Brooks v. Commissioner of Social Security

1

2

3

4 IN THE UNITED STATES DISTRICT COURT

5 FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 JOHNNY BROOKS, Case No. 18-cv-06958-MMC

8 Plaintiff,

ORDER GRANTING PLAINTIFF'S

9 v. MOTION FOR SUMMARY

JUDGMENT; DENYING

10 ANDREW SAUL, Commissioner of DEFENDANT'S CROSS-MOTION FOR

Social Security,1 SUMMARY JUDGMENT

11

Defendant. Re: Doc. Nos. 19, 20

12

13 Before the Court is plaintiff Johnny Brooks’ (“Brooks”) motion for summary

14 judgment, filed May 29, 2019, by which Brooks seeks review of a decision issued

15 September 16, 2015, by an administrative law judge (“ALJ”), denying his claim for Social

16 Security supplemental security income (“SSI”). Also before the Court is the cross-motion

17 for summary judgment, filed June 26, 2019, by defendant, the Commissioner of Social

18 Security (“Commissioner”). Pursuant to Civil Local Rule 16-5, the motions have been

19 submitted on the papers without oral argument. Having read and considered the parties’

20 respective written submissions, the Court rules as follows.

21 BACKGROUND

22 On December 15, 2014, Brooks filed an application for SSI, alleging a period of

23 disability beginning August 13, 1997,2 based on numerous physical and mental

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1 Andrew Saul, Commissioner of Social Security, is substituted herein for his

predecessor, Nancy A. Berryhill, who served as Acting Commissioner of Social Security.

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See Fed. R. Civ. P. 25(d).

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2 Brooks subsequently amended the onset date from August 13, 1997 to

1 impairments. On September 16, 2015, the Social Security Administration denied Brooks’

2 application and, on January 11, 2016, denied his request for reconsideration.

3 Subsequently, Brooks requested a hearing before an ALJ. On June 15, 2017, the ALJ

4 conducted a hearing, at which Brooks, as well as a vocational expert (“VE”), testified.

5 In response to questions by the ALJ, Brooks testified he had been experiencing

6 “chronic pain” in his foot since the “early ‘90s,”3 back and stomach problems, as well as

7 headaches, “within five years” of the hearing, and dizziness, nausea, and fainting within

8 “maybe three or four years” of the hearing. (See Certified Administrative Record (“CAR”)

9 38.) Brooks further testified he had been experiencing emotional problems after “[b]eing

10 incarcerated” for over a year-and-a-half from 2013 to 2014 “for a crime [he] didn’t

11 commit.” (See id. 37; 41.)4 In response to questions by his attorney, Brooks described

12 his symptoms, including difficulty with standing, walking, sitting (see id. 46), sleeping (see

13 id. 47), remembering, and concentrating (see id. 48-49).

14 Following Brooks’ testimony, the ALJ posed a series of employment hypothetical

15 questions to the VE, inquiring about Brooks’ ability to perform “medium work,”5 without

16 any additional limitations (see id. 53-54), and “light work,”6 with and without additional

17

3 Brooks also testified that from approximately “1999 to 2012” he had received SSI

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based on the “same kind of” foot pain. (See CAR 46-47.)

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4 A form titled “Disability Determination Explanation,” and dated September 15,

2015, indicates Brooks’ earlier SSI was “[t]erminated [in] 2/2014 due to incarceration.”

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(See id. 61.)

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5 The SSA defines “medium work” as follows: “Medium work involves lifting no

more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to

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25 pounds. If someone can do medium work, we determine that he or she can also do

sedentary and light work.” See 20 C.F.R. § 404.1567(c); see also SSR 83-10, 1983 WL

23

31251, at *6 (explaining “a full range of medium work requires standing or walking, off

and on, for a total of approximately 6 hours in an 8-hour workday.”)

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6 The SSA defines “light work” as follows: “Light work involves lifting no more than

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20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.

Even though the weight lifted may be very little, a job is in this category when it requires a

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good deal of walking or standing, or when it involves sitting most of the time with some

pushing and pulling of arm or leg controls. To be considered capable of performing a full

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or wide range of light work, you must have the ability to do substantially all of these

1 limitations (see id. 54-55). In response, the VE identified three jobs in the “medium”

2 category, specifically, “aircraft cleaner,” “packager,” and “grocery store bagger.” (See id.

