holding that ALJ can reject uncontradicted treating physician’s opinion “by 8 setting out a detailed and thorough summary of the facts and conflicting medical evidence, stating 9 his own interpretation thereof, and making findings”
How later courts described this case
- holding that ALJ can reject uncontradicted treating physician’s opinion “by 8 setting out a detailed and thorough summary of the facts and conflicting medical evidence, stating 9 his own interpretation thereof, and making findings”
- “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 adequate to 22 support a conclusion”
Written by the judges who cited it.
The opinion
1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5
6 L.F., Case No. 20-cv-04708-SVK
7 Plaintiff,
ORDER ON CROSS-MOTIONS FOR
8 v. SUMMARY JUDGMENT
9 ANDREW SAUL, Re: Dkt. Nos. 19, 23
10 Defendant.
11 Plaintiff appeals from the final decision of the Commissioner of Social Security, which
12 denied Plaintiff’s application for disability benefits. The Parties have consented to the jurisdiction
13 of a magistrate judge. Dkt. 7, 10. For the reasons discussed below, the Court GRANTS
14 Plaintiff’s motion for summary judgment (Dkt. 19) and DENIES Defendant Commissioner’s
15 cross-motion for summary judgment (Dkt. 23).
16 I. BACKGROUND
17 In June 2016, Plaintiff filed an application for Title II disability insurance benefits. See
18 Dkt. 16 (Administrative Record (“AR”)) 195-96. After a hearing, an Administrative Law Judge
(“ALJ”) issued a decision on April 18, 2019, finding that Plaintiff was not disabled. AR 7-25 (the
19
“ALJ Decision”). The ALJ concluded that Plaintiff suffered from the following severe
20
impairments: degenerative disc disease; history of trachelectomy, hysterectomy, oophorectomy
21
and mesh placement; and Tarlov cysts. AR 12. The ALJ also found that Plaintiff had a medically
22
determinable mental impairment of depression, but it was not severe. Id. The ALJ then
23
determined that Plaintiff’s residual functional capacity (“RFC”) limited her to light work with
24
additional limitations. AR 14. The ALJ concluded that Plaintiff was not disabled because she was
25
capable of performing her past relevant work as a front desk receptionist. AR 18.
26
After the Appeals Council denied review, Plaintiff filed this action challenging the ALJ
27
Decision. Dkt. 1 (Complaint).
1 In accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary
2 judgment (Dkt. 19, 23), which are now ready for decision without oral argument.
3 II. ISSUES FOR REVIEW
4 1. Is the ALJ’s finding that Plaintiff could perform her past relevant work
supported by substantial evidence?
5
2. Did the ALJ properly evaluate the medical evidence?
6
3. Did the ALJ properly evaluate Plaintiff’s credibility?
7
4. Did the ALJ properly evaluate lay witness testimony?
8
III. STANDARD OF REVIEW
9
This Court is authorized to review the Commissioner’s decision to deny disability benefits,
10
but “a federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v.
11
Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts “leave it to
12
the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the
13
record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted).
14
The Commissioner’s decision will be disturbed only if it is not supported by substantial
15
evidence or if it is based on the application of improper legal standards. Id. at 492. “Under the
16
substantial-evidence standard, a court looks to an existing administrative record and asks whether
17
it contains sufficient evidence to support the agency’s factual determinations,” and this threshold
18
is “not high.” Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation
19
marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d
20
996, 1002 (9th Cir. 2015) (“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 adequate to
22
support a conclusion”) (internal quotation marks and citations omitted). The Court “must consider
23
the evidence as a whole, weighing both the evidence that supports and the evidence that detracts
24
from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation marks and
25
citation omitted). Where the evidence is susceptible to more than one rational interpretation, the
26
Court must uphold the ALJ’s findings if supported by inferences reasonably drawn from the
27
record. Id.
1 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is
2 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent
3 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless” and
4 is instead “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks and
5 citation omitted).
6 IV. DISCUSSION
7 A. Issue One: Finding re Past Relevant Work
8 At step four of the disability determination, the ALJ must evaluate whether, given the
9 claimant’s RFC (i.e., what a claimant can still do despite her limitations), the claimant can still do her
10 past relevant work. Ghanim v. Colvin, 763 F.3d 1154, 1160 and n.5 (9th Cir. 2014). “At step four, a
11 claimant has the burden to prove that [she] cannot perform [her] past relevant work either as
12 actually performed or as generally performed in the national economy.” Stacy v. Colvin, 825 F.3d
13 563, 569 (9th Cir. 2016) (internal quotation marks and citation omitted).
