Oliverez v. Commissioner of Social Security, No. 4:2016cv05120 - Document 28 (E.D. Wash. 2017)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, granting in part and denying in part 13 Motion for Summary Judgment; denying 26 Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Edward F. Shea. (LR, Case Administrator)

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Oliverez v. Commissioner of Social Security Doc. 28 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. MARIA OLIVEREZ, 8 4:16-cv-05120-EFS Plaintiff, 9 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT v. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 Before the Court, without oral argument, are cross-summary- 14 judgment motions. ECF Nos. 13, 26. Plaintiff Maria Oliverez appeals 15 the Administrative Law Judge’s (“ALJ”) denial of benefits. ECF No. 13. 16 The Commissioner of Social Security (“Commissioner”) asks the Court to 17 affirm the ALJ’s decision that Ms. Oliverez is not disabled and is 18 capable of performing her past relevant work as a realtor and retail 19 sales 20 relevant authority, the Court is fully informed. For the reasons set 21 forth below, the Court remands for further proceedings. clerk. ECF No. 22 26 I. 23 Plaintiff 24 Administrative Maria Record, at 1-3. reviewing the record and STATEMENT OF FACTS1 Oliverez ECF After No. was 9, born (“AR”) on 185. August Her 15, 1955. highest formal 25 1 26 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 1 Dockets.Justia.com 1 education was at the tenth grade, although she has attempted to earn a 2 GED and has completed a professional real estate course. AR 61. AR 3 56, 67. She stands 4’9” tall and weighs approximately 190 lbs. AR 421. Ms. 4 Oliverez has diagnosed of 7 depression and anxiety, hypercholesterolemia, hypokalemia, tobacco use 8 disorder, and morbid obesity. See AR 298, 318, 322, 330, 367. She 9 experiences regular chest, epigastric, knee, shoulder, and hand pain, 63-66, 364-72, 432-33, diabetes physical hyperlipidemia, arthritis, II number 6 rheumatoid type a conditions, 52-57, hypertension, with 5 AR including been severe 441-50, and mellitus, osteoarthritis, 10 See takes regular 11 medication to manage her pain and other symptoms. See AR 59-60, 63-66, 12 70, 364-72. Although her knee pain has improved since she received two 13 total knee replacements in December 2012 and June 2013, AR 367, 525, 14 Ms. Oliverez still claims to experience significant pain and swelling 15 after more than twenty minutes of walking or standing. AR 53-55. 16 Ms. Oliverez lives with her son and spends her days mostly at 17 home, where she sweeps the house, does the dishes and laundry, and 18 cooks meals. AR 19 crocheting. AR 66-67. She has a significant work history: as a realtor 20 (DOT Code: 354.377-014) from March 2002 to July 2005, a care provider 21 (DOT Code: 250.357-018) from June 2007 to January 2010 and September 22 2010 to August 2011, and as a retail sales clerk (DOT Code: 211.462- 23 014) from May 1994 to August 2008. AR 57, 185-86. She has not been 24 employed full-time since 2011. AR 213. 25 // 26 / 55-56. In her free time, she enjoys reading and ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 2 II. 1 On 2 April 30, PROCEDURAL HISTORY AND ALJ FINDINGS 2012, Ms. Oliverez filed an application for 3 disability insurance benefits and on July 23, 2012, filed a related 4 application for supplemental security income. AR 19. In both claims, 5 she alleged a disability onset date of April 4, 2012. AR 19. Ms. 6 Oliverez’s 7 AR 19. She subsequently requested a hearing before an ALJ. AR 19. The 8 hearing occurred before ALJ R.J. Payne on January 8, 2015, in Spokane, 9 WA. AR 19. Ms. Oliverez and counsel appeared by video in Kennewick, 10 WA, and medical expert H.C. Alexander III, M.D. appeared and testified 11 by telephone. AR 19, 36-52. claims were denied initially and upon reconsideration. On February 12, 2015, the ALJ issued a decision denying Ms. 12 13 Oliverez’s 14 Oliverez has the severe impairments of diabetes mellitus, obesity, 15 hypertension, and degenerative joint disease with bilateral total knee 16 replacement. AR 21-22. The ALJ proceeded to find that Ms. Oliverez’s 17 imairments do not meet or medically equal the severity of any listed 18 impairments. AR 22. Despite her impairments, the ALJ ultimately found 19 Ms. Oliverez has the residual functional capacity (“RFC”) to perform 20 light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with no 21 significant limitations. AR 22. Based on this assessment, the ALJ 22 found Ms. Oliverez is capable of performing her past relevant work as 23 a 24 performance of work-related activities precluded by the claimant’s 25 residual functional capacity.” AR 26 (citations omitted). As a result, realtor claim. and AR retail 26-27. sales In his clerk, decision, which he “does determined not require Ms. the 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 3 1 the ALJ concluded Ms. Oliverez is not disabled under sections 216(i) 2 and 223(d) of the Social Security Act. AR 26. 