3 54.) In the “light” category, the VE identified three jobs, specifically, “janitor,” “advertising

4 material distributor,” and “usher and ticket taker.” (See id. 54-55.) As an additional job in

5 the “light” category, the VE identified “advertising material distributor,” assuming, as an

6 additional limitation, that Brooks need “respond appropriately to supervisors, coworkers

7 and the public only occasionally.” (See id. 55.) Lastly, in response to follow-up questions

8 from Brooks’ attorney, as to the impact of various additional hypothetical limitations, the

9 VE testified “there would be no work.” (See id. 56-57.)

10 On November 24, 2017, the ALJ issued his decision, finding, based on the five-

11 step sequential evaluation process set forth in the Code of Federal Regulations,7 Brooks

12 was not disabled. At step one, the ALJ determined Brooks had not engaged in

13 substantial gainful activity for the claimed period. (See id. 17.) At step two, the ALJ

14 found Brooks had one “severe impairment,” namely “back disorder” (see id.); the ALJ

15 also found Brooks had “affective mood disorder,” but found such impairment was

16 “nonsevere” (see id.). At step three, the ALJ determined Brooks did not have an

17 impairment or combination of impairments that met or equaled a listed impairment (see

18 id. 21); in so determining, the ALJ found Brooks had “mild limitation” in “interacting with

19 others” and “adapting or managing oneself” (see id. 18).

20

or inability to sit for long periods of time.” See 20 C.F.R. § 404.1567(b); see also SSR

21

83-10, 1983 WL 31251, at *5 (explaining “the full range of light work requires standing or

walking, off and on, for a total of approximately 6 hours of an 8-hour workday.”)

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7 “The five-step process for disability determinations begins, at the first and second

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steps, by asking whether a claimant is engaged in ‘substantial gainful activity’ and

considering the severity of the claimant’s impairments. If the inquiry continues beyond

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the second step, the third step asks whether the claimant’s impairment or combination of

impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and

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meets the duration requirement. If so, the claimant is considered disabled and benefits

are awarded, ending the inquiry. If the process continues beyond the third step, the

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fourth and fifth steps consider the claimant’s ‘residual functional capacity’ in determining

whether the claimant can still do past relevant work or make an adjustment to other

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work.” See Garrison v. Colvin, 759 F.3d 995, 1007 (9th Cir. 2014) (quoting Kennedy v.

1 Before continuing to step four, the ALJ determined Brooks’ “residual functional

2 capacity” (“RFC”)8 and, in that regard, found Brooks could perform “medium work as

3 defined in 20 CFR [§] 416.967(c),” specifically, “lifting and/or carrying 50 pounds

4 occasionally and 25 pounds frequently; sitting for six hours out of an eight-hour

5 workday[;] standing and/or walking six hours out of an eight-hour workday; and pushing

6 and/or pulling as much as lifting and/or carrying.” (See id. 21.) At step four, the ALJ

7 found “[t]ransferability of job skills is not an issue because [Brooks] does not have past

8 relevant work.” (See id. 25.) Lastly, at step five, the ALJ, relying on the VE’s testimony,

9 found Brooks, in light of his “age, education, work experience, and [RFC],” could perform

10 the “medium” jobs of “aircraft cleaner,” “packager,” and “grocery store bagger,” (see id.

11 25-26), and, based thereon, denied Brooks’ application.

12 Thereafter, Brooks requested the Appeals Council (“AC”) review the ALJ’s

13 decision. On September 21, 2018, the AC denied review, explaining it had considered

14 the reasons Brooks disagreed with such decision and said reasons “d[id] not provide a

15 basis for changing” the decision. (See id. 1.)

16 On November 16, 2018, Brooks filed the instant petition for review.

17 STANDARD OF REVIEW

18 “An ALJ’s disability determination should be upheld unless it contains legal error or

19 is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th

20 Cir. 2014). “Substantial evidence means more than a mere scintilla but less than a

21 preponderance; it is such relevant evidence as a reasonable mind might accept as

22 adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

23 1995). “The ALJ is responsible for determining credibility, resolving conflicts in medical

24 testimony, and . . . resolving ambiguities.” Id.

