“Here, there is neither 20 evidence to support that Orn’s activities were ‘transferable’ to a work setting nor 21 proof that Orn spent a ‘substantial’ part of his day engaged in transferable skills.”
How later courts described this case
- “Here, there is neither 20 evidence to support that Orn’s activities were ‘transferable’ to a work setting nor 21 proof that Orn spent a ‘substantial’ part of his day engaged in transferable skills.”
- “When an examining [or consulting] physician relies on the 13 same clinical findings as a treating physician, but differs only in his or her 14 conclusions, the conclusions of the examining [or consulting] physician are not 15 ‘substantial evidence.’”
- “The 14 primary function of medical records is to promote communication and 15 recordkeeping for health care personnel—not to provide evidence for disability 16 determinations.”
- noting that “the decision of whether to remand for further 24 proceedings turns upon the likely utility of such proceedings”
Written by the judges who cited it.
The opinion
1
2
3
4 O
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 KARENA D., Case No. 5:20-cv-01065 KES
12 Plaintiff,
13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW M. SAUL, Commissioner
of Social Security,
15
Defendant.
16
17
18 I.
19 BACKGROUND
20 In December 2015 at age 34, Karena D. (“Plaintiff”) applied for Title I and
21 Title XVI disability benefits alleging an onset date of February 24, 2014, due to
22 rheumatoid arthritis (“RA”), fibromyalgia, anxiety, and depression. Administrative
23 Record (“AR”) 39, 196–208, 228, 232. On October 4, 2018, an Administrative
24 Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who was represented by
25 counsel, appeared and testified along with a vocational expert (“VE”). AR 36–56.
26 On November 29, 2018, the ALJ issued an unfavorable decision.1 AR 16–28.
27
1 Plaintiff testified that she was diagnosed with RA at age 28 and it has
28 caused progressively worsening pain and hand deformities. AR 45. A prior
1 The ALJ found that Plaintiff’s “rheumatoid arthritis, fibromyalgia, lupus,
2 interstitial lung disease,[2] degenerative joint disease of the bilateral knees, and
3 obesity” were severe, medically determinable impairments. AR 19. The ALJ
4 assessed that Plaintiff had the residual functional capacity (“RFC”) to perform a
5 reduced range of light work. AR 22. As relevant here, the ALJ found that Plaintiff
6 could “frequently” handle or finger with her bilateral upper extremities. AR 22.
7 Based on this RFC and the VE’s testimony, the ALJ found that Plaintiff could
8 perform her past sedentary work as a receptionist or customer order clerk as both
9 actually and generally performed. AR 27–28 (referring to Dictionary of
10 Occupational Titles [“DOT”] codes 237.367-038 and 249.362-026).3 The ALJ
11 concluded that Plaintiff was not disabled. AR 28.
12 II.
13 ISSUES PRESENTED
14 Issue One: Whether the ALJ erred in discounting the opinion of state agency
15 consultant Stuart L. Laiken, M.D., regarding limitations on Plaintiff’s handling and
16 fingering. (Dkt. 22, Joint Stipulation [“JS”] at 4–5.)
17 Issue Two: Whether the ALJ erred in discounting the opinion of treating
18 rheumatologist Amal Mehta, M.D., of Southland Arthritis. (Id. at 4, 24.)
19
20
application was denied in August 2015. AR 228.
21
2 Interstitial lung disease can “cause progressive scarring of lung tissue [that]
22
eventually affects your ability to breathe …. Some types of autoimmune diseases,
23 such as rheumatoid arthritis, also can cause interstitial lung disease.”
<https://www.mayoclinic.org/diseases-conditions/interstitial-lung-
24
disease/symptoms-causes/syc-20353108> (last viewed Feb. 19, 2021).
25 3 Per the DOT, working as a receptionist requires “frequent” handling,
26 “occasional” fingering, and level 4 dexterity (meaning the lowest 1/3 excluding the
bottom 10%). DOT 237.367-038, 1991 WL 672192. Working as an order clerk
27
requires “frequent” handling and fingering and level 4 dexterity. DOT 249-362-
28 026, 1991 WL 672320.
