Pittman v. Commissioner of Social Security, No. 4:2019cv05046 - Document 17 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. The matter is reversed and remanded to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). File Closed. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)

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Pittman v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 29, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 KIMBERLY P.,1 No. 4:19-cv-05046-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 14 15 1 To protect the privacy of plaintiffs in social security cases, the undersigned 16 identifies them by only their first names and the initial of their last names. See 17 LCivR 5.2(c). 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant. See Fed. R. 20 Civ. P. 25(d). ORDER - 1 Dockets.Justia.com 1 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 3 6. The Court, having reviewed the administrative record and the parties’ briefing, 4 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 5 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 15. 6 7 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 ORDER - 2 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 19 “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of ORDER - 3 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 423(d)(2)(A). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 6 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 7 “substantial gainful activity,” the Commissioner must find that the claimant is not 8 disabled. 20 C.F.R. § 404.1520(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 12 from “any impairment or combination of impairments which significantly limits 13 [his or her] physical or mental ability to do basic work activities,” the analysis 14 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 15 does not satisfy this severity threshold, however, the Commissioner must find that 16 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the ORDER - 4 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 404.1520(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education, and 19 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not ORDER - 5 1 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 2 other work, analysis concludes with a finding that the claimant is disabled and is 3 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 7 capable of performing other work; and 2) such work “exists in significant numbers 8 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 9 386, 389 (9th Cir. 2012). 10 11 ALJ’S FINDINGS On July 14, 2014, Plaintiff applied for Title II disability insurance benefits 12 alleging a disability onset date of July 31, 2013. Tr. 290-96. The application was 13 denied initially and on reconsideration. Tr. 233-35; Tr. 237-38. Plaintiff appeared 14 before an administrative law judge (ALJ) on January 17, 2017. Tr. 171-207. On 15 February 14, 2018, the ALJ denied Plaintiff’s claim. Tr. 13-46. 16 At step one of the sequential evaluation process, the ALJ found Plaintiff, 17 who met the insured status requirements through December 31, 2017, has not 18 engaged in substantial gainful activity since July 31, 2013. Tr. 18-19. At step two, 19 the ALJ found that Plaintiff has the following severe impairments: degenerative 20 ORDER - 6 1 disc disease, status post rotator cuff repair, status post left cubital tunnel release, 2 bilateral carpal tunnel syndrome, and breast cancer. Tr. 19. 3 At step three, the ALJ found Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of a listed 5 impairment. Tr. 21-22. The ALJ then concluded that Plaintiff has the RFC to 6 perform light work with the following limitations: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [Plaintiff] can lift or carry up to twenty pounds occasionally and up to ten pounds frequently, and can stand or walk for approximately six hours, and sit for approximately six hours, per eight hour work day with normal breaks. Pushing or pulling with the left upper extremity [sic] limited to twenty pounds. She can occasionally climb ramps, stairs, ladders, ropes or scaffolds, frequently balance, stoop, kneel, and crouch, and occasionally crawl. [Plaintiff] can frequently reach and finger, but can perform only occasional overhead reaching. [Plaintiff] is capable of performing simple routine tasks, in a routine work environment, with simple work-related decisions. Tr. 22. At step four, the ALJ found Plaintiff was unable to perform any of her past relevant work. Tr. 33. At step five, the ALJ found that, considering Plaintiff’s age, education, work experience, RFC, and testimony from the vocational expert, there were light jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as cashier, cleaner/housekeeper, and outside deliverer. Tr. 34. In the alternative, the vocational expert also testified there were sedentary jobs available that could accommodate one short stretch break of a minute or two between the normal breaks occurring every two hours, including ORDER - 7 1 telephone information clerk, document preparer, and toy stuffer. Tr. 34-35. 2 Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the 3 Social Security Act, from the alleged onset date of July 31, 2013, through the date 4 last insured, December 31, 2017. Tr. 35. 5 On February 12, 2019, the Appeals Council denied review of the ALJ’s 6 decision, Tr. 1-7, making the ALJ’s decision the Commissioner’s final decision for 7 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 11 raises the following issues for review: 12 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 13 2. Whether the ALJ properly evaluated the medical opinion evidence; and 14 3. Whether the ALJ conducted a proper step-five analysis. 15 ECF No. 14 at 3-4. 16 17 18 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 19 convincing in discrediting her symptom claims. ECF No. 14 at 6-10. An ALJ 20 engages in a two-step analysis to determine whether to discount a claimant’s ORDER - 8 1 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 2 “First, the ALJ must determine whether there is objective medical evidence of an 3 underlying impairment which could reasonably be expected to produce the pain or 4 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 5 “The claimant is not required to show that [the claimant’s] impairment could 6 reasonably be expected to cause the severity of the symptom [the claimant] has 7 alleged; [the claimant] need only show that it could reasonably have caused some 8 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 13 omitted). General findings are insufficient; rather, the ALJ must identify what 14 symptom claims are being discounted and what evidence undermines these claims. 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 17 explain why it discounted claimant’s symptom claims)). “The clear and 18 convincing [evidence] standard is the most demanding required in Social Security 19 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). ORDER - 9 1 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 3 duration, frequency, and intensity of pain or other symptoms; 3) factors that 4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; 5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; 6) any measures other than treatment 8 an individual uses or has used to relieve pain or other symptoms; and 7) any other 9 factors concerning an individual’s functional limitations and restrictions due to 10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 11 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 12 individual’s record,” “to determine how symptoms limit ability to perform work13 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 The ALJ found that Plaintiff’s medically determinable impairments could 15 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 16 statements concerning the intensity, persistence, and limiting effects of his/her 17 symptoms were not entirely consistent with the evidence. Tr. 23. 