discussing deference owed to the opinions of treating and examining physicians
How later courts described this case
- discussing deference owed to the opinions of treating and examining physicians
- upon reversal of an administrative 21| determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances
- conflict 23|| between treating physician’s assessment and the treating physician’s 24] own clinical notes can justify rejection of assessment
- a conclusion of 28 disability, directed by the Grids, is irrebuttable
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 JOSE M. U. V., ) NO. ED CV 19-269-E
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM OPINION
)
14 ANDREW SAUL, Commissioner of ) AND ORDER OF REMAND
Social Security, )
15 )
Defendant. )
16 ____________________________________)
17
18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS
19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary
20 judgment are denied, and this matter is remanded for further
21 administrative action consistent with this Opinion.
22
23 PROCEEDINGS
24
25 Plaintiff filed a complaint on February 10, 2019, seeking review
26 of the Commissioner’s denial of benefits. The parties consented to
27 proceed before a United States Magistrate Judge on March 12, 2019.
28 Plaintiff filed a motion for summary judgment on July 29, 2019.
1 Defendant filed a motion for summary judgment on August 28, 2019. The
2 Court has taken the motions under submission without oral argument.
3 See L.R. 7-15; “Order,” filed February 25, 2019.
4
5 BACKGROUND
6
7 Plaintiff applied for disability insurance benefits, asserting
8 disability since February 7, 2011, the time of a work-related back
9 injury (Administrative Record (“A.R.”) 44, 174, 201, 277, 292).
10 Plaintiff alleges he suffers from, inter alia, low back pain,
11 spondylosis, arthritis, stomach hernias and bone spurs on his left
12 foot. Id. Plaintiff claims that his conditions limit his ability to
13 reach, sit for “much time” or walk for more than 30 minutes (A.R.
14 201).
15
16 As detailed below, Plaintiff underwent spine fusion surgery in
17 January of 2013 and again in September of 2014 (A.R. 563-613, 680-89).
18 Between the first and second surgeries, treating orthopedist Dr. John
19 Steinmann opined that Plaintiff regained the ability to work, limited
20 to the lifting of no more than 15 pounds (prior to December, 2013) and
21 the lifting of no more than 30 pounds (as of December, 2013) (A.R.
22 824, 827, 835). By April of 2014, Plaintiff’s condition reportedly
23 had deteriorated, however, and Dr. Steinmann requested approval for a
24 second surgery (A.R. 940). After the second surgery, Dr. Steinmann
25 opined that Plaintiff regained the ability to do only “sedentary” work
26 (A.R. 924, 928, 933). Dr. Steinmann defined “sedentary” work as
27 lifting no more than 10 pounds. Id.
28 ///
1 An Administrative Law Judge (“ALJ”) reviewed the record and heard
2 testimony from Plaintiff and a vocational expert (A.R. 33-60).
3 Plaintiff testified to pain and limitations of allegedly disabling
4 severity (A.R. 45-53). The ALJ found that, through Plaintiff’s
5 December 31, 2016 date last insured, Plaintiff had severe degenerative
6 disc disease of the lumbar spine, status post fusion surgeries, H.
7 pylori and major depressive disorder (A.R. 12). However, the ALJ also
8 found that, through the date last insured, Plaintiff retained a
9 residual functional capacity for light work,1 limited to: (1)
10 occasionally pushing and pulling with the lower extremities; (2)
11 occasionally climbing ramps and stairs, but never climbing ladders or
12 scaffolds; (3) occasionally balancing, stooping, kneeling, crouching
13 and crawling; (4) avoiding concentrated exposure to vibration and
14 hazards; and (5) only unskilled work2 with occasional contact with co-
15 workers and no public contact. See A.R. 15-19 (giving “great weight”
16 to the consultative examiners’ opinions, “limited weight” to the state
17 agency physicians’ opinions, and rejecting Dr. Steinmann’s opinions
18 regarding sedentary limitations).
19
20 The ALJ identified certain light jobs Plaintiff assertedly could
21 perform, and, on that basis, denied disability benefits (A.R. 20-21
22 ///
23
24
1 Light work requires lifting and carrying 20 pounds
25 occasionally and 10 pounds frequently, standing and walking up to
six hours in an eight-hour day and sitting up to six hours in an
26 eight hour day. See 20 C.F.R. § 404.1567(b).
27 2 Unskilled work is “work which needs little or no
judgment to do simple duties that can be learned on the job in a
28
1| (adopting vocational expert testimony at A.R. 53-55)).* The Appeals
2|| Council denied review (A.R. 1-3).