1 Issue Three: Whether the ALJ erred in discounting Plaintiff’s subjective
2 statements concerning the intensity of her pain and resulting functional limitations.
3 (Id. at 4, 37.)
4 III.
5 DISCUSSION
6 A. ISSUES ONE AND TWO: Drs. Mehta and Laiken.
7 1. The ALJ’s Weighing of the Medical Opinion Evidence.
8 Three doctors provided opinions about how Plaintiff’s impairments limited
9 her ability to use her hands.
10 • On February 2, 2016, Dr. Laiken opined that Plaintiff could use her
11 bilateral upper extremities for only “occasional” fine and gross manipulations due
12 to “severe arthritis.” AR 69–70, 84–85.
13 • On August 23, 2016, state consultative examiner K. Vu., D.O., opined that
14 Plaintiff’s only manipulative limitation was that her right upper extremity handling
15 and fingering be limited to “frequent due to numbness.” AR 101–02, 116–17.
16 • On October 9, 2018, Dr. Mehta wrote a letter explaining that he had treated
17 Plaintiff since May 2013 for RA, lupus, and fibromyalgia. AR 1876. Dr. Mehta
18 opined that these autoimmune diseases caused “bilateral hand deformities” that
19 “significantly limit[ed Plaintiff’s] ability to use her hands.” AR 1876. Dr. Mehta
20 explained that Plaintiff’s case was atypical, because she had tried “almost every
21 FDA-approved medication” but continued to have “significant disability,” in that
22 she could not “grasp objects, pull, push; she cannot lift more than 5 pounds and
23 cannot type on a computer. She has difficulty writing due to her hand deformities.”
24 AR 1876.
25 The ALJ gave “little” weight to the opinions of Drs. Laiken and Mehta and
26 “great” weight to Dr. Vu’s opinion. AR 25–26. The ALJ found that Plaintiff could
27 perform “frequent” fingering and handling, meaning up to 6 hours in an 8-hour
28 workday. AR 22; see Social Security Ruling (SSR”) 83-10, 1983 WL 31251, at *6,
1 1983 SSR LEXIS 30, at *14 (“‘Frequent’ means occurring from one-third to two-
2 thirds of the time … [or] for a total of approximately 6 hours of an 8-hour
3 workday.”).
4 2. The ALJ’s Finding of Inconsistency Is Not Supported by
5 Substantial Evidence.
6 The ALJ’s primary reason for discrediting the opinions of Drs. Laiken and
7 Mehta was a finding that they overstated the disabling effects of Plaintiff’s RA,
8 inconsistent with the weight of the medical evidence. AR 25–27. The ALJ also
9 cited inconsistency between Dr. Mehta’s opinion that Plaintiff “cannot type on a
10 computer” (AR 1876) and Plaintiff’s cousin’s report that Plaintiff could use a
11 computer to shop online (AR 260). AR 26. Finally, the ALJ noted that Dr. Laiken
12 did not have the opportunity to review most of the medical evidence, which was
13 received after he gave his opinion. AR 26.
14 First, Dr. Mehta’s opinion that Plaintiff “cannot type on a computer” is not
15 an opinion that Plaintiff could not use a computer at all. Being able to shop online,
16 which can often be accomplished with a few mouse clicks, is not necessarily
17 inconsistent with being unable to type or, more precisely, with being unable to type
18 with the speed, stamina, and accuracy required to work as a receptionist or order
19 clerk. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“Here, there is neither
20 evidence to support that Orn’s activities were ‘transferable’ to a work setting nor
21 proof that Orn spent a ‘substantial’ part of his day engaged in transferable skills.”).
22 Second, while it is true that Dr. Laiken could not consider any evidence from
23 2017 or 2018, neither could Dr. Vu, who gave his opinion only six months after Dr.
24 Laiken gave his. This is not a persuasive reason for giving Dr. Vu’s opinion more
25 weight than Dr. Laiken’s. See Perez v. Astrue, 250 F. App’x 774, 776 (9th Cir.