3 The Appeals Council denied Ms. Oliverez’s request for review, 4 AR 1-3, making the ALJ’s decision final agency action for purposes of 5 judicial review. 6 422.210. Ms. 7 appealing the ALJ’s decision. ECF No. 1. The parties then filed the 8 present summary-judgment motions. ECF Nos. 13 & 26. 42 U.S.C. Oliverez filed § 1383(c)(3); this lawsuit 20 C.F.R. §§ 416.1481, on September 6, 2016, III. STANDARD OF REVIEW 9 10 A district court’s review of a Commissioner’s final decision is 11 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 12 limited: the Commissioner’s decision will be disturbed “only if it is 13 not supported by substantial evidence or is based on legal error.” 14 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 15 evidence” means relevant evidence that “a reasonable mind might accept 16 as adequate to support a conclusion.” Id. at 1159 (quotation and 17 citation omitted). Stated differently, substantial evidence equates to 18 “more 19 (quotation and citation omitted). In determining whether this standard 20 has been satisfied, a reviewing court must consider the entire record 21 as a whole rather than searching for supporting evidence in isolation. 22 Id. than a mere scintilla but less than a preponderance.” Id. 23 In reviewing a denial of benefits, a district court may not 24 substitute its judgment for that of the Commissioner. If the evidence 25 in 26 interpretation, [the court] must uphold the ALJ’s findings if they are the record “is susceptible to more than one rational ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 4 1 supported by inferences reasonably drawn from the record.” Molina v. 2 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court 3 “may not reverse an ALJ’s decision on account of an error that is 4 harmless.” Id. An error is harmless “where it is inconsequential to 5 the 6 (quotation 7 decision 8 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). [ALJ’s] ultimate and nondisability citation generally omitted). bears IV. 9 the determination.” The burden party of Id. appealing establishing at the that 1115 ALJ’s it was DISABILITY DETERMINATION A claimant is considered “disabled” for the purposes of the 10 11 Social 12 claimant 13 activity by reason of any medically determinable physical or mental 14 impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less 16 than 17 claimant’s impairment must be of such severity that she “is not only 18 unable to do [her] previous work but cannot, considering [her] age, 19 education, 20 substantial gainful work which exists in the national economy.” Id. 21 § 1382c(a)(3)(B). 22 evaluation process to determine whether a claimant is disabled. 20 23 C.F.R. §§ 404.1520, 416.920. 24 25 Security must twelve Act be if “unable months.” and two work 42 conditions to engage U.S.C. experience, The § are in any uses in a First, substantial 1382c(a)(3)(A). engage decision-maker satisfied. any gainful Second, other five-step the kind the of sequential Step one assesses whether the claimant is currently engaged in a substantial gainful activity. Id. § 416.920(a)(4)(i). If she is, 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 5 1 benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If she is 2 not, the decision-maker proceeds to step two. 3 Step two assesses whether the claimant has a medically severe 4 impairment, or combination of impairments, which significantly limits 5 the 6 activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If she does not, 7 the disability claim is denied. If she does, the evaluation proceeds 8 to step three. 