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8 RFC is “the most [the claimant] can still do despite [his] limitations.” See 20

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C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at *1 (explaining

“[o]rdinarily, RFC is an assessment of an individual’s ability to do sustained work-related

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physical and mental activities in a work setting on a regular and continuing basis,” i.e., “8

1 The court “review[s] only the reasons provided by the ALJ in the disability

2 determination and may not affirm the ALJ on a ground upon which [the ALJ] did not rely.”

3 See Garrison, 759 F.3d at 1010. The court must consider “the administrative record as a

4 whole, weighing both the evidence that supports and that which detracts from the ALJ’s

5 conclusion,” see Andrews, 53 F.3d at 1039, and “must uphold the ALJ’s decision where

6 the evidence is susceptible to more than one rational interpretation,” see id. at 1039–40.

7 “Even when the ALJ commits legal error,” the court must “uphold the decision

8 where that error is harmless.” See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

9 2015) (internal quotation, citation, and alteration omitted). “An error is harmless only if it

10 is inconsequential to the ultimate nondisability determination.” See id. at 494 (internal

11 quotation and citation omitted).

12 DISCUSSION

13 In his motion for summary judgment, Brooks contends, inter alia, the ALJ erred in

14 rejecting, with respect to mental limitations, the opinions of Katherine Wiebe, Ph.D., (“Dr.

15 Wiebe”), a clinical psychologist who served as his consultative examiner, and John

16 Edwards, L.C.S.W., (“Edwards”), his treating therapist; with respect to physical

17 limitations, Brooks contends the ALJ erred in rejecting the opinion of Michael Wang,

18 M.D., (“Dr. Wang”),9 his treating physician. As a result, Brooks argues, the ALJ’s step-

19 five finding that he could perform other work is not supported.10

20 A. Dr. Wiebe’s Opinion

21 Reviewing courts “‘distinguish among the opinions of three types of physicians: (1)

22

9 In his decision, the ALJ misspells “Wang” as “Wong.” (See CAR 24.)

23

10 Brooks also argues the ALJ, at step two, erred in finding only one “severe”

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physical impairment. (See Mot. at 7:24.) Because any such error was harmless, see

Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (holding “[s]tep two is merely a

25

threshold determination meant to screen out weak claims”; finding error in step-two

analysis was harmless where “step two was decided in [the claimant’s] favor”), the Court

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does not further address herein the ALJ’s step-two finding. To the extent Brooks further

argues the ALJ, at step three, erred in not finding his mental impairments constitute a

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listed impairment (see Mot. at 18:19-20), the Court finds Brooks has not shown his

1 those who treat the claimant (treating physicians); (2) those who examine but do not treat

2 the claimant (examining physicians); and (3) those who neither examine nor treat the

3 claimant (nonexamining physicians).’” See Garrison, 759 F.3d at 1012 (quoting Lester v.

4 Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In general, “the opinion of a treating physician

5 is . . . entitled to greater weight than that of an examining physician,” see id., and “the

6 opinion of an examining physician is entitled to greater weight than that of a non-

7 examining physician,” see id. “If a treating or examining doctor's opinion is contradicted

8 by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate

9 reasons that are supported by substantial evidence.” See id.

10 Brooks argues the ALJ should “have assigned greater weight to the opinion of Dr.

11 Wiebe rather than” the opinions of three other experts, namely, Jenny Forman, Ph.D.,

12 (“Dr. Forman”), a clinical psychologist who served as the Commissioner’s consultative

13 examiner, Barbara Moura, Psy.D., (“Dr. Moura”), the Commissioner’s nonexamining

14 consultant who reviewed Brooks’ medical records at the initial level, and John Petzelt,

15 Ph.D., (“Dr. Petzelt”), the Commissioner’s nonexamining consultant who reviewed

16 Brooks’ medical records on reconsideration. (See Mot. at 17:4-6.)

17 In her “Confidential Psychological Report” dated October 26, 2016 (see CAR 465),

18 Dr. Wiebe diagnosed Brooks with “[m]ajor depressive disorder,” “[p]osttraumatic [s]tress

19 [d]isorder,” “[o]ther specified personality disorder,” and “[u]nspecified neurocognitive