3
4 STANDARD OF REVIEW
5
6 Under 42 U.S.C. section 405(g), this Court reviews the
7) Administration’s decision to determine if: (1) the Administration’s
8| findings are supported by substantial evidence; and (2) the
9] Administration used correct legal standards. See Carmickle v.
10) Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,
11] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such
13] relevant evidence as a reasonable mind might accept as adequate to
14] support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
15] (1971) (citation and quotations omitted); see also Widmark v.
16] Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
17
18 If the evidence can support either outcome, the court may
19 not substitute its judgment for that of the ALJ. But the
20 Commissioner’s decision cannot be affirmed simply by
21 isolating a specific quantum of supporting evidence.
22 Rather, a court must consider the record as a whole,
23
> At the time of the hearing, Plaintiff was 52 years old
24! and had not graduated from high school, but had attended college
25 classes (A.R. 39-40). If Plaintiff were limited to sedentary
work and had no transferrable skills, or if Plaintiff’s education
26|| does not provide for direct entry into skilled work, Plaintiff
would be disabled under the Grids. See 20 C.F.R. Pt. 404, Subpt.
27) P. App. 2 (“Grids”) §§ 201.12, 201.14; see also Cooper v.
Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) (a conclusion of
28 disability, directed by the Grids, is irrebuttable).
fl
1 weighing both evidence that supports and evidence that
2 detracts from the [administrative] conclusion.
3
4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
5 quotations omitted).
6
7 DISCUSSION
8
9 After consideration of the record as a whole, the Court reverses
10 the Administration’s decision in part and remands the matter for
11 further administrative proceedings. As discussed below, the
12 Administration materially erred in evaluating the evidence of record.
13
14 I. Summary of Relevant Evidence
15
16 A. Plaintiff’s Testimony and Statements
17
18 At the administrative hearing, Plaintiff testified that he
19 injured himself at work while lifting a 180-pound box which caused a
20 “pop” in his back (A.R. 44). Plaintiff had undergone two back
21 surgeries, physical therapy, epidural injections and other management
22 for his back pain (A.R. 45-46, 52-53). Plaintiff’s surgeon advised
23 that there was nothing more the surgeon could do for him (A.R. 44).
24 Plaintiff testified that he has pain in his low back every four hours,
25 for which he has to take pain medication or lie down, which resolves
26 the pain only temporarily (A.R. 45-46, 52). Plaintiff was taking
27 Gabapentin and 800 milligram ibuprofen (A.R. 49).
28 ///
1 Plaintiff testified that he could walk for five to 10 minutes at
2 one time without a problem, could lift up to a gallon of milk, has
3 difficulty sitting due to pressure on his back, and regularly has used
4 a cane since his first back surgery in 2013 because he is afraid he
5 might trip on something (A.R. 46-47, 51-52).4
6
7 B. Records of Treatment for Plaintiff’s Back Injury
8
9 Plaintiff injured his back at work on December 13, 2010 and again
10 on February 7, 2011 (A.R. 252, 304, 320, 1100-01). A March, 2011
11 lumbar spine MRI showed lumbar spondylosis at L3-L4, L4-L5 and L5-S1,
12 degenerative retrolisthesis of L5 on S1 with a 5-millimeter posterior
13 osteophyte extending into the neural foramina, and small posterior
14 osteophytes at L3-L4 and L4-L5 (A.R. 257-58). In March of 2011,
15 Plaintiff’s doctor requested approval for an epidural injection at the
16 L5 level for lumbar muscle strain and spasm and lumbar radiculopathy
17 (A.R. 284). Plaintiff reportedly had failed conservative management
18 (i.e., physical therapy, work modification, medications, Medrol
19 Dosepak and trigger point injections) (A.R. 284).5
20 ///
21
22 4 Plaintiff testified that, on a typical day, he gets up,
takes 20 minutes to dress, prepares breakfast, takes a pain pill,
23 sits for an hour to an hour and a half, walks for five to 10
minutes, and then lies down (A.R. 47). Plaintiff said he
24
sometimes needs help tying his shoes, does no chores at home,
25 accompanies his wife to grocery shop, and can travel to see
family and friends in Rialto or Fontana (A.R. 48). Plaintiff
26 attends church on Sundays and sits where he can move around or
stand up (A.R. 47).
27
5 A May, 2011 nerve conduction study was normal (A.R.
28
1 In August, October, and November of 2011 and in January of 2012,
2 Plaintiff went to the emergency room for his back pain, reporting that
3 his pain medication (Vicodin and Naprosyn) was not effective (A.R.
