AR 64-68.) (AR 164-67.) The 8 At the hearing, Plaintiff testified that his physical abilities are limited because 9 of his injuries. (AR 40-63.) He stated that, among other limitations, he can sit, stand, 10 and walk for only one hour at a time. (AR 44-45.) Dr. Sparks testified that Plaintiff 11 is unable to perform work that requires: overhead work; lifting more than 20 pounds; 12 frequent extreme neck motion; exposure to extreme hot or cold; climbing ladders, 13 ropes, or scaffolds; working from unprotected heights; exposure to noisy 14 environments; or working with dangerous machinery. (AR 45, 65.) 15 In a decision dated July 11, 2016, the ALJ determined that Plaintiff was not 16 disabled under the meaning of the Act. (AR 30.) Plaintiff’s request for review was 17 denied by the Appeals Council on September 25, 2017, making the ALJ’s decision 18 the final decision of the Commissioner. (AR 1-4.) Plaintiff now seeks judicial 19 review. (Compl., ECF No. 1.) 20 II. LEGAL STANDARD 21 Under 42 U.S.C. § 405(g), an applicant for social security disability benefits 22 may seek judicial review of a final decision of the Commissioner in federal district 23 court. “As with other agency decisions, federal court review of social security 24 determinations is limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 25 1098 (9th Cir. 2014). 26 Commissioner’s decision is (1) free of legal error and (2) is supported by substantial 27 evidence.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Moore v. 28 Comm’r, Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Federal courts will The court “must independently determine whether the –4– 17cv2305 1 uphold the Commissioner’s disability determination “unless it contains legal error or 2 is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 3 (9th Cir. 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 4 Cir. 2006)). 5 “‘Substantial evidence’ means more than a mere scintilla, but less than a 6 preponderance; it is such relevant evidence as a reasonable person might accept as 7 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 8 Cir. 2007). In reviewing whether the Commissioner’s decision is supported by 9 substantial evidence, the court must consider the record as a whole, “weighing both 10 the evidence that supports and the evidence that detracts from the Commissioner’s 11 conclusion.” Id. at 1035 (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 12 1998)). “Where evidence is susceptible to more than one rational interpretation, the 13 ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 14 1198 (9th Cir. 2008) (internal quotation marks and citation omitted). However, the 15 court “review[s] only the reasons provided by the ALJ in the disability determination 16 and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 17 F.3d at 1010 (citation omitted). 18 III. ADMINISTRATIVE DECISION 19 A. 20 The Act defines “disability” as the “inability to engage in any substantial 21 gainful activity by reason of any medically determinable physical or mental 22 impairment which . . . has lasted or can be expected to last for a continuous period of 23 not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Under the Act’s implementing 24 regulations, the Commissioner applies a five-step sequential evaluation process to 25 determine whether an applicant for benefits qualifies as disabled. See 20 C.F.R. § 26 404.1520(a)(4). “The burden of proof is on the claimant at steps one through four, 27 but shifts to the Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 28 554 F.3d 1219, 1222 (9th Cir. 2009). Standard for Determining Disability –5– 17cv2305 1 At step one, the ALJ must determine whether the claimant is engaged in 2 “substantial gainful activity.” 1 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is 3 not disabled. If not, the ALJ proceeds to step two. 4 At step two, the ALJ must determine whether the claimant has a severe medical 5 impairment, or combination of impairments, that meets the duration requirement in 6 the regulations. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant’s impairment or 7 combination of impairments is not severe, or does not meet the duration requirement, 8 the claimant is not disabled. If the impairment is severe, the analysis proceeds to 9 step three. 10 At step three, the ALJ must determine whether the severity of the claimant’s 11 impairment or combination of impairments meets or medically equals the severity of 12 an impairment listed in the Act’s implementing regulations.2 13 404.1520(a)(4)(iii). If so, the claimant is disabled. If not, the analysis proceeds to 14 step four. 20 C.F.R. § 15 At step four, the ALJ must determine whether the claimant’s residual 16 functional capacity (“RFC”)—that is, the most he can do despite his physical and 17 mental limitations—is sufficient for the claimant to perform his past relevant work. 18 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ assesses the RFC based on all relevant 19 evidence in the record. Id. § 416.945(a)(1), (a)(3). If the claimant can perform his 20 past relevant work, he is not disabled. If not, the analysis proceeds to the fifth and 21 final step. 22 At step five, the Commissioner bears the burden of proving that the claimant 23 can perform other work that exists in significant numbers in the national economy, 24 taking into account the claimant’s RFC, age, education, and work experience. 20 25 26 1 27 “Substantial gainful activity” is work activity that (1) involves significant physical or mental duties and (2) is performed for pay or profit. 20 C.F.R. § 404.1510. 28 2 The relevant impairments are listed at 20 C.F.R. part 404, subpart P, appendix 1. –6– 17cv2305 1 C.F.R. § 404.1560(c)(1)-(2); see also 20 C.F.R. § 404.1520(g)(1). The ALJ usually 2 meets this burden through the testimony of a vocational expert, who assesses the 3 employment potential of a hypothetical individual with all of the claimant’s physical 4 and mental limitations that are supported by the record. Hill v. Astrue, 698 F.3d 1153, 5 1162 (9th Cir. 2012) (citations omitted). If the claimant is able to perform other 6 available work, he is not disabled. If the claimant cannot make an adjustment to other 7 work, he is disabled. 20 C.F.R. § 404.1520(a)(4)(iv). 8 B. 9 On July 11, 2016, the ALJ issued a written decision concluding that Plaintiff 10 was not disabled within the meaning of the Act, and therefore not entitled to benefits. 11 (AR 30.) The ALJ followed the five-step evaluation procedure to determine whether 12 Plaintiff is disabled pursuant to the Act. At step one, the ALJ found Plaintiff had not 13 engaged in substantial gainful activity since June 1, 2013, the alleged onset date of 14 his disability. (AR 22.) The ALJ’s Disability Determination 15 At step two, the ALJ concluded that Plaintiff has severe impairments as defined 16 by the Act. (AR 22.) The ALJ found that Plaintiff has obstructive sleep apnea, 17 bilateral hearing loss, left thigh pain due to meralgia parestherica, degenerative disc 18 disease of the lumbar and cervical spine, right knee patellar chondromalacia, and 19 obesity. (Id.) He determined that those impairments are severe as they “more than 20 minimally limit his basic work activities” and have lasted longer than 12 months. 