an ALJ cannot avoid the 14 specificity requirements for rejecting treating physician's opinion by not mentioning 15 the opinion and making findings contrary to it
How later courts described this case
- an ALJ cannot avoid the 14 specificity requirements for rejecting treating physician's opinion by not mentioning 15 the opinion and making findings contrary to it
- same where the record does not clearly demonstrate the 12 || claimant is disabled within the meaning of the Social Security Act
- remand for award of benefits is inappropriate where 9 || “there is conflicting evidence, and not all essential factual issues have been 10 || resolved’
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ROSA B. A.,1 Case No. 2:19-cv-02550-AFM
12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER REVERSING AND
14 ANDREW M. SAUL, REMANDING DECISION OF THE
Commissioner of Social Security, COMMISSIONER
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Defendant.
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Plaintiff filed this action seeking review of the Commissioner’s final decision
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denying her applications for disability insurance benefits and supplemental security
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income. In accordance with the Court’s case management order, the parties have filed
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memorandum briefs addressing the merits of the disputed issues. The matter is now
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ready for decision.
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BACKGROUND
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In April 2015, Plaintiff applied for disability insurance benefits and
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supplemental security income, alleging disability since January 26, 2012. Plaintiff’s
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applications were denied. (Administrative Record [“AR”] 159-172.) A hearing took
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27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
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1 place on February 15 and August 29, 2017 before an Administrative Law Judge
(“ALJ”). Plaintiff, who was represented by counsel, and a vocational expert (“VE”)
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testified at the hearing. (AR 121-158.)
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In a decision dated December 6, 2017, the ALJ found that Plaintiff suffered
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from the following severe impairments: atypical chest pain; dysfunction of major
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joints with pain in the bilateral knees, left ankle, right foot, back, and bilateral upper
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extremities; and obesity. (AR 72.) The ALJ determined that Plaintiff retained the
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residual functional capacity (“RFC”) to perform the following restricted range of
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light work: she can lift/carry 20 pounds occasionally and 10 pounds frequently;
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stand/walk for up to six hours per workday; sit for up to six hours per workday;
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frequently climb stairs; occasionally stoop; occasionally reach overhead with the left
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upper extremity; and never climb ladders, balance, kneel, crouch, or crawl. (AR 73.)
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Relying on the testimony of the VE, the ALJ concluded that Plaintiff could perform
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her past relevant work as a sales representative. (AR 77-78.) Recognizing that
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Plaintiff’s work as a sales representative may not have constituted substantial gainful
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activity, the ALJ alternatively found Plaintiff could perform work existing in
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significant numbers in the national economy. (AR 78-79.) Accordingly, the ALJ
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concluded that Plaintiff was not disabled. The Appeals Council subsequently denied
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Plaintiff’s request for review (AR 1-9), rendering the ALJ’s decision the final
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decision of the Commissioner.
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DISPUTED ISSUE
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1. Whether the ALJ properly evaluated the medical opinions of treating
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physician Richard J. Feldman, M.D., and medical examiner Jeffery Berman, M.D.
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STANDARD OF REVIEW
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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
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determine whether the Commissioner’s findings are supported by substantial
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evidence and whether the proper legal standards were applied. See Treichler v.
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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
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1 evidence means “more than a mere scintilla” but less than a preponderance. See
Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
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1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
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U.S. at 401. This Court must review the record as a whole, weighing both the
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evidence that supports and the evidence that detracts from the Commissioner’s
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conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more
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than one rational interpretation, the Commissioner’s decision must be upheld. See
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Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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DISCUSSION
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I. Relevant Medical Evidence
Plaintiff reported knee pain in January 2012 resulting from a work-related
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injury. (AR 500-501.) Left knee x-rays showed no evidence of bony, joint space, or
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soft tissue abnormality, and no fracture. (AR 503, 749.) An MRI was performed in
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February 2012, revealing a horizontal signal in the anterior horn of the lateral
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meniscus with suggestion of communication with the inferior articular margin of the
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free edge, which suggested a possible meniscal tear. The results were similar in the
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posterior horn of the lateral meniscus. There was no frank tear, no bone mass, normal
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tendinous and ligamentous structures, and mild joint effusion. (AR 468-470.) On
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March 26, 2012, Dr. Feldman performed left knee arthroscopy and partial
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meniscectomy. (AR 438.) By July 2012, Dr. Feldman found only mild tenderness,
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no instability with stress testing, negative anterior drawer and Lachman maneuver.