20 disorder” (see id. 475-76), and identified various issues bearing on Brooks’ ability “to

21 perform [various activities] on a sustained basis in a 5 day a week, 8 hour a day, normal

22 work setting” (see id. 478). In that regard, Dr. Wiebe found Brooks had “marked”11

23 impairment of his ability to: (1) “[u]nderstand, remember and carry out detailed

24 instructions”; (2) “[m]aintain attention and concentration for two hour segments”; (3)

25 “[p]erform at a consistent pace without an unreasonable number and length of rest

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11 The form provides the following definition of “marked”: “[T]he patient is unable to

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perform the activity on a sustained basis in a 5 day a week, 8 hour a day, normal work

1 periods”; (4) “[r]espond appropriately to changes in a routine work setting and deal with

2 normal work stressors”; and (5) “[c]omplete a normal workday and workweek without

3 interruptions from psychologically based symptoms.” (See id. 479.) In addition, Dr.

4 Wiebe found Brooks had “moderate”12 impairment of his ability to: (1) “[u]nderstand,

5 remember and carry out very short and simple instructions”; (2) “[g]et along and work with

6 others”; (3) “[i]nteract appropriately with the general public”; (4) “[a]ccept instructions and

7 respond appropriately to criticism from supervisors”; and (5) “[m]aintain regular

8 attendance and be punctual within customary usually strict tolerances.” (See id.)

9 In her evaluation dated July 21, 2015, Dr. Forman diagnosed Brooks with

10 “[d]epressive [d]isorder” (see id. 362), and found, “due to depression/anxiety,” Brooks

11 was “[m]ildly [i]mpaired” in his ability to: (1) “maintain adequate pace or persistence to

12 perform” complex tasks; (2) “withstand the stress of an 8-hour workday”; (3) “interact

13 appropriately with co-workers, supervisors, and the public on a regular basis”; and (4)

14 “adapt to changes, hazards, or stressors in the workplace setting” (see id.). In her

15 consultative report dated September 15, 2015, Dr. Moura opined that Dr. Forman’s

16 finding of “no more than mild limits is supported and given weight” (see id. 67), and, on

17 January 11, 2016, Dr. Petzelt adopted Dr. Moura’s opinion as to Brooks’ mild limitations

18 (see id. 80-81).

19 The ALJ gave Dr. Wiebe’s opinion “little weight,” explaining such findings “do[ ] not

20 adequately take into consideration all of [Brooks’] subjective and objective symptoms,

21 signs, limitations, and severity of condition.” (See id. 20.) The ALJ gave the opinions of

22 Dr. Forman, Dr. Moura, and Dr. Petzelt “significant weight” because, according to the

23 ALJ, those opinions “are generally consistent in that they all assess [Brooks] had no

24 severe mental impairments, limitations, and associated none to mild ‘B’ criteria.” (See id.

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12 The form provides the following definition of “moderate”: “[T]he patient has a

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significant loss of ability to perform the activity on a sustained basis in a 5 day a week, 8

1 21.)13

2 Given the conflict between the opinion of examining psychologist Dr. Wiebe, on

3 the one hand, and the opinions of examining consultant Dr. Forman and nonexamining

4 consultants Dr. Moura and Dr. Petzelt, on the other hand, the ALJ could reject Dr.

5 Wiebe’s opinion only by providing “specific and legitimate reasons . . . supported by

6 substantial evidence.” See Garrison, 759 F.3d at 1012. As set forth below, the Court

7 finds the ALJ’s reasons meet this test.

