reviewing the Ninth 16 Circuit’s harmless error principles in the Social Security context
How later courts described this case
- reviewing the Ninth 16 Circuit’s harmless error principles in the Social Security context
- noting and 28 rejecting Commissioner’s argument against clear-and-convincing standard
- reversing finding of harmless error where reviewing 22 court could not “confidently conclude” that ALJ’s failure to mention or expressly reject treating 23 source’s medical notes was harmless
- “[The] reasons for rejecting a treating doctor’s credible opinion on disability are 17 comparable to those required for rejecting a treating doctor’s medical opinion.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ALEX QUINTANA, JR., Case No. 1:19-cv-00814-DAD-EPG
12 Plaintiff, FINDINGS AND RECOMMENDATIONS,
RECOMMENDING PLAINTIFF’S MOTION
13 v. FOR SUMMARY JUDGMENT BE
GRANTED, AND THIS CASE BE
14 ANDREW SAUL, Commissioner of Social
REMANDED FOR FURTHER
Security,
15 PROCEEDINGS CONSISTENT WITH THIS
Defendant. OPINION
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(ECF No. 15)
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FOURTEEN-DAY DEADLINE
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20 This matter is before the Court on Plaintiff’s complaint for judicial review of an
21 unfavorable decision by the Commissioner of the Social Security Administration regarding his
22 application for Disability Insurance Benefits and Supplemental Security Income. Plaintiff’s claim
23 for disability stems from his allegations that he suffers from multiple sclerosis, gout,
24 hypertension, depression, back pain, hyperlipidemia, and hyperglycemia. (A.R. 81). Plaintiff filed
25 a motion for summary judgment and remand on January 13, 2020. (ECF No. 15).
26 At a hearing on July 21, 2020, the Court heard from the parties and, having reviewed the
27 record, administrative transcript, the briefs of the parties, and the applicable law, recommends as
28 follows:
1 I. ANALYSIS
2 A. Medical Evidence
3 1. Dr. Lorenzo Aguilar
4 Plaintiff claims the ALJ erred by improperly giving the opinion of his treating physician,
5 Dr. Lorenzo Aguilar, little weight. (ECF No. 15 at 8).
6 The Ninth Circuit has held regarding such opinion testimony:
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The medical opinion of a claimant’s treating physician is given “controlling
8 weight” so long as it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
9 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a
treating physician’s opinion is not controlling, it is weighted according to factors
10 such as the length of the treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship, supportability, consistency
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with the record, and specialization of the physician. Id. § 404.1527(c)(2)–(6). “To
12 reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must
state clear and convincing reasons that are supported by substantial
13 evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)
(alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
14 2005)). “If a treating or examining doctor’s opinion is contradicted by another
doctor’s opinion, an ALJ may only reject it by providing specific and legitimate
15
reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d
16 at 1216); see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The]
reasons for rejecting a treating doctor’s credible opinion on disability are
17 comparable to those required for rejecting a treating doctor’s medical opinion.”).
“The ALJ can meet this burden by setting out a detailed and thorough summary of
18 the facts and conflicting clinical evidence, stating his interpretation thereof, and
making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)
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(quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).
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21 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). Dr. Aguilar’s opinion is contradicted by,
22 among others, non-examining agency physician Dr. Leigh McCary. Thus, this Court examines
23 whether the ALJ provided specific and legitimate reasons supported by substantial evidence for
24 giving little weight to Dr. Aguilar’s opinions.
25 The ALJ gave the following reasons for the weight given to Dr. Aguilar’s opinions:
The opinion of Dr. Aguilar is given little weight. While the opinion is based upon
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a treatment relationship with the claimant, the opinion is inconsistent overall with
27 evidence in the record, including treatment records from Dr. Aguilar. In fact,
these records reveal the claimant has responded well to medication treatment. He
28 has no macular abnormality. His EEG findings were negative. Additionally,
1 records in evidence reveal the claimant regularly presents for appointments with a
normal gait and consistently without assistance. The evidence of the claimant’s
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activities are inconsistent with these findings. This includes his ability to maintain
his personal care and hygiene, perform household chores, care for others, use
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public transportation, drive, prepare meals, shop, and run errands. The treatment
4 records, and examiners, note the claimant regularly presents for appointments on
time and as scheduled. He is often in no distress cooperative and/or friendly. In
5 fact, overall throughout this time his physical examinations were unremarkable
and/or unchanged. During 2017, the claimant’s symptoms were stable and he
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responding fairly well to medication without significant side effects (Exhibits
7 10F; and 19F).
