Madden Jr. v. Commissioner of Social Security, No. 1:2018cv03144 - Document 11 (E.D. Wash. 2019)
Court Description: ORDER Granting 8 Plaintiff's Motion for Summary Judgment and Denying 9 Defendant's Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (PL, Case Administrator)
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Madden Jr. v. Commissioner of Social Security Doc. 11 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Sep 30, 2019 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 RONALD M., NO: 1:18-CV-03144-FVS Plaintiff, 8 9 10 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 8 and 9. This matter was submitted for consideration without 15 oral argument. The Plaintiff is represented by Attorney D. James Tree. The 16 Defendant is represented by Special Assistant United States Attorney Franco L. 17 Becia. The Court has reviewed the administrative record, the parties’ completed 18 briefing, and is fully informed. For the reasons discussed below, the Court 19 GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 8, and DENIES 20 Defendant’s Motion for Summary Judgment, ECF No. 9. 21 JURISDICTION ORDER ~ 1 Dockets.Justia.com Plaintiff Ronald M.1 protectively filed for disability insurance benefits on 1 2 October 3, 2014. Tr. 176-84. Plaintiff alleged an onset date of November 13, 3 2013. See Tr. 178. Benefits were denied initially, Tr. 87-93, and upon 4 reconsideration, Tr. 95-99. Plaintiff appeared for a hearing before an 5 administrative law judge (“ALJ”) on February 24, 2017. Tr. 35-59. Plaintiff was 6 represented by counsel and testified at the hearing. Id. The ALJ denied benefits, 7 Tr. 12-30, and the Appeals Council denied review. Tr. 1. The matter is now 8 before this court pursuant to 42 U.S.C. § 405(g). 9 BACKGROUND 10 The facts of the case are set forth in the administrative hearing and 11 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 12 Only the most pertinent facts are summarized here. 13 Plaintiff was 49 years old at the time of the hearing. See Tr. 204. He 14 completed 12th grade, and became an EMT in 2002. Tr. 209. Plaintiff lived with 15 his wife and stepson. Tr. 47. Plaintiff has work history as an emergency medical 16 technician, a service mechanic, and a volunteer firefighter. Tr. 42, 52-53. He 17 testified that he could not work because he has to lay down “60% of the day” to 18 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER ~ 2 1 relieve compression on his back. Tr. 46-49. Plaintiff testified that he wants to 2 work and misses his job, but if he forced himself to work all day he would “pay the 3 price” the next day and be unable to get out of bed. Tr. 44-46, 49. 4 Plaintiff had back fusion surgery, and then two further surgeries to remove 5 hardware. Tr. 43. He testified that he takes medications that make him sluggish 6 and he tries not to drive while taking them “unless he [has] to.” Tr. 45. Plaintiff 7 used to ride horses and a motorcycle, but is unable to do so since his back 8 surgeries. Tr. 44. He testified that his doctor said he would not perform any more 9 surgeries, and the back pain might never get better. Tr. 43-44. 10 11 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 12 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 13 limited; the Commissioner’s decision will be disturbed “only if it is not supported 14 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 15 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 16 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 17 (quotation and citation omitted). Stated differently, substantial evidence equates to 18 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 19 citation omitted). In determining whether the standard has been satisfied, a 20 reviewing court must consider the entire record as a whole rather than searching 21 for supporting evidence in isolation. Id. ORDER ~ 3 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. If the evidence in the record “is 3 susceptible to more than one rational interpretation, [the court] must uphold the 4 ALJ’s findings if they are supported by inferences reasonably drawn from the 5 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 6 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 7 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 8 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 9 party appealing the ALJ’s decision generally bears the burden of establishing that 10 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). FIVE-STEP EVALUATION PROCESS 11 12 A claimant must satisfy two conditions to be considered “disabled” within 13 the meaning of the Social Security Act. First, the claimant must be “unable to 14 engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which 16 has lasted or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 18 “of such severity that he is not only unable to do his previous work[,] but cannot, 19 considering his age, education, and work experience, engage in any other kind of 20 substantial gainful work which exists in the national economy.” 