9 Step claimant’s physical three by or compares the mental the Commissioner ability to do claimant’s impairment to severe 11 substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P 12 App. 1, 416.920(d). If the impairment meets or equals one of the 13 listed 14 disabled. If the impairment does not, the evaluation proceeds to step 15 four. claimant is conclusively as to several recognized the so to work 10 impairments, be basic preclude presumed to be 16 Step four assesses whether the impairment prevents the claimant 17 from performing work she has performed in the past by determining the 18 claimant’s 19 416.920(e). If the claimant is able to perform her previous work, the 20 claimant is not disabled. If the claimant cannot perform this work, 21 the evaluation proceeds to step five. residual functional capacity. Id. §§ 404.1520(e), 22 Step five, the final step, assesses whether the claimant can 23 perform other work in the national economy in view of the claimant’s 24 age, 25 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). If she can, 26 the disability claim is denied. If she cannot, the claim is granted. education, and work experience. 20 C.F.R. §§ 404.1520(f), ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 6 The burden of proof shifts during this analysis. The claimant 1 2 has the initial burden of establishing 3 benefits under steps one through four. Rhinehart v. Finch, 438 F.2d 4 920, 921 (9th Cir. 1971). At step five, the burden shifts to the 5 Commissioner to show (1) the claimant can perform other substantial 6 gainful activity and (2) that a “significant number of jobs exist in 7 the national economy” which the claimant can perform. Kail v. Heckler, 8 722 F.2d 1496, 1498 (9th Cir. 1984). V. 9 entitlement to disability ANALYSIS 10 Ms. Oliverez contends the ALJ erred because he (1) improperly 11 found Ms. Oliverez could return to past work; (2) improperly weighed 12 testimony 13 without a specific, clear, and convincing reason. ECF No. 13. The 14 Court addresses each challenge to the ALJ’s decision in turn. 15 A. evidence; and (3) discredited Ms. Oliverez’s testimony Past relevant work 16 First, Ms. Oliverez contends the ALJ committed reversible error 17 at step four by improperly finding she could return to past work as a 18 realtor and a retail sales clerk. ECF No. 13 at 5. The Commissioner 19 responds that Ms. Oliverez, not the Commissioner, has the burden of 20 proving she can no longer perform her past relevant work and that the 21 ALJ had substantial evidence to find her capable of performing her 22 past relevant work (“PRW”). ECF No. 26 at 12. 23 To proceed past step four in the disability analysis outlined 24 above, the claimant has the burden to show she can no longer perform 25 her past relevant work “either as actually performed or as generally 26 performed in the national economy.” Carmickle v. Comm'r, Soc. Sec. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 7 1 Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); 20 C.F.R. §§ 404.1520, 2 416.920. However, the ALJ retains a duty to make certain factual 3 findings to conclude the claimant is able to return to work: the ALJ 4 must 5 functional capacity, (2) the physical and mental demands of the past 6 relevant work, and (3) the relationship of the residual functional 7 capacity to the past work. Pinto v. Massanari, 249 F.3d 840, 844-45 8 (9th Cir. 2001); Social Security Ruling (“SSR”) 82-62. make specific findings as to the claimant’s (1) residual 9 To dismiss a claim at step four, the ALJ must find the claimant 10 can perform either (1) the actual functional demands and job duties of 11 a particular past relevant job (2) or the functional demands and job 12 duties of the occupation as generally required by employers throughout 13 the national economy. SSR 82-61 (emphasis added). The ALJ should first 14 consider 15 performed. SSR 96-8P. 16 past Here, the work ALJ as actually found Ms. performed, Oliverez has and a then residual as usually functional 17 capacity to perform light work as defined in 20 CFR §§ 404.1567(b) and 18 416.967(b) with no significant limitations. AR 22. However, the ALJ 19 did not make any clear findings regarding the actual demands of Ms. 20 Oliverez’s past relevant work. See SSR 82-61. It is true that Ms. 21 Oliverez responded to questions from her attorney regarding some of 22 the actual physical demands of her past work at the hearing, for 23 example, that she was required to stand for eight to ten hours a day 24 as a retail clerk and lift heavy metal signs as a realtor. See AR 57- 25 59. But the ALJ made no mention of these statements in his opinion, 26 and there is no way of knowing whether he considered them. Indeed, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 8 1 because the ALJ found 2 subjective 3 disregarded her statements about her past work, if he considered them 4 at all. See AR 23-24. symptoms the not claimant’s entirely statements credible, he relating may have to her similarly Nor did the ALJ make sufficiently specific findings regarding 5 6 the functional demands of Ms. Oliverez’s past relevant work as 7 generally