(SS) Norma A. Garcia v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 NORMA ALICIA GARCIA, ) Case No.: 1:19-cv-1103-JLT

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12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S APPEAL

) (DOC. 22) AND REMANDING THE ACTION

13 v. ) PURSUANT TO SENTENCE FOUR OF 42 U.S.C.

§ 405(g)

14 ANDREW SAUL, )

Commissioner of Social Security, ) ORDER DIRECTING ENTRY OF JUDGMENT IN

15 ) FAVOR OF PLAINTIFF NORMA ALICIA

) GARCIA, AND AGAINST DEFENDANT

16 Defendant. ) ANDREW SAUL, COMMISSIONER OF SOCIAL

) SECURITY

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18 Norma Alicia Garcia asserts she is entitled to a period of disability and disability insurance

19 benefits under Title II of the Social Security Act. Plaintiff argues the administrative law judge erred in

20 evaluating the record and seeks review of the decision denying her application for benefits. For the

21 reasons set forth below, the matter is REMANDED for further proceedings pursuant to sentence four

22 of 42 U.S.C. § 405(g).

23 BACKGROUND

24 In March 2015, Plaintiff filed an application for benefits, asserting disability due to right arm

25 and wrist pain, high blood pressure, high cholesterol, depression, severe headaches, and diabetes.

26 (Doc. 10-4 at 2; see Doc. 10-3 at 49) The Social Security Administration denied the application at the

27 initial level and upon reconsideration. (See generally Doc. 10-4) Plaintiff requested an administrative

28 hearing and testified before an ALJ on December 13, 2017. (See Doc. 10-3 at 49, 64) The ALJ found

1 Plaintiff was not disabled and issued an order denying benefits on March 15, 2018. (Id. at 49-56)

2 Plaintiff requested review by the Appeals Council, which denied the request on February 15, 2019.

3 (Id. at 12-15) Therefore, the ALJ’s determination became the final decision of the Commissioner of

4 Social Security.

5 STANDARD OF REVIEW

6 District courts have a limited scope of judicial review for disability claims after a decision by

7 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact,

8 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s

9 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The

10 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal

11 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of

12 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

13 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

14 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

15 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole

16 must be considered, because “[t]he court must consider both evidence that supports and evidence that

17 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

18 DISABILITY BENEFITS

19 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to

20 engage in substantial gainful activity due to a medically determinable physical or mental impairment

21 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §

22 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

23 his physical or mental impairment or impairments are of such severity that he is not

only unable to do his previous work, but cannot, considering his age, education, and

24 work experience, engage in any other kind of substantial gainful work which exists in

the national economy, regardless of whether such work exists in the immediate area

25 in which he lives, or whether a specific job vacancy exists for him, or whether he

would be hired if he applied for work.

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27 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v.

28 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability,

1 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial

2 gainful employment. Maounois v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

3 ADMINISTRATIVE DETERMINATION

4 To achieve uniform decisions, the Commissioner established a sequential five-step process for

5 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires

6 the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of

7 alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the

8 listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had

9 the residual functional capacity to perform to past relevant work or (5) the ability to perform other work

10 existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial

11 and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.

12 Pursuant to the five-step process, the ALJ first determined Plaintiff did not engage in substantial

13 gainful activity following the alleged onset date of November 5, 2014. (Doc. 10-3 at 51) Second, the

14 ALJ found Plaintiff’s “status post right distal radius fracture” was a severe impairment. (Id.) The ALJ

15 noted Plaintiff “also alleged disability due to… hyperlipidemia, diabetes mellitus, and mild lumbar

16 degenerative disc disease.” (Id. at 51) However, the ALJ found these conditions were “not severe

17 impairments” because they “not cause more than a minimal limitation of physical or mental ability to

18 basic work.” (Id. at 51-52) At step three, the ALJ determined Plaintiff’s impairments did not meet or

19 medically equal a Listing. (Id. at 52) Next, the ALJ found:

20 [T]he claimant has the residual functional capacity to perform medium work as

defined in 20 CFR 404.1567(c) except: She can lift fifty pounds occasionally and

21 twenty-five pounds frequently[;] stand, walk, and/or sit for six out of eight hours.