42 U.S.C. § 21 423(d)(2)(A). ORDER ~ 4 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 3 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 4 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 5 “substantial gainful activity,” the Commissioner must find that the claimant is not 6 disabled. 20 C.F.R. § 404.1520(b). 7 If the claimant is not engaged in substantial gainful activity, the analysis 8 proceeds to step two. At this step, the Commissioner considers the severity of the 9 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 10 from “any impairment or combination of impairments which significantly limits 11 [his or her] physical or mental ability to do basic work activities,” the analysis 12 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 13 does not satisfy this severity threshold, however, the Commissioner must find that 14 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 15 At step three, the Commissioner compares the claimant’s impairment to 16 severe impairments recognized by the Commissioner to be so severe as to preclude 17 a person from engaging in substantial gainful activity. 20 C.F.R. § 18 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 19 enumerated impairments, the Commissioner must find the claimant disabled and 20 award benefits. 20 C.F.R. § 404.1520(d). 21 If the severity of the claimant’s impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess ORDER ~ 5 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 10 11 performing such work, the analysis proceeds to step five. At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education and 15 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 16 adjusting to other work, the Commissioner must find that the claimant is not 17 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 18 other work, analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 20 21 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is ORDER ~ 6 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). 4 5 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 6 since November 13, 2013, the alleged onset date. Tr. 17. At step two, the ALJ 7 found Plaintiff has the following severe impairments: status-post lumbar fusion. 8 Tr. 17. At step three, the ALJ found that Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of a listed 10 impairment. Tr. 17. The ALJ then found that Plaintiff has the RFC 14 to perform light work as defined in 20 CFR 404.1567(b) except that he needs to change positions between sitting and standing every 30 minutes. Pushing/pulling of the lower extremities is limited to occasional. The claimant can occasionally climb stairs, but he cannot climb ladders. He can occasionally perform other postural movements, including crouching, balancing, stooping, and crawling. The claimant should avoid concentrated exposure to extreme cold, vibration, and hazards. 15 Tr. 17-18. At step four, the ALJ found that Plaintiff is unable to perform any past 16 relevant work. Tr. 23. At step five, the ALJ found that considering Plaintiff’s age, 17 education, work experience, and RFC, there are jobs that exist in significant 18 numbers in the national economy that Plaintiff can perform, including: storage 19 facility rental clerk, furniture rental consultant, and cashier II. Tr. 24. On that 20 basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in 21 the Social Security Act, from November 13, 2013, through the date of the decision. 11 12 13 Tr. 25. ORDER ~ 7 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her disability insurance benefits under Title II of the Social Security Act. ECF No. 4 8. Plaintiff raises the following issues for this Court’s review: 5 1. Whether the ALJ properly considered Plaintiff’s symptom claims; 6 2. Whether the ALJ properly weighed the medical opinion evidence; 7 3. Whether the ALJ erred at step two; 8 4. Whether the ALJ properly considered the lay witness evidence; and 9 5. Whether the ALJ erred at step five. 10 DISCUSSION A. Plaintiff’s Symptom Claims 11 An ALJ engages in a two-step analysis when evaluating a claimant’s 12 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 13 whether there is objective medical evidence of an underlying impairment which 14 could reasonably be expected to produce the pain or other symptoms alleged.” 15 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 16 required to show that her impairment could reasonably be expected to cause the 17 severity of the symptom he has alleged; he need only show that it could reasonably 18 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 19 (9th Cir. 2009) (internal quotation marks omitted). 20 Second, “[i]f the claimant meets the first test and there is no evidence of 21 malingering, the ALJ can only reject the claimant’s testimony about the severity of ORDER ~ 8 1 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 2 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 3 citations and quotations omitted). “General findings are insufficient; rather, the 4 ALJ must identify what testimony is not credible and what evidence undermines 5 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. 