required by employers throughout the national economy. See 8 SSR 82-61. He only noted that her work as a realtor and as a retail 9 sales clerk “required the ability to tolerate light exertion” and that 10 Washington Disability Determination Services (“DDS”) had found she 11 could perform her past relevant work as a realtor. AR 26. Although the 12 Dictionary of Occupation Titles (“DOT”) and related descriptions for 13 both jobs are present in the record, AR 104, 185, the ALJ made no 14 significant reference to them in his opinion, and there is no other 15 indication the ALJ considered them. Finally, the ALJ did not rely on 16 vocational expert testimony, as is common practice at step four of the 17 sequential analysis. 20 C.F.R. § 404.1560(b)(2), 416.960(b). 18 Because the ALJ did not make clear findings as to the actual 19 physical and mental demands of Ms. Oliverez’s past relevant work and 20 did not make sufficiently specific findings regarding the demands of 21 the work as “generally required by employers throughout the national 22 economy,” the Court remands for the ALJ to make such findings. See SSR 23 82-61; 24 (remanding to the agency to make specific findings as to past relevant 25 work). 26 / Morgan v. Colvin, 622 F. App'x 648, 649 (9th Cir. 2015) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 9 1 B. Medical evidence 2 Next, Ms. Oliverez contends the ALJ committed reversible error 3 by improperly weighing the medical testimony of Drs. Alex Najera, Paul 4 Schwartz, H.C. Alexander III, and J.R. Saphir. ECF No. 13 at 7-16. The 5 Commissioner responds that the ALJ’s interpretations of the medical 6 evidence 7 alternate 8 insufficient to overturn the ALJ’s decision. ECF No. 26 at 9-11. were reasonable and that interpretation of Ms. the Oliverez medical simply evidence, offers an which is 9 “In disability benefits cases, physicians may render medical, 10 clinical opinions, or they may render opinions on the ultimate issue 11 of disability — the claimant’s ability to perform work.” Garrison v. 12 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted). There 13 are 14 physicians, and nonexamining physicians. Lester v. Chater, 81 F.3d 15 821, 830 (9th Cir. 1995). “As a general rule, more weight should be 16 given to the opinion of a treating source than to the opinion of 17 doctors who do not treat the claimant.” Id. The ALJ must provide 18 “clear 19 opinion of an examining physician. Id. three and of physicians: convincing” opinion providing “specific and legitimate reasons” supported by “substantial 23 evidence” in the record. Id. “An ALJ can satisfy the ‘substantial 24 evidence’ requirement by setting out a detailed and thorough summary 25 of facts and conflicting not reject clinical is uncontradicted 22 may physician the another ALJ treating rejecting examining 21 the a for physicians, If physician, of reasons treating 20 the the types the contradicted opinion evidence, by without stating his 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 10 1 interpretation thereof, and making findings." Garrison, 759 F.3d at 2 1012 (internal quotations omitted). 3 1. Dr. Alex Najera 4 The ALJ gave Dr. Najera’s February 25, 2014 assessment of Ms. 5 Oliverez little weight. AR 25. Given the legitimacy of at least one of 6 the reasons given by the ALJ, the Court holds the ALJ did not err in 7 awarding Dr. Najera’s assessment little weight. First, 8 the ALJ gave Dr. Najera’s assessment little weight 9 because he “had only treated the claimant for a short time.” AR 25. 10 Ms. Oliverez contends the ALJ “confusingly” misstated the nature of 11 her relationship with Dr. Najera. See ECF No. 13 at 7. She avers that 12 Dr. Najera has treated her since at least 2011 and is thus a treating 13 physician whose opinion should be afforded greater weight. ECF No. 13 14 at 8. 15 It is true that third-party medical records list Dr. Najera as 16 Ms. Oliverez’s primary care physician in January of 2011. AR 424. 17 However, even if Dr. Najera was actively treating Ms. Oliverez in 18 January 2011, the record does not indicate she saw him again until he 19 evaluated 20 (“DSHS) benefits on February 25, 2014, nearly two years after her 21 alleged onset date. See AR 428. Indeed, it would have been difficult 22 for 23 California in early 2012 and lived there until at least August of 24 2013. See AR 300, 520. Rather, the bulk of Ms. Oliverez’s primary care 25 during the period surrounding her onset date was provided by Dr. 26 Nanette Chua of Red Bluff, CA, who referred her to orthopedic surgery. Dr. her for Najera to state treat Department Ms. of Oliverez, Social and Health considering she Services moved to ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 11 1 See AR 288-92, 297, 300, 326-52 (detailing 10 appointments with Dr. 2 Chua between May and November 2012). 