21 (Id.) However, in consideration of the record and Plaintiff’s testimony, the ALJ 22 deemed that Plaintiff’s hypertension, hyperlipidemia, and allergic rhinitis are treated 23 with medication. (Id.) As such, the ALJ concluded that these conditions “have such 24 a minimal effect on [Plaintiff] that they would not be expected to interfere with [his] 25 ability to work irrespective of age, education, or work experience.” (AR 22-23.) The 26 ALJ consequently found that these conditions are nonsevere. (Id.) Lastly, the ALJ 27 concluded that Plaintiff’s anxiety “does not cause more than minimal limitation [on 28 /// –7– 17cv2305 1 Plaintiff’s] ability to perform basic mental work activities and is therefore 2 nonsevere.” (AR 23.) 3 At step three, the ALJ concluded that Plaintiff’s impairments, alone and in 4 combination, did not meet or medically equal the severity of the impairments listed 5 in the regulations. (AR 24.) 6 7 At step four, the ALJ found that Plaintiff has the RFC to perform “light work” as defined in the social security regulations with the following limitations: 8 14 The claimant can sit six hours in an eight-hour day, and stand/walk six hours in an eight-hour day. She [sic] can occasionally lift 20 pounds and frequently lift 10 pounds. She [sic] can occasionally climb stairs, balance, stoop, kneel, crouch, and crawl. The claimant can never climb ladders, ropes, or scaffolds. She [sic] can never perform overhead work or work requiring frequently [sic] neck movement. She [sic] must avoid unprotected heights, dangerous or fast moving machinery, and extreme temperatures. The claimant must avoid concentrated exposure to noises, dust, fumes, and gasses. 15 (AR 24.) To make this finding, the ALJ summarized Plaintiff’s medical records and 16 noted diagnoses, tests, complaints, and treatments. (AR 25-27.) 9 10 11 12 13 17 Next, the ALJ evaluated the medical opinion evidence within the record. (AR 18 27-28.) First, he gave “great weight” to the testimony of nonexamining reviewing 19 physician Dr. Sparks. The ALJ determined that Dr. Sparks’ findings are consistent 20 with his own assessment of Plaintiff’s RFC and are also supported by the listed 21 medical impairments and reports regarding Plaintiff’s hearing loss, degeneration of 22 the lumbar and cervical spine, and pain in his left thigh and right knee. (AR 27.) 23 Second, the ALJ gave little weight to the opinions of state agency medical consultants 24 Drs. John Vorhies, Jr., and G. Lockie. (Id.) He concluded that the consultants’ 25 opinions that Plaintiff had no exertional limitations but some postural and 26 environmental limitations were inconsistent with the record, in particular the 27 “objective evidence” of degeneration of Plaintiff’s lumbar and cervical spine. (Id.) 28 /// –8– 17cv2305 1 The ALJ furthermore addressed the opinions of Drs. Balfour and Mantell. (AR 2 27.) Here, the Court notes that the ALJ’s written evaluation confusingly comingles 3 these two opinions as follows: 4 5 6 7 8 9 10 11 12 The undersigned has also considered the opinions of Glen Balfour, and Richard B. Mantell, M.D., who completed a functional assessment of the claimant and opined that he could perform work at less than the sedentary exertional level with additional postural and other limitations. (Exhibits 15F; and 16F/10-12). His findings are inconsistent with the medical record of evidence, which suggests great improvement of the claimant’s condition with the help of physical therapy, and recent examinations that show full strength, stability and range of motion in the claimant’s spine and knees. (Exhibits 5F/6; and 19F/27, 32). Additionally, the objective testing revealed mild changes that did not require additional surgery or cause changes to his gait. (Exhibit 5F). Accordingly, the undersigned gives his opinion little weight. 13 14 (AR 27.) 15 As seen above, the ALJ’s decision addresses the separate, independent 16 opinions of Drs. Balfour and Mantell simultaneously as one. (AR 27.) In addition to 17 the ALJ’s statements, the ALJ’s citations to the record fail to provide clarity. In the 18 first sentence, the ALJ’s cites to both physicians’ opinions in the record. (Id.) 19 However, the subsequent record citations all refer to documents authored by other 20 medical providers. (Id.) Thus, the ALJ’s statements and citations fail to distinguish 21 which of his conclusions correlates to which physician’s opinion. (Id.) The resulting 22 ambiguity effectively forces the Court to speculate as to the ALJ’s overall meaning. 23 Hence, this imprecise discussion impedes the Court from completing meaningful 24 judicial review of the ALJ’s analysis and falls short of Ninth Circuit standards. 25 “[A]lthough we will not fault the agency merely for explaining its decision with less 26 than ideal clarity, we still demand that the agency set forth the reasoning behind its 27 decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 28 F.3d 487, 492 (9th Cir. 2015) (citation and quotation omitted). –9– 17cv2305 1 Nevertheless, the parties assume that the ALJ gave little weight to Dr. 2 Balfour’s opinion. (AR 27; Pl.’s Mot. 11:24-12:3; Def.’s Mot. 3:21-4:2.) The 3 Commissioner also assumes that the ALJ gave little weight to Dr. Mantell’s opinion. 4 (Def.’s Mot. 6:26-7:2.) Plaintiff does not address the ALJ’s mention of Dr. Mantell, 5 but cites to Dr. Mantell’s opinion to support his arguments. (Pl.’s Mot. 9:4-16, 12:10- 6 18.) Although the ALJ’s decision lacks clarity, the Court will adopt the assumption 7 that the ALJ gave little weight to both Dr. Balfour’s and Dr. Mantell’s opinions to 8 resolve the parties’ opposing claims. 9 Next, the ALJ found Plaintiff’s disability ratings from the VA to be of “little 10 probative value.” (AR 27-28.) He stated that when determining this rating, the VA 11 does not adhere to the SSA’s evaluation procedures for determining if a claimant is 12 disabled. (AR 28.) Specifically, the ALJ noted that the VA does not determine an 13 individual’s RFC or if the individual is able to perform his past relevant work or other 14 work that exists in significant numbers in the national economy. (Id.) As such, the 15 ALJ gave Plaintiff’s VA disability ratings “little weight.” (Id.) 16 17 Lastly, the ALJ assessed Plaintiff’s credibility, finding: 20 [Plaintiff’s] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record . . . . 21 (AR 28.) The ALJ stated that Plaintiff claimed that he was unable to work because 22 he could not perform heavy lifting or be exposed to chemicals. (Id.) The ALJ noted 23 these claims were inconsistent with Plaintiff’s assertions that he applied for jobs that 24 he did not think he could perform with such limitations. (Id.) The ALJ also pointed 25 to reports that Plaintiff’s condition improved with physical therapy and that he 26 maintained full strength and range of motion in his spine and knees. (Id.) The ALJ 27 cited the VA’s 2015 finding that Plaintiff’s knee and lower leg conditions did not 28 impact his ability to perform any occupational task. (AR 28, 1030.) 