6 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 7 determination with findings sufficiently specific to permit the court to conclude 8 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 9 convincing [evidence] standard is the most demanding required in Social Security 10 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 11 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 12 Here, the ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, 14 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 15 these symptoms are not entirely consistent with the medical evidence and other 16 evidence in the record” for several reasons. Tr. 18. 17 1. Daily Activities 18 The ALJ noted that 19 despite [Plaintiff] testifying that he is severely limited in his activities, his physical therapist noted in March 2016 that he continues to perform many chores at home, including fixing a broken pipe and then digging and filling a large hole after repairing the pipe. While the latter activity apparently exacerbated his back, one would expect that someone, who is alleging chronic, unabated pain, which is relieved only by lying down, would have no ability to engage in such activities. 20 21 ORDER ~ 9 1 Tr. 21. Evidence about daily activities is properly considered in making a 2 credibility determination. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 3 “Even where [Plaintiff’s] activities suggest some difficulty functioning, they may 4 be grounds for discrediting the claimant’s testimony to the extent that they 5 contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 6 Here, the ALJ found the severity of Plaintiff’s symptom claims were 7 inconsistent with a physical therapy treatment note recounting Plaintiff’s self8 report that he has continued to do chores at home, and on one occasion he fixed a 9 broken pipe and then refilled the hole after repairing the pipe. Tr. 21 (citing Tr. 10 458). However, as noted by Plaintiff, the one-time activity of repairing the broken 11 pipe, “resulted in a significant flare in his pain that worsened his functioning even 12 over the course of a few days”; and, while not acknowledged by the ALJ, 13 Plaintiff’s physical therapist specifically noted that Plaintiff’s continued attempts 14 to do home chores was “BEYOND HIS PHYSICAL CAPABIILTIES.” Tr. 458 15 (emphasis in original). Plaintiff need not be utterly incapacitated in order to be 16 eligible for benefits. ECF No. 8 at 17 (citing Fair, 885 F.2d at 603); see also Orn 17 v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“the mere fact that a plaintiff has 18 carried on certain activities . . . does not in any way detract from her credibility as 19 to her overall disability.”). 20 Moreover, in making a credibility finding, the ALJ “must specifically 21 identify the testimony she or he finds not to be credible and must explain what ORDER ~ 10 1 evidence undermines the testimony.” Holohan, 246 F.3d at 1208. Here, as noted 2 by Plaintiff, it is unclear how this treatment note indicating that Plaintiff attempted 3 to do chores and fix a broken pipe on one occasion, which was further identified as 4 “beyond his physical capabilities,” is inconsistent with Plaintiff’s testimony that if 5 he attempted to work he “could probably make [himself] do it all day. But then 6 [he] would pay the price for it at the end of the day.” ECF No. 8 at 18 (citing Tr. 7 49) (also noting that he “couldn’t even get out of bed” the next day if he “forced” 8 himself to work all day). 9 For all of these reasons, the ALJ’s finding regarding Plaintiff’s “activities” is 10 not supported by substantial evidence, and is not a clear and convincing reason to 11 discount Plaintiff’s symptom claims. 12 2. Inconsistencies 13 The ALJ noted that Plaintiff testified that his “medications caused him to 14 feel sluggish. A review of the medical records, however, do not document any 15 persistent reports of side effects.” Tr. 21. The ALJ additionally cited evidence that 16 Plaintiff “denied any impairment in his ability to drive from his medications.” Tr. 17 21. Contradiction with the medical record is a sufficient basis for rejecting the 18 claimant's subjective testimony. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 19 1155, 1161 (9th Cir. 2008); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 20 1995). Moreover, in evaluating symptom claims, the ALJ may consider 21 inconsistencies in Plaintiff's testimony or between his testimony and his conduct. ORDER ~ 11 1 Thomas, 278 F.3d at 958–59; see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th 2 Cir.1996) (ALJ may consider prior inconsistent statements). 3 Plaintiff argues that this finding “misstates the record.” ECF No. 8 at 18. 4 The Court agrees. As noted by Plaintiff, the record includes ongoing evidence of 5 side effects from medication, including: November 2014 reports that amitriptyline 6 made him “feel like a zombie,” gave him bad dreams, and caused “daytime fatigue 7 and grogginess”; June 2016 reports that zonsaiamide caused him to be forgetful, 8 and the side effects of neuropathic medications “limited their usability”; August 9 2016 reports that he could not take hydrocodone if he was going to drive; and 10 November 2016 reports that side effects from medication made him feel “unusual” 11 and he could not drive. ECF No. 8 at 18-19 (citing Tr. 311, 494, 503, 506). The 12 Court also notes that Plaintiff reported in February 2016 that medications have 13 made him “feel weird,” and he was not driving at that time. Tr. 513. 