26 2007) (remanding in part because the ALJ’s findings were “internally inconsistent”
27 and thus “not supported by substantial evidence”): Hernandez v. Saul, No. 1:19-
28 CV-01531, 2021 WL 84397, at *4, 2021 U.S. Dist. LEXIS 5096, at *10 (E.D. Cal.
1 Jan. 11, 2021) (“Material inconsistencies and ambiguities in the ALJ’s decision
2 generally warrant remand.”). Further, Dr. Vu found no manipulative limitations to
3 Plaintiff’s left upper extremity (AR 101, 116) despite objective evidence indicating
4 bilateral hand and finger limitations. E.g. AR 334–36, 391, 453, 464, 470, 528.
5 Third, the ALJ cited six treating records (all which post-date both Drs.
6 Laiken’s and Vu’s opinions) as purportedly demonstrating why the opinions of Drs.
7 Laiken and Mehta are inconsistent with the weight of the medical evidence (AR
8 26), as follows:
9 Item Ex/Page AR Date Description
10
1 30F/11 1652 10/10/16 Plaintiff was admitted to Inland Valley
11 Medical Center ER after being rear-ended in a
car accident. She complained of “neck, back,
12
and hand pain.” AR 1651. The ER ordered
13 multiple x-rays. AR 1653. “X-ray reveals
fracture of scaphoid [wrist bone]. She also has
14
swelling and ecchymosis [bruising] of right
15 fifth finger, full range of motion, negative for
fracture on x-ray per radiologist. Remaining x-
16
rays of spine and chest are negative ….” AR
17 1650. “She does have atrophy noted of thenar
eminence [group of muscles on palm at base of
18
thumb] bilaterally, consistent with chronic
19 rheumatoid arthritis.” AR 1649–50. She was
given a splint for her right hand and pain
20
medication. AR 1650. ER records also say,
21 “Normal ROM, normal strength, no tenderness,
no swelling, no deformity.” AR 1652.
22
Plaintiff followed up the next day with her
23 primary care physician at Neighborhood
24 Healthcare (“NH”) who reported, “She was
diagnosed with a closed fracture of navicular
25
bone of right wrist. She has a temporary cast
26 and states her fifth finger is tender.” AR 1706,
1707 (“right forearm on splint”). Plaintiff was
27
referred for a consultation for possible hand
28 surgery. AR 1708.
1 Item Ex/Page AR Date Description
2
2 30F/8 1649 10/10/16 X-ray thoracic of spine indicated no fracture or
3
dislocation. See AR 1656 (x-rays lumbar spine
4 showing same).
5 3 32F/17 1694 2/7/17 Plaintiff followed up with Leah Patrick, D.O.,
6 at NH after visiting the Loma Linda University
Medical Center (“LLUMC”) ER complaining
7 of tachycardia.4 AR 1963, 1698. The note
8 says Plaintiff denied “joint pain, swelling,” but
it also says that the denial of symptoms
9 “applies except for what is mentioned in HPI
10 [history of present illness].” AR 1694. Dr.
Patrick noted no edema or tenderness. AR
11 1694.
12 A month earlier, Plaintiff told NH she had
heart palpitations and chest pressure. AR
13
1696. She also complained that “Pain in hands
14 make it difficult to shower.” AR 1696. This
record has a similar note that Plaintiff denied
15
joint pain “except for what is mentioned in
16 HPI.” AR 1697. Again, Dr. Patrick noted no
17 edema or tenderness (AR 1697) but ordered
Plaintiff a “shower bench due to pain and
18 weakness from her RA” (AR 1698). Dr.
19 Patrick referred Plaintiff to rheumatology to
treat her RA. AR 1701.
20
4 24F/7 1191 12/19/17 X-ray of bilateral knees indicated “minimal
21
degenerative” changes.
22
5 24F/9 1193 12/19/17 X-ray of bilateral hands indicated “mild to
23 moderate joint space narrowing [of] the
24 intercarpal joints and radiocarpal joint of both
hands” and “very mild joint space narrowing.”
25
26 4 LLUMC ER records reflect Plaintiff was admitted about a week earlier on
January 26, 2017, complaining of “heart racing.” AR 606. The ER staff observed
27
“no swelling, no deformity” with “normal” motor and coordination. AR 607. They
28 noted, “Patient has a history of [RA] and is between treatments ….” AR 612.