3 Accordingly, the ALJ did not err by giving Dr. Najera’s opinion 4 less weight because of the short duration of his recent treatment 5 relationship with Ms. Oliverez. See Orn v. Astrue, 495 F.3d 625, 631 6 (9th Cir. 2007) (explaining the ALJ is entitled to weigh a treating 7 physician’s opinion by a number of factors, including the “[l]ength of 8 the treatment relationship and the frequency of examination”) (quoting 9 20 C.F.R. § 404.1527(c)(2)(i)).2 Even if the ALJ did err in discrediting Dr. Najera’s testimony, 10 11 such an 12 inconsequential to the ALJ’s ultimate nondisability determination. See 13 Molina, 14 determined that Ms. Oliverez was limited to sedentary work for at 15 least six months, she would not necessarily be entitled to disability 16 benefits. 17 individual shall be considered to be disabled . . . if he is unable to 18 engage in any substantial gainful activity . . . which has lasted or 19 can be expected to last for a continuous period of not less than 20 twelve months” (emphasis added)). 21 discrediting Dr. Najera’s testimony. 2. 22 error 674 would F.3d See AR at likely 1115. 23-24, be harmless Supposing 428; 42 that U.S.C. because Dr. it Najera would be accurately § 1382c(a)(3)(A) (“an Accordingly, the ALJ did not err in Dr. Paul Schwartz 23 2 24 25 26 The ALJ also gave Dr. Najera’s assessment less weight because Ms. Oliverez may have had an incentive to overstate her symptoms and because Dr. Najera presumably applied state DSHS definitions of physical limitations. Because the Court finds the ALJ asserted a specific and legitimate reason for rejecting Dr. Najera’s opinion – namely, the length of the treatment relationship and the frequency of examination – any errors the ALJ may have made regarding these other reasons were harmless. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 1 The ALJ gave an little weight to assessment conducted by Dr. 2 Schwartz, Ms. Oliverez’s orthopedic surgeon and treating physician. 3 AR 24-25. 4 opinions of non-examining physicians Drs. H.C. Alexander III, and J.R. 5 Saphir. Accordingly, the ALJ is required to provide “legitimate and 6 specific reasons” to reject Dr. Schwartz’s assessment. See Lester, 81 7 F.3d at 830; Orn, 495 F.3d at 631. Dr. First, 8 Schwartz’s the ALJ gave assessment Dr. appears Schwartz’s to conflict assessment with little the weight 9 because it was completed before Ms. Oliverez’s right knee replacement, 10 which improved her ability to stand and walk. AR 24. While it is true 11 the 12 replacement, Dr. Schwartz had a significant treatment relationship 13 with Ms. Oliverez. She saw him seven times over the course of 2012 and 14 2013, and he personally performed both of her total knee replacements. 15 See AR 416, 520-22. Dr. Schwartz expressly made his assessment in 16 anticipation of her second knee surgery and noted that it would be 17 scheduled 18 orthopedic surgery, Dr. Schwartz’s medical opinion should be afforded 19 more 20 Considering these factors, the Court cannot find that the ALJ’s first 21 reason to dismiss Dr. Schwartz’s assessment was sufficiently specific 22 and legitimate. assessment was within weight than a a not year. completed AR 422. generalist. before her Moreover, See 20 second as C.F.R. a § total knee specialist in 404.1527(c)(5). 23 Second, the ALJ gave Dr. Schwartz’s assessment little weight 24 because he opined that Ms. Oliverez would be eligible for Social 25 Security benefits. See AR 24-25, 422 (“The limitations inherent in 26 total knee replacement will give her permanent disability. . . . In my ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 1 opinion she would be eligible for Social Security disability.”). 2 Although it is clear that the ALJ owed no deference to Dr. Schwartz’s 3 opinions on issues “reserved to the Commissioner,” such as the final 4 disability determination, 20 C.F.R. §§ 404.1527(d)(3), 416.972(d)(3), 5 it is less clear why the ALJ rejected his assessment entirely. The 6 Court finds this is not a specific and legitimate reason to reject Dr. 7 Schwartz’s assessment. 8 Because the ALJ’s opinion does not articulate the “specific and 9 legitimate reasons” required by the law of this Circuit, the ALJ 10 harmfully erred giving little weight to the medical opinion of Dr. 11 Schwartz.3 12 Accordingly, the Court remands for the ALJ to re-weigh the medical 13 opinion of Dr. Schwartz. See Lester, 81 F.3d at 830; Orn, 495 F.3d at 631. 