4 368-80, 434-38, 784-90). Plaintiff was given Toradol and Morphine
5 injections. Id. Plaintiff had been given a L5 lumbar epidural
6 steroid injection two days before his January, 2012 visit, and
7 reported that the injections gave him no relief (A.R. 376, 434; see
8 also A.R. 312-15 (records for epidurals given in December of 2011 and
9 January of 2012)).
10
11 On August 10, 2012, Plaintiff consulted with worker’s
12 compensation orthopedic surgeon Dr. John Steinmann, complaining of
13 aching lumbar pain radiating to the bilateral legs, with numbness,
14 tingling and weakness, aggravated by walking, lifting or standing and
15 alleviated by rest or lying down (A.R. 528-29). Plaintiff was taking
16 Naproxen, Vicodin and Cephalexin (A.R. 529). On examination,
17 Plaintiff reportedly ambulated with a normal gait without an assistive
18 device, transferred from chair to standing and to the exam table with
19 apparent “ease,” but there was “moderate discomfort demonstrated,” and
20 Plaintiff had limited range of motion in the lumbar spine with
21 positive Gower sign (A.R. 532-33). A MRI study reportedly showed
22 advanced degenerative changes at L5-S1 (A.R. 534). Dr. Steinmann
23 diagnosed low back pain emanating from L5-S1 due to a lesion capable
24 of rendering Plaintiff’s back weak and chronically painful, and Dr.
25 Steinmann recommended L5-S1 fusion surgery with a request for second
26 opinion (A.R. 534). Dr. Steinmann found Plaintiff temporarily totally
27 disabled (A.R. 534).
28 ///
1 Plaintiff followed up with Dr. Steinmann on September 20, 2012,
2 reporting that he had gone to the emergency room for pain medication
3 on August 24, 2012 (A.R. 536-37). Dr. Steinmann again requested a
4 second opinion for the proposed surgery (A.R. 538). When Plaintiff
5 returned on October 29, 2012, he reported that his pain had gotten
6 worse and was excruciating and constant (A.R. 540). Plaintiff had
7 received a second opinion from Dr. Robert Horner, who agreed with the
8 proposed surgery, and so Dr. Steinmann requested approval for the
9 surgery (A.R. 541-42). Plaintiff returned on December 17, 2012, to
10 refill his Norco prescription pending the scheduled surgery (A.R. 543-
11 45).
12
13 On January 16, 2013, Plaintiff underwent spinal diskectomy and
14 fusion surgery at L5-S1 by Dr. Joseph Vanderlinden, with the
15 assistance of Dr. Steinmann (A.R. 563-607). Plaintiff returned to Dr.
16 Steinmann for a post-operative appointment on January 31, 2013,
17 reporting low back pain radiating to his buttocks and pain at the
18 surgical incision site (A.R. 546). Dr. Steinmann described Plaintiff
19 as “doing very well” and using a walker for ambulation (A.R. 547).
20 When Plaintiff returned on February 28, 2013, Dr. Steinmann
21 discontinued the use of Plaintiff’s walker, referred him for
22 “aggressive” physical therapy and continued his disability status
23 (A.R. 549-50).
24
25 On March 16, 2013, Plaintiff complained of increased lower back
26 pain and bilateral leg pain and reportedly had not started physical
27 therapy because the therapy had not been authorized (A.R. 553-54).