14 Based on the foregoing, the ALJ’s finding that Plaintiff’s testimony 15 regarding side effects from medication was inconsistent with medical records was 16 not a clear and convincing reason, supported by substantial evidence, to discount 17 Plaintiff’s symptom claims. 18 19 3. Lack of Objective Medical Evidence Finally, and in large part, the ALJ found Plaintiff’s allegations of disabling 20 pain are out of proportion with “postoperative workup findings” and “relatively 21 benign physical examination findings.” Tr. 18-21. The medical evidence is a ORDER ~ 12 1 relevant factor in determining the severity of a claimant’s pain and its disabling 2 effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 3 Here, the ALJ set out, in detail, the medical evidence purporting to 4 contradict Plaintiff’s claims of disabling limitations. For example, a November 5 2014 MRI showed moderate degeneration and mild disc bulging; May 2015 x-rays 6 indicated “evidence of healed L3-5 fusion,” and his treating provider opined that 7 his MRI was “without any significant findings” and “the source of his back pain is 8 not entirely clear”; in November 2015 his provider recommended non-operative 9 treatment based on MRI showing no significant central canal stenosis or neural 10 foraminal narrowing; and an October 2016 MRI showed “moderate neural 11 foraminal narrowing” and multi-level edema, “but otherwise mild changes.” Tr. 12 18-19 (citing Tr. 365, 432, 446, 480, 539). The ALJ also cited physical exams 13 that observed Plaintiff had normal gait and station, negative straight leg raising on 14 some occasions, 5/5 motor strength, normal motor function, and normal range of 15 motion and sensation; and the ALJ specifically found that while Plaintiff “has 16 continued to have tenderness and reduced range of motion” since his April 2014 17 fusion, the examination findings “fail to substantiate his description of disabling 18 low back and leg pain and being bedridden for the majority of the day.” Tr. 19-21 19 (citing Tr. 351, 379, 432, 435, 441, 501, 507, 526, 559, 584). Finally, the ALJ 20 relied on a February 2017 reviewing opinion that described Plaintiff’s testing as 21 “overall unremarkable” and concluded that Plaintiff “was not a surgical candidate, ORDER ~ 13 1 and, instead, recommended conservative treatment, including core strengthening 2 exercises, massage therapy, and yoga.” Tr. 19, 584. 3 Plaintiff argues the ALJ erred in finding Plaintiff’s complaints were out of 4 proportion to the objective evidence. ECF No. 8 at 19. As noted by Plaintiff, the 5 “conservative treatment” recommended in February 2017 was “only recommended 6 after [Plaintiff] had already undergone three separate spinal surgeries,” and this 7 recommendation was consistent with the opinion of Plaintiff’s treating surgeon that 8 he undergo conservative treatment because he did not respond to surgical 9 treatment, and now had “failed back surgical syndrome.” ECF No. 10 at 7 (citing 10 Tr. 305, 348, 448, 514). However, regardless of whether the ALJ erred in finding 11 Plaintiff’s symptom claims were not corroborated by objective testing and physical 12 examinations, it is well-settled in the Ninth Circuit that an ALJ may not discredit a 13 claimant’s pain testimony and deny benefits solely because the degree of pain 14 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 15 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 16 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As discussed in detail 17 above, the two additional reasons given by the ALJ for discounting Plaintiff’s 18 symptom claims were legally insufficient. Thus, because lack of corroboration by 19 objective evidence cannot stand alone as a basis for a rejecting Plaintiff’s symptom 20 claims, the ALJ’s finding is inadequate. On remand, the ALJ must reconsider 21 Plaintiff’s symptom claims. B. Medical Opinions ORDER ~ 14 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician's opinion carries more weight than an examining 7 physician's, and an examining physician's opinion carries more weight than a 8 reviewing physician's. Id. If a treating or examining physician's opinion is 9 uncontradicted, the ALJ may reject it only by offering “clear and convincing 10 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 11 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 12 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 13 providing specific and legitimate reasons that are supported by substantial 14 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 15 “However, the ALJ need not accept the opinion of any physician, including a 16 treating physician, if that opinion is brief, conclusory and inadequately supported 17 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 18 (9th Cir. 2009) (quotation and citation omitted). 