1 Item Ex/Page AR Date Description
2
In “bilateral DIP and PIP joints [knuckles],”
3 findings characterized as “compatible with
history of [RA].”
4
5 6 24F/8 1192 4/28/18 A nerve conduction study found no electrical
evidence of neuropathy.
6
Both before and after this test, Dr. Mehta
7 wrote, “Borderline right carpal tunnel cannot
8 be excluded per neurology.” AR 1200, 1217.
9 a. Item 1.
10 Item 1 (AR 1652) does indeed say that Plaintiff had a normal range of
11 motion, normal strength, no tenderness, and no swelling, as the ALJ noted. AR 25.
12 It is unreasonable, however, to interpret this ER record as meaning that Plaintiff had
13 a full range of motion in her wrist and finger joints when the same ER gave her a
14 splint for her right hand/forearm and pain medication. AR 1650. The ER staff
15 expressly noted that some of Plaintiff’s hand muscles had atrophied from disuse
16 consistent with RA (AR 1649–50), suggesting that the notation of “normal
17 strength” was not meant to apply to Plaintiff’s hands.
18 b. Item 2.
19 The ALJ identified Item 2 as an “x-ray scan of the lumber spine that
20 indicated no abnormalities.” AR 36. While spinal x-rays taken after Plaintiff’s car
21 accident showed no injuries, that appears irrelevant to the issue raised in this appeal
22 concerning Plaintiff’s ability to use her hands and fingers. In contrast, an x-ray of
23 Plaintiff’s right hand taken after the accident showed “possible fracture scaphoid”
24 and “degenerative changes radiocarpal joint.” AR 1656.
25 c. Item 3.
26 The ALJ cited Item 3 to support the assertion that “other examinations
27 indicate no tenderness of the extremities.” AR 26. Dr. Patrick’s progress notes all
28 contain exactly the same language: “EXTREMITIES: no clubbing, cyanosis, or
1 edema, no erythema or tenderness.”5 See AR 1697, 1701 (January 2017), 1694
2 (February 2017), 1691 (March 2017), 1683 (February 2018), 1679 (March 2018).
3 Progress notes with this notation include the visit during which Dr. Patrick found a
4 shower bench medically necessary for Plaintiff because she reported that arthritis
5 pain made showering difficult. AR 1697–98.
6 Other doctors observed tenderness and joint abnormalities. On February 18,
7 2014 (i.e., just days prior to her alleged onset date), Plaintiff went to the ER
8 complaining of left middle finger pain. AR 1603. She presented with “swelling”
9 and was “unable to straighten out her finger.” AR 1603. The ER noted her history
10 of RA. AR 1603. They examined her left hand and saw “no deformity, left hand
11 tender to second and 3rd MCP joints with associated swelling.” AR 1605. An x-
12 ray revealed “some widening of the scapholunate space at the carpal bones which
13 could be secondary to a ligament injury.” AR 1605. The ER doctor opined, “I
14 thought that the patient’s swelling and pain were secondary to her underlying
15 [RA]. … I advised patient to follow up with her rheumatologist.” AR 1606.
16 On June 7, 2014, Plaintiff returned to the ER complaining of “white spots”
17 on her left hand. AR 1516–19. The ER noted a “history” of RA but no erythema,
18 peripheral edema, or cyanosis with a “full range of motion of the joints in
19 extremities.” AR 1519–20. Plaintiff was diagnosed as suffering from
20 hypopigmentation. AR 1520.
21
22 5 “Clubbing” refers to “a deformity of the finger or toe nails associated with a
number of diseases,” including interstitial lung disease. <https://en.wikipedia.
23
org/wiki/Nail_clubbing> (last viewed March 9, 2021). “Cyanosis” refers to “the
24 bluish or purplish discoloration of the skin or mucous membranes due to the tissues
near the skin surface having low oxygen saturation.” <https://en.wikipedia.org/
25
wiki/Cyanosis> (last viewed March 9, 2021). “Edema” refers to “the build-up of
26 fluid in the body’s tissue.” <https://en.wikipedia.org/wiki/Edema> (last viewed
March 9, 2021). “Erythema” is “redness of the skin or mucous membranes, caused
27
by hyperemia (increased blood flow) in superficial capillaries.” <https://en.