28 Plaintiff reportedly did not feel that he was “tremendously better”
1 than he was before surgery (A.R. 554). Dr. Steinmann described
2 Plaintiff’s progress as “slow” and noted that he would have expected
3 significant improvement by then (A.R. 554). Dr. Steinmann prescribed
4 Vicodin and Celebrex (A.R. 554).6
5
6 On April 20, 2013, Plaintiff reported significant pain in his low
7 back and hips, as well as numbness in his left great toe (A.R. 560-
8 61). Dr. Steinmann described Plaintiff as better than he had been
9 before surgery (A.R. 561). Dr. Steinmann then opined that Plaintiff
10 was capable of lifting no more than 15 pounds with no repetitive
11 bending or stooping (A.R. 561). On May 23, 2013, however, Plaintiff
12 reported continued, intolerable pain in his low back and hips
13 radiating to his left foot (A.R. 818-19). On examination, Plaintiff
14 had restricted range of motion (A.R. 819). Dr. Steinmann requested a
15 CT scan to evaluate the source of Plaintiff’s pain (A.R. 819).
16
17 On July 11, 2013, Plaintiff returned to Dr. Steinmann complaining
18 of back and leg pain which reportedly was “much better” than before
19 his back surgery but still precluded normal activity (A.R. 822). On
20 examination, Plaintiff reportedly ambulated normally without assistive
21 device, with “ease” but “mild to moderate discomfort demonstrated” on
22 transfers from chair to standing and to the examination table,
23 tenderness on lumbosacral palpation, and limited lumbar range of
24 motion (A.R. 822-23). A CT scan reportedly showed left pedicle screws
25
26 6 On March 27, 2013, Plaintiff had a physical therapy
evaluation which reported significant movement dysfunction and
27 moderate soft tissue irritability (A.R. 557-58). Plaintiff was
discharged from physical therapy on April 29, 2013, after
28
1 closer to the neuroforamen which Dr. Steinmann opined would not cause
2 any irritation (A.R. 823).7 Dr. Steinmann assessed status post
3 anterior and posterior fusion at L5-S1 with a “fair to good result”
4 (A.R. 823). Dr. Steinmann opined that Plaintiff had reached “maximum
5 medical improvement,” and released Plaintiff to return to work,
6 limited to lifting no more than 15 pounds and no repetitive bending,
7 stooping or climbing at unsafe heights (A.R. 824).
8
9 On October 11, 2013, Plaintiff went to the emergency room for
10 back pain radiating to his left knee and was given pain medication
11 (A.R. 668-69). Plaintiff went back to Dr. Steinmann on October 14,
12 2013, reporting that his symptoms were worse – he had constant severe
13 low back pain with left leg pain and numbness (A.R. 826). On
14 examination, Plaintiff again reportedly had limited range of lumbar
15 motion and tenderness to palpation (A.R. 827). Dr. Steinmann
16 indicated that the appropriate course would be “to observe and see how
17 he does over time” (A.R. 827-28). Dr. Steinmann again limited
18 Plaintiff to work lifting no more than 15 pounds with no repetitive
19 bending and stooping or climbing at unsafe heights. Id.
20
21 On November 21, 2013, Dr. Steinmann ordered a new MRI to rule out
22 adjacent segment deterioration after Plaintiff reported that his
23 symptoms continued (A.R. 830-32). On December 30, 2013, Plaintiff’s
24 examination results were unchanged (A.R. 835). Dr. Steinmann stated
25
26
7 A June, 2013 lumbar spine CT scan had shown status post
27 anterior and posterior fusion at L5-S1, lumbar spondylosis at L3-
L4 and L4-L5, and a probable 4-millimeter disc protrustion at L4-
28
1 that the new MRI showed solid arthrodesis at L5-S1 and degenerative
2 changes at L4-L5, for which he recommended that Plaintiff not consider
3 surgery at that time and instead pursue low impact aerobic
4 conditioning, activity modification, and an occupation that does not
5 require significant stress on Plaintiff’s back (A.R. 835-36).8 Dr.
6 Steinmann then limited Plaintiff to lifting no more than 30 pounds
7 (A.R. 836).
8
9 On April 18, 2014, Plaintiff reported increased constant low back
10 pain and left leg pain radiating to the knee (A.R. 838). Plaintiff
11 was strongly requesting that something be done for his back pain and
12 stated that, following his prior surgery, he had done “very well”
13 until his pain worsened in or around November of 2013 (A.R. 840).
14 Dr. Steinmann found Plaintiff was a candidate for L4-L5 fusion surgery
15 (A.R. 840). In May and July of 2014, Dr. Steinmann requested a second
16 opinion regarding the surgery and, in August of 2014, Plaintiff was
17 scheduled for surgery (A.R. 846, 908, 911).
18
19 On September 17, 2014, Plaintiff underwent a second fusion
20 surgery on Plaintiff’s lumbar spine at L4-L5 by Drs. Vanderlinden and
21 ///
22
23 8 A December, 2013 lumbar spine MRI showed status post
fusion at L5-S1, a 3-millimeter disc bulge at L3-L4 with mild
24 bilateral neural foraminal narrowing and bilateral facet joint
hypertrophy, a 4-millimeter retrolisthesis of L4 on L5 with a 4-
25
to 5-millimeter disc bulge at L4-L5 with moderate bilateral
26 neural foraminal narrowing and bilateral facet joint hypertrophy
with ligamentum flavum redundancy, and posterior bony spurring
27 extending into the bilateral foraminal zones at L5-S1 with
moderate bilateral neural foraminal narrowing and prominent
28
1 Steinmann (A.R. 317, 680-99).9 As of two weeks following this
2 surgery, Plaintiff reportedly had full strength in his lower
3 extremities and intact sensation (A.R. 915). Plaintiff was instructed
4 to continue to walk daily, and his temporary total disability was
5 continued (A.R. 915). After eight weeks, Plaintiff reportedly was
6 doing well, happy with his surgery results and complained only of
7 stiffness and “low grade” pain (A.R. 919). Plaintiff reportedly was
8 ambulating with a normal gait independently without an assistive
9 device (A.R. 919). Dr. Steinmann referred Plaintiff for “aggressive”
10 rehabilitation with physical therapy three times a week for four
11 weeks, and Dr. Steinmann continued Plaintiff’s temporary total
12 disability (A.R. 920).
