Varao v. Berryhill, No. 3:2017cv02463 - Document 28 (S.D. Cal. 2018)
Court Description: REPORT AND RECOMMENDATION re 22 MOTION for Summary Judgment filed by Stephanie Rae Varao, 24 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill. This Court recommends that plaintiff's motion for summary judgm ent be granted, that the Commissioner's cross-motion for summary judgment be denied, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings. Any party having objec tions to the Court's proposed findings and recommendations shall serve and file specific written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 8/3/2018.(jdt)
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Varao v. Berryhill Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17-cv-02463-LAB (RNB) STEPHANIE RAE VARAO, Plaintiff, 12 13 v. 14 REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 (ECF Nos. 22, 24) 17 18 This Report and Recommendation is submitted to the Honorable Larry A. Burns, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 20 72.1(c) of the United States District Court for the Southern District of California. 21 On December 7, 2017, plaintiff Stephanie Rae Varao filed a Complaint pursuant to 22 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 23 Security denying her application for a period of disability and disability insurance benefits. 24 (ECF No. 1.) The Complaint was dismissed following a sua sponte review. (ECF No. 8.) 25 Plaintiff thereafter filed a Second Amended Complaint on February 15, 2018. (ECF No. 26 15.) 27 Now pending before the Court and ready for decision are the parties’ cross-motions 28 for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that 1 17-cv-02463-LAB (RNB) Dockets.Justia.com 1 plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s cross- 2 motion for summary judgment be DENIED, and that Judgment be entered reversing the 3 decision of the Commissioner and remanding this matter for further administrative 4 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 5 6 PROCEDURAL BACKGROUND 7 On December 24, 2013, plaintiff filed an application for a period of disability and 8 disability insurance benefits. (Certified Administrative Record [“AR”]) 153-59.) In her 9 application, plaintiff alleged onset of disability on June 3, 2013. (AR 153.) Plaintiff stated 10 that she was unable to work due to a herniated disc L4-5, herniated disc L4 S1, and 11 fibromyalgia. 12 reconsideration. (AR 86-89, 94-98.) (AR 67, 169.) The application was denied initially and upon 13 On August 6, 2014, plaintiff requested an administrative hearing. (AR 100-01.) A 14 hearing was held before an administrative law judge (“ALJ”) on June 17, 2016. (AR 49- 15 66.) Plaintiff appeared at the hearing with counsel, and testimony was taken from her and 16 a vocational expert (“VE”).1 (AR 49-66.) The ALJ issued a decision on September 21, 17 2016, finding that plaintiff was not disabled. (AR 25-43.) Thereafter, plaintiff requested 18 a review of the decision by the Appeals Council. (AR 146-52.) The ALJ’s decision became 19 the final decision of the Commissioner on October 19, 2017, when the Appeals Council 20 denied plaintiff’s request for review. (AR 1-7.) This timely civil action followed. 21 22 SUMMARY OF THE ALJ’S FINDINGS 23 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 24 evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that plaintiff 25 26 27 28 The hearing transcript and the ALJ’s decision indicate that a VE testified at the hearing. (See AR 41-42, 49, 52.) However, the hearing transcript before the Court is incomplete and does not contain the VE’s testimony. (See AR 66.) 1 2 17-cv-02463-LAB (RNB) 1 had not engaged in substantial gainful activity since June 3, 2013, the alleged onset date. 2 (AR 30.) 3 At step two, the ALJ found that plaintiff had the following severe impairments: 4 degenerative disc disease of the lumbar and cervical spine and affective (mood) disorders. 5 (AR 30.) 6 At step three, the ALJ found that plaintiff did not have an impairment or combination 7 of impairments that met or medically equaled the severity of one of the impairments listed 8 in the Commissioner’s Listing of Impairments. (AR 30.) 