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Dr. Feldman noted that Plaintiff’s complaints were greater than one would expect
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after knee arthroscopy. He prescribed Motrin to reduce inflammation and for pain.
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Dr. Feldman opined that Plaintiff could return to at least modified work duties. (AR
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412.)
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In August 2012, a second MRI of Plaintiff’s left knee showed diminutive size
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of the lateral meniscus, compatible with prior surgery, but no evidence of meniscal
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1 tear. (AR 468, 968.) During an August 2012 physical examination, Dr Feldman found
no effusion, mild diffuse tenderness, unrestricted range of motion, intact cruciate
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function with negative anterior and posterior sign and a negative Lachman maneuver.
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Gross stability of the knee was satisfactory. He noted that Plaintiff continued to
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complain of knee pain, but remarked that the MRI revealed no residual pathology
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that could account for her symptoms. He concluded that Plaintiff was able to work
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modified duties. He recommended viscosupplementation. (AR 402-403.) After an
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examination in September 2012, Dr. Feldman opined that Plaintiff could return to
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work with the restriction that she lift, pull and push no more than 10 pounds and that
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she perform limited kneeling or squatting. He noted that the insurance company had
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denied viscosupplementation. (AR 398, 400-401, 405, 409.)
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An October 2012 examination revealed full flexion of the left knee, mild
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diffuse tenderness, some crepitus, no instability. An examination of Plaintiff’s left
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hip was unremarkable. (AR 389-390.) Dr. Feldman recited Plaintiff’s complaints and
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observed that her symptoms are “somewhat out of proportion to intraoperative
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findings and to the postoperative MRI.” (AR 394.) He noted Plaintiff’s claim that she
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was unable to return to her previous activity level and offered her a corticosteroid
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injection, but Plaintiff refused. Dr. Feldman opined that Plaintiff “has functional
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capacity limits. No prolonged standing or walking, limited kneeling and squatting,
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no heavy lifting, pushing and pulling based on her subjective complaints.” (AR 394.)
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In December 2012, Plaintiff reported additional symptoms stemming from her
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January 2012 injury – specifically, bilateral knee pain, mid and low back pain, neck
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pain, bilateral shoulder pain, and psychiatric complaints. (AR 650.) X-rays of
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Plaintiff’s cervical spine revealed small calcifications of the anterior longitudinal
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ligament at C4-C5 and C5-C6; x-rays of the lumbar spine revealed decreased
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lordosis; x-rays of the bilateral shoulders revealed acromioclavicular degenerative
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joint disease; x-rays of the bilateral knees were normal. (AR 650-651.)
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1 An August 2013 MRI of Plaintiff’s left shoulder revealed enlargement and
intermediate signal changes consistent with tendinosis, but no rotator cuff tear was
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detected. (AR 1049.) An MRI of Plaintiff’s lumbar spine showed multifactorial
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moderate central canal stenosis at L4-L5 with mild foraminal narrowing, some slight
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flattening of the anterior thecal sac at L3-L4, and mild bulging of the L4-S1 disc with
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facet arthropathy, without evidence of significant central or foraminal stenosis. (AR
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1050-1051.)
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Additional x-rays were obtained in June 2014, after Plaintiff was involved in
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a motor vehicle accident. X-rays of Plaintiff’s right knee and thoracic spine were
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unremarkable. (AR 534, 536.) Plaintiff’s lumbar spine showed moderate facet
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arthropathy at L5-S1 without evidence of acute fracture or spondylolisthesis. (AR
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535.)