18 1. Inconsistency with Objective Medical Evidence 19 The ALJ found the minimal physical examination findings were inconsistent 20 with Plaintiff’s allegations of extremely limiting physical conditions. Tr. 23-24. ORDER - 10 1 An ALJ may not discredit a claimant’s symptom testimony and deny benefits 2 solely because the degree of the symptoms alleged is not supported by objective 3 medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 4 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 5 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 6 However, the objective medical evidence is a relevant factor, along with the 7 medical source’s information about the claimant’s pain or other symptoms, in 8 determining the severity of a claimant’s symptoms and their disabling effects. 9 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 10 Here, the ALJ found that Plaintiff’s reported physical symptoms were not as 11 severe as she claimed. Tr. 23-24. The ALJ considered the generally normal 12 findings on examination, including normal strength, gait, and muscle tone, with no 13 atrophy. Tr. 24 (citing Tr. 698, 814, 2175, 2221, 2223, 2226). While there were 14 some positive findings, they were generally minimally abnormal. Tr. 24 (citing Tr. 15 698, 814, 1457, 2198). Though an EMG and nerve conduction test showed 16 moderate left elbow neuropathy, the physical examinations were only mildly 17 abnormal. Tr. 24 (citing Tr. 698). The ALJ considered Plaintiff’s more significant 18 findings, including examinations with reduced range of motion and strength, but 19 found Plaintiff also had many normal findings at those same examinations. Tr. 24 20 (citing Tr. 889, 914, 1348-53, 2238). Multiple providers also noted Plaintiff’s ORDER - 11 1 subjective complaints far outweighed the objective findings. Tr. 24 (citing Tr. 2 1287, 1319, 1989). 3 While Plaintiff’s symptoms naturally waxed and waned, the ALJ’s finding 4 that the objective findings were out of proportion with and did not corroborate 5 Plaintiff’s report of severe restrictions is reasonable. Plaintiff offers an alternative 6 interpretation of the evidence, citing to evidence such as Plaintiff’s need for 7 surgery for her cubital tunnel syndrome. ECF No. 14 at 8-9. Plaintiff’s provider 8 noted the surgery would likely not cause any permanent restrictions nor require 9 retraining. Tr. 708. The ALJ’s interpretation of the evidence was reasonable. 10 This was a clear and convincing reason, coupled with the additional reasons 11 discussed infra, to discount Plaintiff’s symptom reports. 12 2. Motivated by Secondary Gain 13 The ALJ reasoned Plaintiff sought out medical care from providers who 14 would support her allegations and attempted to undermine evidence that was 15 inconsistent with her allegations. Tr. 24-25. Evidence of being motivated by 16 secondary gain is sufficient to support an ALJ’s rejection of testimony evidence. 17 See Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). 18 Therefore, the tendency to exaggerate or engage in manipulative conduct during 19 the process is a permissible reason to discount the credibility of the claimant’s 20 reported symptoms. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). ORDER - 12 1 Plaintiff did not challenge this reason; thus, any challenge is waived. See 2 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 3 Despite the waiver, the Court considered the reasoning and finds it is supported by 4 substantial evidence. Plaintiff submitted a statement in April 2015 that included 5 Plaintiff stating the February 2014 examination by Dr. Bauer and Dr. Wray was 6 not thorough and she was upset about the examination. Tr. 24 (citing Tr. 566-67). 7 The ALJ observed that the statement was not submitted until over a year after the 8 examination, and it was not submitted until Plaintiff’s attorney objected to one of 9 Dr. Bauer’s examinations and the insurance administrator responded that there had 10 not been any reports of a negative experience with the exam. Tr. 25 (citing Tr. 11 564-65). The claims manager also documented inconsistent statements made by 12 Plaintiff. Tr. 25 (citing Tr. 568-71). The ALJ noted Plaintiff became upset when 13 providers opined she could return to work, and she ended appointments and care 14 with providers who did not agree she could not work. Tr. 25 (citing Tr. 2020). 15 The claims manager found Plaintiff wrote a statement disagreeing with Dr. 16 Bauer’s statements, but later gave different reasons for disagreeing with the 17 examination results. Tr. 570, 574. The claims manager also noted Plaintiff 18 misrepresented Dr. Bauer’s report. Tr. 568-69. Plaintiff refused to be examined 19 by Dr. Bauer again. Id. After Ms. Glenn opined Plaintiff could return to work, 20 Plaintiff also walked out on an appointment with Ms. Glenn and refused to be ORDER - 13 1 treated by her again. Tr. 2020. The ALJ reasonably concluded that Plaintiff 2 appeared to engage in behavior intended to undermine the evidence in her case. 3 This finding is supported by substantial evidence and was a clear and convincing 4 reason to discount Plaintiff’s symptoms complaints. 5 3. Inconsistent with Treatment Notes 6 The ALJ found the record’s lack of observations of Plaintiff being in distress 7 or discomfort was inconsistent with Plaintiff’s allegations of constant, limiting 8 pain. Tr. 25-26. Minimal objective evidence is a factor which may be relied upon 9 in discrediting a claimant’s testimony, although it may not be the only factor. See 10 Burch, 400 F.3d at 680. Plaintiff did not challenge this reason; thus, any challenge 11 is waived. See Carmickle, 533 F.3d at 1161 n.2. Despite the waiver, the Court 12 considered the reasoning and finds it is supported by substantial evidence. The 13 ALJ found Plaintiff routinely appeared in no apparent distress, appeared “well” at 14 many appointments, and at most was described as appearing in mild pain. Tr. 25 15 (citing, e.g., Tr. 698, 711, 887, 1313). The ALJ also noted Plaintiff’s subjective 16 complaints of pain were more severe than what was documented in the records 17 from the same appointments, which noted only mild pain. Tr. 26 (citing Tr. 88218 88, 1325-47, 1459-75). At an October 2014 visit, Plaintiff reported her pain was a 19 five out of 10, and in the past week it had been as high as an eight. Tr. 1325. 20 Though there were some abnormalities on exam, Plaintiff was noted as appearing ORDER - 14 1 in only mild pain. Id. At an October 2015 visit, Plaintiff reported her pain at a six 2 out of 10, with the highest pain being a seven. Tr. 1459. However, Plaintiff was 3 again noted as appearing in only mild pain. Tr. 1460. This was a clear and 4 convincing reason, supported by substantial evidence, to reject Plaintiff’s symptom 5 claims. 6 4. Activities of Daily Living 7 The ALJ found Plaintiff’s activities of daily living were inconsistent with 8 her symptom complaints. Tr. 26. The ALJ may consider a claimant’s activities 9 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 10 spend a substantial part of the day engaged in pursuits involving the performance 11 of exertional or non-exertional functions, the ALJ may find these activities 12 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 13 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 14 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 15 the claimant reports participation in everyday activities indicating capacities that 16 are transferable to a work setting” or when activities “contradict claims of a totally 17 debilitating impairment.” Molina, 674 F.3d at 1112-13. Plaintiff did not challenge 18 this reason; thus, any challenge is waived. See Carmickle, 533 F.3d at 1161 n.2. 19 Despite the waiver, the Court considered the reasoning and finds it is supported by 20 substantial evidence. ORDER - 15 1 The ALJ reasoned Plaintiff’s reported ability to walk five miles three times 2 per week, without any reported pain, was inconsistent with her allegations of 3 disabling symptoms. Tr. 25 (citing Tr. 863). Though the analysis did not include 4 any further analysis of Plaintiff’s activities, an ability to walk five miles at a 5 moderate pace, three times per week, without reported difficulty or symptoms, is 6 inconsistent with Plaintiff’s reports of disabling pain. Tr. 863. Plaintiff reported 7 additional activities, including bicycling or walking at least three times weekly. Tr. 8 865. Plaintiff reported cooking dinner daily, doing laundry, mowing the lawn with 9 a riding mower, and doing some of the household cleaning. Tr. 393. She also 10 reported shopping weekly and taking her dog for a walk one to two times per 11 week. Tr. 394-95. The ALJ’s finding that Plaintiff’s activities of daily living were 12 inconsistent with her symptom claims is a clear and convincing reason, supported 13 by substantial evidence, to reject Plaintiff’s symptom complains. 