18 19 – 10 – 17cv2305 1 At the conclusion of step four, the ALJ determined that Plaintiff could not 2 perform his past relevant work as a sheet metal mechanic or an assembler installer 3 for aircraft. (AR 28-29.) He based this decision on Plaintiff’s RFC and the testimony 4 of the vocational expert, who considered the impact of Plaintiff’s limitations. (Id.) 5 Lastly at step five, the ALJ concluded that Plaintiff could perform jobs that 6 exist in significant numbers in the national economy pursuant to 20 C.F.R. § 7 404.1569(a). (AR 29.) He stated that Plaintiff did not have the RFC to perform the 8 full range of exertional demands of light work. (Id.) Considering Plaintiff’s age, 9 education, work experience, and RFC, the ALJ agreed with the vocational expert’s 10 determination that Plaintiff could perform the work requirements of an inspector, 11 ticket taker, and marker. (AR 29-30.) 12 Based on his conclusions for each of the five steps of the evaluation procedure, 13 the ALJ ultimately determined that Plaintiff is not disabled. (AR 30.) 14 IV. DISCUSSION 15 Plaintiff challenges the ALJ’s decision on two grounds. First, he argues that 16 the ALJ committed legal error when he failed to sufficiently justify discounting the 17 opinion of Plaintiff’s treating neurologist, Dr. Balfour. (Pl.’s Mot. 11:24-12:5.) 18 Second, Plaintiff argues that the ALJ improperly weighed the testimony of 19 nonexamining medical expert Dr. Sparks. (Id.) The Commissioner contends the ALJ 20 properly justified dismissing Dr. Balfour’s opinion. (Def.’s Mot. 4:3-5.) In addition, 21 the Court will determine whether the ALJ erred in disregarding the opinion of 22 Plaintiff’s examining physician, Dr. Mantell, as well as the VA’s disability rating. 23 Lastly, if there is error, Plaintiff asserts that the Court should reverse the ALJ’s 24 decision and order benefits to be paid. (Pl.’s Mot. 14:1-4.) The Court will examine 25 each issue in turn. 26 /// 27 /// 28 /// – 11 – 17cv2305 1 A. 2 Treating Specialist Dr. Balfour 1. Legal Standard for Treating Physicians 3 The Act’s regulations distinguish among the opinions of three types of 4 physicians: “(1) those who treat the claimant (treating physicians); (2) those who 5 examine but do not treat the claimant (examining physicians); and (3) those who 6 neither examine nor treat the claimant (nonexamining physicians).” Holohan v. 7 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (alteration omitted) (quoting 8 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). As a general rule, the opinion of 9 a treating doctor is entitled to greater weight than the opinion of doctors who do not 10 treat the claimant. Lester, 81 F.3d at 830 (citation omitted). “The rationale for giving 11 greater weight to a treating physician’s opinion is that he is employed to cure and has 12 a greater opportunity to know and observe the patient as an individual.” Sprague v. 13 Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citation omitted). 14 The degree of deference afforded to a treating source’s opinion depends partly 15 upon whether, and to what extent, that opinion is contradicted. A treating physician’s 16 opinion is given “controlling weight” if it is “well-supported by medically acceptable 17 clinical and laboratory techniques” and is “not inconsistent with the other substantial 18 evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). Such opinions may be 19 rejected “only for ‘clear and convincing’ reasons supported by substantial evidence 20 in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Lester, 81 21 F.3d at 830). 22 When a treating physician’s opinion is contradicted, this “means only that the 23 opinion is not entitled to ‘controlling weight,’ not that the opinion should be 24 rejected.” Orn, 495 F.3d at 632 (quoting Social Security Ruling 96–2p at 4 (Cum. 25 Ed. 1996)). To determine the amount of deference owed, the opinion must be 26 weighed using the six factors outlined in 20 C.F.R. § 404.1527(c)(2)-(6). These 27 factors include the length of the treatment relationship and frequency of examination, 28 the extent to which the opinion is supported by medical signs and laboratory findings, – 12 – 17cv2305 1 the consistency of the opinion with the record as a whole, and whether or not the 2 treating source is a specialist regarding the issue in question. Id. “In many cases, a 3 treating source’s medical opinion will be entitled to the greatest weight and should 4 be adopted, even if it does not meet the test for controlling weight.” Ghanim v. 5 Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Orn, 495 F.3d at 361). 6 In cases where a treating doctor’s opinion is contradicted, an ALJ’s rejection 7 of that opinion may only be upheld if it contains “specific and legitimate reasons that 8 are supported by substantial evidence” in the record. See Burrell v. Colvin, 775 F.3d 9 1133, 1140 (9th Cir. 2014) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 10 Cir. 2005)). “The ALJ can meet this burden by setting out a detailed and thorough 11 summary of the facts and conflicting clinical evidence, stating his interpretation 12 thereof, and making findings.” Trevizo, 862 F.3d at 997 (quoting Magallanes, 881 13 F.2d at 751). “The ALJ must do more than offer his conclusions. He must set forth 14 his own interpretations and explain why they, rather than the doctors’, are correct.” 15 Reddick, 157 F.3d at 725. “[A]n ALJ errs when he rejects a medical opinion or 16 assigns it little weight while doing nothing more than ignoring it, asserting without 17 explanation that another medical opinion is more persuasive, or criticizing it with 18 boilerplate language that fails to offer a substantive basis for his conclusion.” 19 Garrison, 759 F.3d at 1012-13. 20 21 2. Dr. Balfour’s Opinion Dr. Balfour, a neurologist and spinal cord injury specialist, began treating 22 Plaintiff as early as January 2015. 23 examination notes dated January through October 2015, Plaintiff regularly 24 complained of back pain, left shoulder pain, peroneal neuropathy, neck pain, 25 headaches, and right knee pain. (AR 748-73.) During these examinations, Dr. 26 Balfour diagnosed Plaintiff with lumbosacral radiculopathy, osteoarthritis in his 27 knees, a left rotator cuff injury, thoracic spine neuropathy, and left peroneal and 28 femoral neuropathy. (AR 751, 754, 759, 762, 766, 769.) (AR 748.) According to Dr. Balfour’s – 13 – 17cv2305 1 While treating Plaintiff, Dr. Balfour performed and ordered multiple objective 2 medical tests. These tests yielded both normal and abnormal results. On February 3 27, 2015, Dr. Balfour performed an EMG and Nerve Conduction Studies of 4 Plaintiff’s lower extremities. (AR 773-76.) The study yielded normal results. (Id.) 5 In March 2015, several x-rays were performed. X-rays of Plaintiff’s knees showed 6 unremarkable results. (AR 777-82.) However, an x-ray of Plaintiff’s cervical spine 7 showed straightening of the cervical lordosis and restricted range of motion. (AR 8 786-89.) Also, an x-ray of Plaintiff’s lumbar spine showed restricted range of motion, 9 anterior inferior endplate osteophyte at L3, and anterior superior endplate osteophyte 10 at L4. (AR 783-85.) Next, a June 26, 2015 magnetic resonance imaging study 11 (“MRI”) of Plaintiff’s brain presented normal results. (AR 790.) On the same date, 12 an MRI of Plaintiff’s cervical spine showed multilevel mild degenerative changes 13 greatest along the left side at C3-4, disc protrusions at C6-7, no spinal cord 14 abnormalities, and mild foraminal narrowing at C3-4 and C5-6 due to uncovertebral 15 osteophytes and facet arthropathy. (AR 791-92.) Lastly, an October 10, 2015 MRI 16 of Plaintiff’s lumbar spine showed a two millimeter broad-based posterior 17 disk/endplate osteophyte complex at L4-L5 level, indenting the anterior aspect of the 18 thecal sac. (AR 793.) 