28 wikipedia.org/wiki/Erythema> (last viewed March 9, 2021).
1 In June 2015, Babak Zamiri, M.D., of the UC Riverside Arthritis Medical
2 Clinic, observed that Plaintiff reported pain and presented with “swollen joints”
3 including “wrists, fingers, and knees.” AR 528. Plaintiff was positive for
4 “deformities and swelling” and “decrease ROM wrists.” AR 334–36. Plaintiff re-
5 established care with Southland Arthritis in December 2015. AR 390. At that time,
6 she was “not on any meds.” AR 390. She complained of 10/10 joint pain and
7 swelling; Chandrakant V. Mehta, M.D.,6 observed “synovitis msps PIP wrist
8 diffusely, puffiness in both hands, synovitis and tenderness both wrists.”7 AR 391.
9 He also noted “atrophy of hand muscles” and “poor grip.” AR 470. He assessed
10 her RA as “very active.” AR 471.
11 By January 2016, Dr. Mehta observed “no synovitis,” but an MRI revealed
12 “flexor and extensor tenosynovitis, mcp effusions [swelling] and cortical [outer
13 bone surface] irregularities. No ligamentous tear.” AR 466. Dr. Mehta ordered
14 hand and wrist x-rays and prescribed a “trial prednisone burst.” AR 467. In
15 February 2016, he reviewed the x-rays with Plaintiff and noted that her shortness of
16 breath had “improved with prednisone burst.” AR 464–65. He observed, however,
17 that she again had “diffuse mcp, pip, b/l wrist and b/l knee synovitis.” AR 464. In
18 March 2016, he referred her to physical therapy for knee pain. AR 461–62. In May
19
20
21 6 Drs. Amal Mehta and Chandrakant V. Mehta are both associated with
Southland Arthritis. AR 396. The treating records indicate that Plaintiff primarily
22
saw Dr. Amal Mehta. Hereinafter, the Court will refer to Dr. Amal Mehta as “Dr.
23 Mehta” and Dr. Chandrakant V. Mehta as “Dr. C. Mehta.”
24 7 In RA, “the body’s immune system attacks the lining of the joint capsule, a
tough membrane that encloses all the joint parts. This lining (synovial membrane)
25
becomes inflamed and swollen.” Synovitis refers to inflammation of the synovial
26 membrane, and it may be associated with observable symptoms such as swelling,
redness, and/or warmth of the affected joint. See <https://www.mayoclinic.org/
27
diseases-conditions/arthritis/symptoms-causes/syc-20350772> (last viewed
28 February 19, 2021).
1 2016, he requested authorization for a “diagnostic ultrasound of bilateral hands to
2 evaluate for synovitis and erosions.” AR 455.
3 In June 2016, after receiving the ultrasound results, Dr. Mehta noted that
4 “MSK [musculoskeletal] ultrasound of b/l hands reveal erosions in the right 1st and
5 2nd mcp [metacarpal] joint and synovitis at the left flexor tendons.” AR 453. In
6 July 2016, Dr. Mehta observed Plaintiff was positive for “diffuse mcp, pip …
7 synovitis.” AR 448. He wrote, “MCP erosions on ultrasound.” AR 448. He
8 recorded results from ESR [erythrocyte sedimentation rate] and CRP [C-reactive
9 protein] testing and requested authorization for electromyography (“EMG”) testing.
10 AR 448; cf. AR 1112 (October 2016 ER records noting an “arthritis flare” but
11 concluding that Plaintiff’s symptoms are “anxiety-based”). Southland Arthritis’s
12 2017 and 2018 records consistently document synovitis affecting Plaintiff’s hand
13 joints. See, e.g., AR 1251 (April 2017: “atrophy dorsal muscle of hands; synovitis
14 and ulner deviation; poor grip”), 1245 (June 2017: “diffuse MCP synovitis and
15 ulnar deviation b/l hands”), 1219 (March 2018: “diffuse mcp synovitis, b/l hand
16 reducible deformities”), 1298 (April 2018: referring Plaintiff for a surgical
17 consultation “for hand deformities per patient request”), 1208 (May 2018: “warmth
18 to b/l wrists”).