13
14 On December 19, 2014, Plaintiff reported that his pain had gotten
15 better, characterized as a three on a scale of one to 10, but
16 Plaintiff said the pain was still aggravated by prolonged walking,
17 standing and sitting, and radiated down his left leg with numbness and
18 weakness (A.R. 922). Plaintiff had not yet been approved for physical
19 therapy (A.R. 922). Plaintiff again reportedly ambulated with a
20 normal gait, without an assistive device (A.R. 923). On examination,
21 he had no tenderness to palpation and limited range of motion in the
22 lumbar spine due to stiffness and discomfort (A.R. 923-24). Dr.
23 Steinmann released Plaintiff for “sedentary” work (A.R. 924).
24 ///
25 ///
26
27 9 A September 15, 2014 lumbar spine MRI showed
postsurgical changes with dorsal fusion of L5 and S1, and neural
28
1 By January 26, 2015, Plaintiff reported that he had constant pain
2 in both hips radiating down his left leg with numbness and tingling
3 and a change in neurologic function (A.R. 926). Plaintiff was due to
4 start physical therapy that week (A.R. 926). Plaintiff reportedly was
5 ambulating with a cane, but was able to transfer from chair to
6 standing and to the examination table with apparent ease and without
7 apparent discomfort (A.R. 927). Examination results were unchanged
8 (A.R. 927). Dr. Steinmann prescribed 800 milligram ibuprofen and
9 continued Plaintiff’s restriction to “sedentary” work (A.R. 928).
10
11 On February 23, 2015, Dr. Steinmann examined Plaintiff and
12 prepared a report re “maximum medical improvement” (A.R. 930-34, 996-
13 99). Plaintiff complained of worsening constant low back pain
14 radiating to his left leg, with numbness not helped by physical
15 therapy (A.R. 931, 996; see also A.R. 1010-11 (physical therapy
16 records)). Plaintiff rated his pain at four on a scale of one to 10
17 (A.R. 931, 996). Plaintiff reportedly ambulated with a normal gait,
18 without an assistive device, but his transfers from chair to standing
19 and to the examination table were slow, with pain in the low back and
20 left hip (A.R. 931; but see A.R. 997 (reporting transfers “with ease”
21 and “no discomfort”)). On examination, Plaintiff had tenderness on
22 lumbosacral palpation and significantly reduced lumbar range of motion
23 (A.R. 931-32; but see A.R. 997 (reporting no tenderness on
24 palpation)). Dr. Steinmann diagnosed status post anterior and
25 posterior fusion from L4 to the sacrum with a “fair” result and
26 declared Plaintiff “permanent and stationary” (A.R. 932, 998).
27 Plaintiff reportedly felt that his pain had improved since surgery but
28 also said that he still had significant limitations (A.R. 932). Dr.
1 Steinmann encouraged aerobic conditioning (A.R. 932). Dr. Steinmann
2 opined that Plaintiff had reached maximum medical improvement and
3 could compete on the open labor market, with restrictions from
4 repetitive bending and stooping, lifting greater than 10 pounds, and
5 working at heights or uneven walking (A.R. 932-33, 1007 (noting, “This
6 patient is largely best treated with strictly sedentary work.”)).
7
8 The record contains primary care physician treatment notes for
9 various conditions thereafter (A.R. 1289-1331). On July 7, 2015,
10 Plaintiff reportedly presented to his primary care physician for
11 removal of skin tags and a second opinion for his “fluctuating”
12 “intermittent” back pain, after Dr. Steinmann had opined that
13 Plaintiff reached maximum medical improvement and that physical
14 therapy no longer was beneficial (A.R. 1320). On examination,
15 Plaintiff had moderately reduced range of motion in the lumbar spine
16 (A.R. 1321). Plaintiff was referred for orthopedic surgery and
17 radiotherapy consults (A.R. 1322). On September 9, 2015, Plaintiff
18 complained of “occasional” worsening lower back pain, aggravated by
19 lifting, lying/rest, rolling over in bed and sitting, with numbness in
20 his left leg (A.R. 1328). Plaintiff reportedly was using a cane and
21 had tenderness and mildly reduced range of motion in the lumbar spine
22 (A.R. 1329). Plaintiff again was referred to an orthopedic surgeon
23 and was also referred to pain medicine (A.R. 1330). There are no
24 follow up records from these referrals.