19 In two letters dated April 10, 2015, Dr. Balfour stated that Plaintiff’s medical 20 conditions “severely compromised his ability to perform his job as a Metal Sheet 21 Worker Mechanic.” (AR 718-21.) According to these letters, Plaintiff’s “severe right 22 knee pain” prevented him from kneeling for any extended period of time. (Id.) 23 Plaintiff was “not able to perform short periods of standing, kneeling, crouching, 24 stooping and working in strained and awkward positions.” (AR 720.) He was also 25 unable to maintain neck, shoulder, and low back postures for more than 30 minutes 26 because of severe pain; these posture restrictions limited his ability to work overhead 27 for more than one hour. (Id.) Plaintiff’s neck pain caused “severe daily headaches,” 28 which compromised his ability to function at work. (AR 718.) “His left peroneal – 14 – 17cv2305 1 neuropathy and left femoral neuropathy are aggravated by standing and maintaining 2 body positions.” (Id.) In addition, his left rotator cuff injury made it very difficult 3 for him to lift more than 35 pounds, as well as grab, hold, and climb ladders. (AR 4 718-21.) Plaintiff’s thoracic radiculopathy was aggravated by performing sanding, 5 grinding, lifting, or “certain positional maneuvers.” (AR 718.) Because of his sleep 6 apnea and allergy rhinitis, he was unable to work with hazardous materials. (AR 7 720.) Furthermore, Plaintiff had a diminished ability to be alert and oriented due to 8 depression and sleep disorders. (Id.) Dr. Balfour concluded that he expected all of 9 Plaintiff’s medical conditions “to last for several years in spite of medical therapy.” 10 (AR 718.) 11 3. ALJ’s Rejection of Dr. Balfour’s Opinion 12 As the Court explained above, the ALJ presumably gave Dr. Balfour’s opinion 13 little weight. (See AR 27.) He stated that Dr. Balfour’s opinions were inconsistent 14 with the medical record in two respects. (Id.) The Court agrees that at least some 15 medical evidence in the record contradicts Dr. Balfour’s opinion. As such, the Court 16 will apply the “specific and legitimate” reasons standard to the ALJ’s rejection of Dr. 17 Balfour’s opinion. See Burrell, 775 F.3d at 1140. 18 i. Reported Improvement, Strength, and Range of Motion 19 First, the ALJ asserted Dr. Balfour’s opinion contradicted Plaintiff’s reported 20 improvement with physical therapy, as well as recent examinations showing full 21 strength, stability, and range of motion in Plaintiff’s spine and knees. (AR 27.) For 22 this claim, the ALJ cited the initial medical evaluation completed by Plaintiff’s 23 physical therapy provider on September 25, 2013. (Id.) He additionally cited a VA 24 Compensation and Pension Examination Report dated March 14, 2016. (Id.) 25 The physical therapy report notes that Plaintiff was seen for pain in his left 26 shoulder, left thigh, and lower back. (AR 486-88.) It indicates that Plaintiff 27 maintained full strength, normal gait, and full range of motion in his left shoulder and 28 spine. (AR 487.) However, the same report further notes he had stiffness, – 15 – 17cv2305 1 discomfort, tenderness, and muscle spasm in his shoulder. (Id.) Likewise, it states 2 that Plaintiff had tenderness and stiffness in his lumbo-sacral spine, and tenderness 3 and muscle spasm in his left thigh. (Id.) 4 The 2016 VA examination report consists of Disability Benefits 5 Questionnaires that evaluate Plaintiff’s neck, back, knees, and lower leg conditions. 6 (AR 908-35.) The ALJ cited only two pages of the knee and lower leg questionnaire. 7 The referenced pages indicate that Plaintiff maintained normal range of motion in his 8 left knee and had no instability in his right knee. (AR 920, 924.) Yet the rest of the 9 28-page report also includes the following findings: abnormal range of motion in his 10 spine and neck; arthritis in his right knee and neck; mild difficulty with turning his 11 neck; and difficulty walking, standing, bending, lifting, and carrying due to his spine 12 and knee conditions. (AR 911, 917, 928, 930-31, 935.) The report states that these 13 conditions contribute to functional loss as well as impact Plaintiff’s ability to work 14 and perform occupational tasks. (AR 911, 917, 928, 930-31.) 15 ii. Surgery Recommendations and Normal Gait 16 Second, the ALJ deemed that Dr. Balfour’s opinion was inconsistent with the 17 absence of recommendations for Plaintiff to undergo additional surgery and reports 18 that Plaintiff’s conditions did not impact his gait. (AR 27.) The ALJ’s decision cites 19 Plaintiff’s physical therapy reports dated September 25, 2013 through May 28, 2014 20 for this claim. (AR 27, 482-503.) In accordance with the ALJ’s assertions, these 21 reports note that during this 2013 to 2014 time period, Plaintiff’s gait remained within 22 normal limits. 23 recommended surgery. (Id.) Further, these records report that Plaintiff indicated that 24 his symptoms significantly improved over the course of physical therapy treatment. 25 (Id.) 26 improved, at the same time he described ongoing pain in his right knee, back and left 27 shoulder, as well as some pain in his neck and left thigh. (AR 489, 492, 495, 498, 28 501.) (Id.) These reports also do not mention that Plaintiff was However, these reports note that while Plaintiff’s symptoms reportedly – 16 – 17cv2305 1 4. Analysis of ALJ’s Rejection of Dr. Balfour’s Opinion 2 The Court finds that the ALJ failed to meet his burden of providing specific 3 and legitimate reasons supported by substantial evidence to discount Dr. Balfour’s 4 opinion. Conceivably, the ALJ may have been justified in not giving “controlling 5 weight” to Dr. Balfour’s opinion. Overall, however, the ALJ’s reasons for giving the 6 opinion of a treating medical specialist “little weight” instead of the “greatest weight” 7 were legally insufficient for two reasons. (AR 27.) 8 First, the ALJ based his determination that Dr. Balfour’s opinion was 9 inconsistent on conclusory references to narrow selections from the record. The ALJ 10 may not cherry-pick the record to support his disability determination. Yurt v. Colvin, 11 758 F.3d 850, 859 (7th Cir. 2014); Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 12 2010) (“An ALJ has the obligation to consider all relevant medical evidence and 13 cannot simply cherry-pick facts that support a finding of non-disability while 14 ignoring evidence that points to a disability finding.”). Moreover, the ALJ may not 15 rely upon insufficient evidence of alleged inconsistencies as the basis for rejecting an 16 examining physician’s opinion. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 17 1996) (“Where the purported existence of an inconsistency is squarely contradicted 18 by the record, it may not serve as the basis for the rejection of an examining 19 physician’s conclusions.”). 20 Here, the ALJ selected brief segments from the medical records he cited, 21 ignoring the record as a whole. In doing so, he failed to recognize the various 22 consistencies between Dr. Balfour’s opinion and other medical records. The ALJ 23 ignored that Dr. Balfour’s opinion as well as Plaintiff’s physical therapy and VA 24 records all reported that Plaintiff had difficulty with moving his neck, walking, 25 bending, standing, lifting, and carrying. 