(A.R. 42).
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Turning to the ALJ’s first reason, the ALJ noted that Plaintiff has responded well to
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medication treatment. (A.R. 42). This does not, however, contradict Dr. Aguilar’s opinions.
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Based on Dr. Aguilar’s December 2017 report, the addition of gabapentin to treat his multiple
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sclerosis (“MS”) resulted in “no new neurologic[al] deficit[s],” and that Plaintiff’s had “[s]table
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symptoms.” (A.R. 798). But stable does not mean improved or symptom-free. Dr. Aguilar’s June
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8, 2017 report—six months before being declared stable—stated that Plaintiff was able to stand
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and sit 0-2 hours at a time and 0-2 hours per day in an 8-hour workday. (A.R. 729). Moreover,
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Plaintiff began gabapentin in April 2017, so the limitations given apparently reflected the
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gabapentin.
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The ALJ also found that Plaintiff had no macular abnormalities. (A.R. 42). However, the
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ALJ does not articulate why findings concerning Plaintiff’s eye are inconsistent with Dr.
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Aguilar’s statement.
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Although the ALJ noted Plaintiff’s EEG findings were negative, the ALJ did not explain
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how that contradicts Dr. Aguilar’s opinion. (See A.R. 42). The Court inquired about this aspect at
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the hearing and neither the Commissioner nor Plaintiff could explain the meaning of negative
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EEG findings.
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The ALJ also discounted Dr. Aguilar’s opinion because “records in evidence reveal the
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claimant regularly presents for appointments with a normal gait and consistently without
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assistance.” This is consistent with Dr. Aguilar’s finding of Plaintiff’s “relapsing remitting MS,”
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(A.R. 798), because other records do indicate Plaintiff has an abnormal gait (A.R. 35 (ALJ
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1 finding that Plaintiff has “[a]t times . . . demonstrated an abnormal gait and/or coordination”); 697
2 (Dr. Katzenberg noting “[g]ait is notable for left foot drop, inability to walk on his heel or toes on
3 the left and poor tandem due to weakness and the foot drop. He also cannot hop or balance on the
4 left foot”); 744 (Heather Hollander, FNP, noting “[g]ait disturbance”)).
5 The ALJ also found that Plaintiff’s activities were inconsistent with the findings. He notes
6 that Plaintiff undertakes multiple activities of daily living—for instance, maintaining personal
7 care and hygiene, performing household chores, using public transportation. However, Plaintiff’s
8 testimony indicates he had limited ability to do so. For instance, he will “help with the dishes
9 which is kind of a task because I can – when I’m standing, physically moving my arms, I start to
10 get the weakness so it takes me like 30, 40 minutes to just clean a few dishes but I try[.]” (A.R.
11 65). Plaintiff can walk a few blocks at most before needing to rest. (A.R. 66). He burns himself
12 when cooking due to his problems with depth perception. (A.R. 66). His symptoms from his MS
13 are intermittent. (A.R. 59). Therefore, this finding does not support the ALJ’s position either.
14 The ALJ notes that Plaintiff also presents well at many of his appointments. (A.R. 42).
15 This is not inconsistent with intermittent MS.
16 In sum, the ALJ erred by failing to provide specific, legitimate reasons supported by
17 substantial evidence in the record when giving Dr. Aguilar’s opinion little weight.