25
26 On September 15, 2015, Plaintiff went to the emergency room for
27 back pain with radicular symptoms, reporting that his doctor no longer
28 would prescribe hydrocodone long term (A.R. 460-63). Plaintiff was
1 given a Morphine injection and prescribed a two-day supply of Norco
2 (A.R. 460-63). On January 14, 2016, Plaintiff returned to the
3 emergency room for pain in his left upper quadrant and lower back
4 after a fall in the shower (A.R. 1041-54). He was diagnosed with
5 abdominal pain and low back pain and prescribed Protonix (A.R. 1045).
6
7 C. Opinions of Consultative Examiner and State Agency
8 Physicians
9
10 Consultative examiner Dr. Vincent Bernabe reviewed a March, 2012
11 lumbar spine MRI and a February, 2013 abdomen x-ray, examined
12 Plaintiff and prepared a report dated November 20, 2014 (A.R. 942-46).
13 Dr. Bernabe’s report occurred after Plaintiff’s two surgeries but
14 before Dr. Steinmann’s report re maximum medical improvement following
15 the second surgery (A.R. 942-46). Plaintiff complained of sharp,
16 throbbing, burning low back pain exacerbated by prolonged sitting,
17 standing, walking, bending and lifting (A.R. 942-43). Plaintiff was
18 using a cane for ambulation, wearing a brace and taking Norco (A.R.
19 942-43). However, Plaintiff reportedly could walk without a cane,
20 with a slow deliberate pace (A.R. 943). Dr. Bernabe opined that the
21 cane was not medically necessary (A.R. 943). On examination,
22 Plaintiff had significant tenderness on lumbosacral palpation, muscle
23 spasm on the right side, limited range of motion and positive straight
24 leg raising (A.R. 943-45). Dr. Bernabe diagnosed degenerative disc
25 disease of the lumbar spine, status post posterior lumbar fusion,
26 lumbar radiculitis and lumbar musculoligamentous strain (A.R. 945-46).
27 Dr. Bernabe opined that Plaintiff would be able to perform light work
28 with occasional pushing and pulling, walking on uneven terrain,
1 climbing ladders, working at heights, bending, crouching, stooping and
2 crawling (A.R. 946).
3
4 State agency physicians reviewed the available records in
5 January, April, July and August of 2015 and opined that Plaintiff had
6 severe degenerative disc disease and an affective disorder (A.R. 69-
7 75, 85-91). The state agency physicians opined that Plaintiff retains
8 a residual functional capacity for light work with occasional lower
9 extremity pushing and pulling, stair/ramp climbing, balancing,
10 stooping, kneeling, crouching and crawling, no concentrated exposure
11 to vibration or hazards, limited to simple repetitive tasks,
12 “partially interact[ing]” with supervisors and co-workers and the
13 public in a service capacity, making simple work-related decisions,
14 adhering to basis safety rules, and adjusting to changes in routine in
15 a typical non-public unskilled setting (A.R. 69-75, 85-91 (giving
16 great weight to the opinions of Dr. Bernabe and “other weight” to the
17 opinion of Dr. Steinmann that Plaintiff was limited to sedentary
18 work)).
19
20 II. The ALJ Materially Erred in the Evaluation of the Medical
21 Evidence.
22
23 In assessing Plaintiff’s residual functional capacity, the ALJ
24 gave “some weight” to Dr. Steinmann’s opinion that Plaintiff would be
25 limited to no repetitive bending and stooping, but rejected Dr.