26 independently documented Plaintiff’s ongoing complaints of persistent back, neck, 27 left shoulder, left thigh, and right knee pain. See Nguyen, 100 F.3d at 1465. 28 Moreover, the ALJ did not address Plaintiff’s more recent physical therapy notes He overlooked that both sources – 17 – 17cv2305 1 when evaluating Dr. Balfour’s opinion. Physical therapy records from early 2016 2 indicate that Plaintiff experienced ongoing pain and had a 50% to 70% decrease in 3 the range of motion of his left shoulder. (AR 673-83.) Further, by relying on only 4 these excerpts, the ALJ failed to provide a “detailed and thorough summary of the 5 facts and conflicting clinical evidence” or “a substantive basis for his conclusions.” 6 See Trevizo, 862 F.3d at 997 (quoting Magallanes, 881 F.2d at 751); see also 7 Garrison, 759 F.3d at 1012-13. 8 Furthermore, the ALJ’s brief reference to the fact that additional surgery was 9 not recommended for Plaintiff similarly fails to give meaningful consideration to all 10 relevant medical evidence. As such, this reasoning is likewise insufficient to reject 11 Dr. Balfour’s opinion. See Kager v. Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) 12 (finding that an ALJ’s reasoning for rejecting physicians’ opinions about a diagnosis 13 “simply by observing that no measures, such as surgery, were undertaken” was 14 insufficient because “[t]his reasoning lacks the specificity required ‘to allow a 15 reviewing court to confirm that the [evidence] was rejected on permissible grounds 16 and not arbitrarily.’” (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1041 17 (9th Cir. 2003))). As a result of relying on bare references to excerpts from the record, 18 the ALJ erred because his dismissal of Dr. Balfour’s opinion did not contain specific 19 and legitimate reasons supported by substantial evidence. 20 To substantiate the ALJ’s finding that Dr. Balfour’s opinion was contradicted 21 by other medical evidence, the Commissioner points to a substantial number of 22 physical therapy records dating from May 2014 through April 2016. (Def.’s Mot. 23 4:4-6:26; AR 673-717.) The Commissioner lists multiple instances in these records 24 that indicate that Plaintiff’s impairments significantly improved with physical 25 therapy and that Plaintiff exhibited full range of motion, full strength, and normal 26 gait. (Id.) But like the ALJ’s decision, the Commissioner’s support only consists of 27 more cherry-picked selections from the record to endorse a finding that Plaintiff is 28 not disabled. The Commissioner likewise ignores the reports of Plaintiff’s ongoing – 18 – 17cv2305 1 complaints of pain and limited range of motion in his shoulder contained in the 2 records she cited. As such, the Commissioner’s similarly incomplete portrayal of the 3 record does not compensate for the shortcomings of the ALJ’s decision. 4 Second, even if the ALJ had sufficiently established that Dr. Balfour’s opinion 5 was substantially contradicted by the record, he also failed to determine the amount 6 of deference owed to the opinion of a treating physician in accordance with the factors 7 established in 20 C.F.R. § 404.1527(c)(2)-(6). See Ghanim, 763 F.3d at 1161 (“Even 8 if a treating physician’s opinion is contradicted, the ALJ may not simply disregard it. 9 The ALJ is required to consider the factors set out in 20 C.F.R. § 404.1527(c)(2)- 10 (6) in determining how much weight to afford the treating physician’s medical 11 opinion.”). The ALJ’s decision did not mention any of the following: the length of 12 Dr. Balfour’s treatment of Plaintiff; how frequently he examined Plaintiff; the 13 consistency of Dr. Balfour’s opinion with the record as a whole; the extent to which 14 his opinion is supported by medical signs and laboratory findings; or Dr. Balfour’s 15 medical specialty and how it related to Plaintiff’s conditions. Therefore, the ALJ 16 committed legal error by failing to satisfy regulation requirements when weighing 17 the medical opinion of treating specialist Dr. Balfour. 18 19 B. Examining Physician Dr. Mantell 1. Legal Standard for Examining Physicians 20 While an examining physician is not entitled to the same degree of deference 21 as a treating physician, the ALJ may not simply reject an examining physician’s 22 opinion. Rather, the opinions of examining physicians, even if contradicted by 23 another doctor, “can only be rejected for specific and legitimate reasons that are 24 supported by substantial evidence.” Lester, 81 F.3d at 830-31; see also Nguyen, 100 25 F.3d at 1465. An ALJ errs by failing to provide valid reasoning for discrediting the 26 opinion of an examining physician, particularly when a nonexamining physician’s 27 opinion is afforded greater weight. See Cain v. Barnhart, 74 F. App’x 755, 756 (9th 28 Cir. 2003); Feskens v. Astue, 804 F. Supp. 2d 1105, 1115 (D. Or. 2011). – 19 – 17cv2305 1 2. Dr. Mantell’s Opinion 2 Dr. Mantell examined Plaintiff during a two-day, 3.5-hour functional capacity 3 evaluation. (AR 731-33.) He opined in an April 16, 2016 report that Plaintiff could 4 perform work at the sedentary level with limitations. (Id.) He restricted Plaintiff to 5 standing for no more than 10 minutes and lifting no more than 15 pounds. (AR 733.) 6 According to Dr. Mantell’s evaluation, Plaintiff did not meet the minimal physical 7 demands required to safely work as a sheet metal worker. (Id.) Dr. Mantell also 8 reported that Plaintiff “demonstrated poor quality of movement overall due to pain 9 limitations” and showed “[d]ecreased strength and endurance of both upper 10 extremities.” (AR 732.) He noted that Plaintiff’s lower back and knee pain “severely 11 limits” squatting and climbing. (Id.) 12 Plaintiff asserts that Dr. Mantell’s opinion supports Plaintiff’s functional and 13 work limitations. (Pl.’s Mot. 12:10-18.) The Commissioner argues that Dr. Mantell’s 14 opinion contradicts Plaintiff’s treatment record. (Def.’s Mot. 7:2-6) As such, the 15 Commissioner claims that Dr. Mantell’s findings regarding Plaintiff’s physical 16 limitations fail to “rehabilitate” Dr. Balfour’s similar conclusions. (Id. 7:6-7.) 17 3. ALJ’s Rejection of Dr. Mantell’s Opinion 18 Because the ALJ indistinguishably evaluated the opinions of Drs. Balfour and 19 Mantell together, the ALJ seemed to also give Dr. Mantell’s opinion little weight 20 based on alleged inconsistencies with the medical record. (See AR 27.) As with Dr. 21 Balfour’s opinion, the Court agrees that at least some medical evidence contradicts 22 Dr. Mantell’s opinion, and thus the Court will apply the “specific and legitimate” 23 reasons standard to the ALJ’s dismissal of Dr. Mantell’s opinion. See Lester, 81 F.3d 24 at 830-31; Cain, 74 F. App’x at 756; Feskens, 804 F. Supp. 2d 25 at 1115. 26 As with Dr. Balfour, the ALJ first asserted Dr. Mantell’s opinion contradicted 27 Plaintiff’s reported improvement with physical therapy, as well as recent 28 examinations showing full strength, stability, and range of motion in Plaintiff’s spine – 20 – 17cv2305 1 and knees. (AR 27.) He also cited the September 2013 physical therapy evaluation 2 and the March 2016 VA Compensation and Pension Examination Report. (Id.) 3 Second, the ALJ stated Dr. Mantell’s opinion was inconsistent with the lack of 4 any recommendations for Plaintiff to undergo more surgery and reports that 5 Plaintiff’s conditions did not impact his gait. (AR 27.) The ALJ’s decision cites 6 Plaintiff’s physical therapy reports dated September 25, 2013 through May 28, 2014. 