18 2. Dr. Daniel Katzenberg
19 Plaintiff argues that the ALJ erred by improperly giving examining physician Dr. Daniel
20 Katzenberg’s testimony little weight. (ECF No. 15 at 8). The Ninth Circuit has provided the
21 following standard regarding examining physicians’ opinions:
[T]he Commissioner must provide clear and convincing reasons for rejecting the
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uncontradicted opinion of an examining physician. And like the opinion of a
23 treating doctor, the opinion of an examining doctor, even if contradicted by
another doctor, can only be rejected for specific and legitimate reasons that are
24 supported by substantial evidence in the record.
25 Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995), as amended (Apr. 9, 1996) (citation and
26 internal quotation marks omitted).
27 Dr. Katzenberg’s opinion was also contradicted by Dr. Leigh McCary. The Court thus
28 looks to whether Dr. Katzenber’s opinion was rejected for specific and legitimate reasons that are
1 supported by substantial evidence in the record
2 The ALJ’s stating reasons for giving Dr. Katzenberg’s opinions little weight were as
3 follows:
4 While the opinion is based upon examination of the claimant, and review of
records, the opinion is overall inconsistent with the evidence in the record. This
5 includes the claimant’s treatment history. The treatment records reveal the
claimant has undergone routine care for multiple sclerosis and gout. However
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overall his condition and symptoms were improved and managed with medication
7 and lifestyle changes. He is often noted to be doing well or presenting as stable
(Exhibits 1F pages 29 and 31; 4F pages 8 and 12 to 13; 17F pages 12 and 34; and
8 19F). The level of care he has required during this time has remained essentially
unchanged. Additionally, while he had noted abnormalities on examination in
9 strength sensation and gait these were noted to remain overall unchanged during
this time. Moreover, evidence of his activities indicates a higher level of
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functioning as outlined in the residual functional capacity assessment above. This
11 includes his ability to drive, prepare meals, attend to his personal care and
hygiene, care for others, perform household chores, run errands, use public
12 transportation, and manage medications and appointments.
13 (AR. 40-41).
14 Many of the deficits in giving Dr. Aguilar’s opinion little weight also carry through here.
15 For instance, the ALJ discounted Dr. Katzenberg’s opinion because “evidence of [Plaintiff’s]
16 activities indicates a higher level of functioning as outlined in the residual functional capacity
17 assessment above.” (A.R. 40). Those activities, as discussed above, are not necessarily
18 inconsistent with the residual functioning capacity assessment Dr. Katzenberg provided Plaintiff,
19 which was less restrictive than the one provided by Dr. Aguilar. (See A.R. 697) (Dr. Katzenberg’s
20 RFC assessment providing “[n]o limitations” for sitting and “10-15 minutes at a time or
21 cumulatively for 1-2 hours out of an eight-hour workday” for “[s]tanding and/or [w]alking”). In
22 addition, the ALJ states that Plaintiff’s condition had “improved” with medication and lifestyle.
23 However, the ALJ did not cite record evidence for that finding. Rather, the record appears to
24 establish that Plaintiff was not suffering “new neurologic[al] deficit[s]” and generally had
25 “[s]table symptoms.” (A.R. 798). In fact, Dr. Katzenberg noted “fluctuation in [Plaintiff’s] MS”
26 when comparing another doctor’s previous findings with his own.
27 Thus, the ALJ’s cited reasons are not specific and legitimate reasons supported by
28 substantial evidence in the record. As such, the ALJ erred by giving little weight to Dr.
1 Katzenberg’s opinions.
2 B. Plaintiff’s Statements Concerning His Symptoms
3 “Where, as here, an ALJ concludes that a claimant is not malingering, and that she has
4 provided objective medical evidence of an underlying impairment which might reasonably
5 produce the pain or other symptoms alleged, the ALJ may reject the claimant’s testimony about
6 the severity of her symptoms only by offering specific, clear and convincing reasons for doing
7 so.” Brown-Hunter v. Colvin, 806 F.3d 487, 492–93 (9th Cir. 2015) (quotation marks and citation
8 omitted).1 The Court reviews only the ALJ’s stated reasoning and cannot “comb the
9 administrative record to find specific conflicts” between Plaintiff’s testimony and the medical
10 evidence. Id. at 494.