14 5. Improvement with Conservative Treatment 15 The ALJ reasoned Plaintiff’s improvement with conservative treatment was 16 inconsistent with her symptom claims. Tr. 26. The effectiveness of treatment is a 17 relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. § 18 404.1529(c)(3); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 19 Cir. 2006) (determining that conditions effectively controlled with medication are 20 not disabling for purposes of determining eligibility for benefits); Tommasetti v. ORDER - 16 1 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (recognizing that a favorable response 2 to treatment can undermine a claimant’s complaints of debilitating pain or other 3 severe limitations). The ALJ found Plaintiff reported significant improvement in 4 her left upper extremity with minimal treatment. Tr. 26 (citing Tr. 762). Plaintiff 5 had increased range of motion, decreased discomfort and increased function after 6 physical therapy in 2013, though she later reported physical therapy provided only 7 minimal relief. Tr. 26 (citing Tr. 762, 1349). Plaintiff argues she did not have 8 significant improvement with conservative treatment, as demonstrated by her need 9 for surgery. ECF No. 14 at 8-9. While Plaintiff later needed surgery, the medical 10 records demonstrate Plaintiff had a period of improvement with physical therapy 11 prior to the surgery. Further, in the years after the surgery, Plaintiff reported her 12 pain was relieved well by pain medications and lidocaine patches, and she reported 13 she only “occasionally” needed to take pain medications during the day when she 14 worked her left shoulder too hard. Tr. 26 (citing Tr. 1506). Further, any error is 15 harmless where, as discussed supra, the ALJ lists additional reasons, supported by 16 substantial evidence, for discrediting Plaintiff’s symptom complaints. See 17 Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 1115 (“[S]everal of our cases 18 have held that an ALJ’s error was harmless where the ALJ provided one or more 19 invalid reasons for disbelieving a claimant’s testimony, but also provided valid 20 reasons that were supported by the record.”); Batson v. Comm’r of Soc. Sec. ORDER - 17 1 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that any error the ALJ 2 committed in asserting one impermissible reason for claimant’s lack of credibility 3 did not negate the validity of the ALJ’s ultimate conclusion that the claimant’s 4 testimony was not credible). 5 6. Motivation to Work 6 The ALJ found Plaintiff’s motivation to work inconsistent with her 7 allegations. Tr. 26-27. Evidence of a poor work history that suggests a claimant is 8 not motivated to work is a permissible reason to discredit a claimant’s testimony 9 that she is unable to work. Thomas, 278 F.3d at 959; SSR 16-3p3 (factors to 10 consider in evaluating credibility include “prior work record and efforts to work”); 11 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); 20 C.F.R. § 404.1529 (work 12 record can be considered in assessing credibility). Additionally, “receipt of 13 unemployment benefits can undermine a claimant’s alleged inability to work 14 fulltime.” Carmickle, 533 F.3d at 1161-62 (citing Copeland v. Bowen, 861 F.2d 15 536, 542 (9th Cir. 1988)). But where the record “does not establish whether [the 16 claimant] held himself out as available for full-time or part-time work,” such a 17 “basis for the ALJ’s credibility finding is not supported by substantial evidence,” 18 19 3 SSR 16-3p superseded SSR 96-7p effective March 28, 2016. The Court applies 20 the regulation in effect at the time of the ALJ’s decision. ORDER - 18 1 as “[o]nly the former is inconsistent with his disability allegations.” Id. The ALJ 2 noted that Plaintiff received more income when receiving worker’s compensation 3 than she had received in her year of employment in 2011, and her worker’s 4 compensation benefits were almost as much as Plaintiff earned working in 2012. 5 Tr. 26 (citing Tr. 305, 598-604). Plaintiff also earned less working than she 6 received in worker’s compensation benefits during most of her working years, with 7 several years of earnings below $10,000, including one year with no earnings. Tr. 8 305. The ALJ reasonably considered Plaintiff’s earnings record in determining 9 Plaintiff lacked motivation to work. 10 The ALJ also reasoned Plaintiff’s receipt of unemployment benefits in 2016, 11 which required she certify she was willing and able to work, was inconsistent with 12 her reported inability to work. Tr. 26 (citing Tr. 882). The record does not 13 establish whether Plaintiff held herself out as available for full-time or part-time 14 work. However, any error in the analysis is harmless as discussed supra, as the 15 ALJ gave other clear and convincing reasons for rejecting Plaintiff’s symptoms 16 claims. See Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 1115. 17 7. Inconsistent Statements Regarding Work History 18 Lastly, the ALJ considered Plaintiff’s inconsistent statements regarding her 19 work history. Tr. 27. In evaluating a claimant’s symptom claims, an ALJ may 20 consider the consistency of an individual’s own statements made in connection ORDER - 19 1 with the disability-review process with any other existing statements or conduct 2 under other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 3 (The ALJ may consider “ordinary techniques of credibility evaluation,” such as 4 reputation for lying, prior inconsistent statements concerning symptoms, and other 5 testimony that “appears less than candid.”). Plaintiff did not challenge this reason; 6 thus, any challenge is waived. See Carmickle, 533 F.3d at 1161 n.2. Despite the 7 waiver, the Court considered the reasoning and finds it is supported by substantial 8 evidence. Plaintiff testified she worked as a correctional officer for only two days, 9 though she reported elsewhere she worked as a correctional officer for eight 10 months. Id. (citing Tr. 199, 355, 357, 371). Plaintiff reported on one occasion that 11 she worked the job for three days and the remainder of her time was in training, Tr. 12 605, but this is inconsistent with her other reports where Plaintiff reported the 13 position without any mention of a special training period, Tr. 579. The ALJ also 14 found Plaintiff made inconsistent statements as to where her workplace injury took 15 place. Tr. 27 (citing Tr. 1449). This finding is supported by substantial evidence 16 in the record. 17 In sum, the ALJ gave numerous clear and convincing reasons, supported by 18 substantial evidence, to discount Plaintiff's symptoms complaints. 19 20 ORDER - 20 1 2 B. Medical Opinion Evidence Plaintiff contends the ALJ improperly considered the opinions of P. Alex 3 Stone, PA-C; Jean You, M.D.; Kirk Holle, P.T.; Michael Sherfey, D.O.; Desiree 4 Ang, A.R.N.P.; Arthur Thiel, M.D.; Tracey Glenn, MS, A.R.N.P.; and Phillip 5 Drussel, P.T. ECF No. 14 at 10-15. 6 There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 11 Generally, a treating physician’s opinion carries more weight than an examining 12 physician’s, and an examining physician’s opinion carries more weight than a 13 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 14 to opinions that are explained than to those that are not, and to the opinions of 15 specialists concerning matters relating to their specialty over that of 16 nonspecialists.” Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, the ALJ 18 may reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a ORDER - 21 1 treating physician, if that opinion is brief, conclusory and inadequately supported 2 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 3 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 4 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 5 may only reject it by providing specific and legitimate reasons that are supported 6 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8307 31). The opinion of a nonexamining physician may serve as substantial evidence if 8 it is supported by other independent evidence in the record. Andrews v. Shalala, 9 53 F.3d 1035, 1041 (9th Cir. 1995). 