She can occasionally climb ladders, ropes, or scaffolds and frequently crawl. She can

22 frequently push and pull with the right upper extremity. She can only occasionally

overhead reach with the right upper extremity. She is limited to frequent handling

23 and fingering with the right upper extremity.

24 (Id. at 52) With this residual functional capacity, the ALJ determined at step four that Plaintiff was

25 “capable of performing past relevant work as a day worker and as an animal attendant.” (Id. at 55)

26 Thus, the ALJ concluded Plaintiff was not disabled from November 5, 2014, through the date of the

27 decision. (Id. at 56)

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1 DISCUSSION AND ANALYSIS

2 Plaintiff asserts the ALJ erred at Step Two in finding her “lumbar degenerative disc disease was

3 a non-severe impairment,” and not including limitations for the impairment in her residual functional

4 capacity. (Doc. 22 at 8, emphasis omitted) In addition, Plaintiff argues the ALJ erred in rejecting the

5 forward reaching limitation identified by Dr. Rios. (Id. at 11-13) The Commissioner asserts the “final

6 decision is supported by substantial evidence and is in accordance with the law.” (Doc. 24 at 12)

7 A. New Evidence before the Appeals Council

8 As an initial matter, in arguing that the ALJ erred at step two, Plaintiff asserts “new and

9 material evidence was submitted to the Appeals Council that would have rendered the ALJ’s decision

10 unsupported by substantial evidence.” (Doc. 22 at 8) However, Plaintiff does not specifically address

11 the findings of the Appeals Council related to the additional evidence, which was not exhibited by the

12 Appeals Council. (See id. at 10-11; see also Doc. 10-3 at 13)

13 The Regulations govern when Appeals Council is obligated to review additional evidence

14 submitted after the ALJ issues a decision. See 20 C.F.R. §§ 404.970, 416.1570 (effective January 17,

15 2017). The Regulations indicate that the Appeals Council “will review a case if ... the Appeals Council

16 receives additional evidence that is new, material, and relates to the period on or before the date of the

17 hearing decision, and there is a reasonable probability that the additional evidence would change the

18 outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). Evidence is new if it is not

19 duplicative or cumulative. Meyer v. Astrue, 662 F.3d 700, 704-05 (4th Cir. 2011). In addition, evidence

20 can be deemed new if it was not available when the ALJ made issued the decision. Threet v. Barnhart,

21 353 F.3d 1185, 1191 (10th Cir. 2003).

22 1. Consideration of evidence

23 The Ninth Circuit has distinguished between evidence the Appeals Council “considered” and

24 evidence the Appeals Council merely “looked at” to determine whether the additional evidence was

25 incorporated into the record. The Court explained that evidence the Appeals Council considered

26 becomes part of the administrative record as “evidence upon which the findings and decision

27 complained of are based.” See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir.

28 2012). In contrast, where “the Appeals Council only looked at the evidence... the new evidence did not

1 become part of the record.” Amor v. Berryhill, 743 F. App’x 145, 146 (9th Cir. 2018) (emphasis added);

2 see also De Orozco v. Comm’r of Soc. Sec., 2019 WL 2641490 at*11 (E.D. Cal. June 26, 2019)

3 (observing that the Ninth Circuit distinguished between instances where the Appeals Council formally

4 considered evidence and made it part of the administrative record with instances where the Appeals

5 Council only looked at the evidence). Importantly, where the Appeals Council only looks at the

6 evidence and it does not become part of the administrative record, the Court “may not consider it.”

7 Amor, 743 F. App’x at 146; see also Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003).

8 The Appeals Council noted Plaintiff submitted additional evidence, which the Appeals Council

9 reviewed and stated:

10 You submitted Medical Records from Lasalle Medical Associates IPA, dated November

28, 2017- January 19, 2018, 5 Pages. We find this evidence does not show a reasonable

11 probability that it would change the outcome of the decision. We did not exhibit this

evidence.