26 Steinmann’s opinion that Plaintiff would be limited to “sedentary
27 work” (A.R. 17). The ALJ stated:
28 ///
1 [T]he record does not fully support a sedentary range of
2 limitations . . . since other examinations after the
3 claimant’s surgeries including [Dr. Steinmann’s] own
4 contemporaneous clinical findings have shown greater ability
5 that is more consistent with light restrictions. The
6 claimant himself admits to being better than prior to his
7 surgery, despite some residual mild to moderate discomfort
8 [citing A.R. 822 (Plaintiff’s report to Dr. Steinmann
9 July 11, 2013 that he was “much better than he was before
10 surgery but still has discomfort that precludes him from
11 doing his normal activities”)]. Even medical source
12 statements provided by Dr. Steinmann himself included
13 greater levels of functioning, such as greater levels of
14 lifting that are more consistent with the record and given
15 some weight as well [citing A.R. 824 (Dr. Steinmann’s
16 July 11, 2013 opinion that Plaintiff had reached maximum
17 medical improvement with “ongoing low grade discomfort”
18 following the first surgery, and was capable of work limited
19 to lifting no more than 15 pounds)]. Dr. Steinmann failed
20 to provide any explanation to why his later opinions show
21 greater levels of limitations despite noted improvement by
22 the claimant and objective findings, as well as no
23 intervening or subsequent injuries.
24
25 (A.R. 17) (emphasis added).
26
27 A treating physician’s conclusions “must be given substantial
28 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see
Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must
2| give sufficient weight to the subjective aspects of a doctor’s
opinion. . . . This is especially true when the opinion is that of a
treating physician”) (citation omitted); see also Garrison v. Colvin,
5] 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the
opinions of treating and examining physicians). Even where the
treating physician’s opinions are contradicted, as here, “if the ALJ
8] wishes to disregard the opinion[s] of the treating physician he...
must make findings setting forth specific, legitimate reasons for
10] doing so that are based on substantial evidence in the record.”
11] Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation,
quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at
13] 762 (“The ALJ may disregard the treating physician’s opinion, but only
14] by setting forth specific, legitimate reasons for doing so, and this
decision must itself be based on substantial evidence”) (citation and
16] quotations omitted).
17
18 The reasons the ALJ stated for rejecting Dr. Steinmann’s opinion
19] do not comport with these authorities. An ALJ properly may discount a
20] treating physician’s opinions that are in conflict with treatment
records or are unsupported by objective clinical findings. See
22|| Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (conflict
23|| between treating physician’s assessment and the treating physician’s
24] own clinical notes can justify rejection of assessment); Batson v.
25| Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may
26| discredit treating physicians’ opinions that are conclusory, brief,
27| and unsupported by the record as a whole .. . or by objective medical
findings”); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)
12
1 (treating physician’s opinion properly rejected where physician’s
2 treatment notes “provide no basis for the functional restrictions he
3 opined should be imposed on [the claimant]”); see also Rollins v.
4 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly may reject
5 treating physician’s opinions that “were so extreme as to be
6 implausible and were not supported by any findings made by any doctor
7 . . .”); 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in
8 weighing treating source opinion include the supportability of the
9 opinion by medical signs and laboratory findings as well as the
10 opinion’s consistency with the record as a whole).
11
12 In the present case, however, no physician discerned any specific
13 inconsistency between Dr. Steinmann’s clinical findings and his
14 opinion that, after Plaintiff had reached maximum medical improvement
15 following the second surgery, Plaintiff was limited to sedentary work
16 (i.e., lifting no more than 10 pounds). Plaintiff’s condition plainly
17 deteriorated after Dr. Steinmann’s opinion that Plaintiff had reached
18 maximum medical improvement from the first surgery. In fact, Dr.
19 Steinmann ultimately recommended and performed a second surgery for
20 Plaintiff’s deteriorating back condition. As had happened following
21 the first surgery, Plaintiff initially reported improvement, but later
22 complained of worsening pain. After Plaintiff had reached maximum
23 medical improvement following the second surgery, Dr. Steinmann opined
24 in February of 2015 that Plaintiff was limited to lifting no more than
25 10 pounds.
26
27 If the ALJ thought that Dr. Steinman’s February, 2015 opinion did
28 not adequately explain the reasons for finding Plaintiff more limited
after the second surgery than after the first surgery, the ALJ should
2| have inquired further of Dr. Steinmann. “The ALJ has a special duty
3) to fully and fairly develop the record and to assure that the
4) claimant’s interests are considered. This duty exists even when the
5| claimant is represented by counsel.” Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983); accord Garcia v. Commissioner, 768 F.3d 925, 930
7 (9th Cir. 2014); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000)
8] (“Social Security proceedings are inquisitorial rather than
adversarial. It is the ALJ’s duty to investigate the facts and
10] develop the arguments both for and against granting benefits. .. ."”);
11] Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (while it is
12] a claimant’s duty to provide the evidence to be used in making a
13] residual functional capacity determination, “the ALJ should not be a
14] mere umpire during disability proceedings”) (citations and internal
15] quotations omitted); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.