11 Plaintiff stated at the hearing before the ALJ that he does some household chores but is
12 limited in doing so. For instance, he will “help with the dishes which is kind of a task because I
13 can – when I’m standing, physically moving my arms, I start to get the weakness so it takes me
14 like 30, 40 minutes to just clean a few dishes but I try[.]” (A.R. 65). He is able to walk a few
15 blocks at most before needing to rest. (A.R. 66). He burns himself when cooking due to his
16 problems with depth perception. (A.R. 66). His symptoms from his MS are intermittent. (A.R.
17 59).
18 In his opinion, the ALJ found that aspects of Plaintiff’s testimony were inconsistent with
19 the record:
20 After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
21 cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
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consistent with the medical evidence and other evidence in the record for the
23 reasons explained in this decision.
24 (A.R. 34).
25 The ALJ then pointed to the following types of evidence as inconsistent with Plaintiff’s
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1 The Commissioner acknowledges the Ninth Circuit’s use of the clear and convincing evidence standard but argued
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that the proper standard is “the deferential substantial evidence standard set forth in 42 U.S.C. § 405(g) . . . .” (ECF
No. 19 at 27). Ninth Circuit precedent clearly rejects this approach. See Brown-Hunter, 806 F.3d at 493 (noting and
28 rejecting Commissioner’s argument against clear-and-convincing standard).
1 stated symptoms:
2 - Plaintiff can “engage[] in a somewhat normal level of daily activity and interaction,”
3 including preparing his meals and performing light household chores.
4 - Plaintiff’s examinations and laboratory studies “were unremarkable and unchanged.”
5 - Plaintiff’s level of care is unchanged.
6 - Plaintiff presents for appointments in no distress with appropriate mood and affect. He
7 can communicate during examinations.
8 - His flareups were associated with not adhering to treatment or additional life stressors,
9 and these were managed by resuming medications or managing his stressors.
10 - Plaintiff’s gout was managed with his medication and was asymptomatic.
11 (A.R. 34-35).
12 None of these are inconsistent with Plaintiff’s stated symptoms. Plaintiff reports his ability
13 to engage in daily activity and interaction fluctuates and he cannot sustain the level of activity.
14 (A.R. 59, 65). The ALJ found Plaintiff’s examinations and laboratory studies were unremarkable
15 and unchanged. The ALJ mostly points to Plaintiff’s gout symptoms, but the parties do not
16 dispute that Plaintiff has MS. At the hearing the Commissioner’s counsel pointed to Plaintiff’s
17 electroencephalogram (“EEG”) test results on A.R. 798. However, Dr. Aguilar’s notes show that
18 his MRI results indicate worsening MS. (A.R. 645) (“Comparatively speaking, his MRI of the
19 brain in 2011 compared to the present showed significant extension and presence of additional
20 plaque burden. I’m concerned about the possibility of more malignant MS in this patient.”).
21 With respect to the level of care, the ALJ cites to Dr. Aguilar’s report on A.R. 798 to
22 establish that “treatment records from 2017 indicate normal lab findings, a fairly well response to
23 medications, and overall noted stability of his conditions.” That page, from December 11, 2017,
24 notes that his symptoms are continuing but stable and that he has had problems getting insurance
25 to cover his medication. As discussed above, stable is not the same as symptom-free.
26 Plaintiff’s ability to show up for appointments without distress is also not inconsistent
27 with his diagnosis of MS or his inability to maintain a level of activity. The ALJ found that his
28 symptoms could be managed by reducing life stressors or resuming medication. The ALJ cites to
1 pages 492 and 798 of the A.R. Neither page indicates supports the ALJ’s reasoning. Page 492, a
2 record from January 2011, discusses Plaintiff’s cerebrovascular disease (apparently a record
3 before Plaintiff’s 2011 MS diagnosis, (see A.R. 59)) and does not indicate reducing stressors or
4 resuming medication improves his symptoms. Page 798 indicates that Plaintiff responds well to
5 his then-current treatment and has remained stable. But, again, stable means that Plaintiff is not
6 getting worse, not that Plaintiff is without substantial limitations. Finally, successfully managing
7 of Plaintiff’s gout is also consistent with Plaintiff’s complaints of MS.