8 In particular, the ALJ found Dr. Wiebe had not reviewed Brooks’ “entire medical

9 record” and “was not privy to [Brooks] having improvement with treatment,” as reflected in

10 two treatment notes by Carolyn Doyle, M.D., (“Dr. Doyle”), a treating psychiatrist,

11 specifically, Dr. Doyle’s notes dated June 2016 and January 2017. (See id.) Additionally,

12 quoting the June 2016 note, the ALJ found Brooks denied “acute psychiatric or medical

13 concerns” and felt “less stressed out” (see id. 20; 486), and, quoting the January 2017

14 note, further found Brooks’ mood was “stable” and that “zolpidem helps” (see id. 20-21;

15 480).14 Significantly, although Dr. Wiebe evaluated Brooks in October 2016 (see id. 464),

16 she only reviewed Dr. Doyle’s psychiatric treatment records for a one-month period in

17 2015 (see id. 465) (stating “[r]ecords reviewed . . . dated October 29, 2015 to December

18 3, 2015”). Dr. Wiebe did not review Dr. Doyle’s June 2016 note, and the one time she

19 saw Brooks was prior to Brooks’ January 2017 appointment with Dr. Doyle. The June

20 2016 and January 2017 treatment notes are of particular importance, as both no longer

21 list memory as a symptom of Brooks’ depression (see id. 480; 486), and the January

22 2017 note no longer lists concentration as a symptom (see id. 480).15

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13 The paragraph ‘B’ criteria “represent the areas of mental functioning a person

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uses in a work setting,” namely “[u]nderstand, remember, or apply information; interact

with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” See

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20 C.F.R. pt. 404, subpt. P, app. 1, 12.00 Mental Disorders (Mar. 14, 2018).

26

14 Zolpidem, marketed under the brand name Ambien in the United States, “is

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used to treat insomnia.” See Zolpidem, MAYO CLINIC, https://www.mayoclinic.org/drugs-

supplements/zolpidem-oral-route/description/drg-20061195 (last visited Jan. 27, 2020).

1 Under such circumstances, the Court finds the ALJ did not err in giving “little

2 weight” to Dr. Wiebe’s opinion. See Andrews, 53 F.3d at 1043 (holding ALJ does not err

3 when ALJ provides “specific, legitimate reasons” for rejecting examining psychologist’s

4 opinion).

5 B. Edwards’ Opinions

6 As a therapist, Edwards qualifies as a “medical source” subject to a regulation

7 governing “other sources.” See 20 C.F.R. § 416.913(d)(1) (effective Sept. 3, 2013–Mar.

8 26, 2017) (defining “other sources” to include “therapists”). “The ALJ may discount

9 testimony from . . . ‘other sources’ if the ALJ gives reasons germane to each witness for

10 doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal quotation and

11 citation omitted).

12 Brooks argues Edwards’ opinion “should have been given significant weight

13 because he regularly treated” him. (See Mot. at 15:17-18.) In particular, in a letter

14 addressed to Brooks’ attorney dated June 7, 2017, Edwards stated he had “provisionally

15 assigned” to Brooks a diagnosis of either “Delusional Disorder or Autism Spectrum

16 Disorder or both,” making it “highly unlikely that . . . Brooks will be able to effectively enter

17 the workplace.” (See CAR 647; see also id. 601 (noting autism diagnosis “would be

18 helpful with [Brooks’] SSI appeal”).)

19 The ALJ gave Edwards’ opinion “little weight,” explaining such findings “are not

20 consistent with the entire evidence of record.” (See id. 20.) In that regard, the ALJ found

21 the opinion Edwards gave in his letter to Brooks’ attorney was inconsistent with Edwards’

22 progress notes, which, contrary to his letter, reflect Edwards’ medical opinion of Brooks’

23 “functional status” as “average” (see id. 595), and that “there are no significant ways that

24 [Brooks’] daily work, training and/or educational activities are affected in a constant way”

25 (see id. 637).16

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“Concentration” as symptoms, and noted those symptoms were “[i]mproving” (see id. 498

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(Jan. 15, 2016 note); 483 (Sept. 30, 2016 note).)

1 Under such circumstances, the Court finds the ALJ did not err in giving little weight

2 to Edwards’ letter opinion.

3 C. Dr. Wang’s Opinion

4 Brooks argues “greater weight should have been [given] to the opinion of Dr.

5 Wang based on his treating relationship” (see Mot. at 17:22-23); Brooks further argues

6 the opinions of Eugene McMillan, M.D., (“Dr. McMillan”), an internist who served as the

7 Commissioner’s consultative examiner, and F. Wilson, M.D., (“Dr. Wilson”), the

8 Commissioner’s nonexamining consultant who reviewed Brooks’ medical records,

9 “should not have been given ‘significant weight’ by the ALJ” (see id. at 17:20-22).