9 Next, the ALJ determined that, from the alleged onset date to the date of the decision, 10 plaintiff had the residual functional capacity (“RFC”) to perform the full range of sedentary 11 unskilled work, but such work could not have required: (1) lifting more than 10 pounds at 12 a time, on more than an occasional basis; (2) lifting and carrying articles weighing more 13 than 10 pounds, on more than an occasional basis; (3) standing or walking more than 20- 14 30 minutes at one time, and no more than 2 total hours in an 8-hour workday; (4) sitting 15 more than 20-30 minutes at one time, and no more than 6 total hours in an 8-hour work 16 day; (5) more than occasional stooping, bending, twisting or squatting; (6) working on the 17 floor (e.g., no kneeling, crawling or crouching); (7) ascending or descending full flights of 18 stairs (but a few steps up or down not precluded); (8) overhead lifting or overhead reaching; 19 (9) working in other than a low stress environment, which means (a) a low production level 20 (where VE classified all SGA jobs as low, average or high production); (b) no working 21 with the general public and no working with crowds of co-workers; (c) only “occasional” 22 verbal contact with supervisors, and only “occasional” verbal contact with co-workers; (d) 23 the ability to deal with only “occasional” changes in a routine work setting; (10) work at 24 no more than a low concentration level, which means the ability to be alert and attentive to 25 (and to adequately perform) only routine unskilled tasks; or (11) work at no more than a 26 low memory level, which means (a) the ability to understand, remember and carry out only 27 “simple” work instructions; (b) the ability to remember and deal with only “rare” changes 28 in routine work instructions; (c) the ability to remember and use good judgment in making 3 17-cv-02463-LAB (RNB) 1 only “simple” work related decisions. (AR 32-33.) Regarding standing/walking and 2 sitting, the ALJ added that plaintiff must be as comfortable as possible, and requires the 3 option to make the postural changes noted above; thus there must be an option to perform 4 work duties while standing/walking or sitting, due to the need for these postural changes. 5 (AR 32.) 6 For purposes of his step four determination, the ALJ first found that plaintiff had 7 prior relevant work as an accounting clerk. Based on the VE’s testimony that plaintiff 8 could no longer perform that job based on her RFC to perform only unskilled sedentary 9 work, the ALJ found that plaintiff was unable to perform any past relevant work. (AR 41.) 10 The ALJ then proceeded to step five of the sequential evaluation process. Based on 11 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile could 12 perform the requirements of occupations that existed in significant numbers in the national 13 economy (i.e., cutter and paster; document preparer; and polisher, eyeglass frames), the 14 ALJ found that plaintiff was not disabled. (AR 42.) 15 16 17 18 SOLE ISSUE IN DISPUTE The sole issue in dispute in this case is whether the ALJ properly rejected the opinion of Richard Fassett, M.D., plaintiff’s treating physician. (See ECF No. 22-1 at 4-12.) 19 20 STANDARD OF REVIEW 21 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 22 determine whether the Commissioner’s findings are supported by substantial evidence and 23 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 24 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 25 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 26 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 27 “such relevant evidence as a reasonable mind might accept as adequate to support a 28 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 4 17-cv-02463-LAB (RNB) 1 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 2 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 3 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 4 (9th Cir. 1984). 5 6 DISCUSSION 7 Medical opinions are among the evidence that the ALJ considers when assessing a 8 claimant’s RFC. See 20 C.F.R. § 404.1527(b). The law is well established in this Circuit 9 that a treating physician’s opinion is entitled to special weight because a treating physician 10 is employed to cure and has a greater opportunity to know and observe the patient as an 11 individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating 12 physician’s opinion is not, however, necessarily conclusive as to either a physical condition 13 or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). The weight given a treating physician’s opinion depends on whether it is supported 15 by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. 