19 Progress notes from NH (like the note from Dr. Patrick cited by the ALJ as
20 Item 3) consistently defer to rheumatology (i.e., Dr. Mehta) for Plaintiff’s RA
21 treatment. See, e.g., AR 1763 (“new patient” who “needs to establish care for new
22 referrals to see Rheum”), 1761 (“Pt was referred to Rheum”), 1744, 1747, 1751
23 (noting outstanding referral to Rheumatology), 1736 (“arthritis: care instructions
24 material was printed”),1732 (“Patient here for EDD forms to be filled out for
25 temporary disability due to RA,” but reflecting no diagnosis or treatment of RA
26 during visit), 1730 (noting “EXTREMITIES: no clubbing cyanosis, or edema” but
27 also noting “generalized joint point from RA”). An NH progress note dated
28 December 4, 2015, states in response to Plaintiff’s complaint of pain that “it has to
1 be her Rheumatologist who refills medications”; that NHC record does not mention
2 RA as an “assessed” condition and continues to say “no clubbing, cyanosis, or
3 edema” to describe Plaintiff’s extremities. AR 1750. In contrast, a note from Dr.
4 C. Mehta made about a week later on December 19, 2015, noted, “synovitis msps
5 PIP wrist diffusely, puffiness in both hands, synovitis and tenderness both wrists.”
6 AR 391.
7 Read in the context of the whole record, the probative value of Dr. Patrick’s
8 notes seeming to indicate the constant absence of any joint swelling or tenderness is
9 low. It seems far more probable that Dr. Patrick did not examine Plaintiff’s hands
10 for warmth, swelling, or redness each time Plaintiff visited NHC, and that Dr.
11 Patrick’s progress notes simply repeated standard language denying extremity
12 abnormalities, because Dr. Patrick knew that Plaintiff was receiving specialized RA
13 treatment from Dr. Mehta and Southland Arthritis. See Orn, 495 F.3d at 634 (“The
14 primary function of medical records is to promote communication and
15 recordkeeping for health care personnel—not to provide evidence for disability
16 determinations.”).
17 d. Item 4.
18 Item 4 is irrelevant to Plaintiff’s ability to use her hands and fingers.
19 e. Item 5.
20 The ALJ cites to Item 5, a December 2017 bilateral hand x-ray, as indicating
21 only “mild to moderate” joint space narrowing and thus inconsistent with Dr.
22 Mehta’s opinion that Plaintiff’s RA causes more serious functional limitations than
23 those posited by Dr. Vu. AR 26 (citing AR 1193 [radiologist’s report]).
24 Dr. Mehta ordered these x-rays. AR 1310. He reviewed them with Plaintiff
25 in January 2018, but his treating record does not interpret them. AR 1307. Among
26 other things, the radiologist’s report says, “A small effusion is seen in the right ulna
27 styloid. Mild fraying is seen in the left ulnar styloid. Periarticular osteopenia is
28 demonstrated.” AR 1193. The x-rays also showed “tiny subcortical cysts.” AR
1 1193. It concluded that these findings “are compatible with history of [RA].” AR
2 1193.
3 These x-rays were taken long after Drs. Laiken and Vu offered their
4 opinions. After reviewing these x-rays, Dr. Mehta continued to observe that
5 Plaintiff had “diffuse mcp synovitis, b/l hand reducible deformities.” AR 1306. He
6 later wrote, “her RA and Lupus [are] uncontrolled and she has active joint
7 involvement with joint deformities.” AR 1304. Dr. Mehta clearly did not think
8 that these x-rays were inconsistent with his findings of synovitis or deformities or
9 his later opinions concerning Plaintiff’s limitations on using her hands. No doctor
10 other than Dr. Mehta ever reviewed these x-rays and considered how, if at all, they
11 informed the severity of the functional limitations caused by Plaintiff’s RA. See
12 Orn, 495 F.3d at 632 (“When an examining [or consulting] physician relies on the
13 same clinical findings as a treating physician, but differs only in his or her
14 conclusions, the conclusions of the examining [or consulting] physician are not
15 ‘substantial evidence.’”).