7 (AR 27, 482-503.) 8 4. Analysis of ALJ’s Rejection of Dr. Mantell’s Opinion 9 As with the ALJ’s rejection of Dr. Balfour’s opinion, the Court finds that the 10 ALJ failed to provide specific and legitimate reasons supported by the record to 11 discredit Dr. Mantell’s opinion. For the same reasons the Court explained above for 12 Dr. Balfour’s opinion, the ALJ’s conclusion that Dr. Mantell’s determinations were 13 inconsistent with other medical documentation is based on narrow cherry pickings 14 from the record. By ignoring the record as a whole, the ALJ failed to acknowledge 15 the consistencies between Dr. Mantell’s opinion and separate medical sources. He 16 omitted that both Dr. Mantell and other providers noted Plaintiff’s reports of pain in 17 his back, upper extremity, and knee. See Nguyen, 100 F.3d at 1465. Furthermore, 18 the ALJ compared Dr. Mantell’s 2016 evaluation only with physical therapy records 19 from 2013. The ALJ did not cite to Plaintiff’s physical therapy notes from the same 20 year as Dr. Mantell’s evaluation. Yet, physical therapy records from early 2016 state 21 that Plaintiff complained of continuing pain and had a 50% to 70% decrease in the 22 range of motion of his left shoulder. (AR 673-83.) In addition, the ALJ’s short 23 reference to the fact that additional surgery was not recommended for Plaintiff lacks 24 specificity. See Kager, 256 F. App’x at 923. By only citing to narrow selections 25 from the record, the ALJ failed to weigh all of the medical evidence and failed to 26 provide a thorough summary of the record. See Trevizo, 862 F.3d at 997 (quoting 27 Magallanes, 881 F.2d at 751). Overall, the ALJ erred in rejecting Dr. Mantell’s 28 /// – 21 – 17cv2305 1 opinion by not substantiating his decision with specific and legitimate reasons 2 supported by the record. 3 4 C. Reviewing Physician Dr. Sparks 1. Legal Standard for Nonexamining, Reviewing Physicians 5 Plaintiff also argues that the ALJ committed legal error by improperly 6 affording greater weight to the opinion of Dr. Sparks, a nonexamining testifying 7 medical expert, over that of Dr. Balfour, Plaintiff’s treating specialist, and Dr. 8 Mantell, Plaintiff’s examining physician. (Pl.’s Mot. 11:24-12:5.) “As a general rule, 9 more weight should be given to the opinion of a treating source than to the opinion 10 of doctors who do not treat the claimant.” Garrison, 759 F.3d at 1012 (quoting 11 Lester, 81 F.3d at 830). “When a nonexamining physician’s opinion contradicts an 12 examining physician’s opinion and the ALJ gives greater weight to the nonexamining 13 physician’s opinion, the ALJ must articulate her reasons for doing so.” See Feskens, 14 804 F. Supp. 2d at 1115 (citing Morgan v. Comm’r of Soc. Sec. Admin, 169 F.3d 595, 15 600-01 (9th Cir. 1999)). More specifically, an ALJ errs when he or she “accord[s] 16 greater weight to the opinion of a non-examining, non-treating physician than to the 17 opinions of [a claimant’s] treating and examining physicians without providing 18 ‘specific’ and ‘legitimate’ reasons supported by ‘substantial evidence in the record’ 19 for doing so.” Cain, 74 F. App’x at 756 (citing Lester, 81 F.3d at 830-31). 20 2. Dr. Sparks’ Opinion 21 Dr. Sparks is a non-treating, nonexamining internist and endocrinologist who 22 reviewed Plaintiff’s medical records for this case. (AR 63, 669.) He testified during 23 the administrative hearing that Plaintiff had the following medically determinable 24 impairments: hypertension that is controlled by medication; hyperlipidemia; 25 obstructive sleep apnea; allergic rhinitis; sensory neuro high-pitch bilateral hearing 26 loss; left thigh pain due to meralgia paresthetica resulting from the superficial femoral 27 nerve entrapment; low back pain with two millimeter degenerative disc disease at L4- 28 5; right knee pain with patellar chrondromalacia; neck pain with mild multilateral – 22 – 17cv2305 1 degenerative disc disease at C3-4 through C3-5/6; and obesity. (AR 64.) Dr. Sparks 2 then opined that Plaintiff should have the following work restrictions: can 3 occasionally lift 20 pounds and frequently lift 10 pounds; no use of ladders, ropes, or 4 scaffolding; no overhead work; no frequent extreme motion of the neck; no exposure 5 to extreme hot or cold; no exposure to noisy environments; no work from unprotected 6 heights; no work with dangerous machinery; and can stand, walk, and sit six hours 7 out of an eight-hour day. (AR 65.) 8 3. ALJ’s Acceptance of Dr. Sparks’ Opinion 9 The ALJ assigned “great weight” to Dr. Sparks’ opinion. (AR 27.) He justified 10 this consideration by stating that Dr. Sparks’ findings were “consistent” with his own 11 assessment of Plaintiff’s RFC and are “supported by the listed medical impairments 12 and reports that the claimant has decreased hearing sensitivity, degeneration of the 13 lumbar and cervical spine, and pain in his left thigh and right knee.” (Id.) 14 4. Analysis of ALJ’s Acceptance of Dr. Sparks’ Opinion 15 The Court finds the ALJ’s decision lacks legal justification for giving Dr. 16 Sparks’ opinion great weight, particularly over the little weight given to Plaintiff’s 17 treating and examining physicians. An ALJ’s statement that a physician’s opinion 18 matches the ALJ’s own conclusions is not a legitimate explanation for why that 19 physician’s opinion should be granted more weight. See Ressler v. Berryhill, 687 F. 20 App’x 560, 562 (9th Cir. 2017) (“The ALJ explained that he gave weight to the 21 medical opinions and medical evidence in the record ‘to the extent that they are 22 consistent with this decision.’ Such a standard is nowhere reflected in our case law 23 and the ALJ’s application of it constitutes an error of law.”). Though the ALJ states 24 that Dr. Sparks’ opinion is supported by the listed medical impairments and some of 25 Plaintiff’s medical conditions, he does not explain how or why said support is 26 significant. Therefore, this conclusion is also devoid of sufficient legal reasoning. 27 Moreover, the ALJ’s assessment failed to justify why he favored Dr. Sparks’ 28 opinion over the opinions of Dr. Balfour, a treating physician, and Dr. Mantell, an – 23 – 17cv2305 1 examining physician. Dr. Sparks is a nonspecialist testifying physician who reviewed 2 Plaintiff’s record. (AR 63-64.) He has never spoken to Plaintiff, examined him, or 3 treated him. (Id.) Contrary to Dr. Sparks’ opinion, Dr. Balfour determined after 4 repeatedly examining and treating Plaintiff that he is “not able to perform short 5 periods of standing.” (AR 720.) In addition, Dr. Mantell deemed that Plaintiff could 6 perform work at the sedentary level only with limitations. (AR 731-33.) After 7 completing a two-day functional capacity evaluation of Plaintiff, Dr. Mantell 8 restricted Plaintiff to standing for no more than 10 minutes and lifting no more than 9 15 pounds. (Id.) These findings directly contradict Dr. Sparks’ conclusions. (AR 10 65, 733.) By favoring Dr. Sparks, a reviewing physician, the ALJ went against the 11 law’s directive to generally give “more weight to the medical opinion of a source who 12 has examined [the claimant] than to the medical opinion of a medical source who has 13 not examined [the claimant].” 