16 §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician’s opinion is uncontroverted by 17 another doctor, it may be rejected only for “clear and convincing” reasons. See Lester v. 18 Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 19 1991). Where, as here, a treating physician’s opinion is controverted, it may be rejected 20 only if the ALJ makes findings setting forth specific and legitimate reasons that are based 21 on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th 22 Cir. 1998) (“A treating physician’s opinion on disability, even if controverted, can be 23 rejected only with specific and legitimate reasons supported by substantial evidence in the 24 record.”); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 25 1987).2 26 27 28 The parties here agree that the “specific and legitimate reasons” standard applies to Dr. Fassett’s opinion. (See ECF No. 22-1 at 11; ECF No. 24-1 at 5.) 2 5 17-cv-02463-LAB (RNB) 1 In a lumbar spine RFC Questionnaire, dated June 1, 2016, Dr. Richard Fassett, 2 plaintiff’s treating physician, diagnosed plaintiff with lumbar degenerative disc disease L4- 3 5-S1 and right sacroiliitis. (AR 643.) Dr. Fassett identified MRI evidence showing 4 plaintiff’s medical impairments and gave her a prognosis of fair, but noting that it had been 5 three years and it was “still not resolved.” (AR 643.) Dr. Fassett characterized plaintiff’s 6 pain as low and mid-back pain, from the right leg to big toe. (AR 643.) He noted that the 7 pain comes and goes, but plaintiff can’t stand or sit too long, do house chores, and her 8 walking pain is 10/10 when bad. (AR 643.) Plaintiff can walk one to two city blocks 9 without rest or severe pain. (AR 645.) 10 Dr. Fassett opined that plaintiff has limited range of motion of the spine, abnormal 11 gait and tenderness. (AR 644.) He further opined that emotional factors contribute to the 12 severity of plaintiff’s symptoms and functional limitations, but plaintiff’s impairments 13 (physical impairments plus any emotional impairments) are reasonably consistent with the 14 symptoms and functional limitations he describes in his evaluation and that plaintiff is not 15 a malingerer. (AR 644-45.) Dr. Fassett also opined that plaintiff would have the following 16 limitations: (1) plaintiff’s pain or other symptoms would frequently interfere with attention 17 and concentration needed to perform even simple work tasks; (2) plaintiff can sit 20 18 minutes at one time before needing to get up; (3) plaintiff can stand 30 minutes at one time 19 before needing to sit down; (4) plaintiff can sit and stand/walk (with normal breaks) less 20 than 2 hours in an 8-hour working day; (5) plaintiff needs to include periods of walking 21 around during an 8-hour working day, approximately 5-6 minutes of walking every 20 22 minutes; (6) plaintiff needs a job that permits shifting positions at will from sitting, 23 standing, or walking; (7) plaintiff will need to take unscheduled breaks of 10 minutes 24 approximately 4 times during an 8-hour working day; (8) plaintiff can never lift and carry 25 10 pounds or more in a competitive work situation; (9) plaintiff can never twist, stoop/bend, 26 crouch/squat, climb ladders, and climb stairs; (10) plaintiff can only reach with her arms, 27 including overhead, 20% of the time during an 8-hour workday; and (11) plaintiff is likely 28 6 17-cv-02463-LAB (RNB) 1 to be absent from work as a result of the impairments or treatment more than four days per 2 month. (AR 646.) 3 4 Here, the ALJ determined that Dr. Fassett’s opinions were only entitled to “little weight” for four reasons that the Court will address in turn. 5 6 A. 7 The first reason cited by the ALJ for according “little weight” to Dr. Fassett’s 8 opinion was that it was “inconsistent with repeated examinations that were generally 9 normal, and included the following: normal muscle bulk and tone in the upper extremities, 10 generally full strength throughout, normal and symmetric reflexes, intact sensation, a 11 negative Romberg sign, normal coordination, no Babinski or Hoffman’s signs, full range 12 of motion in all extremities, negative bilateral straight leg tests, and a normal gait.” (AR 13 37, citing AR 279, 298-300, 301, 360-62, 401-02, 487, 522, 535-38, 605-06.) However, 14 the ALJ did not explain how Dr. Fassett’s opinions were inconsistent with these 15 examinations or specify which of Dr. Fassett’s several opinions were inconsistent with 16 these examinations. The Court notes that Dr. Fassett did not opine on plaintiff’s muscle 17 tone and strength, coordination, reflexes, sensation, range of motion in all extremities, and 18 bilateral straight leg tests. (See AR 643-47.) “An ALJ may not exclude a physician’s 19 testimony for a lack of objective evidence of impairments not referenced by the physician. 