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In June 2016, Plaintiff’s physical therapist noted that Plaintiff had participated
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in therapy, but did not comply with the onsite exercises and stretches. She also noted
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that while Plaintiff complained of pain, “she was not following the usual pattern of
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people suffering from pain and using trick movements.” (AR 1056-1058.)
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A July 2016 MRI arthrogram of Plaintiff’s left knee showed a grade 1 signal
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intensity in the posterior horn of the medial meniscus, but a low likelihood an
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arthroscopically evident tear. There was thinning of the articular cartilage in the
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medial and lateral joint compartments. (AR 1055.)
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Plaintiff underwent a consultative examination in April 2017, with Marvin
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Perer, M.D. Plaintiff’s grip strength was 0 pounds of force with either hand, but
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Dr. Perer indicated that Plaintiff gave poor effort. (AR 1139-1140.) Plaintiff’s
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exhibited no paraspinal muscle tenderness to palpation or muscle spasm in the
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cervical or lumbar spine. Her range of motion was grossly within normal limits in the
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cervical spine, but limited in the lumbar spine by reports of pain with flexion at 50
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degrees and extension at 15 degrees. Straight-leg-raising was negative in the sitting
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and supine positions. (AR 1141-1142.) With regard to Plaintiff’s upper extremities,
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1 there was no tenderness, joint swelling, or deformities of the shoulders, elbows,
wrists or hands. Plaintiff had normal range of motion with the exception of Plaintiff’s
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shoulders, which were limited in abduction to 80 degrees bilaterally. (AR 1142.)
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Dr. Perer also found no tenderness, joint swelling, deformities, or crepitus of
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Plaintiff’s lower extremities. Plaintiff had normal range of motion, but complained
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of pain in her knees. Neurological examination was normal, with no evidence of
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atrophy or fasciculation, and 5/5 strength in the upper and lower extremities without
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focal motor deficits. (AR 1142.) Plaintiff was able to get off and on the examination
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table without difficulty, did not require an assistive device to ambulate, and her gait
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was normal. (AR 1143.) Dr. Perer opined that Plaintiff was limited to carrying and
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lifting 20 pounds occasionally and 10 pounds frequently; standing and walking six
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hours in an eight-hour workday; sitting up to six hours in an eight-hour workday;
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limited to climbing stairs frequently; and precluded from climbing ladders,
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balancing, stooping, crouching, crawling or kneeling. (AR 1143.)
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Pain management specialist, Raafat Mattar, M.D., examined Plaintiff in March
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and April 2017. Dr. Mattar found Plaintiff’s cervical spine had normal range of
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motion with myofascial trigger points present, paraspinal spasm, normal range of
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motion of the shoulder joint and negative Hawkin’s sign, no tenderness or swelling
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of the left knee, normal range of motion of the left knee, generalized painful and
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restricted lumbar range of motion, facet loading positive bilaterally, and a “hard time
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standing.” He indicated that Plaintiff’s neck and back pain was improved by physical
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therapy, and recommended a lumbar medial branch block and aqua therapy. (AR
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1181-1184, 1187-1190.)
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The ALJ noted the State agency reviewing physician’s opinion that Plaintiff
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was capable of performing light exertional work. (AR 75, 164-168.) She also noted
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that the record included numerous workers’ compensation assessments of either
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temporary total disability or temporary partial disability. (AR 76.)
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1 II. The ALJ’s Consideration of the Medical Opinions
As Plaintiff points out, Dr. Feldman opined that she could lift no more than 10
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pounds and could not engage in prolonged standing, walking or weightbearing. (See
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AR 394, 398-401.) Plaintiff also points out that Jeffrey Berman, M.D., an agreed
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medical examiner, opined that Plaintiff was precluded from prolonged
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weightbearing. (ECF No. 4, citing AR 1121.)2 Plaintiff contends that the ALJ failed
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to provide legally sufficient reasons for rejecting the opinions of Drs. Feldman and
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Berman. For the following reasons, the Court finds Plaintiff’s contention meritorious.