20 C.F.R. § 404.1527(c)(1); see also Garrison, 759 14 F.3d at 1012. Therefore, he failed to provide legally sufficient reasons for giving the 15 opinions of Drs. Balfour and Mantell little weight and for giving Dr. Sparks greater 16 and ultimately determinative weight. Consequently, the ALJ committed legal error 17 when weighing Dr. Sparks’ opinion. 18 D. 19 VA Disability Determination 1. Legal Standard for VA Disability Determination 20 Furthermore, the ALJ committed legal error by neglecting to adequately 21 explain his dismissal of Plaintiff’s VA disability rating. Though Plaintiff fails to 22 identify this issue, it is properly before the Court due to the Court’s independent 23 burden to determine whether the Commissioner’s decision is free of legal error. See, 24 e.g., Bruce, 557 F.3d at 1115. Given the great weight accorded to a VA determination 25 of disability by the Ninth Circuit and the ALJ’s conclusory rejection of Plaintiff’s 26 VA rating, the Court will examine this issue. 27 /// 28 /// – 24 – 17cv2305 1 “[T]he ALJ must consider the VA’s finding in reaching his decision and the 2 ALJ must ordinarily give great weight to a VA determination of disability.” McLeod 3 v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011) (internal quotation marks omitted) 4 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)). Given this 5 requirement, the ALJ has a duty to inquire about the VA disability rating and include 6 evidence of the rating in the record to allow for proper evaluation. See id. The Ninth 7 Circuit has found “great weight to be ordinarily warranted” for the VA rating because 8 of the “marked similarity” between the federal disability programs of the VA and the 9 Social Security Administration (“SSA”). See Luther v. Berryhill, 891 F.3d 872, 876 10 (9th Cir. 2018). However, a VA disability rating is not conclusive in a social security 11 disability matter. See 20 C.F.R. § 404.1504. “An ALJ may give less weight to a VA 12 rating if he gives persuasive, specific, valid reasons for doing so that are supported 13 by the record.” Luther, 891 F.3d at 876-77 (internal quotation marks omitted) 14 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th 15 Cir. 2009)). 16 2. VA Disability Rating 17 According to his medical records from the VA, Plaintiff was awarded a 30% 18 disability rating by the VA as early as August 2005. (AR 473.) At some time between 19 October 2013 and July 2014, the VA increased Plaintiff’s disability rating to 70%. 20 (AR 288-89, 893.) However, the record does not include Plaintiff’s official VA rating 21 decision records issued by a VA regional office. Such records articulate the VA’s 22 decision, reasons for decision, and evidence that supports its decision. 23 Compensation, 24 https://www.benefits.va.gov/compensation/process.asp (last visited June 22, 2018). 25 3. Claims Process, U.S. Department of Veterans See Affairs, ALJ’s Rejection of VA Disability Determination 26 Here, the ALJ asserted that the disability determination processes utilized by 27 the SSA and VA are “fundamentally different.” (AR 28.) He pointed out that the 28 VA does not determine a claimant’s RFC. He also noted that the VA does not – 25 – 17cv2305 1 establish whether the claimant is capable of performing his past relevant work or 2 work that exists in significant numbers in the national economy. (Id.) Based on these 3 differences, the ALJ found the VA’s rating “is of little probative value” and assigned 4 the VA’s assessments “little weight.” (Id.) 5 4. Analysis of ALJ’s Rejection of VA Disability Rating 6 The Court finds the ALJ improperly rejected the VA’s disability determination 7 for Plaintiff. The ALJ’s rationales conflict with the Ninth Circuit’s controlling 8 determination that there is “marked similarity” between the VA’s and SSA’s 9 disability programs. See Luther, 891 F.3d at 876; McCartey, 298 F.3d at 1076. 10 Though the VA does not determine a claimant’s RFC or the jobs he is capable of 11 performing, it does determine a claimant’s functional loss as well as the impact of his 12 conditions on his ability to work and perform occupational tasks. (AR 917, 928, 936.) 13 The ALJ did not articulate any further reasons based on the record for giving the 14 VA’s disability assessment little weight. Thus, he erred by failing to provide 15 persuasive, specific, valid reasons for dismissing the VA’s disability determination. 16 See Luther, 891 F.3d at 876-77. 17 V. Harmless Error Analysis 18 Having concluded that the ALJ erred in giving little weight to the opinions of 19 Drs. Balfour and Mantell, in giving favoring weight to Dr. Sparks, and improperly 20 disregarding the VA’s determination of disability, the Court must now determine 21 whether these errors were harmless. “[A]n ALJ’s error is harmless where it is 22 ‘inconsequential to the ultimate nondisability determination.’” Molina v. Astrue, 674 23 F.3d 1104, 1115 (9th Cir. 2012) (quoting Carmickle, 533 F.3d at 1162). In assessing 24 whether an error is harmless, the court “look[s] at the record as a whole to determine 25 whether the error alters the outcome of the case.” Id. 26 Here, the ALJ’s errors were not harmless. The ALJ’s RFC determination that 27 Plaintiff could perform light work with some limitations was effectively identical to 28 that of Dr. Sparks. (AR 24, 65.) This finding directly contradicts Dr. Mantell’s – 26 – 17cv2305 1 determination that Plaintiff was only capable of sedentary work with limitations of 2 standing for no more than 10 minutes and lifting no more than 15 pounds. (AR 731- 3 33.) The ALJ further ignored the VA’s most recent determination that Plaintiff’s 4 thoracolumbar spine, knee, and cervical spine conditions impacted his ability to work. 5 (AR 917, 928, 936.) 6 Plaintiff’s capacity to work. See Valentine, 574 F.3d at 690 (“[A]n RFC that fails to 7 take into account a claimant’s limitations is defective.”). 8 assessment, in turn, distorted the ALJ’s determination of whether Plaintiff could 9 adjust to other work in the national economy. Consequently, the ALJ’s final decision 10 on whether Plaintiff is disabled and entitled to benefits was tainted. Accordingly, the 11 Court finds the ALJ committed harmful legal error. 12 VI. Consequently, the ALJ’s RFC determination overstated This incorrect RFC Appropriate Remedy 13 Having determined that harmful legal error was committed, the Court must 14 decide the appropriate remedy. Plaintiff requests that the Court reverse and award 15 benefits. (Pl. Mot. 14:1-4.) The Court finds that remanding to the agency for further 16 proceedings is the correct course. 17 “[T]he proper course, except in rare circumstances, is to remand to the agency 18 for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 19 (9th Cir. 2004). This “ordinary remand rule” respects the Commissioner’s role in 20 developing the factual record, and helps guard against the displacement of 21 administrative judgment by judicial decree. See Treichler, 775 F.3d at 1099-00. 22 When an ALJ makes a legal error, but there are ambiguities or outstanding issues in 23 the record, the proper approach is to remand for further proceedings, not to apply the 24 “credit as true” rule. See id. at 1105. 