20 Rather, an ALJ must evaluate the physician’s assessment using the grounds on which it is 21 based.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Supposed inconsistency with other examinations 22 Dr. Fassett did opine that plaintiff had an abnormal gait, an opinion which the 23 Commissioner acknowledged had additional support in the record. (See AR 644, ECF No. 24 24-1 at 6; see also 499, 504, 514.) However, Dr. Fassett also opined that plaintiff did not 25 need to use a cane or other assistive device while engaging in occasional standing or 26 walking, and the ALJ acknowledged plaintiff’s difficulty walking by incorporating 27 walking limitations consistent with Dr. Fassett’s opinion into plaintiff’s RFC. (See AR 32, 28 646.) 7 17-cv-02463-LAB (RNB) 1 Dr. Fassett also opined that plaintiff had limited range of motion of the spine, but 2 the ALJ does not cite any objective evidence to contradict this opinion. Rather, as plaintiff 3 pointed out, the objective evidence in the record does indicate that plaintiff had limited 4 range of motion of the spine. (See, e.g., AR 412, 461, 495, 505, 511.) 5 6 Accordingly, the Court finds that this first reason was not a legally sufficient reason for rejecting the opinion of Dr. Fassett. 7 8 9 B. Supposed inconsistency with plaintiff’s testimony regarding her pain medication 10 The second reason cited by the ALJ for according “little weight” to Dr. Fassett’s 11 opinion was that Dr. Fassett’s opinion was “inconsistent with [plaintiff’s] own testimony 12 that she has not taken a Percocet in over a month or even required Ibuprofen in a week.” 13 (AR 37.) As an initial matter, as noted by plaintiff, the Court acknowledges that the hearing 14 transcript cuts off when plaintiff starts to elaborate on her use of pain medication. (See AR 15 65-66.) Generally, “[w]hen a Social Security hearing transcript is lost or inaudible, good 16 cause exists to remand and start anew pursuant to sentence six of 42 U.S.C. § 405(g).” 17 Newborn v. Colvin, No. 2:12-CV-3153-TOR, 2017 WL 216703, at *3 (E.D. Wash. Jan. 18, 18 2017) (citing H.R. Rep. No. 96–944, at 59 (1980)). Here, however, in addition to a partial 19 hearing transcript, the ALJ details plaintiff’s prescription history in his decision in a 20 manner consistent with the underlying medical records. Therefore, the Court finds it has 21 adequate information to evaluate this reason. 22 First, the abbreviated hearing record before the Court reflects that plaintiff testified 23 before the ALJ that at the time she resigned from her job of ten years in June 2013 due to 24 her medical condition, she was in “so much pain” that she “was popping pills like crazy at 25 [her] desk trying to make it through the day.” (AR 53-54, 58.) Plaintiff later elaborated 26 that she wasn’t “taking any pain pills on the job” as she doesn’t “believe in taking them 27 and driving.” (AR 64.) She was “just popping Motrin, ibuprofen,” 800[mg] at a time, 28 8 17-cv-02463-LAB (RNB) 1 sometimes three times a day, and putting a heating ointment on her back. (AR 64-65.) She 2 was “just trying everything” and nothing really helped. (AR 64-65.) 3 4 5 Second, the ALJ detailed plaintiff’s prescription history in his decision in a manner consistent with the underlying medical records, as follows: 18 At the hearing, [plaintiff] assessed that her pain was an eight on a ten-point scale and accompanied by spasms. She struggled to work with the pain, cried frequently, and had to “pop pills” of over-the-counter medication all day to make it through work. Her back pain has worsened over time and fluctuates, which makes it difficult to schedule events. She was prescribed Vicodin, but it made her sick so she did not take the medication. She was also prescribed Gabapentin, which worked for a little while, then stopped. She now takes Percocet as needed, Nexium for acid reflux, Valium, and an antidepressant. She has not taken a Percocet in over a month, when her pain was a ten on a ten-point scale. Sometimes she takes Ibuprofen, but her most recent dose was last week. She goes entire days without any pain medication. For pain relief, she lies down. She changes position among laying, sitting, standing, and walking every hour. When she lies down, it is for an hour at a time up to three hours if she falls asleep. She experiences side effects from pain medication. Percocet makes her tired. Surgery has not been recommended due to the [plaintiff’s] age. While she does not want to take potentially addictive medication, she has not explored non-addictive options. With regard to the [plaintiff’s] mental health, she “cries a lot”, struggles with sleep, and has trouble focusing and remembering. She has to write everything down. She takes Xanax for her anxiety. 