19 Plaintiff argues the ALJ erroneously considered the opinions of treating 20 physician Daniel Kwon, M.D. and state agency reviewing physician Leslie Arnold, 21 ORDER ~ 15 1 M.D..2 ECF No. 8 at 6-15. In January 2015, as noted by the ALJ, state agency 2 reviewing physician Dr. Leslie Arnold opined that Plaintiff was limited to 3 sedentary work, with additional postural and environmental restrictions. Tr. 22, 4 65-67. In February 2016, treating physician Dr. Daniel Kwon noted that Plaintiff 5 has had “progressive pain” for “over 20 years closer to 30 years”; has gone through 6 “numerous conservative treatments and ultimately surgical intervention but his 7 pain continues to be debilitating”; and “has not been functional and has been 8 disabled for the last several years and even the last surgery with the hardware 9 removal only help[ed] mildly and he still has severe pain.” Tr. 22, 514. The ALJ 10 granted these opinions little weight. Tr. 22. The ALJ considered Dr. Arnold and 11 Dr. Kwon’s opinions jointly; thus, the Court will do the same.3 12 2 13 14 15 16 17 Saue’s April 2015 opinion ‘significant weight’ over [Plaintiff’s] treating physician, Dr. Kwon.” ECF No. 8 at 14-15. In light of the need to reconsider Dr. Arnold and Dr. Kwon’s opinions, as discussed herein, the ALJ should reconsider all of the medical evidence on remand, including opinion evidence deemed relevant. 3 18 19 20 21 Plaintiff additionally argues that the ALJ “harmfully erred in giving Dr. [Greg] Plaintiff argues that “[b]y grouping them together in this way, the ALJ demonstrably failed to consider Dr. Kwon’s status as a treating physician.” ECF No. 8 at 8. As discussed herein, the medical opinion evidence must be reevaluated on remand, including all relevant “factors in deciding the weight [given] to any medical opinion,” such as: treating or examining relationship, length of treatment ORDER ~ 16 1 First, the ALJ noted that these assessments are “inconsistent with 2 [Plaintiff’s] activities.” Tr. 22. An ALJ may discount an opinion that is 3 inconsistent with a claimant’s reported functioning. See Morgan v. Comm’r Soc. 4 Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). In support of this finding, as 5 above, the ALJ relied on a single March 2016 physical therapy treatment note, 6 dated one month after Dr. Kwon’s assessment, noting that Plaintiff “continues to 7 perform many chores at home, including fixing a broken pipe and then digging and 8 filling a large hole after repairing the pipe.” Tr. 22, 458. However, as noted by 9 Plaintiff, the same treatment note indicates that the home chores referenced by the 10 ALJ were further determined to be “BEYOND HIS PHYSICAL CAPABILITIES”; 11 and a few days after Plaintiff reported working on a broken pipe, he was in 8/10 12 pain, had immediate pain when he tried to rise, and transitioned with grimaces and 13 difficulty. ECF No. 8 at 11 (citing Tr. 457). The Court finds this single treatment 14 note outlining Plaintiff’s attempts at activities that were simultaneously determined 15 to be beyond his capabilities, does not rise to the level of substantial evidence to 16 support the rejection of these opinions because they were inconsistent with 17 Plaintiff’s “daily” activities. This was not a specific and legitimate reason to reject 18 Dr. Arnold and Dr. Kwon’s opinions. 19 20 21 relationship and frequency of examination, nature and extent of treatment relationship, supportability, consistency, specialization, and other factors. See 20 C.F.R. § 404.1527(c). ORDER ~ 17 1 Next, the ALJ found that Dr. Arnold and Dr. Kwon’s opinions were “out of 2 proportion to . . . relatively unremarkable diagnostic findings in the spine and 3 legs”; inconsistent with “relatively benign examination findings”; and inconsistent 4 with the opinion of Dr. Oskouian, a neurologist and spine specialist, who reviewed 5 the medical evidence and determined Plaintiff should engage in conservative 6 therapy rather than further surgical intervention. Tr. 22. The consistency of a 7 medical opinion with the record as a whole is a relevant factor in evaluating that 8 medical opinion. Orn, 495 F.3d at 631; see also Batson v. Comm’r of Soc. Sec. 9 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (an ALJ may discount an opinion that 10 is conclusory, brief, and unsupported by the record as a whole, or by objective 11 medical findings). The ALJ supported this finding by noting, without specific 12 citation to the record, that (1) “imaging studies have generally demonstrated only 13 mild degenerative changes in the lumbar spine, with no significant stenosis or 14 nerve root involvement”; (2) a December 2016 nerve conduction of the bilateral 15 legs was negative for motor and sensory dysfunction; (3) despite “tenderness and 16 reduced range of motion in his spine, [Plaintiff’s] examinations have otherwise 17 been generally normal, including a normal gait, normal heel and toe walking, 18 negative straight leg raising, and full range of motion, motor strength, sensation, 19 and deep tendon reflexes throughout the bilateral legs, without significant signs of 20 atrophy”; and (4) Dr. Oskouian concluded that Plaintiff’s diagnostic imagining was 21 “overall unremarkable” and he should undergo conservative therapy as opposed to further surgical intervention.” Tr. 22. ORDER ~ 18 1 Plaintiff argues the ALJ erred in finding Dr. Kwon’s opinion “out of 2 proportion” with testing and