10 In a doctor’s report dated July 8, 2015, Dr. Wang diagnosed Brooks with “plantar

11 fasciitis” (see CAR 357)17 and stated Brooks could stand and walk for “less than” two

12 hours in an eight-hour workday (see id. 358).

13 In an evaluation dated July 22, 2015, Dr. McMillan opined that Brooks could stand

14 and walk for “at least” six hours in an eight-hour workday. (See id. 368.) Similarly, in an

15 assessment dated January 5, 2016, Dr. Wilson opined that Brooks could stand and walk

16 for “[a]bout” six hours in an eight-hour workday. (See id. 82.)

17 The ALJ gave Dr. Wang’s opinion “little weight” because, according to the ALJ,

18 Dr. Wang’s findings “are not consistent with the entire evidence of record.” (See id. 24.)

19 In that regard, the ALJ found (1) Brooks’ pain was, according to a January 2017

20 treatment note, “relieved with ice, ibuprofen, and previous injections,” (2) Brooks

21

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best suited for [Brooks] at this time” (see id. 637), such preference was implicitly

acknowledged by the ALJ’s posing to the VE a hypothetical claimant who need “respond

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appropriately to supervisors, coworkers and the public only occasionally” (see id. 55).

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17 “Plantar fasciitis is an inflammation of the fibrous tissue (plantar fascia) along the

bottom of [the] foot that connects [the] heel bone to [the] toes. Plantar fasciitis can cause

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intense heel pain.” See Plantar fasciitis, MAYO CLINIC,

https://www.mayoclinic.org/diseases-conditions/plantar-fasciitis/diagnosis-treatment/drc-

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20354851 (last visited Jan. 27, 2020). Plantar fasciitis is diagnosed based on physical

examination; “[u]sually no tests are necessary,” but testing, such as x-rays or magnetic

27

resonance imaging, can “make sure another problem . . . is not causing [the] pain.” See

1 “received routine . . . conservative physical medical treatment including being prescribed

2 similar medications as noted above, diagnostic testing, and physical examinations,” (3)

3 Brooks’ “diagnostic testing and physical examinations throughout the record noted no

4 more than mild findings,” (4) Brooks “had no significant treatment following . . . right flank

5 mass surgery in July 2015,” and, (5) Brooks was “capable of transporting himself via his

6 son giving him rides, borrowing his son’s car and driving, Uber, or taking the bus,” in

7 addition to “cleaning himself, cleaning the bathtub, and making his bed.” (See id.)18

8 By contrast, the ALJ gave the opinions of Dr. McMillan and Dr. Wilson “significant

9 weight” because, according to the ALJ, those opinions “are generally consistent in that

10 they all assess [Brooks] is able to perform a range of work at the medium exertional level

11 with some differences in the degree of specific function-by-function limitations.” (See

12 id. 25.)

13 Given the conflict between the opinion of treating physician Dr. Wang, on the one

14 hand, and non-treating physicians Dr. McMillan and Dr. Wilson, on the other hand, the

15 ALJ could reject Dr. Wang’s opinion only by providing “specific and legitimate reasons . . .

16 supported by substantial evidence.” See Garrison, 759 F.3d at 1012.

17 Although the ALJ did provide reasons for rejecting Dr. Wang’s opinion, those

18 reasons were, in part, based on an erroneous characterization of the record. First, the

19 ALJ misread the 2017 treatment note, which was prepared by Mira Elnan, M.D., (“Dr.

20 Elnan”), the doctor who treated Brooks in 2016 and 2017 and documented Brooks’ right

21 heel pain. The ALJ described that note as stating Brooks’ pain was “relieved” with ice,

22 ibuprofen, and previous injections (see CAR 24), whereas, Dr. Elnan in fact found

23 Brooks’ pain, in particular, his heel pain, was “unrelieved with ice, ibuprofen, and previous

24 injections.” (See id. 541.) Second, the ALJ, relying on Brooks’ receipt of “similar

25 medications” to the above three, characterized Brooks’ treatment as “conservative” (see

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18 For the same reasons, the ALJ rejected Brooks’ “statements concerning the

1 id. 24), but failed to acknowledge Dr. Elnan’s having prescribed gabapentin for Brooks’