19 (AR 33-34; see also AR 279, 298 (“She has tried Norco without benefit. . . . She tried 20 ibuprofen without benefit.”); 301; 360 (“She’s only taking a little bit of gabapentin at 21 bedtime, she has some GI problems and doesn’t want to take narcotics . . . .”); 485 (“She 22 has tried NSAIDS in the past without relief.”); 535 (“She ran out of her last oxycodone 23 yesterday; this only gave her over 10% relief in any case.”); 537 (Doctor “recommend[s] 24 against continuation of narcotics at this time. She has had some constipation and really 25 have not given her much relief to begin with.”); 608; 612.) 6 7 8 9 10 11 12 13 14 15 16 17 26 In his decision, the ALJ did not indicate how this testimony was inconsistent with 27 Dr. Fassett’s opinion. The Commissioner construes this reason as indicating that the ALJ 28 “found the efficacy of conservative treatment modalities undermined limitations beyond 9 17-cv-02463-LAB (RNB) 1 [p]laintiff’s RFC.” (ECF No. 24-1 at 7.) Alternatively, the Commissioner suggests Dr. 2 Fassett’s opinion is undermined because plaintiff’s medical providers “did not recommend 3 more aggressive treatment.” (Id. at 8-9.) The Court finds neither reason persuasive. 4 To the extent that the ALJ purportedly rejected Dr. Fassett’s opinion because he 5 believed plaintiff’s treatment was conservative, the Court is mindful that an ALJ may 6 properly reject a treating physician’s opinion on that ground. See Rollins v. Massanari, 7 261 F.3d 853, 856 (9th Cir. 2001). Here, however, the record reflects that plaintiff was 8 routinely prescribed medications for her pain – including Hydrocodone, Vicodin, Excedrin, 9 Gabapentin, Valium, Tylenol, Naproxen, and Ibuprofen – that in the Court’s view cannot 10 properly be characterized as conservative. (See e.g., AR 279, 298, 301, 360, 485, 535, 537, 11 608, 612.)3 The fact that plaintiff found little to no benefit in the medication and/or could 12 not tolerate the side effects does not render her treatment any more or less conservative. 13 Moreover, as the ALJ noted, the record also reflects that plaintiff did pursue more 14 aggressive treatment. (See AR 34-36.) Plaintiff received several epidural injections, 15 including a selective nerve root block, was referred for pain management, and underwent 16 physical therapy. (See id.) Plaintiff was also referred to a neurosurgeon, Dr. Arnett Klugh, 17 who advised her that spinal surgery was unavailable for her ailments. (See AR 35, 400.) 18 None of this suggests a conservative approach to treating plaintiff’s pain. 19 To the extent ALJ purportedly rejected Dr. Fassett’s opinion because plaintiff 20 allegedly found a benefit in “conservative treatment modalities,” the Court does not find 21 evidence in the record to support this claim. The Commissioner highlighted treatment 22 notes indicating that plaintiff experienced improvement at her physical therapy 23 24 25 26 27 28 See e.g., Kager v. Astrue, 256 F. App’x. 919, 923 (9th Cir. 2007) (rejecting adverse credibility determination premised on absence of significant pain therapy where claimant took prescription pain medications including Methocarbomal and the narcotic analgesics Roxicet and Valium); cf. Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001) (treatment corroborating allegations of severe and unremitting pain may include a strong Codeine or Morphine basic analgesic). 3 10 17-cv-02463-LAB (RNB) 1 appointment in June 2015. (ECF No. 24-1 at 7.) However, in May 2016, plaintiff 2 underwent MRIs which demonstrated that her condition was “[s]table to exam dated 3 09/27/14 with similar appearing findings involving the right sacroiliac joint consistent with 4 chronic unilateral sacroilitis,” as well as “[u]nchanged disc protrusions at L4-5 and L5-S1 5 as compared to prior MRI from 09/27/2014,” thus suggesting plaintiff’s underlying 6 condition did not improve over that time. (AR 660.) Moreover, neither plaintiff nor her 7 physicians ever indicated that she received more than temporary relief from physical 8 therapy or treatment. (See, e.g., AR 334, 337 (indicating physical therapy made plaintiff’s 9 symptoms worse or provided no benefit); 495-516 (plaintiff’s physical therapy notes 10 indicating only temporary relief after sessions); AR 279, 365, 337, 341 (plaintiff received 11 little relief from her epidural injections).) 