10 “Only physicians and certain other qualified specialists are considered 11 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 12 see 20 C.F.R. § 404.1502 (2013).4 However, an ALJ is required to consider 13 evidence from non-acceptable medical sources, such as therapists. 20 C.F.R. § 14 15 16 17 18 4 The regulation that defines acceptable medical sources is found at 20 C.F.R. § 19 404.1502 for claims filed after March 27, 2017. The Court applies the regulation 20 in effect at the time the claim was filed. ORDER - 22 1 404.1527(f) (2013).5 An ALJ may reject the opinion of a non-acceptable medical 2 source by giving reasons germane to the opinion. Ghanim, 763 F.3d at 1161. 3 1. Ms. Stone 4 Ms. Stone opined on March 10, 2015 that repetitive heavy living, as required 5 by Plaintiff’s work as a certified nursing assistant, aggravated or caused Plaintiff’s 6 neck and left upper extremity symptoms. Tr. 1438 (duplicated at Tr. 1942). She 7 stated Plaintiff reported the injury initially only involved left shoulder pain but 8 progressed to both neck and shoulder pain and paresthesia. Id. On March 31, 9 2015, Ms. Stone opined that Plaintiff’s cervical spine and left upper extremity 10 impairments had not reached medical stability. Tr. 906 (duplicated at Tr. 1943). 11 She stated the objective evidence of Plaintiff’s conditions included positive 12 bilateral Spurling’s, decreased triceps reflexes, hypoesthesia of left C5, C6 and C8 13 dermatomes, 1+ brachioradialis, positive Hoffman’s and decreased strength in the 14 biceps. Id. She stated Plaintiff was on “minimal” opiate medication with no plan 15 to decrease the medication. Id. 16 17 18 5 The regulation that requires an ALJ’s consider opinions from non-acceptable 19 medical sources is found at 20 C.F.R. § 404.1502c for claims filed after March 27, 20 2017. The Court applies the regulation in effect at the time the claim was filed. ORDER - 23 1 The ALJ gave Ms. Stone’s opinions no weight. Tr. 28. As Ms. Stone is not 2 an acceptable medical source, the ALJ was required to give germane reasons to 3 reject the opinions. See Ghanim, 763 F.3d at 1161. 4 First, the ALJ found Ms. Stone’s March 31, 2015 opinion that Plaintiff’s 5 conditions were not stable inconsistent with Dr. Sherfey’s opinion. Tr. 28. An 6 ALJ may choose to give more weight to an opinion that is more consistent with the 7 evidence in the record. 20 C.F.R. § 404.1527(c)(4) (“[T]he more consistent a 8 medical opinion is with the record as a whole, the more weight we will give to that 9 medical opinion.”); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 10 Relevant factors when evaluating a medical opinion include the amount of relevant 11 evidence that supports the opinion, the quality of the explanation provided in the 12 opinion, and the consistency of the medical opinion with the record as a whole. 13 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 14 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. § 404.1527(b)(6) (assessing the extent to 15 which a medical source is “familiar with the other information in [the claimant’s] 16 case record”). 17 While Ms. Stone opined Plaintiff’s shoulder and spine conditions were not 18 stable, Tr. 906, Dr. Sherfey opined Plaintiff’s shoulder was “fixed and stable,” Tr. 19 28 (citing Tr. 814). The ALJ reasoned Dr. Sherfey’s opinion was entitled to more 20 weight as he was a treating specialist and a physician. Tr. 28. While opinions ORDER - 24 1 from sources that are not acceptable medical sources are not automatically entitled 2 to lesser weight than opinions from acceptable medical sources, specialists’ 3 opinions about issues related to their specialty are entitled to more weight than 4 opinions from non-specialists. 20 C.F.R. § 404.1527(c)(5), (f)(1). As a treating 5 orthopedic specialist, Dr. Sherfey’s opinion was entitled to more weight than Ms. 6 Stone’s opinion. This was a germane reason to reject Ms. Stone’s opinion that 7 Plaintiff’s shoulder condition is not stable. However, Dr. Sherfey opined Plaintiff 8 needed further evaluation and possible treatment for her spinal conditions, and he 9 deferred on the issue as it was outside his expertise. Tr. 814. There is no conflict 10 between Dr. Sherfey’s opinion and Ms. Stone’s opinion regarding Plaintiff’s spinal 11 conditions. However, any error is harmless as the ALJ gave other germane reasons 12 to reject the opinion. See Molina, 674 F.3d at 1115. 13 Second, the ALJ found Ms. Stone’s opinions lacked any functional 14 limitations. Tr. 28-29. An ALJ may reject an opinion that does “not show how [a 15 claimant’s] symptoms translate into specific functional deficits which preclude 16 work activity.” See Morgan, 169 F.3d at 601. Ms. Stone’s March 10, 2015 17 opinion stated only that Plaintiff’s conditions were not stable but did not indicate 18 any functional limitations due to the conditions. Tr. 1438. Ms. Stone’s March 31, 19 2015 opinion stated that Plaintiff’s shoulder and neck impairments were caused or 20 aggravated by her work as a certified nursing assistant but did not provide any ORDER - 25 1 functional limitations due to the impairments. Tr. 906. This was a germane reason 2 to decline to give weight to Ms. Stone’s opinions. 3 Third, the ALJ found Ms. Stone’s opinions lacked any reference to medical 4 data and did not contain any rationale for her conclusions. Tr. 29. The Social 5 Security regulations “give more weight to opinions that are explained than to those 6 that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion 7 of any physician, including a treating physician, if that opinion is brief, conclusory 8 and inadequately supported by clinical findings.” Bray, 554 at 1228. Ms. Stone’s 9 March 10, 2015 opinion contains references to Plaintiff’s self-report but no 10 references to any objective evidence and does not provide any additional 11 explanation. Tr. 1438. Ms. Stone’s March 31, 2015 opinion references Plaintiff’s 12 objective medical findings, and plan for “possible” cervical epidural steroid 13 injections but does not provide further explain as to why Plaintiff’s condition was 14 not stable. Tr. 906. The questionnaire asks when maximum medical improvement 15 was expected, but Ms. Stone did not answer the question. Id. 16 Plaintiff argues Ms. Stone’s treating records provide data and rationale to 17 support the opinion. ECF No. 14 at 11. The records demonstrate Plaintiff reported 18 varying levels of pain, but she also reported in December 2015 her medications 19 helped her to continue doing “well enough,” and she felt her current treatment 20 regimen was “adequate” and she was satisfied with it. Tr. 1473-74 (duplicated at ORDER - 26 1 Tr. 2346-47). Ms. Stone noted Plaintiff seemed to be in mild pain and had 2 limitations in her cervical range of motion, but otherwise had a normal physical 3 exam. Id. Ms. Stone found at two other appointments that Plaintiff had limited 4 cervical range of motion, tenderness in her cervical spine, spasm in the left 5 trapezius muscle, and decreased strength in the triceps. Tr. 2350, 2354. 6 While the records demonstrate Plaintiff had continued pain and some 7 continued limitations, such level of pain and limitation was also noted by Dr. 8 Sherfey and he still found Plaintiff’s condition stable. Tr. 814. The ALJ’s 9 interpretation, finding Ms. Stone did not provide objective support that Plaintiff’s 10 condition was unstable, is reasonable. This was a germane reason to reject Ms. 11 Stone’s opinion. 12 Plaintiff argues the ALJ failed to address Ms. Stone’s “remaining opinions” 13 but does not cite to any opinions. ECF No. 14 at 11. While both of Ms. Stone’s 14 opinions are each duplicated, the record does not appear to contain any other 15 opinions from Ms. Stone. Further, any error in the ALJ’s analysis of Ms. Stone’s 16 opinions would be harmless. The two existing opinions do not contain any 17 functional limitations and Plaintiff does not provide any analysis of any harmful 18 impact of the rejection of Ms. Stone’s opinions. Plaintiff generally argues the 19 opinions were improperly considered and should have been given greater weight 20 but does not point to any part of Ms. Stone’s opinion that would have impacted the ORDER - 27 1 RFC. ECF No. 14 at 14-15. While Plaintiff contends other opinions exist in the 2 record, Plaintiff does not demonstrate any harmful error from the rejection of any 3 opinions. Thus, any error is harmless. See Molina, 674 F.3d at 1115. 