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You submitted Medical Records from Lasalle Medical Associates IPA, dated May 10,

13 2018-December 9, 2018, 6 Pages. The Administrative Law Judge decided your case

through March 15, 2018. This additional evidence does not relate to the period at issue.

14 Therefore, it does not affect the decision about whether you were disabled beginning on

or before March 15, 2018.

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16 (Doc. 10-3 at 13) Because the Appeals Council did not consider the evidence but merely looked at it,

17 the documents submitted were not incorporated into the administrative record subject to the Court’s

18 review, unless Plaintiff carries the burden to demonstrate the evidence should have been considered.

19 See Amor, 743 F. App’x at 146; Lowry, 329 F.3d at 1024.

20 2. Plaintiff’s burden with new evidence

21 When the Appeals Council fails to “consider” additional evidence that satisfies the requirements

22 of Section 404.970(b) or 416.1570(b), a remand for further administrative proceedings is appropriate.

23 Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). A claimant has the burden

24 to demonstrate the evidence should have been considered by the Appeals Council under the

25 Regulations. See Hawks v. Berryhill, 2018 WL 6728037 at *4 (M.D.N.C. Dec. 21, 2018) (noting under

26 the amended Regulations, “a claimant's burden to have new evidence considered for the first time at the

27 Appeals Council level” includes “a requirement to show a reasonable probability of a different

28 outcome”).

1 Plaintiff contends the evidence submitted shows “she was experiencing increasing back pain

2 with radiating numbness and tingling in July 2017 and ultimately underwent facet injections.” (Doc. 22

3 at 10-11, citing AR 25, 102 [Doc. 10-3 at 26, 103]) Plaintiff asserts this evidence “predates the ALJ’s

4 decision and demonstrates a worsening in Plaintiff’s lumbar back pain requiring more intensive

5 treatment.” (Id.) According to Plaintiff, “[t]his evidence is material because it creates a reasonable

6 possibility that the outcome of the case would be different.” (Id., citing Staley v. Massanari, 17 F.

7 App’x 609, 610 (9th Cir. 2001)) She contends the cited additional evidence “clearly demonstrates a

8 severe impairment and would alter the outcome of Plaintiff’s case.” (Id.)

9 Significantly, the new evidence cited by Plaintiff does not address the effect of her degenerative

10 disc disease and back pain upon her physical ability to do most jobs, or physical functional limitations

11 identified by a physician. (See Doc. 10-3 at 26, 103 [AR 25, 102]) Further, because Plaintiff testified

12 at the administrative hearing that she had physical therapy and received two injections for her back

13 (Doc. 10-3 at 74-75), there was evidence before the ALJ related to the treatment Plaintiff received for

14 back pain, and the additional evidence before the Appeals Council does not provide new treatment

15 information. Consequently, the Appeals Council did not err in concluding Plaintiff failed to carry the

16 burden to show “a reasonable probability that it would change the outcome of the decision.” See Nottoli

17 v. Astrue, 2011 WL 675290, at *3 (E.D. Cal. Feb. 16, 2011) (“recitation of a medical diagnosis does not

18 demonstrate how that condition impacts plaintiff’s ability to engage in basic work activities”).

19 Because Plaintiff fails to show the additional evidence was “new, material, and relates to the

20 period on or before the date of the hearing decision” and there was “a reasonable probability that the

21 additional evidence would change the outcome of the decision,” she fails to demonstrate error by the

22 Appeals Council in merely looking at the evidence and not incorporating it as exhibits into the

23 administrative record. See 20 C.F.R. §§ 404.970, 416.1570.

24 B. Step Two of the Sequential Evaluation

25 The inquiry at step two is a de minimus screening “to dispose of groundless claims.” Smolen v.

26 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)).