2 heel pain in January 2017. (See id. 542 (diagnosing “[p]lantar fasciitis of right foot” and

3 “treat[ing] heel pain with gabapentin for now”).)19 Moreover, even after Brooks was given

4 that prescription medication, Christina Pratt, DPM, in a podiatric treatment note dated

5 February 22, 2017, found “pain on palpation of R[ight] plantar heel.” (See id. 533.)

6 The ALJ’s remaining reasons for rejecting Dr. Wang’s opinion likewise fail. The

7 ALJ’s reliance on the results of Brooks’ “diagnostic testing and physical examinations”

8 (see id. 24), as “no more than mild,” is misplaced. Plantar fasciitis is not shown on tests;

9 rather, as noted above, tests are used to eliminate other possible causes of the patient’s

10 symptoms. As also noted above, plantar fasciitis can cause “intense heel pain,” see

11 Plantar fasciitis, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/plantar-

12 fasciitis/diagnosis-treatment/drc-20354851 (last visited Jan. 27, 2020), and nowhere in

13 the record of Brooks’ examinations is his heel pain described as “mild.” Next, although,

14 Brooks, as the ALJ found, received “no significant treatment” after “right flank mass

15 surgery” in July 2015, the flank is “the part of the body below the rib and above the ilium,”

16 the uppermost part of the hip bone, see Flank Pain, NAT’L CTR. FOR BIOTECH. INFO.,

17 https://www.ncbi.nlm.nih.gov/books/NBK292/ (last visited Jan. 27, 2020), and,

18 consequently, has no bearing on Brooks’ claim of heel pain. Lastly, activities such as

19 Brooks’ “transporting himself via his son giving him rides, borrowing his son’s car and

20 driving, Uber, or taking the bus” are not inconsistent with Dr. Wang’s diagnosis of plantar

21 fasciitis and specified limitations as to standing and walking, nor are such household

22 chores as “cleaning himself, cleaning the bathtub, and making his bed” (see id. 24).

23

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19 “Gabapentin works in the brain to . . . relieve pain for certain conditions in the

nervous system. It is not used for routine pain caused by minor injuries.” See

25

Gabapentin, MAYO CLINIC, https://www.mayoclinic.org/drugs-supplements/gabapentin-

oral-route/description/drg-20064011 (last visited Jan. 27, 2020). Gabapentin is

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prescribed to treat nerve pain associated with plantar fasciitis. See, e.g., Brian Fullem,

27

DPM, Case Studies In Treating Chronic Plantar Fasciitis, PODIATRY TODAY, Nov. 2013, at

46-50, https://www.podiatrytoday.com/case-studies-treating-chronic-plantar-fasciitis (last

1 Under the circumstances, the Court finds the ALJ erred in rejecting Dr. Wang’s

2 opinion. See Garrison, 759 F.3d at 1012 (holding ALJ errs when ALJ does not provide

3 “specific, legitimate reasons” for crediting one medical opinion over another).20

4 Moreover, such error is not harmless. As noted above, the ALJ found Brooks

5 could perform “medium work,” including standing and walking for six hours in an eight-

6 hour workday (see CAR 21) and, based thereon, the ALJ, at step five, found Brooks

7 could perform three jobs categorized as “medium work,” see Dict. of Occ. Titles (4th ed.

8 1991) (“DOT”) § 919.687-014 (aircraft cleaner); id. § 920.587-018 (packager);

9 id. § 920.687-014 (grocery store bagger). The full range of “medium work” requires, as

10 noted, standing and walking for “approximately” six hours in an eight-hour workday, see

11 SSR 83-10, 1983 WL 31251, at *6, whereas Dr. Wang opined Brooks could only stand

12 and walk for “less than” two hours in an eight-hour workday.

13 Although, as also noted above, the VE, in response to a hypothetical question

14 posed by the ALJ, identified three jobs categorized as “light work,” see DOT § 323.687-

15 014 (janitor); id. § 230.687-010 (advertising material distributor); id. § 344.667-010 (usher

16 and ticket taker), the full range of “light work” likewise requires standing and walking for

17 “approximately” six hours in an eight-hour workday, see SSR 83-10, 1983 WL 31251, at

18 *5, and, consequently, like medium work, is not in accord with the limitations specified by

19 Dr. Wang.

20 Lastly, as no hypothetical question was posed to the VE that included those

21 limitations, the VE was never given the opportunity to offer an opinion as whether any

22 jobs exist for which Brooks is qualified and wherein such limitations could be

23 accommodated.