4 2. Dr. You 5 On November 11, 2016, Dr. You, Plaintiff’s treating pain specialist, opined 6 Plaintiff can: sit 45 minutes at one time, for a total of four hours in an eight-hour 7 day; stand 30 minutes at one time, for a total of standing/walking two hours in a 8 day; lift less than 10 pounds frequently, 10 pounds occasionally, 20 pounds rarely 9 and never 50 pounds; rarely lift above shoulders and reach to the floor, and 10 frequently reach to waist level and handle objects. Tr. 2021-22. She further 11 opined Plaintiff would: need unscheduled breaks of 30 minutes every 45 minutes, 12 during which she would need to lie down; miss more than four days of work per 13 month; have difficulty squatting, kneeling and pulling; and would be unable to 14 return to her previous work or perform other work. Id. Dr. You opined the 15 impairments began in January 2013 and are permanent. Tr. 2022. 16 The ALJ gave Dr. You’s opinion no weight. Tr. 29. As Dr. You’s opinion 17 is contradicted by the opinions of William Stump, M.D., Tr. 933, and R. David 18 Bauer, M.D., Tr. 1303-27, the ALJ was required to give specific and legitimate 19 reasons, supported by substantial evidence, to reject the opinion. See Bayliss, 427 20 F.3d at 1216. ORDER - 28 1 First, the ALJ reasoned Dr. You’s opinion was based on Plaintiff’s self- 2 report. Tr. 29. A physician’s opinion may be rejected if it is too heavily based on 3 a claimant’s properly discounted complaints. Tonapetyan, 242 F.3d at 1149. Here, 4 Dr. You wrote at the end of the questionnaire she completed, “according to 5 patient’s subjective report.” Tr. 2022. Dr. You did not complete the section 6 asking for Plaintiff’s medical impairments to be listed, nor did she fill in the 7 sections asking for explanations if necessary, and she did not add any other 8 comments. Tr. 2021-22. While Plaintiff argues Dr. You’s opinion was also based 9 on her review of objective evidence, ECF No. 14 at 12, Dr. You’s written 10 statement does not support Plaintiff’s contention, given the statement it is based on 11 Plaintiff’s subjective report, and a lack of any reference to objective evidence or 12 further explanation in the opinion. The ALJ reasonably found that the opinion was 13 based on Plaintiff’s self-report. This was a specific and legitimate reason to reject 14 Dr. You’s opinion. 15 Second, the ALJ found Dr. You had only been seeing Plaintiff for two 16 months at the time she rendered the opinion. Tr. 29. The number of visits a 17 claimant had with a particular provider is a relevant factor in assigning weight to 18 an opinion. 20 C.F.R. § 404.1527(c)(2)(i). Here, the ALJ gave significant weight 19 to non-examining medical consultants, Tr. 27, and to providers who examined 20 Plaintiff on only one occasion, Tr. 30. The ALJ also reasonably gave significant ORDER - 29 1 weight to the January 2014 and October 2014 opinions of treating physician Dr. 2 Sherfey, who had a longer treating relationship with Plaintiff than Dr. You. Tr. 28. 3 Any potential error in giving more weight to providers who had not examined 4 Plaintiff, or who had seen her on fewer occasions than Dr. You, would be harmless 5 because the ALJ properly gave greater weight to Dr. Sherfey’s opinions and gave 6 other specific and legitimate reasons for rejecting the opinion. See Molina, 674 7 F.3d at 1115. 8 Third, the ALJ found Dr. You’s records did not contain findings that 9 supported her opinion. Tr. 29 (citing Tr. 2181, 2186, 2191-92). A medical opinion 10 may be rejected if it is unsupported by medical findings. Bray, 554 F.3d at 1228; 11 Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149; 12 Matney, 981 F.2d at 1019. Furthermore, a physician’s opinion may be rejected if it 13 is unsupported by the physician’s treatment notes. Connett v. Barnhart, 340 F.3d 14 871, 875 (9th Cir. 2003). Dr. You’s records indicate Plaintiff reported she requires 15 minimal assistance with activities of daily living, handles housework two to three 16 days per week, and exercises by walking one mile. Tr. 2191. Plaintiff reported 17 pain, fatigue, numbness, tingling and anxiety, but she had a normal exam except an 18 unsteady gait and tenderness in the cervical spine. Tr. 2191-92. At another exam, 19 Plaintiff had a normal physical exam except she had more than 11 positive tender 20 points, though she reported worsening symptoms. Tr. 2184-86. Plaintiff has also ORDER - 30 1 reported she is able to work or volunteer a few hours a day, take part in family life, 2 and does limited social activities. Tr. 2184. Plaintiff’s physical exams were 3 generally normal, with cervical tenderness observed at some appointments but not 4 others. Tr. 2175, 2181. This was a specific and legitimate reason to reject the 5 opinion. 6 In sum, the ALJ gave specific and legitimate reasons, supported by 7 substantial evidence, to reject Dr. You’s opinion. 8 3. Mr. Holle 9 On December 14, 2016, Mr. Holle, Plaintiff’s treating physical therapist, 10 opined Plaintiff can: sit for one hour at a time, for a total of four hours in an eight11 hour work day; stand for 30 to 45 minutes at a time for a total of standing/walking 12 two hours in a day; occasionally lift up to 10 pounds, rarely lift 20 pounds, and 13 never lift 50 pounds; and rarely reach above shoulders, to waist level or to floor 14 level and frequently handle objects with fingers. Tr. 2024-25. Mr. Holle also 15 opined Plaintiff cannot tolerate a full work day and could only work four to six 16 hours at most, she would need two unscheduled breaks per day for 30 minutes, 17 during which she would need to lie down, and Plaintiff would miss more than four 18 days per month if she worked full-time. Tr. 2024. He also stated Plaintiff’s 19 impairments began January 11, 2013 and are permanent. Tr. 2025. 20 ORDER - 31 1 The ALJ gave Mr. Holle’s opinion no weight. Tr. 29. As Mr. Holle is not 2 an acceptable medical source, the ALJ was required to give germane reasons to 3 reject the opinion. See Ghanim, 763 F.3d at 1161. 4 First, the ALJ found Mr. Holle had only been treating Plaintiff for two 5 months for one impairment, yet opined Plaintiff’s impairments had begun in 6 January 2013. Tr. 29 (citing Tr. 2024-25, 2195-96). Although retrospective 7 assessments should not be disregarded solely because they are rendered 8 retrospectively, in Magallanes, the Ninth Circuit found that when a treating 9 physician opines about a claimant’s condition prior to the date that the treating 10 physician had direct personal knowledge of the condition, the treating physician is 11 “scarcely different from any non-treating physician with respect to that time 12 period.” Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989) (ALJ properly 13 discounted doctor’s retrospective opinion about a disability onset date in light of 14 the fact that the doctor did not see the claimant until two years later and there was 15 no other objective medical evidence of disability during the time alleged); Johnson 16 v. Shalala, 60 F.3d 1428, 1432-1433 (9th Cir. 1995) (concluding that because a 17 physician’s retrospective assessment included no specific assessment of claimant’s 18 functional capacity prior to that date, the ALJ’s rejection of his testimony was 19 reasonable); see also Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th 20 ORDER - 32 1 Cir. 1984) (ALJ properly ignored opinion of psychiatrist who examined Plaintiff 2 because “[a]fter-the-fact psychiatric diagnoses are notoriously unreliable.”). 3 Mr. Holle began treating Plaintiff in October 2016 for bilateral Achilles 4 tendinitis. Tr. 2218. He rendered his opinion in December 2016, and opined 5 Plaintiff’s impairments began in January 2013. Tr. 2025. Plaintiff argues that Mr. 6 Holle performed a functional capacity test and thus his opinion was based on all of 7 Plaintiff’s impairments. ECF No. 14 at 12. However, the functional capacity test 8 was performed in December 2016. Tr. 2197-98. Mr. Holle did not examine or 9 treat Plaintiff prior to October 2016, thus his opinion regarding Plaintiff’s 10 impairments and limitations prior to that date was not based on his personal 11 knowledge of her conditions. This was a germane reason to reject Mr. Holle’s 12 opinion. 13 Second, the ALJ found Mr. Holle’s opinion relied on Plaintiff’s self-report. 