27 The purpose is to identify claimants whose medical impairment makes it unlikely they would be

28 disabled even if age, education, and experience are considered. Bowen, 482 U.S. at 153. A claimant

1 must make a “threshold showing” that (1) she has a medically determinable impairment or combination

2 of impairments and (2) the impairment or combination of impairments is severe. Id. at 146-47; see also

3 20 C.F.R. § 404.1520(c). Thus, the burden of proof is on the claimant to establish a medically

4 determinable severe impairment that significantly limits her ability to do basic work activities, or the

5 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(a).

6 1. Medically determinable impairment

7 The Ninth Circuit determined a diagnosis from an acceptable medical source is a prerequisite to

8 a finding that a medically determinable impairment exists, and symptoms by themselves are not

9 sufficient to establish such an impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1005-06 (9th Cir.

10 2005). The ALJ noted Plaintiff had an MRI of her lumbar spine, which showed lumbar degenerative

11 disc disease. (See Doc. 10-3 at 51) Thus, Plaintiff established a medically determinable impairment in

12 her lumbar spine.

13 2. Severity of Plaintiff’s impairment

14 Plaintiff must next establish her impairment was severe. See Bowen, 482 U.S. at 153 (1987);

15 20 C.F.R. § 416.920(c). The Regulations provide that “[a]n impairment or combination of impairments

16 is not severe if it does not significantly limit [the claimant’s] physical or mental ability to do basic

17 work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities “include… physical

18 functions such as walking, standing, sitting, lifting, and carrying.” Id., §§ 404.1521(b), 416.921(b).

19 Plaintiff contends the ALJ erred in finding her impairment was not severe, and “failed to

20 address Plaintiff’s treatment for low back pain, observable symptoms, and subjective pain complaints

21 in making this finding.” (Doc. 22 at 8) Specifically, Plaintiff asserts, “ALJ failed to consider that

22 Plaintiff’s back pain required a prescription for baclofen and physical therapy.” (Id., citing AR 543-

23 544, 468 [Doc. 10-12 at 66-67; Doc. 10-11 at 18]) In addition, she notes she “exhibited L5 paraspinal

24 tenderness” upon examination. (Id., citing AR 540 [Doc. 10-12 at 63]) However, no physician

25 identified any functional limitations resulting from her back impairment, and Plaintiff does not identify

26 any objective evidence that her back pain affected her ability to perform basic work activities. The

27 Ninth Circuit determined that “[t]he mere existence of an impairment is insufficient proof of a

28 disability.” Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993). In other words, a medical diagnosis

1 alone does not make an impairment qualify as “severe.” See Nottoli, 2011 WL 675290, at *3 (the

2 claimant’s medical diagnosis alone fails to show what effect, if any, there is upon the claimant’s ability

3 “to engage in basic work activities”).

4 3. Plaintiff’s back impairment and the RFC

5 Plaintiff contends the ALJ erred by “omitting functional limitations from the Residual

6 Functional Capacity” related to her degenerative disc disease and back pain. (Doc. 22 at 9)

7 Importantly, as discussed above, Plaintiff fails to identify any specific functional limitations related to

8 her back impairment, whether addressed in her testimony or the medical record, that she believes

9 should have been incorporated into the residual functional capacity by the ALJ. The Court is unable to

10 speculate as what limitations Plaintiff believes the ALJ should have incorporated into RFC. See

11 Valentine v. Astrue, 574 F.3d 685, 692 n.2 (9th Cir. 2009); Indep. Towers of Wash. v. Washington, 350

12 F.3d 925, 929 (9th Cir. 2003) (noting the Court “has repeatedly admonished that [it] cannot

13 ‘manufacture arguments for an appellant’”); Champagne v. Colvin, 582 F. App'x 696, 697 (9th Cir.

14 2014) (rejecting the assertion of error where the claimant “identified no additional medically necessary

15 limitation that should have been included in the residual functional capacity”).