16] 1996) (“If the ALJ thought he needed to know the basis of Dr.
17] Hoeflich’s opinions in order to evaluate them, he had a duty to
18] conduct an appropriate inquiry, for example, by subpoenaing the
physicians or submitting further questions to them. He could also
have continued the hearing to augment the record.”) (citations
21] omitted).
22
23 The other physicians’ opinions do not adequately support the
24| ALJ’s rejection of Dr. Steinmann’s February, 2015 opinion. Dr.
Bernabe’s opinion predates the February, 2015 opinion and consequently
26| does not even mention it. The state agency physicians also did not
27|| discuss specifically Dr. Steinmann’s February, 2015 opinion. See A.R.
28] 85 (summarizing Dr. Steinmann’s records and noting only, “Multiple MSS
Of)
1 [medical source statements]; that mention P&S [permanent and
2 stationary]; reserved for the Commissioner”). The ALJ’s lay
3 discernment of an asserted inconsistency between Dr. Steinmann’s
4 clinical findings and his opinion cannot constitute substantial
5 evidence. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an
6 “ALJ cannot arbitrarily substitute his own judgment for competent
7 medical opinion”) (internal quotation and citation omitted); Rohan v.
8 Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to
9 the temptation to play doctor and make their own independent medical
10 findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an
11 ALJ is forbidden from making his or her own medical assessment beyond
12 that demonstrated by the record).
13
14 Neither the ALJ nor this Court possesses the medical expertise to
15 know whether the objective medical evidence is inconsistent with the
16 limitations Dr. Steinmann found to exist. The ALJ’s lay inferences
17 from Plaintiff’s reported periods of improvement following surgery,
18 followed by periods of decline, cannot properly impugn the medical
19 opinions in this case. Moreover, “[w]ith a degenerative disease, ‘one
20 would expect the Plaintiff’s condition would worsen over time.’”
21 Bullock v. Saul, 2019 WL 4034412, at *5 (E.D. Cal. Aug. 27, 2019)
22 (quoting Geary v. Berryhill, 2018 WL 6182186, at *12 (E.D. Cal.
23 Nov. 27, 2018)).
24 ///
25 ///
26 ///
27 ///
28 ///
1] IIL. The Court is Unable to Deem the ALJ’s Errors Harmless; Remand for
2 Further Administrative Proceedings is Appropriate.
3
4 The Court is unable to conclude that the ALJ’s errors were
5| harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th
Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, but
7) the record is uncertain and ambiguous, the proper approach is to
remand the case to the agency”); see also Molina v. Astrue, 674 F.3d
9) 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is
10] inconsequential to the ultimate non-disability determination”)
11] (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881,
12] 887 (9th Cir. 2011) (error not harmless where “the reviewing court can
13] determine from the ‘circumstances of the case’ that further
14] administrative review is needed to determine whether there was
15] prejudice from the error”).
16
17 Remand is appropriate because the circumstances of this case
18] suggest that further administrative review could remedy the ALJ’s
19] errors. McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura,
20] 537 U.S. 12, 16 (2002) (upon reversal of an administrative
21| determination, the proper course is remand for additional agency
investigation or explanation, except in rare circumstances); Dominguez
23] v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district
24|| court concludes that further administrative proceedings would serve no
useful purpose, it may not remand with a direction to provide
26| benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand
27| for further administrative proceedings is the proper remedy “in all
28] but the rarest cases”); Garrison v. Colvin, 759 F.3d at 1020 (court
YO
1 will credit-as-true medical opinion evidence only where, inter alia,
2 “the record has been fully developed and further administrative
3 proceedings would serve no useful purpose”); Harman v. Apfel, 211 F.3d
4 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand
5 for further proceedings rather than for the immediate payment of
6 benefits is appropriate where there are “sufficient unanswered
7 questions in the record”). There remain significant unanswered
8 questions in the present record, particularly with regard to: (1) the
9 bases for the Dr. Steinmann’s February, 2015 opinion; and (2) the
10 issue of whether Plaintiff would be deemed disabled for all or part of
11 the claimed disability period if Dr. Steinmann’s opinions are
12 credited.
13
14 CONCLUSION
15
16 For all of the foregoing reasons,10 Plaintiff’s and Defendant’s
17 motions for summary judgment are denied and this matter is remanded
18 for further administrative action consistent with this Opinion.
19
20 LET JUDGMENT BE ENTERED ACCORDINGLY.
21
22 DATED: September 26, 2019.
23
/s/
24 CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
25
26
10 The Court has not reached any other issue raised by
27 Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
28