25 For this Court to depart from the ordinary remand rule and award benefits 26 under the “credit as true” rule, three requirements must be met. Garrison, 759 F.3d 27 at 1019-21. First, the court must determine that the ALJ committed legal error, such 28 as by failing to provide legally sufficient reasons for rejecting certain evidence. – 27 – 17cv2305 1 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Second, if the court finds 2 such error, it must determine whether “the record has been fully developed and 3 further administrative proceedings would serve no useful purpose.” Garrison, 759 4 F.3d at 1020. In making this determination, the court reviews the record as a whole 5 and asks whether there are conflicts, ambiguities, or gaps in the record such that 6 essential factual issues have not been resolved. Dominguez, 808 F.3d at 407 (citation 7 omitted). Where there are outstanding issues that require resolution, the proper 8 approach is to remand the case to the agency for further proceedings. See Treichler, 9 775 F.3d at 1101, 1105. 10 If the court determines that the record has been fully developed and there are 11 no outstanding issues left to be resolved, the court lastly must consider whether “the 12 ALJ would be required to find the claimant disabled on remand” if the “improperly 13 discredited evidence were credited as true.” Dominguez, 808 F.3d at 407 (quoting 14 Garrison, 759 F.3d at 1020). “If so, the district court may exercise its discretion to 15 remand the case for an award of benefits.” Id. However, even when the requirements 16 of the credit as true rule are satisfied, district courts retain flexibility to remand for 17 further proceedings when the record as a whole creates “serious doubt” as to whether 18 the claimant is disabled. Id. at 1021. “The touchstone for an award of benefits is the 19 existence of a disability, not the agency’s legal error.” Brown-Hunter v. Colvin, 806 20 F.3d 487, 495 (9th Cir. 2015). 21 In this matter, the first “credit as true” requirement is met as the ALJ committed 22 legal error by failing to provide legally sufficient bases for granting little weight to 23 the opinions of Plaintiff’s treating specialist Dr. Balfour and examining physician Dr. 24 Mantell, weighing the opinion of nonexamining expert Dr. Sparks, and discounting 25 the VA’s disability assessment. 26 However, neither the second nor the third requirement of the “credit as true” 27 rule is met. Here, the Court is not satisfied that the record has been fully developed 28 or that further administrative proceedings would serve no useful purpose. First, the – 28 – 17cv2305 1 admitted evidence lacks a complete record of the VA’s disability rating 2 determination. 3 information regarding Plaintiff’s disability rating, they do not articulate the reasons 4 for the VA’s decision or the evidence supporting said decision. In particular, the 5 record lacks evidence as to why the VA increased Plaintiff’s disability rating from 6 30% to 70%. (See AR 288-89, 473, 893.) Without the official VA rating decision 7 records, the ALJ was incapable of adequately considering and evaluating the VA’s 8 disability analysis. See McLeod, 640 F.3d at 886 (holding that inadequacy of the 9 record can inhibit proper evaluation of a plaintiff’s VA disability rating). As such, 10 While the VA medical documents in the record provide some the record has not been fully developed. 11 Moreover, as to the third “credit as true” requirement, it is unclear from the 12 record if the ALJ would be required to find Plaintiff disabled on remand if the 13 improperly discredited opinions of Drs. Balfour and Mantell were credited as true. 14 Dr. Balfour only directly addressed Plaintiff’s functional capacity in two letters dated 15 April 2015. (AR 718-21.) He stated in one of the letters that Plaintiff “is not able to 16 perform short periods of standing, kneeling, crouching, stooping and working in 17 strained and awkward positions.” (AR 720.) However, his statement did not specify 18 what length of time constituted a “short period.” Moreover, this letter addressed 19 whether Plaintiff was capable of performing his most recent position as a sheet metal 20 worker, and neither of the two letters specifically addressed Plaintiff’s ability to work 21 any job at all. (AR 718-21.) Furthermore, Dr. Mantell concluded that Plaintiff was 22 capable of sedentary work with limitations of standing for no more than 10 minutes 23 and lifting no more than 15 pounds. (AR 731-733.) Yet, the ALJ did not ask the 24 vocational expert about the job availability for someone with the exact work 25 limitations determined by Dr. Balfour or Dr. Mantell. The ALJ did ask the vocational 26 expert about a hypothetical person of the same age, education level, and work 27 experience as Plaintiff with the functional limitations that the ALJ found Plaintiff 28 had, except that person could only lift and carry a maximum of 10 pounds. (AR 67.) – 29 – 17cv2305 1 The vocational expert testified that she could not cite any jobs that could be 2 performed by such a person. (AR 68.) But these limitations are not identical to those 3 provided by Plaintiff’s discredited physicians. Consequently, there is not enough 4 information in the record to determine if the ALJ would be required to find Plaintiff 5 disabled on remand if the opinions of Drs. Mantell and Balfour were credited as true 6 and considered with the vocational expert’s testimony. 7 Considering the ALJ’s errors in his evaluation of Dr. Balfour’s and Dr. 8 Mantell’s opinions, the incomplete VA record, and the uncertainty about whether the 9 ALJ would be required to find Plaintiff disabled on remand, the record is not “free 10 from conflicts, ambiguities, or gaps.” See Treichler, 775 F.3d at 1103. Therefore, 11 the requirements for the credit-as-true rule are not satisfied, and the Court will not 12 depart from the ordinary remand rule. See id. at 1105. Accordingly, the Court will 13 remand for further proceedings. 14 VII. CONCLUSION 15 In light of the foregoing reasons, the ALJ erred in discounting the opinions of 16 Drs. Balfour and Mantell, crediting the opinion of Dr. Sparks, and dismissing the 17 VA’s disability assessment. The Court finds that the ALJ failed to provide “specific 18 and legitimate reasons that are supported by substantial evidence” in his decision to 19 discredit the opinions of Dr. Balfour, Plaintiff’s treating specialist, and Dr. Mantell, 20 Plaintiff’s examining physician, in favor of affording more weight to the opinion of 21 Dr. Sparks, a nonexamining physician. See Burrell v. Colvin, 775 F.3d 1133, 1137 22 (9th Cir. 2014) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)); 23 Cain v. Barnhart, 74 Fed. App’x 755, 756 (9th Cir. 2003) (quoting Lester, 81 F.3d at 24 830-31). 25 The Court also finds that remanding for further proceedings is the appropriate 26 remedy. 27 Judgment (ECF No. 12) and DENIES the Commissioner’s Cross-Motion for 28 /// Accordingly, the Court GRANTS Plaintiff’s Motion for Summary – 30 – 17cv2305 1 Summary Judgment (ECF No. 13). Finally, the Court REMANDS this action for 2 further proceedings consistent with this order. See 42 U.S.C. § 405(g). 3 IT IS SO ORDERED. 4 5 DATED: July 26, 2018 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 31 – 17cv2305