16 Previously, the Ninth Circuit “reject[ed] any invitation to find that the ALJ failed to account for

17 [the claimant’s] injuries in some unspecified way” where “the RFC include[d] several physical

18 limitations.” See Valentine, 574 F.3d at 692 n.2. In Valentine, the claimant asserted the ALJ failed to

19 account for his knee and shoulder injuries in the RFC yet failed to identify “what other physical

20 limitations follow[ed] from the evidence of his knee and shoulder injuries, besides the limitations

21 already listed in the RFC.” Id. Similarly here, the RFC included physical limitations—including

22 limitations with lifting, carrying, sitting six hours, standing up to six hours, and many postural

23 limitations (Doc. 10-3 at 52)—and Plaintiff fails to identify specific functional limitations she believes

24 should have been incorporated in the RFC related to her back impairment.

25 Likewise, district courts throughout the Ninth Circuit determined failure to identify specific

26 limitations that should have been incorporated into a residual functional capacity is fatal to a claimant’s

27 challenge of the ALJ’s findings. See, e.g., Noel V. v. Saul, 2020 WL 996789 (C.D. Cal. Feb. 28, 2020)

28 (finding the plaintiff failed to show error by the ALJ where the plaintiff did not “detail what physical

1 limitations follow from the medical evidence besides the limitations already listed in the RFC”);

2 Hansen v. Berryhill, 2018 U.S. Dist. LEXIS 19489 (W.D. Wash. Feb. 6, 2018) (“Although Plaintiff

3 argues that the ALJ erred in failing to account for the limitations caused by his ADHD in the RFC

4 assessment, he does not identify which limitations were erroneously omitted, and has thus failed to

5 state an allegation of error”); Thomas v. Comm’r of SSA, 2015 U.S. Dist. LEXIS 99338 at *21 (Dist.

6 Or. Jul 30, 2015) (“Plaintiff does not cite to evidence of physical limitations stemming from these

7 impairments beyond those already listed in his RFC. Without more specific information on how these

8 conditions hinder Plaintiff, the Court declines to find the ALJ failed to account for Plaintiff’s

9 limitations”). Because Plaintiff fails to identify evidence of specific functional limitations related to

10 her back pain, she also fails to show error related to her back impairment and the RFC determination.

11 B. Evaluation of the Medical Evidence

12 In this circuit, the courts distinguish the opinions of three categories of physicians: (1) treating

13 physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non-

14 examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830

15 (9th Cir. 1995). In general, the opinion of a treating physician is afforded the greatest weight. Id.; see

16 20 C.F.R. § 404.1527(d)(2); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Further, an

17 examining physician’s opinion is given more weight than the opinion of non-examining physician.

18 Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

19 An opinion is not binding upon the ALJ and may be discounted whether or not another

20 physician contradicts the opinion. Magallanes, 881 F.2d at 751. An ALJ may reject an uncontradicted

21 opinion of a treating or examining medical physician only by identifying a “clear and convincing”

22 reason. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining physician

23 may be rejected for “specific and legitimate reasons that are supported by substantial evidence in the

24 record.” Id., 81 F.3d at 830. When there is conflicting evidence, “it is the ALJ’s role to determine

25 credibility and to resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The Court

26 must uphold the ALJ’s resolution of the conflict when there is “more than one rational interpretation of

27 the evidence.” Id.; see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“The trier of fact

28 and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support

1 either outcome, the court may not substitute its judgment for that of the ALJ”).

2 Plaintiff asserts the ALJ erred in rejecting the reaching limitation identified by Dr. Rios, an

3 examining physician. (Doc. 24 at 11-13) Because the opinion was contradicted by state agency

4 medical consultants (see Doc. 12-3 at 54), the ALJ was required to identify specific and legitimate

5 reasons for rejecting the opinion of Dr. Rios. See Lester, 81 F.3d at 831.

6 1. Opinions of Dr. Rios

7 On September 18, 2015, Dr. Tomas Rios performed a comprehensive internal medicine

8 evaluation. (Doc. 10-10 at 66) Plaintiff’s chief complaints were chronic pain in her right shoulder and

9 arm, as well as high blood pressure. (Id.) She reported suffering “a slip-and-fall accident in November

10 2014,” which resulted in “a nondisplaced fracture of the right distal radius.” (Id.) Plaintiff “also

11 developed frozen shoulder on the right.” (Id.) In addition, Dr. Rios noted Plaintiff “report[ed] history

12 of chronic back pain… at the cervical and lower paralumbar region.” (Id.)