14 Tr. 29. An opinion may be rejected if it is too heavily based on a claimant’s 15 properly discounted complaints. Tonapetyan, 242 F.3d at 1149. The ALJ 16 reasoned Mr. Holle did not provide any support for his opinion that Plaintiff cannot 17 complete a normal workday/workweek, nor that her impairments had been so 18 limiting since January 2013. Tr. 29. While Mr. Holle provided comments 19 regarding Plaintiff’s difficulties with shoulder strength, and some difficulties with 20 lower extremity weakness and using stairs, he did not explain why Plaintiff cannot ORDER - 33 1 sustain a full-time work day. Tr. 29, 2024-25. While Mr. Holle stated Plaintiff 2 cannot resume her past work as a certified nursing assistant, he also noted Plaintiff 3 may be able to perform other work such as working with computers but stated a 4 vocational counselor would need to make such a determination. Tr. 2025. 5 Plaintiff argues Mr. Holle performed a functional capacity exam and thus the 6 opinion was not based only on Plaintiff’s self-report. ECF No. 14 at 12. However, 7 as discussed above, the exam was not performed until December 2016, though the 8 opinion addresses as early as January 2013. During the exam, Plaintiff reported 9 neck and shoulder pain and burning, as well as lower extremity weakness and 10 neuropathy. Tr. 2197. Mr. Holle’s physical examination only examined Plaintiff’s 11 lower extremities, and he previously only treated her for Achilles tendinitis. Tr. 12 2197-98. Mr. Holle opined on Plaintiff’s ability to use her upper extremities, 13 despite not examining or treating her for her reported upper extremity impairments. 14 Tr. 2024-25. The ALJ’s finding that Mr. Holle’s opinion was based on Plaintiff’s 15 self-report was reasonable and is a germane reason to reject the opinion. 16 Third, the ALJ found Mr. Holle’s opinion was inconsistent with the 17 treatment records. Tr. 29. A medical opinion may be rejected if it is unsupported 18 by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 1195; Thomas, 19 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149; Matney, 981 F.2d at 1016. The 20 ALJ reasoned Mr. Holle’s opinion that Plaintiff’s impairments were permanent is ORDER - 34 1 inconsistent with his treatment note that Plaintiff had good “rehab potential.” Tr. 2 29 (citing Tr. 2198). The ALJ further reasoned Mr. Holle’s opinion was 3 inconsistent with the records in general, which demonstrated generally normal 4 physical exams with minimal abnormal physical findings, as discussed above. Tr. 5 29. The ALJ gave germane reasons to reject Mr. Holle’s opinion. 6 4. Dr. Sherfey and Dr. Thiel 7 Dr. Sherfey, a treating orthopedic specialist, gave multiple opinions 8 regarding Plaintiff’s functioning. As Dr. Sherfey’s opinions are contradicted by 9 the opinions of Dr. Stump, Tr. 933, and Dr. Bauer, Tr. 1303-27, the ALJ was 10 required to give specific and legitimate reasons, supported by substantial evidence, 11 to reject the opinions. See Bayliss, 427 F.3d at 1216. 12 13 a. Dr. Sherfey’s December 2015 Opinions In December 2015, Dr. Sherfey opined Plaintiff could perform her past work 14 as a certified nursing assistant, without any restrictions. Tr. 1476. However, that 15 same month, he also opined Plaintiff was released to modified duty, as she could 16 never lift more than 10 pounds. Tr. 1477. The ALJ gave these opinions partial 17 weight. Tr. 28. 18 While Plaintiff asserts the ALJ improperly gave varying weights to Dr. 19 Sherfey’s opinions, Plaintiff does not mention the December 2015 opinions nor set 20 forth any argument regarding the opinions. ECF No. 14 at 13. Thus, any ORDER - 35 1 challenge to those findings is waived. See Carmickle, 533 F.3d at 1161 n.2. 2 However, the Court conducted an independent review of the ALJ’s analysis of the 3 opinion and finds the ALJ’s determination is supported by substantial evidence in 4 the record. 5 The ALJ found Dr. Sherfey’s opinions were inconsistent with one another. 6 Tr. 28. Relevant factors to evaluating any medical opinion include the amount of 7 relevant evidence that supports the opinion, the quality of the explanation provided 8 in the opinion, and the consistency of the medical opinion with the record as a 9 whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Dr. Sherfey opined 10 on December 9, 2015 that Plaintiff could return to work as a certified nursing 11 assistant with no restrictions. Tr. 1476. The same day, he opined on a separate 12 form that Plaintiff could return to work with modified duties, as she can never lift 13 more than ten pounds. Tr. 1477. It also appears he indicated that though she could 14 return to work with modified duties, she had a “poor prognosis for return to work 15 at the job of injury at any date.” Id. Dr. Sherfey did not provide any explanation 16 for the differences between the two forms or his varying statements. The ALJ’s 17 determination that Dr. Sherfey’s opinions were inconsistent was reasonable. 18 The ALJ also found Dr. Sherfey’s opinion would not have impacted the 19 outcome, as even if Plaintiff was limited to lifting no more than ten pounds, the 20 vocational expert testified there would be sedentary work Plaintiff was able to ORDER - 36 1 perform. Tr. 28. The ALJ reasoned Plaintiff would have been found not disabled 2 even if she was limited to a sedentary RFC. Tr. 34-35. However, that statement 3 does not consider that Plaintiff was closely approaching retirement age at her date 4 last insured and a sedentary RFC would have been disabling if no transferrable 5 skills were found, under Grid Rule 201.14.6 See 20 C.F.R. § 404, Appendix 2 to 6 Subpart P. It is unclear if the ALJ would have weighed Dr. Sherfey’s opinion 7 differently had he understood that Dr. Sherfey’s sedentary opinion would be 8 disabling. On remand, the ALJ is directed to reconsider Dr. Sherfey’s December 9 2015 opinion that Plaintiff can never lift more than 10 pounds. The ALJ is 10 directed to incorporate the limitation into the RFC or give specific and legitimate 11 reasons, supported by substantial evidence, to reject the opinion. 12 13 14 6 Plaintiff was born on May 16, 1966. Tr. 360. Plaintiff’s date last insured is 15 December 31, 2017. Tr. 306. Given her date of birth, Plaintiff was 51 years-old 16 on her date last insured. Grid Rule 201.14 applies to claimants who are 17 “approaching retirement age,” which is defined as individuals between 50 years18 old and 54 years-old and directs a finding of disability if the claimant is limited to 19 sedentary work and does not have transferrable skills to sedentary work. 20 C.F.R. 20 § 404, Appendix 2 to Subpart P. ORDER - 37 1 b. Dr. Sherfey’s Other Opinions 2 Dr. Sherfey rendered other opinions regarding Plaintiff’s functioning, 3 including opinions in January 2014 and August 2014. As this case is being 4 remanded to reconsider Dr. Sherfey’s December 2015 opinion, the ALJ is directed 5 to also reconsider Dr. Sherfey’s other opinions, including the January 2014 and 6 August 2014 opinions, and incorporate the limitations into the RFC or give specific 7 and legitimate reasons, supported by substantial evidence, to reject the opinions. 8 c. Dr. Thiel’s Opinions 9 Dr. Thiel, a treating orthopedic specialist, completed multiple forms 10 regarding Plaintiff’s ability to return to work. He opined Plaintiff had the 11 following limitations during the following time periods: she could not work from 12 August 7, 2013 through August 15, 2013, with a return to light duty, meaning no 13 lifting or carrying over five pounds with the left arm, on August 16, 2013, Tr. 840; 14 she could not work from September 15, 2013 through November 24, 2013, Tr. 837; 15 she could return to work November 27, 2013, with an indefinite limitation to light 16 duty work, meaning no lifting over 15 pounds and no carrying over 10 pounds, Tr. 17 836. 18 Dr. Sherfey also gave multiple opinions about Plaintiff’s ability to return to 19 work. He opined Plaintiff could work regular duty with no left arm lifting January 20 17, 2013 through March 23, 2013, Tr. 848-51; she could not work from April 11, ORDER - 38 1 2013 through May 10, 2013, Tr. 847; she could return to light work, with no use of 2 her left arm for lifting, on May 13, 2013, Tr. 846; she could return to regular duty 3 work June 24, 2013, Tr. 845; and she could not work from July 12, 2013 through 4 August 16, 2013, Tr. 841-42, 844. 