14 3. Drs. H.C. Alexander III and J.R. Saphir 15 The ALJ also considered the opinions of non-examining physicians 16 Dr. 17 January 8, 2015 hearing, and Dr. Saphir, who assessed Ms. Oliverez’s 18 medical records in April 2013. AR 24-25, 35. Ms. Oliverez contends the 19 ALJ erred by improperly awarding more weight to the testimony of non- 20 examining 21 physicians Drs. Najera and Schwartz. ECF No. 13 at 14. The 22 23 Alexander, who telephonically physicians ALJ awarded Drs. the appeared Alexander opinion of and Dr. and testified Saphir than Alexander at the examining “significant” weight because he reviewed the entire longitudinal record, testified 24 3 25 26 The record may, in fact, provide the ALJ specific and legitimate reasons to reject Dr. Schwartz’s opinion – for example, when considered in light of Dr. Saphir’s and Dr. Alexander’s assessments and Ms. Oliverez’s testimony at the hearing. However, this Court is limited to considering only those reasons expressly given by the ALJ. See Lester, 81 F.3d at 830-32. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 14 1 and was subject to cross examination at the hearing, was familiar with 2 Social Security regulations, and the consistency of his testimony with 3 the 4 opinion of Dr. Saphir “great” weight because it is consistent with the 5 evidence showing Ms. Oliverez’s condition improved and consistent with 6 the opinion of Dr. Alexander. objective medical evidence. AR 24. The ALJ also awarded the 7 The Court finds these reasons convincing and holds that the 8 record provides substantial evidence to support the ALJ’s credibility 9 determinations of Drs. Alexander and Saphir. See Tonapetyan v. Halter, 10 242 F.3d 1144, 1149 (9th Cir. 2001) (holding ALJ properly relied on 11 non-examining physician’s opinion where it was based on objective 12 medical evidence). However, because the ALJ is instructed to re-weigh 13 Dr. Schwartz’s opinion, he should re-evaluate the opinions of Drs. 14 Alexander and Saphir in light of any developments on remand. 15 C. Lay testimony 16 Ms. Oliverez also contends the ALJ improperly dismissed the lay 17 testimony of her daughter and sister. ECF No. 13 at 17-18. The ALJ 18 must give germane reasons to reject the testimony of lay witnesses. 19 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 20 Here, the ALJ gave little weight to the lay testimony of Ms. 21 Oliverez’s daughter and sister because they are not medically trained, 22 are not disinterested, and the statements are inconsistent with the 23 medical evidence. AR 25-26. Moreover, the ALJ noted that her sister’s 24 opinion was less credible because she only saw Ms. Oliverez every few 25 weeks, 26 helpful. AR 26. and her daughter’s statement was “very general” and not ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15 1 Lay testimony may not be dismissed simply because of potential 2 bias or lack of medical training. See Regennitter v. Comm'r of Soc. 3 Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (“[T]he fact that a 4 lay witness is a family member cannot be a ground for rejecting his or 5 her testimony.”). Nonetheless, the ALJ provided sufficiently germane 6 reasons to discredit the aforementioned lay testimony. Accordingly, 7 the Court holds the ALJ did not err in giving little weight to the lay 8 witness testimony of Ms. Oliverez’s daughter and sister. Ms. Oliverez’s testimony 9 Finally, 10 Oliverez ALJ 13 clear, and convincing reason. ECF No. 13 at 18. The Commissioner 14 responds that the ALJ’s stated reasons are sufficiently specific, 15 clear, and convincing to reject Ms. Oliverez’s testimony. ECF No. 26 16 at 5. that Ms. regarding Oliverez’s the reversible persistence, and limiting effects of her symptoms without a specific, found testimony committed 12 ALJ her the error The discrediting contends 11 17 by Ms. medically intensity, determinable 18 impairments could reasonably cause her alleged symptoms but that her 19 statements 20 effects 21 conclusion, the ALJ cited her capacity for daily activities (e.g., 22 completing household chores, laundry, pet care, cooking, shopping, and 23 crocheting), that her impairments existed prior to the onset date and 24 she previously engaged in substantial gainful activity in spite of 25 them, that her knee conditions had improved since the onset date, and regarding were not their entirely intensity, credible. persistence, AR 23-24. To and limiting support this 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 16 1 that the frequency and severity of her alleged symptoms were not 2 supported by the record evidence. AR 23. 