examination findings because Dr. Kwon himself made 3 many of the examination findings cited by the ALJ, and reviewed Plaintiff’s most 4 recent MRI; and “[a]s treating physician, he was in the best position to make such 5 an analysis.” ECF No. 8 at 8-9; see Tr. 501, 507, 510, 513-14, 517. In addition, as 6 discussed above, regardless of any “benign” or “unremarkable” test results or 7 examination findings, the record also includes evidence of reduced range of 8 motion, antalgic gait, positive straight leg tests, and reduced range of motion in the 9 spine and hip; and it was determined that Plaintiff should undergo three spinal 10 surgeries in the span of fourteen months. ECF No. 8 at 9 (citing Tr. 288, 312, 348, 11 368, 441, 444, 448, 457, 463, 466, 469, 472, 510, 513, 558, 577). Finally, Plaintiff 12 contends that Dr. Oskouian’s opinion cannot be “inconsistent” with Dr. Kwon’s 13 and Dr. Arnold’s because it does not offer a functional assessment or opine as to 14 Plaintiff’s ability to sustain full time work; and both Dr. Kwon and Dr. Oskouian 15 recommended that Plaintiff avoid further surgical intervention. ECF No. 8 at 12 16 (citing Tr. 514, 584). 17 Defendant argues the ALJ “logically concluded” that the severity of Dr. 18 Kwon and Dr. Arnold’s opinions were “out of proportion” to “overall” 19 unremarkable diagnostic and examination findings, and inconsistent with the 20 opinion of Dr. Oskouian. ECF No. 9 at 9-11; see Burch v. Barnhart, 400 F.3d 676, 21 679 (9th Cir. 2005). (where evidence is susceptible to more than one interpretation, the ALJ’s conclusion must be upheld). However, in light of the need to reconsider ORDER ~ 19 1 Plaintiff’s symptom claims, as discussed in detail above, the ALJ should also 2 reconsider the medical opinion evidence on remand. 3 B. Additional Assignments of Error 4 Plaintiff also challenges the ALJ's assessment at step two; the ALJ’s 5 consideration of lay witness statements; and the ALJ's conclusion at step five. 6 ECF No. 8 at 4-6, 15-17, 19-20. Because the analysis of these questions is 7 dependent on the ALJ's evaluation of Plaintiff’s symptom claims and the medical 8 opinion evidence, which the ALJ is instructed to reconsider on remand, the Court 9 declines to address these challenges here. On remand, the ALJ is instructed to 10 reweigh the medical opinion evidence of record, reconsider Plaintiff’s symptom 11 claims, and conduct a new sequential analysis. 12 REMEDY 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 16 where “no useful purpose would be served by further administrative proceedings, 17 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 18 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 19 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 20 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 21 district court may abuse its discretion not to remand for benefits when all of these conditions are met). This policy is based on the “need to expedite disability ORDER ~ 20 1 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 2 must be resolved before a determination can be made, and it is not clear from the 3 record that the ALJ would be required to find a claimant disabled if all the 4 evidence were properly evaluated, remand is appropriate. See Benecke v. 5 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 6 1179-80 (9th Cir. 2000). 7 Although Plaintiff requests a remand with a direction to award benefits, ECF 8 No. 8 at 20, the Court finds that further administrative proceedings are appropriate. 9 See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 10 2014) (remand for benefits is not appropriate when further administrative 11 proceedings would serve a useful purpose). Here, the ALJ's error in considering 12 Plaintiff’s symptom claims and the medical opinion evidence calls into question 13 whether the ALJ’s findings at the subsequent steps in the sequential evaluation 14 were supported by substantial evidence. “Where,” as here, “there is conflicting 15 evidence, and not all essential factual issues have been resolved, a remand for an 16 award of benefits is inappropriate.” Treichler, 775 F.3d at 1101. Instead, the 17 Court remands this case for further proceedings. On remand, the ALJ must 18 reconsider the medical opinion evidence, and provide legally sufficient reasons for 19 evaluating these opinions, supported by substantial evidence. If necessary, the 20 ALJ should order additional consultative examinations and, if appropriate, take 21 additional testimony from medical experts. The ALJ must reconsider Plaintiff’s symptom claims, the step two findings, and lay witness testimony. Finally, the ORDER ~ 21 1 ALJ should reassess the RFC, and reconsider the remaining steps in the sequential 2 analysis, if necessary. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 8, is GRANTED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 9, is DENIED. 6 The District Court Executive is hereby directed to enter this Order and 7 provide copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the 8 file. 9 DATED September 30, 2019. s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 ORDER ~ 22
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