5 The ALJ considered all of the above work restriction opinions together; 6 though he stated they were all from Dr. Sherfey, he cited to the opinions from Dr. 7 Thiel as well and gave the opinions no weight. Tr. 28. As the opinions were 8 contradicted, the ALJ was required to give specific and legitimate reasons, 9 supported by substantial evidence, to reject the opinions. See Bayliss, 427 F.3d at 10 1216. 11 The ALJ reasoned the opinions did not meet the durational requirements. 12 Tr. 28. Temporary limitations are not enough to meet the durational requirement 13 for a finding of disability. 20 C.F.R. § 404.1505(a) (requiring a claimant’s 14 impairment to be expected to last for a continuous period of not less than twelve 15 months); 42 U.S.C. § 423(d)(1)(A) (same); Carmickle, 533 F.3d at 1165 (affirming 16 the ALJ’s finding that treating physicians’ short-term excuse from work was not 17 indicative of “claimant’s long-term functioning”). 18 Dr. Thiel and Dr. Sherfey’s opinions specifically regarding Plaintiff’s ability 19 to return to work span 11 months in 2013. Tr. 836-51. However, in January 2014, 20 Dr. Sherfey opined Plaintiff had ongoing limitations. Tr. 814. The opinions all ORDER - 39 1 related to Plaintiff’s limitations due to her shoulder impairment, and demonstrate 2 Plaintiff had limitations in her ability to lift with her left arm that spanned 12 3 months or longer. Thus, the opinion that Plaintiff was limited in her ability to lift 4 with her left arm was improperly rejected as temporary in nature. 5 Further, Dr. Thiel rendered his final opinion in December 2013, in which he 6 opined Plaintiff is restricted to light duty work indefinitely, which met the 7 durational requirement. The ALJ did not give any reason for rejecting Dr. Thiel’s 8 opinion other than finding the opinions were temporary. The ALJ’s rejection of 9 Dr. Thiel’s opinions is not harmless. 10 Dr. Thiel opined Plaintiff could not lift more than 15 pounds and could not 11 carry more than 10 pounds. Tr. 836. The ALJ found Plaintiff can lift and carry up 12 to 20 pounds occasionally and 10 pounds frequently. Tr. 22. The ALJ also 13 alternatively obtained a list of jobs from the vocational expert that Plaintiff could 14 perform if she was limited to sedentary work; as sedentary work requires lifting no 15 more than 10 pounds, this alternative finding would account for Dr. Thiel’s 16 opinion. See 20 C.F.R. § 404.1567(a). However, as discussed supra, the ALJ 17 applied the incorrect age category when considering if a sedentary RFC would be 18 disabling. 19 20 ORDER - 40 1 On remand, the ALJ is directed to reconsider all of Dr. Thiel’s opinions and 2 incorporate them into the RFC or give specific and legitimate reasons, supported 3 by substantial evidence, to reject the opinions. 4 5. Ms. Ang 5 On April 7, 2015, Ms. Ang, a treating nurse practitioner, opined Plaintiff 6 can: sit without restriction; seldomly work from a ladder, climb ladders or climb 7 stairs; frequently lift, carry or push/pull five pounds, occasionally 10 pounds, 8 seldom 20 pounds and never 25 pounds; occasionally twist, bend/stoop, crawl, 9 reach, work over shoulders, keyboard, use her wrist, grasp, and engage in fine 10 manipulation; and frequently squat/kneel, operate foot controls, and handle 11 vibratory tasks. Tr. 1348. Ms. Ang did not provide an opinion on Plaintiff’s 12 ability to stand/walk. Id. Ms. Ang opined Plaintiff had a poor prognosis for 13 returning to work at the job of injury at any date, and opined Plaintiff’s limitations 14 would last longer than 30 days but would not be permanent. Id. 15 The ALJ gave Ms. Ang’s opinion little weight. Tr. 31. As Ms. Ang is not 16 an acceptable medical source, the ALJ was required to give germane reasons to 17 reject the opinion. See Ghanim, 763 F.3d at 1161. 18 The ALJ reasoned Ms. Ang’s opinion did not meet the durational 19 requirement. Tr. 31-32. Temporary limitations are not enough to meet the 20 durational requirement for a finding of disability. 20 C.F.R. § 404.1505(a) ORDER - 41 1 (requiring a claimant’s impairment to be expected to last for a continuous period of 2 not less than twelve months); 42 U.S.C. § 423(d)(1)(A) (same); Carmickle, 533 3 F.3d at 1165 (affirming the ALJ’s finding that treating physicians’ short-term 4 excuse from work was not indicative of “claimant’s long-term functioning”). 5 The ALJ found Ms. Ang’s opinion did not meet the duration requirement 6 because she did not opine Plaintiff’s limitations are permanent. Tr. 31-32. 7 However, Ms. Ang opined the limitations would last greater than 30 days and did 8 not give an end date. Tr. 1348. Ms. Ang also opined Plaintiff had a poor prognosis 9 for returning to work at the job of injury at any date. Id. There is no clear 10 indication as to the length of time to which Ms. Ang’s opinion applied, and as such 11 the ALJ erred in rejecting Ms. Ang’s opinion due to it being temporary. 12 While the ALJ offered additional reasons to reject Ms. Ang’s opinion, the 13 Court finds the ALJ’s error in the analysis of Ms. Ang’s opinion is not harmless. 14 Moreover, as the case is being remanded to reconsider other opinions, the ALJ is 15 also directed to reconsider Ms. Ang’s opinion and incorporate the limitations into 16 the RFC or give germane reasons to reject the opinion. For the purposes of the 17 remand, the Court notes that Ms. Ang is a treating nurse practitioner, and not an 18 examining provider as the ALJ stated. 19 20 ORDER - 42 1 6. Ms. Glenn 2 Ms. Glenn gave several opinions regarding Plaintiff’s impairments. In June 3 2016, Ms. Glenn opined that Plaintiff’s conditions caused by her workplace injury 4 were fixed and stable, and Plaintiff has a two percent permanent partial impairment 5 of her left upper extremity. Tr. 624. In March 2016, Ms. Glenn opined that from 6 March 23, 2016 through April 23, 2016, Plaintiff could perform modified duty, 7 with seldomly lifting, carrying and pushing/pulling 20 pounds and frequently one8 quarter of a pound, occasional left reaching, no work above the left shoulder and 9 seldom left grasping. Tr. 2018. In June 2016, Ms. Glenn opined that from June 10 13, 2016 through July 13, 2016, Plaintiff could not climb or work on a ladder, 11 could occasionally reach with the left arm, never work above her left shoulder, 12 seldomly grasp with the left, seldomly lift, carry and push/pull 20 pounds and 13 frequently one-quarter of a pound. Tr. 2359. Later in June 2016, Ms. Glenn 14 opined that Plaintiff could lift up to 75 pounds and carry up to 40 pounds. Tr. 15 2404. Finally, in July 2016, Ms. Glenn opined that Plaintiff could seldomly 16 perform work above her left shoulder and could lift no more than 50 pounds. Tr. 17 2019. 18 The ALJ gave Ms. Glenn’s earlier opinions that Plaintiff had more “serious 19 limitations” no weight and gave her later opinions, which suggested Plaintiff is 20 capable of more activity, significant weight. Tr. 32. As Ms. Glenn is not an ORDER - 43 1 acceptable medical source, the ALJ was required to give germane reasons to reject 2 the opinions. See Ghanim, 763 F.3d at 1161. 3 The ALJ found Ms. Glenn’s earlier opinions inconsistent with the evidence, 4 while the later opinions were more consistent with the evidence. Tr. 32. An ALJ 5 may choose to give more weight to an opinion that is more consistent with the 6 evidence in the record. 20 C.F.R. § 404.1527(c)(4) (“[T]he more consistent a 7 medical opinion is with the record as a whole, the more weight we will give to that 8 medical opinion.”); Nguyen, 100 F.3d at 1464. Relevant factors to evaluating any 9 medical opinion include the amount of relevant evidence that supports the opinion, 10 the quality of the explanation provided in the opinion, and the consistency of the 11 medical opinion with the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 12 495 F.3d at 631. 13 The ALJ noted Ms. Glenn’s later opinions were based on additional and 14 updated information, including the thorough exam conducted by someone Ms. 15 Glenn found to be a “well respected shoulder specialist.” Tr. 32 (citing Tr. 2020). 