12 13 Accordingly, the Court finds that this second reason also was not a legally sufficient reason for rejecting Dr. Fassett’s opinion. 14 15 C. 16 The third reason proffered by the ALJ for according “little weight” to Dr. Fassett’s 17 opinion was that it was “inconsistent with the breadth of the claimant’s activities of daily 18 living.” (AR 37.) The ALJ noted in this regard that plaintiff “does the laundry, wipes 19 counters, and washes dishes,” and added that “[a]side from some pain with standing, 20 [plaintiff] reported no difficulties in any activity of personal care, including bathing, 21 dressing, caring for her hair, shaving, feeding, and toileting.” (AR 37-38, citing AR 193, 22 194.) Supposed inconsistency with plaintiff’s activities of daily living 23 At the administrative hearing, plaintiff testified that her daily life was “pretty boring” 24 and that she did not “have much of a social life.” (AR 56.) She testified that she could not 25 “schedule things because [she was] constantly having to cancel because [it was] day to 26 day.” (AR 56-57.) She never knew how she was going to feel. (AR 57.) Her life was 27 basically “consumed by the pain” and she had “no choice in [her] daily activities 28 sometimes.” (AR 57.) Plaintiff testified that she was not able to clean her home, and could 11 17-cv-02463-LAB (RNB) 1 only go grocery shopping if she had someone with her. (AR 57.) When she would go 2 grocery shopping, plaintiff testified that she would “try to get in and out” in 20-30 minutes, 3 and even then, sometimes her leg would give out while shopping. (AR 61.) She further 4 testified did not cook every day, but if she did cook, it was “something that easy and simple 5 so that [she was] not standing for a long period cutting stuff up.” (AR 57.) Plaintiff 6 testified that she drove her son to school three days a week and her mom picked him up 7 after. (AR 57.) Plaintiff added that “[a] lot of times [she did not] leave the house unless 8 [she] ha[d] doctors’ appointments and those sometimes [she] ha[d] to cancel because [she 9 could not] get in the car to go sit in a chair . . . .” (AR 57.) 10 In addition, in a “Function Report” dated January 2, 2014, plaintiff stated as follows: 11 “I can barely make it through grocery store without leg giving out [and] pain radiating. I 12 cannot lift 10 lbs or more. I cannot stand long nor sit long. I have to lay flat a lot. Even 13 house chores are hard to do. Have someone help clean my house every 2 weeks.” (AR 14 192.) Plaintiff further stated that she was living with her 14-year old son and friend Ruthan 15 while her husband was deployed, and that both helped her out around the house. (AR 193.) 16 She stated that she sometimes has pain due to standing when she dresses, bathes, and 17 shaves, but she is able to care for her hair, feed herself, and use the toilet. (AR 193.) 18 Plaintiff added that she can also manage laundry, wipe counters, and do dishes, but she 19 cannot stay on her feet for long or lift items over 10 pounds as it takes a toll on her back. 20 (AR 194-97.) 21 An inconsistency between a treating physician’s opinion and a claimant’s daily 22 activities is a specific and legitimate reason to discount the treating physician’s opinion. 23 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); see also Morgan v. Comm’r of 24 Soc. Sec. Admin., 169 F.3d 595, 600–02 (9th Cir.1999) (considering an inconsistency 25 between a treating physician’s opinion and a claimant’s daily activities a specific and 26 legitimate reason to discount the treating physician’s opinion). But this principle has no 27 application here because a holistic review of the record does not reveal an inconsistency 28 between Dr. Fassett’s opinion and plaintiff’s daily activities. Plaintiff’s reported daily 12 17-cv-02463-LAB (RNB) 1 activities do not indicate she was capable of standing, sitting, or walking longer than 2 indicated by Dr. Fassett. Although plaintiff was capable of limited household chores, the 3 ALJ does not explain how plaintiff’s ability to do laundry, wipe counters, and personally 4 care for herself is inconsistent with the limitations set forth by Dr. Fassett. A claimant need 5 not be completely incapacitated to receive benefits. Smolen v. Chater, 80 F.3d 1273, 1284 6 n. 7 (9th Cir. 1996). 