24

25

20 For the same reasons this Court finds the ALJ erred in rejecting Brooks’

statements as to the severity of his heel pain. See Burrell v. Colvin, 775 F.3d 1133, 1136

26

(9th Cir. 2014) (holding, where claimant “has presented evidence of an underlying

impairment and the government does not argue that there is evidence of malingering,

27

[the court] review[s] the ALJ's rejection of [the claimant's] testimony for specific, clear and

1 In sum, the Court finds the ALJ erred in not adequately including the limitations Dr.

2 Wang identified, and that such error was not harmless.

3 D. Remedy

4 Brooks requests the Court remand his claim for an award of benefits or, in the

5 alternative, for further proceedings. In support of the former, Brooks contends that, “if the

6 improperly discredited evidence were credited as true, it is clear that the ALJ would be

7 required to find Mr. Brooks disabled on remand.” (See Mot. at 22:12-14).

8 “A remand for an immediate award of benefits is appropriate . . . only in rare

9 circumstances,” see Brown-Hunter, 806 F.3d at 495 (internal quotation and citation

10 omitted), namely, where the following three “requirements” are met: “(1) the record has

11 been fully developed and further administrative proceedings would serve no useful

12 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence,

13 whether claimant testimony or medical opinion; and (3) if the improperly discredited

14 evidence were credited as true, the ALJ would be required to find the claimant disabled

15 on remand,” see Garrison, 759 F.3d at 1020. Even if such requirements are met,

16 however, “[t]he decision whether to remand a case for additional evidence or simply to

17 award benefits is in [the reviewing court’s] discretion.” See Treichler v. Comm'r of Soc.

18 Sec., 775 F.3d 1090, 1101–02 (9th Cir. 2014) (internal quotation and citation omitted).

19 As to the initial requirement, the Court notes “[a]dministrative proceedings are

20 generally useful where the record has [not] been fully developed, there is a need to

21 resolve conflicts and ambiguities, or the presentation of further evidence . . . may well

22 prove enlightening in light of the passage of time.” See id. at 1101 (alteration in original;

23 internal quotations and citations omitted); see also Brown-Hunter, 806 F.3d at 495

24 (explaining “[t]he touchstone for an award of benefits is the existence of a disability, not

25 the agency’s legal error”).

26 Here, the Court finds further proceedings may well serve a “useful purpose.” See

27 Garrison, 759 F.3d at 1020. As discussed above, the Court has found the ALJ erred in

1 Brooks could perform that category of work or at least “light work.” The record has not

2 been developed, however, as to whether Brooks’ physical limitations could be

3 || accommodated in another category of work, such as “sedentary work.” See 20 C.F.R.

4 || § 404.1567(a).2! Moreover, given the passage of time since the last medical note

5 || contained in the record, and the indication therein of continuing evaluation (see CAR 533

6 || (directing patient “to set up MRI appt”)), additional relevant evidence may be available for

7 || consideration. Accordingly, the Court finds it appropriate to remand for further

8 || proceedings.

9 CONCLUSION

10 Brooks’ motion for summary judgment is hereby GRANTED, the Commissioner’s

11 cross-motion for summary judgment is hereby DENIED, and the action is hereby

12 REMANDED, under sentence four of 42 U.S.C. § 405(g), for further proceedings

13 || consistent with this order.

IT IS SO ORDERED.

O

16 || Dated: February 12, 2020 .

MAXINE M. CHESNEY

17 United States District Judge

18

19

20

21

22

23

24

29 *! To the extent Brooks argues the “Grids” are, in his case, determinative of

26 || disability, the record bearing on such issue has not been fully developed. To the extent

Brooks, based on additional limitations his attorney posed in a hypothetical question to

27 || the VE at the hearing, may be contending there is no work available for him (see CAR

56-57), the Court notes such assumed limitations are not supported by any findings in the

28 medical records provided.