8 In sum, the ALJ erred by not providing clear and convincing evidence for rejecting
9 Plaintiff’s symptoms.
10 C. Harmlessness
11 The Court next examines whether these errors were harmless. “[W]here harmlessness is
12 clear and not a ‘borderline question,’ remand for reconsideration is not appropriate,” McLeod v.
13 Astrue, 640 F.3d 881, 888 (9th Cir. 2011), but Ninth Circuit precedents “have been cautious about
14 when harmless error should be found.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015); see
15 also, e.g., Molina v. Astrue, 674 F.3d 1104, 1115-17 (9th Cir. 2012) (reviewing the Ninth
16 Circuit’s harmless error principles in the Social Security context). Here, if the ALJ were to
17 properly credit Dr. Aguilar’s opinions and Plaintiff’s testimony, he reasonably could determine
18 that Plaintiff had a more restrictive RFC—perhaps even less than sedentary. Thus, the Court is
19 unable to conclude that the ALJ’s assignment of little weight to the treating physician’s opinions
20 and to Plaintiff’s testimony was clearly harmless. Consequently, reversal is
21 warranted. See Marsh, 792 F.3d at 1172-73 (reversing finding of harmless error where reviewing
22 court could not “confidently conclude” that ALJ’s failure to mention or expressly reject treating
23 source’s medical notes was harmless).
24 D. Remedy
25 “[W]here (1) the record has been fully developed and further administrative proceedings
26 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for
27 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly
28 discredited evidence were credited as true, the ALJ would be required to find the claimant
1 disabled on remand, we remand for an award of benefits.” Revels v. Berryhill, 874 F.3d 648, 668
2 (9th Cir. 2017) (internal quotation marks and citations omitted). There are “rare instances, though
3 [where] each of the credit-as-true factors is met, [but] the record as a whole leaves serious doubt
4 as to whether the claimant is actually disabled, in which case we remand for further development
5 of the record.” Id. at 668 n.8.
6 Plaintiff argues that he is entitled to an award of benefits because, based on Dr. Aguilar’s
7 opinion, he must be found disabled. Plaintiff argues that the ALJ noted on the record, that using
8 Dr. Aguilar’s “assessment [of] zero to two hours of sitting, standing and walking,” would require
9 a finding of “disabling and substantially below sedentary.” (A.R. 79). While it appears that given
10 the restrictions opined by the doctors and Plaintiff’s testimony, as well as the ALJ’s statement,
11 that Plaintiff is likely disabled with such limitations, Plaintiff does not point to any testimony by a
12 vocational expert clearly addressing these limitations. Accordingly, in the abundance of caution,
13 the Court will recommend remanding to the agency for further proceedings consistent with this
14 opinion. See Olshane v. Berryhill, No. CV 17-05727, 2018 WL 2315948 (C.D. Cal. May 18,
15 2018) (after finding ALJ erred by assigning too little weight to treating physician who opined a
16 zero-to-two hour daily maximum of sitting, standing and walking, remanding to ALJ); Slaughter
17 v. Berryhill, No. 2:17-CV-08190, 2018 WL 4849105, at *5, 8-9 (C.D. Cal. Oct. 4, 2018) (same).
18 II. CONCLUSION AND RECOMMENDATION
19 For the foregoing reasons, IT IS RECOMMENDED that:
20 1. Plaintiff’s motion for summary judgment be GRANTED, IN PART, and DENIED,
21 IN PART; and
22 2. The decision of the ALJ be REVERSED and REMANDED for further
23 administrative proceedings consistent with this opinion.
24 These findings and recommendations will be submitted to the United States District Judge
25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
26 (14) days after being served with these findings and recommendations, the parties may file
27 written objections with the Court. The document should be captioned “Objections to Magistrate
28 Judge’s Findings and Recommendations.”
1 The parties are advised that failure to file objections within the specified time may result
2 | in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)
3 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
4
5 IT IS SO ORDERED.
6] Dated: _ November 4, 2020 [Jee hey □□
7 UNITED STATES MAGISTRATE JUDGE
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