16 In some cases, a person without medical training (like the ALJ or this Court)
17 can see that an x-ray contradicts a medical opinion and explain why.8 This is not
18 such a case. Joint space narrowing and other bone conditions shown on x-rays may
19 be insufficient to assess the severity of RA without correlation to the other imaging
20 tests in the record, such as MRIs or ultrasounds. The ALJ did not explain why or
21 how the x-rays were inconsistent with Dr. Laiken’s and Dr. Mehta’s opinions of
22 Plaintiff’s handling limitations. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th
23 Cir. 2014) (“The ALJ must do more than state conclusions. He must set forth his
24 own interpretations and explain why they, rather than the doctors’, are correct.”)
25
26
8 For example, an x-ray showing only mild disc space narrowing may be
27
understood as inconsistent with a claim of disabling pain caused by degenerative
28 disc disease.
1 (citation omitted). Item 5, therefore, is not substantial evidence supporting the
2 ALJ’s finding of inconsistency.
3 f. Item 6.
4 Finally, Item 6 reflects an April 2018 “normal” nerve conduction study on
5 both upper extremities. AR 26 (citing AR 1192). Again, Dr. Mehta ordered this
6 study and was aware of it. AR 1209–10 (noting “normal” April 2018 test in May
7 2018 with comment, “presently, I think the patient has RA with fibromyalgia but
8 would not rule out UCTD [undifferentiated connective tissue disease] (an
9 overlap)”).
10 Like the Item 5 x-rays, this EMG testing was done long after Drs. Laiken and
11 Vu offered their opinions. No doctor other than Dr. Mehta considered whether this
12 “normal” EMG study undermined the conclusion that Plaintiff’s RA caused serious
13 hand dysfunction, and he did not think it did. It seems entirely plausible that while
14 such a study might rule out nerve damage as the cause of Plaintiff’s pain, it would
15 not inform the degree to which joint pain or deformity caused by RA might impair
16 Plaintiff’s ability to handle and finger.
17 B. Remand for Further Proceedings Is Appropriate.
18 When an ALJ errs in denying benefits, the Court generally has discretion to
19 remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175–78
20 (9th Cir. 2000). When no useful purpose would be served by further administrative
21 proceedings, however, or when the record has been fully developed, it is
22 appropriate under the “credit-as-true” rule to direct an immediate award of benefits.
23 See id. at 1179 (noting that “the decision of whether to remand for further
24 proceedings turns upon the likely utility of such proceedings”); Garrison, 759 F.3d
25 at 1019–20; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100–01
26 (9th Cir. 2014).
27 Here, remand for further proceedings is appropriate. The ALJ may obtain
28 testimony from a medical expert who can review the totality of the medical
1 || evidence and offer opinions as to whether it 1s, or is not, consistent with functional
2 || limitations on the use of Plaintiff's hands more restrictive than those in the current
3 || RFC or those opined by Drs. Laiken or Mehta. The ALJ can consider if a
4 || consultative examination by a rheumatologist would be helpful. If Plaintiff is
5 || limited to less-than-frequent handling and fingering, then the ALJ may also obtain
6 || testimony from a VE to determine the impact of such a limitation on other available
7 || work. The ALJ may wish to consider vocational data presented by Plaintiff
8 || concerning the typing-related demands of any alternative work considered. Finally,
9 || the ALJ may consider the other claims of error raised by Plaintiff on appeal, but not
10 || addressed herein, or any other issues relevant to the determination of Plaintiff's
11 || eligibility for benefits.’
12 IV.
13 CONCLUSION
14 For the reasons stated above, IT IS HEREBY ORDERED that, pursuant to 42
15 || U.S.C. § 405(g), judgment be entered REVERSING the decision of the Social
16 || Security Commissioner and REMANDING this matter for further proceedings
17 || consistent with this opinion.
18
19 || DATED: March 15, 2021 Df seam Scott ?
0 KAREN E. SCOTT
United States Magistrate Judge
22
23
24
25
26
27 For example, the outcome of Plaintiff's 2017 arrest for welfare fraud is
28 || unclear, but a conviction might impact Plaintiff's eligibility for benefits. AR 1798.
14