13 Dr. Rios observed that Plaintiff carried her right arm “in slight antalgic posture,” but “[s]he was

14 able to pick objects from the table with her right hand without any significant difficulties.” (Doc. 10-10

15 at 67) Upon examination, Dr. Rios found Plaintiff’s range of motion was as follows:

16 SHOULDER JOINTS: Right shoulder forward flexion 0-130 degrees, extension 0-30

degrees, abduction 0-130 degrees, adduction 0-20 degrees, internal rotation 0-70

17 degrees, and external rotation 0-80 degrees. Left shoulder forward flexion 0-150

degrees, extension 0-40 degrees, abduction 0-150 degrees, adduction 0-30 degrees,

18 internal rotation 0-80 degrees, and external rotation 0-90 degrees.

19 ELBOW JOINTS: Flexion-extension 0-150 degrees, supination 0-80 degrees, and

pronation 0-80 degrees bilaterally.

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WRIST JOINTS: Extension 0-60 degrees, flexion 0-60 degrees, radial deviation 0-20

21 degrees, and ulnar deviation 0-30 degrees bilaterally.

22 (Id. at 68-69) Dr. Rios noted Plaintiff exhibited “residual pain on the right shoulder region with limited

23 range of motion” and “tenderness on the right forearm.” (Id. at 69) Further, Dr. Rios opined Plaintiff’s

24 “range of motion at the elbow and wrist [was] preserved.” (Id.) Plaintiff’s motor strength was “5/5

25 throughout the upper and lower extremities with the exception of the right shoulder.” (Id.)

26 Dr. Rios opined Plaintiff had no limitations with sitting, standing, and walking. (Doc. 10-10 at

27 69-70) He believed Plaintiff had no limitations with manipulative activities with her left arm. (Id.)

28 Dr. Rios concluded Plaintiff could “only perform occasional reaching overhead and reaching forward,

1 and frequent handling” with her right arm. (Id. at 70) He found “no limitation on fingering and

2 feeling.” (Id.)

3 2. The ALJ’s evaluation of the opinions

4 Addressing the medical evidence, the ALJ indicated the opinion of Dr. Rios was “given partial

5 weight.” (Doc. 10-3 at 55) The ALJ explained the weight given as follows:

6 Physical examinations did show some lasting effects, but they were generally limited to

a decreased range of motion in the wrist and shoulder (Exhibits 2F/8-9, 15; 3F/3-5; and

7 5F/5-6). However, Dr. Rios’ opinion is overly restrictive regarding reaching forward.

The claimant testified she performed household chores such as cleaning the bathroom

8 and tub, and examinations, while showing some decreased range of motion, did not

usually show limits with forward flexion [](Exhibits 2F/8-9, 15; 3F/3-5; and 5F/5-6).

9 Even the consultative examiner noted the claimant could forward flex to 130 degrees

(Exhibit 6F/4-6).

10

11 (Id. at 54-55) Plaintiff argues the ALJ failed to identify any “specific, legitimate reasons for rejecting

12 [the] opinion” that Plaintiff had limited ability to reach forward with her right arm. (Doc. 22 at 13)

13 a. Level of activity

14 The Ninth Circuit determined an ALJ may reject an opinion when the physician sets forth

15 restrictions that “appear to be inconsistent with the level of activity that [the claimant] engaged in.”

16 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); see also Fisher v. Astrue, 429 Fed. App’x 649,

17 652 (9th Cir. 2011) (concluding the ALJ set forth specific and legitimate reasons for rejecting a

18 physician’s opinion where limitations identified by the doctor conflicted with the claimant’s daily

19 activities). For example, in Rollins, the Court held the ALJ permissibly rejected the treating

20 physician’s opinion that a claimant was precluded “from engaging in any bending, stooping, crouching,

21 crawling, kneeling, climbing, and balancing.” Id. (emphasis in original) The court observed the

22 claimant never asserted any problem with many activities identified by the physician, and the

23 limitations were inconsistent her level of activity, including “maintaining a household and raising two

24 young children, with no significant assistance from her ex husband.” Id.