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A. Relevant Law
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The medical opinion of a claimant’s treating physician is entitled to controlling
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weight so long as it is supported by medically acceptable clinical and laboratory
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diagnostic techniques and is not inconsistent with other substantial evidence in the
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record. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). If a treating or
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examining physician’s medical opinion is uncontradicted, the ALJ may only reject it
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based on clear and convincing reasons. Trevizo, 871 F.3d at 675; Ryan v. Comm’r of
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Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating or examining
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physician’s opinion is contradicted, the ALJ must provide specific and legitimate
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reasons supported by substantial evidence in the record before rejecting it. Trevizo,
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871 F.3d at 675; Ghanim v. Colvin, 763 F.3d 1154, 1160-1061 (9th Cir. 2014);
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Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ can meet the
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requisite specific and legitimate standard “by setting out a detailed and thorough
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summary of the facts and conflicting clinical evidence, stating his interpretation
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thereof, and making findings.” Trevizo, 871 F.3d at 675 (citations and internal
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quotation marks omitted). Because the opinions of Plaintiff’s Drs. Feldman and
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2 Plaintiff cites a comprehensive orthopedic evaluation and report prepared in May 2016 in which
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Dr. Berman’s report and opinion is summarized. According to the summary, Dr. Berman rendered
27 this opinion after examining Plaintiff in September 2013. (AR 1118-1121.) It is unclear whether
Dr. Berman’s report is itself included in the record.
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1 Berman3 were contradicted by the opinion of the consultative examining physician
(AR 1143) and the State agency physician (AR 164-168), the ALJ was required to
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provide specific and legitimate reasons for rejecting them.
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B. Analysis
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In assessing the weight of the medical opinions, the ALJ began by noting that
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the State Agency physician and Dr. Perer (the consultative examiner) agreed that
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Plaintiff could perform a reduced range of light work. (AR 75, citing AR 159-168
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and 1143.) The ALJ gave significant weight to those opinions, finding them
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consistent with the medical records (AR 75-76) and essentially adopted Dr. Perer’s
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opinion regarding Plaintiff’s functional capacity.
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The opinions of both Dr. Feldman and Dr. Berman were rendered in the course
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of Plaintiff’s workers’ compensation case. With respect to these opinions, the ALJ
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stated:
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While the California workers’ compensation assessments generated as
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part of the claimant’s workers’ compensation claim do not directly
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translate into Social Security terms, I find they are not inconsistent with
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my conclusion that the claimant is capable of a reduced range of light
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work as described above. However, I find no more severe limitations
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are warranted by the record to the extent that workers’ compensation
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opinions can be interpreted as giving the claimant greater limitations. In
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fact, in June 2012, the claimant’s workers’ compensation doctor,
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Dr. Feldman, merely recommended one more month of physical
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therapy, and anticipated the claimant returning to the workforce in some
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capacity after that ([AR 417]). In addition, in October 2012,
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Dr. Feldman based the claimant’s functional limitations on the
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claimant’s subjective complaints, but noted the claimant’s symptoms
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3 Dr. Feldman was a treating physician. Dr. Berman was a consultative examining physician. The
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1 were somewhat out of proportion to her intraoperative findings and to
the postoperative MRI ([AR 394]).
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(AR 76-77.)
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The ALJ’s analysis of Dr. Feldman’s opinion does not satisfy the applicable
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law. To begin with, the ALJ’s statement that the assessments are not inconsistent
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with her RFC determination is erroneous. Contrary to the ALJ’s characterization,
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Dr. Feldman’s opinions that Plaintiff was precluded from prolonged standing or
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walking and precluded from lifting more than 10 pounds directly conflict with the
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ALJ’s RFC. Consequently, it appears that the ALJ failed to recognize that she was
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explicitly rejecting Dr. Feldman’s opinions.