7 As plaintiff’s limited daily activities are not in tension with the opinions of Dr. 8 Fassett, the Court finds that this third reason also was not a legally sufficient reason for 9 rejecting Dr. Fassett’s opinion. 10 11 D. 12 The final reason proffered by the ALJ for according “little weight” to Dr. Fassett’s 13 opinion was the fact that plaintiff “did not attend physical therapy for a month because of 14 her ‘busy schedule.’” (See AR 38, citing AR 516.) An ALJ may consider the failure to 15 seek treatment or follow a prescribed course of treatment in weighing a claimant’s 16 credibility. See Orn, 495 F.3d at 636 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 17 1989); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002)). Thus, “unexplained, 18 or inadequately explained, failure to seek treatment” may be the basis for an adverse 19 credibility finding unless one of a “number of good reasons for not doing so” applies. Id. 20 at 638 (citing Fair, 885 F.2d at 603). Plaintiff’s failure to seek physical therapy 21 Here, however, the ALJ cited this reason in support of rejecting the opinion of 22 plaintiff’s treating physician, not in weighing plaintiff’s credibility. The ALJ does not 23 explain how plaintiff’s failure to attend physical therapy for a single month in October 24 2015 is a basis for rejecting Dr. Fassett’s June 2016 opinion based on plaintiff’s MRI 25 evidence and a physical examination. (See AR 643-47.) Moreover, as plaintiff noted, the 26 record concerning this period of time in plaintiff’s life is unclear, particularly given the 27 abbreviated hearing transcript. (See ECF No. 22-1 at 11.) 28 13 17-cv-02463-LAB (RNB) 1 2 Accordingly, the Court finds that this final reason also was not a legally sufficient reason for rejecting the opinion of Dr. Fassett. 3 4 5 E. The Court declines plaintiff’s request to credit Dr. Fassett’s opinion as true for purposes of the further proceedings on remand. 6 Plaintiff contends that the Court should credit Dr. Fassett’s opinion as true for 7 purposes of the further proceedings on remand. (See ECF No. 22-1 at 11-12.) The Court 8 is mindful of Ninth Circuit authority for the proposition that, where an ALJ failed to 9 properly consider either subjective symptom testimony or medical opinion evidence, it is 10 sometimes appropriate to credit the evidence as true and remand the case for calculation 11 and award of benefits. See, e.g., Garrison v. Colvin, 759 F.3d 995, 1019-21 (9th Cir. 2014). 12 However, in Ghanim, a case decided after Garrison, another Ninth Circuit panel did not 13 apply or even acknowledge the “credit as true” rule where substantial evidence did not 14 support an ALJ’s rejection of treating medical opinions and his adverse credibility 15 determination; instead, the panel simply remanded the case for further administrative 16 proceedings. Ghanim, 763 F.3d at 1167. And, in Marsh v. Colvin, 792 F.2d 1170 (9th Cir. 17 2015), the panel did not apply or even acknowledge the “credit as true” rule where the ALJ 18 had failed to even mention a treating source’s opinion that the claimant was “pretty much 19 nonfunctional”; instead, the panel simply remanded the case to afford the ALJ the 20 opportunity to comment on the doctor’s opinions. Id. at 1173. The Court here has decided 21 that the ALJ should be afforded the opportunity to clarify or further develop the respects 22 in which Dr. Fassett’s assessment should be credited. 23 24 CONCLUSION AND RECOMMENDATION 25 For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for 26 summary judgment be GRANTED, that the Commissioner’s cross-motion for summary 27 judgment be DENIED, and that Judgment be entered reversing the decision of the 28 14 17-cv-02463-LAB (RNB) 1 Commissioner and remanding this matter for further administrative proceedings pursuant 2 to sentence four of 42 U.S.C. § 405(g). 3 Any party having objections to the Court’s proposed findings and recommendations 4 shall serve and file specific written objections within 14 days after being served with a 5 copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 6 should be captioned “Objections to Report and Recommendation.” A party may respond 7 to the other party’s objections within 14 days after being served with a copy of the 8 objections. See Fed. R. Civ. P. 72(b)(2). See id. 9 10 11 12 Dated: August 3, 2018 _________________________________ ROBERT N. BLOCK United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 17-cv-02463-LAB (RNB)
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