25 Though the ALJ indicated Plaintiff “performed household chores such as cleaning the bathroom

26 and tub” (Doc. 10-3 at 54), the ALJ did not acknowledge the extent of difficulty that Plaintiff stated she

27 had with chores—or the fact that she “hardly” used her right arm to reach into the refrigerator.

28 Specifically, Plaintiff testified she performed chores “very slowly” and took “a long time” due to her

1 pain. (Doc. 10-3 at 71) She explained that when she cleans the restroom, she will “put [down] two

2 cushions to clean the bathtub,” and it took a while to stand. (Id.) Plaintiff said she was unable to clean

3 windows due to pain with her right arm. (Id. at 78) Plaintiff said she struggled to bend over and pick

4 something up off the floor. (Id. at 72) She estimated she could lift and carry about ten pounds, and

5 said her husband accompanied her with grocery shopping and helped “with the heavier things.” (Id.)

6 Further, Plaintiff reported she “hardly” used her right arm to reach into the refrigerator. (Id. at 79)

7 The ALJ fails to explain how Plaintiff’s activities are inconsistent with the limitation to

8 occasional forward reaching identified by Dr. Rios. The ALJ makes no finding that Plaintiff performs

9 household chores on a sustained basis, or that the chores require reaching on a more than “occasional”

10 basis. (See Doc. 10-3 at 54) Consequently, the ALJ erred in rejecting the forward reaching limitation

11 identified by Dr. Rios on the grounds that it was inconsistent with Plaintiff’s level of activity. See

12 Ghanim, 763 F.3d at 1162-63 (finding a claimant’s ability to “perform basic chores” was “not an

13 adequate evidentiary basis to reject the opinion” of a physician); Pickard v. Comm’r of Soc. Sec., 2018

14 WL 1211061, at *4 (E.D. Cal. Mar. 8, 2018) (finding the ALJ erred “because the activities described

15 are not inconsistent with [the] claimed limitations”); see also Diedrich v. Berryhill, 874 F.3d 634, 643

16 (9th Cir. 2017) (finding participation “in some daily activities does not contradict the evidence of

17 otherwise severe problems”).

18 b. Inconsistency with medical record

19 An ALJ may reject the opinions of a physician where the opinions are inconsistent with the

20 overall record. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999).

21 However, to reject an opinion as inconsistent with the physician’s notes or medical record, the “ALJ

22 must do more than offer his conclusions.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). To

23 reject an opinion as contradicted by the medical record, the ALJ must “set[] out a detailed and thorough

24 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and mak[e]

25 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). The Ninth

26 Circuit explained: “To say that medical opinions are not supported by sufficient objective findings or

27 are contrary to the preponderant conclusions mandated by the objective findings does not achieve the

28 level of specificity our prior cases have required.” Embrey, 849 F.2d at 421-22.

1 Notably, the exhibits cited by the ALJ do not support her assertion that the medical records

2 “show[] some decreased range of motion, [but] did not usually show limits with forward flexion.” For

3 example, the ALJ referred to pages 8-9 of Exhibit 2F, which indicated Plaintiff had “decreased internal

4 and external range of motion” in her right shoulder, as well as “decreased range of motion with

5 abduction/adduction, and 90 [degree] flexion.” (Doc. 10-10 at 9) As a result of her reported pain in the

6 “joint, forearm,” Plaintiff was referred to physical therapy. (Id. at 10) In pages 3-5 of Exhibit 3F, the

7 treatment record indicates Plaintiff was “unable to flex or extend fingers all the way” and had

8 “decreased range of motion with wrist rotation and lower arm supination and pronation.” (Id. at 40)

9 Finally, in the cited pages of Exhibit 5F, the record indicates Plaintiff had “minimal improvement” with

10 physical therapy, but continued to show “limited active and passive [range of motion]” with her right

11 shoulder, and she was limited “to only 80 to 90 degrees” with elevation. (Id. at 57) Importantly, the

12 ALJ fails to explain how these findings are inconsistent with a limitation to occasional forward

13 reaching with the right arm. Thus, the purported inconsistencies in Exhibits 2F, 3F, and 5F do not

14 support the ALJ’s decision to reject the limitation identified by Dr. Rios.