16 The exam from the shoulder specialist, Dr. Lynch, found there was no objective 17 evidence that Plaintiff was incapable of lifting up to 50 pounds and returning to 18 work up to the medium category of work. Tr. 2010. The examination 19 demonstrated Plaintiff had generally normal strength, sensation, reflexes and no 20 tenderness, with some range of motion limitations. Tr. 2005. Dr. Lynch stated the ORDER - 44 1 objective evidence demonstrated Plaintiff had a prior injury but Plaintiff’s 2 subjective complaints “far exceed the minimal orthopedic diagnoses.” Tr. 2009. 3 The ALJ further reasoned Ms. Glenn’s later opinions were more consistent with 4 the physical examination findings and lack of observations of Plaintiff being in 5 distress, as discussed above. Tr. 32. While Plaintiff argues the ALJ should not 6 have given Ms. Glenn’s later opinion weight and should have given more weight to 7 Ms. Glenn’s earlier opinions, ECF No. 14 at 14, the ALJ reasonably weighed Ms. 8 Glenn’s opinions. As such, the ALJ gave germane reasons to reject Ms. Glenn’s 9 opinions. 10 7. Mr. Drussel 11 Mr. Drussel opined Plaintiff can rarely lift (from waist to floor or waist to 12 crown) 15 pounds and carry 22.5 pounds, occasionally lift 12.5 pounds and carry 13 17.5 pounds, and frequently lift 5 pounds from the floor and 7.5 pounds from waist 14 to crown and carry 10 pounds. Tr. 855. Mr. Drussel found Plaintiff had no to 15 slight limitation in her ability to engage in other physical activities like standing, 16 walking and sitting. Id. He further opined Plaintiff temporarily could not perform 17 her work as a correctional officer but did not indicate what limitations prevented 18 her from performing the job nor when he anticipated she would be released to 19 work. Tr. 861. 20 ORDER - 45 1 The ALJ gave Mr. Drussel’s opinion significant weight “with some minor 2 exceptions.” Tr. 30. The ALJ differed in Plaintiff’s weight limitations accounted 3 for in the RFC, and assigned additional postural and manipulative limitations, 4 though Mr. Drussel did not find Plaintiff had such limitations. Id. As Mr. Drussel 5 is not an acceptable medical source, the ALJ was required to give germane reasons 6 to reject the opinions. See Ghanim, 763 F.3d at 1161. 7 The ALJ reasoned Mr. Drussel’s opinion would not impact the RFC as it 8 was close to light work, and even if she was limited to sedentary work, Plaintiff 9 would not be found disabled. Tr. 32. As discussed supra, this reasoning is flawed. 10 While the ALJ offered additional reasons to reject Mr. Drussel’s opinion, the Court 11 finds the ALJ’s error in the analysis of Mr. Drussel’s opinion is not harmless. 12 Moreover, as the case is being remanded to reconsider other opinions, the ALJ is 13 also directed to reconsider Mr. Drussel’s opinion and incorporate the limitations 14 into the RFC or give germa1ne reasons to reject the opinion. 15 C. Step-Five 16 Plaintiff argues the ALJ erred at step five. ECF No. 14 at 15-19. At step 17 five of the sequential evaluation analysis, the burden shifts to the Commissioner to 18 establish that 1) the claimant can perform other work, and 2) such work “exists in 19 significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 20 Beltran, 700 F.3d at 389. In assessing whether there is work available, the ALJ ORDER - 46 1 must rely on complete hypotheticals posed to a vocational expert. Nguyen, 100 2 F.3d at 1467. The ALJ’s hypothetical must be based on medical assumptions 3 supported by substantial evidence in the record that reflects all of the claimant’s 4 limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The 5 hypothetical should be “accurate, detailed, and supported by the medical record.” 6 Tackett, 180 F.3d at 1101. 7 The hypothetical that ultimately serves as the basis for the ALJ’s 8 determination, i.e., the hypothetical that is predicated on the ALJ’s final RFC 9 assessment, must account for all the limitations and restrictions of the claimant. 10 Bray, 554 F.3d at 1228. As discussed above, the ALJ’s RFC need only include 11 those limitations found credible and supported by substantial evidence. Bayliss, 12 427 F.3d at 1217 (“The hypothetical that the ALJ posed to the VE contained all of 13 the limitations that the ALJ found credible and supported by substantial evidence 14 in the record.”). “If an ALJ’s hypothetical does not reflect all of the claimant’s 15 limitations, then the expert’s testimony has no evidentiary value to support a 16 finding that the claimant can perform jobs in the national economy.” Id. However, 17 the ALJ “is free to accept or reject restrictions in a hypothetical question that are 18 not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 19 (9th Cir. 2006). Therefore, the ALJ is not bound to accept as true the restrictions 20 presented in a hypothetical question propounded by a claimant’s counsel if they are ORDER - 47 1 not supported by substantial evidence. Magallanes, 881 F.2d at 756-57; Martinez 2 v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). A claimant fails to establish that a 3 step five determination is flawed by simply restating argument that the ALJ 4 improperly discounted certain evidence, when the record demonstrates the 5 evidence was properly rejected. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 11756 76 (9th Cir. 2008). 7 As the case is being remanded on other grounds, on remand, the ALJ is 8 instructed to reconsider the impact the medical opinion evidence has on step five of 9 the evaluation. The ALJ is further instructed to apply the relevant grid rule in 10 determining Plaintiff’s ability to perform other work at step five. 11 D. Remedy 12 Plaintiff urges this Court to remand for an immediate award of benefits. 13 ECF No. 14 at 19. “The decision whether to remand a case for additional 14 evidence, or simply to award benefits is within the discretion of the court.” 15 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 16 761 F.2d 530 (9th Cir. 1985)). When the Court reverses an ALJ’s decision for 17 error, the Court “ordinarily must remand to the agency for further proceedings.” 18 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 19 F.3d 587, 595 (9th Cir. 2004) (“the proper course, except in rare circumstances, is 20 to remand to the agency for additional investigation or explanation”); Treichler v. ORDER - 48 1 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a 2 number of Social Security cases, the Ninth Circuit has “stated or implied that it 3 would be an abuse of discretion for a district court not to remand for an award of 4 benefits” when three conditions are met. Garrison v. Colvin, 759 F.3d 995, 1020 5 (9th Cir. 2014) (citations omitted). Under the credit-as-true rule, where (1) the 6 record has been fully developed and further administrative proceedings would 7 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 8 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 9 the improperly discredited evidence were credited as true, the ALJ would be 10 required to find the claimant disabled on remand, the Court will remand for an 11 award of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even 12 where the three prongs have been satisfied, the Court will not remand for 13 immediate payment of benefits if “the record as a whole creates serious doubt that 14 a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 15 Given the numerous conflicting medical opinions, there are conflicts in the 16 evidence that still require resolution by the ALJ. As such, the case is remanded to 17 the ALJ for reconsideration of the medical opinion evidence and reevaluation of 18 the step five analysis. 19 20 ORDER - 49 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 3 ALJ’s decision is not supported by substantial evidence and free of harmful legal 4 error. Accordingly, IT IS HEREBY ORDERED: 5 1. The District Court Executive is directed to substitute Andrew M. Saul as 6 the Defendant and update the docket sheet. 7 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 8 3. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 9 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 10 REVERSING and REMANDING the matter to the Commissioner of Social 11 Security for further proceedings consistent with this recommendation pursuant to 12 sentence four of 42 U.S.C. § 405(g). 13 The District Court Executive is directed to file this Order, provide copies to 14 counsel, and CLOSE THE FILE. 15 DATED September 29, 2020. 16 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 ORDER - 50

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