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In addition, the ALJ’s reasoning is insufficiently specific. The ALJ lumped
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together multiple opinions of the workers’ compensation physicians, and appears to
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have failed to recognize Dr. Feldman as a treating physician. See, e.g., Lingenfelter
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v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (an ALJ cannot avoid the
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specificity requirements for rejecting treating physician's opinion by not mentioning
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the opinion and making findings contrary to it); Angelica R. v. Saul, 2019 WL
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5618079, at *9 (C.D. Cal. Oct. 31, 2019) (ALJ failed to provide specific and
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legitimate reason for rejecting treating physicians’ opinions where ALJ lumped
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together the opinions of multiple workers’ compensation physicians and failed to
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acknowledge a particular physician’s opinion).
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The Court notes that the ALJ’s decision does mention one reason for rejecting
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Dr. Feldman’s opinion – namely, that it was based upon Plaintiff’s subjective
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complaints, complaints which Dr. Feldman observed did not comport with the
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objective medical evidence. Nevertheless, the ALJ’s failure to recognize Dr. Feldman
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as a treating physician, failure to recognize that some of Dr. Feldman’s opinions
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directly contradicted the ALJ’s RFC assessment, and failure to clearly identify which
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specific opinion or opinions that she rejected preclude the conclusion that this
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1 constitutes a sufficiently specific and legitimate reason supporting the ALJ’s
decision.
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Furthermore, the ALJ did not specifically address Dr. Berman’s opinion. It is
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true that an ALJ is “not required to discuss every piece of evidence.” See Howard
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ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). An ALJ must,
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however, discuss significant probative evidence. See Howard, 341 F.3d at 1012;
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Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). Because
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Dr. Berman’s opinion that Plaintiff is precluded from prolonged weightbearing
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constitutes significant probative evidence, the ALJ was required to explain why she
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rejected it. Yet the only specific reason provided by the ALJ – namely, Dr. Feldman’s
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statement that his opinion was based upon Plaintiff’s subjective complaints – does
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not appear to apply to Dr. Berman.
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An ALJ’s failure to properly evaluate a treating physician’s opinion may be
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harmless error when a reviewing court “can confidently conclude that no reasonable
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ALJ, when fully crediting the [opinion], could have reached a different disability
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determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout
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v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-1056 (9th Cir. 2006)). Crediting
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some or all of the opinions of either Dr. Feldman or Dr. Berman would likely have
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affected the ALJ’s RFC and, consequently, the hypothetical posed to the VE. See
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Ghanim, 763 F.3d at 1166. Accordingly, the Court cannot conclude that the ALJ’s
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error was harmless.
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REMEDY
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Ninth Circuit case law “precludes a district court from remanding a case for an
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award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808
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F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first
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determine that the ALJ made a legal error, such as failing to provide legally sufficient
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reasons for rejecting evidence. . . . If the court finds such an error, it must next review
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the record as a whole and determine whether it is fully developed, is free from
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1 || conflicts and ambiguities, and all essential factual issues have been resolved.”
2 || Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted).
3 Although the Court has found error as discussed above, the record on the whole
4 || is not fully developed, and factual issues remain outstanding. The issues concerning
5 || Plaintiff's alleged disability “should be resolved through further proceedings on an
6 || open record before a proper disability determination can be made by the ALJ in the
7 || first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see
8 || also Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where
9 || “there is conflicting evidence, and not all essential factual issues have been
10 || resolved’) (citation omitted); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d
11 | 1135, 1138 (9th Cir. 2011) (same where the record does not clearly demonstrate the
12 || claimant is disabled within the meaning of the Social Security Act).
13 Accordingly, the appropriate remedy is a remand for further administrative
14 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g).4
15 IT IS ORDERED that Judgment be entered reversing the decision of the
16 || Commissioner of Social Security and remanding this matter for further
17 || administrative proceedings consistent with this opinion.
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19 || DATED: 1/10/2020
: Chty Mock
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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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28 |! « i is not the Court’s intent to limit the scope of the remand.
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