15 Similarly, the ALJ failed to explain how the findings from the consultative examination were

16 inconsistent with the limitation identified. The ALJ noted Dr. Rios found Plaintiff “could forward flex

17 to 130 degrees” with her right arm (Doc. 10-3 at 55) but failed to address the fact that this degree of

18 forward flexion was reduced compared to her left arm. (See Doc. 10-10 at 68-69) The ALJ also failed

19 to explain how Plaintiff’s ability to forward flex with her right shoulder was inconsistent with the

20 conclusion that she could reach forward only occasionally.

21 Because the ALJ failed to explain how the cited medical evidence was inconsistent with the

22 forward reaching limitation identified by Dr. Rios, her conclusions regarding the conflict with the

23 medical record are not sufficient. See Embrey, 849 F.2d at 421; see also Kapesi v. Berryhill, 2017 WL

24 1217083 at *7 (C.D. Cal. Mar. 30, 2017) (finding the ALJ’s reasoning was deficient where the ALJ did

25 not “explain how the evidence was inconsistent with [the physician’s] opinion”); Arellano v. Astrue,

26 2013 WL 1129479 at *5 (D. Colo. Mar. 18, 2013) (reversing and remanding the opinion, because the

27 ALJ “fail[ed] to explain how the medical evidence she listed is contradictory to [the physician’s]

28 opinion, beyond her own lay opinion”). Thus, this factor does not support the ALJ’s decision to reject

1 the forward reaching limitation identified by Dr. Rios.

2 C. Remand is Appropriate

3 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to

4 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel,

5 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative

6 agency determination, the proper course is to remand to the agency for additional investigation or

7 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S.

8 12, 16 (2002)). Generally, an award of benefits is directed when:

9 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence,

(2) there are no outstanding issues that must be resolved before a determination of

10 disability can be made, and (3) it is clear from the record that the ALJ would be required

to find the claimant disabled were such evidence credited.

11

12 Smolen v, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose would

13 be served by further administrative proceedings, or where the record is fully developed. Varney v.

14 Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988).

15 The ALJ failed to identify legally sufficient reasons for rejecting the occasional reaching

16 limitation identified by Dr. Rios. This error is not harmless, as Plaintiff’s past relevant work requires

17 reaching on a frequent basis, and she may be precluded from such work if the limitation were adopted.

18 See DICOT 301.687-014 (day worker), 1991 WL 672654; DICOT 410.674-010 (animal caretaker),

19 1991 WL 673401. Because the ALJ failed to resolve the conflicts in the record regarding Plaintiff’s

20 reaching limitations, the matter should be remanded for the ALJ to re-evaluate the evidence. See Moisa,

21 367 F.3d at 886. Thus, the Court finds remand is appropriate for further proceedings is appropriate.

22 CONCLUSION AND ORDER

23 For the reasons set for above, the Court finds the ALJ erred in evaluating the medical record

24 and rejecting a physical limitation identified by the consultative examiner. Because the ALJ failed to

25 apply the proper legal standards, the decision cannot be upheld. See Sanchez, 812 F.2d at 510.

26 Accordingly, the Court ORDERS:

27 1. Plaintiff’s appeal of the decision denying benefits (Doc. 22) is GRANTED;

28 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

1 proceedings consistent with this decision; and

2 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Norma Alicia

3 Garcia, and against Defendant Andrew Saul, Commissioner of Social Security.

4

5 IT IS SO ORDERED.

6 Dated: January 22, 2021 /s/ Jennifer L. Thurston

7 UNITED STATES MAGISTRATE JUDGE

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