3 An ALJ may only reject a claimant’s testimony about the severity 4 of her symptoms by offering “specific, clear, and convincing reasons 5 for 6 requirement to meet: The clear and convincing standard is the most 7 demanding required in Social Security cases.” Garrison, 759 F.3d at 8 1014 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 9 (9th Cir. 2002)). doing so.” Smolen, 80 F.3d at 1281. “This is not an easy 10 Given that the Court is remanding this matter, in part, to re- 11 weigh the medical evidence, the Court need not rule on whether the ALJ 12 erred in rejecting Ms. Oliverez’s testimony.4 The ALJ is instructed to 13 re-evaluate Ms. Oliverez’s testimony in light of his new consideration 14 of the medical evidence. See Smolen, 80 F.3d at 1281 (emphasizing the 15 importance 16 testimony). The ALJ should only discredit Ms. Oliverez’s testimony 17 regarding the severity of her symptoms by citing specific, clear, and 18 convincing reasons. 19 D. of objective medical evidence in weighing claimant’s Credit-as-true rule 20 Ms. Oliverez requests that the Court remand to the Commissioner 21 for an immediate award of benefits. ECF No. 13 at 6. The Ninth Circuit 22 has employed the “credit-as-true rule,” under which courts are free to 23 4 24 25 26 The Court does note that the ALJ cited Ms. Oliverez’s daily activities as a reason for discrediting her testimony. The Ninth Circuit has explained that a capability to complete basic daily activities does not necessitate an adverse credibility determination. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require claimants be utterly incapacitated to be eligible for benefits. . . .”); see also Orn, 495 F.3d at 639 (holding the ALJ must make specific findings that daily activities are transferrable to the workplace to discredit a claimant’s testimony). ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 17 1 reverse and remand with instructions to calculate and award benefits 2 if three conditions are met: (1) the record has been fully developed 3 and further administrative proceedings would serve no useful purpose; 4 (2) the ALJ has failed to provide legally sufficient reasons for 5 rejecting evidence; and (3) if the improperly discredited evidence 6 were credited as true, the ALJ would be required to find the claimant 7 disabled on remand. See Varney v. Sec’y of Health & Human Servs., 859 8 F.2d 1396 (9th Cir. 1988); Garrison, 759 F.3d at 1020 (9th Cir. 2014). 9 Here, the Court is remanding to further develop the record. It 10 is therefore unclear whether the ALJ would be required to find Ms. 11 Oliverez disabled on remand. Accordingly, the Court declines to remand 12 for the immediate award of benefits. Id. VI. 13 14 CONCLUSION In summary, the Court finds the ALJ erred by failing to make 15 specific 16 Oliverez’s past relevant work and by failing to provide specific and 17 legitimate reasons for discrediting the medical opinion of Dr. Paul 18 Schwartz. The Court remands this case for the ALJ to: 19 1. findings Make as to specific the physical findings as and to mental the demands physical and of Ms. mental 20 demands of Ms. Oliverez’s past relevant work as actually or 21 generally performed; 22 2. Re-weigh the medical opinions of Drs. Schwartz, Alexander, 23 and Saphir. The ALJ shall provide sufficient reasons if he 24 rejects any of these opinions; 25 26 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 18 1 3. If helpful, the ALJ should conduct additional hearings and 2 receive 3 develop the record; and 4 4. additional evidence and testimony to further Re-evaluate the credibility of Ms. Oliverez’s testimony in light of the objective medical evidence. 5 6 Accordingly, IT IS HEREBY ORDERED: 7 1. GRANTED IN PART and DENIED IN PART. 8 9 2. The Commissioner’s Motion for Summary Judgment, ECF No. 26, is DENIED. 10 11 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 3. This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 12 13 4. JUDGMENT is to be entered in favor of the Plaintiff. 14 5. Mr. Tree may file a separate motion to apply for attorneys fees. 15 16 6. 17 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 18 19 The case shall be CLOSED. Order and provide copies to all counsel. DATED this 29th _ day of September 2017. 20 21 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 22 23 24 25 26 Q:\EFS\Civil\2016\16-CV-5120;Oliverez Soc Sec Ord Rul on Crs Mots for SJ.docx ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 19

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