14 At the hearing, a vocational expert (VE) testified about Plaintiff’s ability to perform her
15 past relevant work as a front desk receptionist. AR 71-82. The VE testified that Plaintiff’s past
16 work as a front desk receptionist had an exertional level of sedentary (as generally performed) or
17 light (as actually performed). AR 72; see also AR 18.
18 In his decision, the ALJ found that Plaintiff has the RFC:
19
to perform light work as defined in 20 CFR 414.1567(b) except the claimant could
20 lift and carry up [to] ten pounds maximum and occasionally stoop and climb. In
addition, the claimant must have been able to change position from sitting, standing
21 or walking every hour.
22 AR 14. In evaluating whether Plaintiff could perform her past relevant work as a front desk
23 receptionist, the ALJ explained that:
24 [i]n comparing the claimant’s residual functional capacity with the physical and
mental demands of this work, I find that the claimant was able to perform it as
25
generally (but not actually) performed. In response to a question from me that
26 accurately reflected the above residual functional capacity and in accordance with
the DOT, the vocational expert compared the requirements of front desk
27 receptionist to the claimant’s restrictions and found that the claimant is capable of
the job of front desk receptionist as generally (but not actually) performed.
1 AR 18-19. The ALJ concurred with the VE on this point. AR 19.
2 Plaintiff argues that in finding that she could return to her past relevant work as a front
3 desk receptionist as generally performed, the ALJ misconstrued the VE’s testimony. Pl. MSJ
4 (Dkt. 19-1) at 8. According to Plaintiff, the VE testified that the need to change positions every
5 hour would eliminate Plaintiff’s ability to perform her past work as a front desk receptionist. Id. at
6 8-9.
7 Based on a review of the hearing transcript, the Court concludes that the VE’s testimony
8 was not as the ALJ characterized it, or at a minimum was ambiguous. The ALJ posited a
9 hypothetical question concerning an individual with the above-described RFC, including the need
10 to change positions from sitting, standing, or walking every hour. AR 73. The ALJ then asked:
11
Q: Can this person can perform the claimant’s past work?
12
A: Neither as performed as discussed in the DOT … In order to change position
13 every hour, in any of these jobs, there would be an accommodation by the
employer … They couldn’t of their own free will change positions.
14
Q: Okay. So, neither job can be performed.
15
16 AR 74. However, later in the hearing the VE offered further testimony on this issue:
17
Q: … [W]here a person is limited to carrying 10 pounds and must be able to
18 change positions from sitting, standing, or walking every hour, can that person
perform the front desk receptionist job as generally performed or actually
19 performed?
20
A: One of the problems that comes in, your honor, is that different offices have
21 reception duties a different way. Some offices pro forma will provide the
receptionist with a headset, more often than not. And you can do that standing --
22
Q: Okay. And that’s not an accommodation. Okay. And do that from switching
23 from standing to sitting.
24
A: That’s correct.
25
Q: Okay. So, that job would be available in response to hypo number two, lifting
26 and carrying 10 pounds, --
27 A: Yes.
Q: -- occasionally stoop and climb --
1
2 A: The way it’s performed in the national economy.
AR 79. The Commissioner argues that this later testimony “clarified” that Plaintiff’s past work,
3
“the way it’s performed in the national economy,” would be available, which supports the ALJ’s
4
conclusion that Plaintiff was able to perform her past work as “generally (but not actually)
5
performed.” Def. MSJ at 9.
6
The Court finds the VE’s testimony to vague and ambiguous to support the ALJ’s
7
conclusion that Plaintiff was capable of performing her past relevant work. Accordingly, on this
8
issue, the Court grants Plaintiff’s motion for summary judgment and denies the Commissioner’s
9
motion.
10
11 B. Issue Two: Evaluation of Medical Evidence
Plaintiff challenges the ALJ’s weighing of the medical evidence, specifically his decision
12
to give “partial weight” to the medical opinion of Plaintiff’s treating physician, James C. Gardner,
13
M.D. Pl. MSJ at 9-11; see also AR 16. Dr. Gardner opined that Plaintiff occasionally walks with
14
a cane, cannot carry over ten pounds, and must alternate between sitting, standing, and walking
15
each hour. AR 1366. The ALJ found this aspect of Dr. Gardner’s opinion consistent with
16
Plaintiff’s lumbar degenerative disc disease and Tarlov cysts. AR 16. However, the ALJ did not
17
credit Dr. Gardner’s opinion that Plaintiff must unexpectedly lie flat or urgently use the bathroom.
18
AR 16; AR 1366.1 The ALJ explained that “there is no report or complaint in the medical record
19
that the claimant must lie flat unexpectedly or use the bathroom urgently.” AR 16. Plaintiff
20
argues that “[c]ontrary to the ALJ’s assertions, Tarlov Cysts, which the ALJ found to be a severe
21
impairment at step two …, can cause a need to lie flat and in bowel and bladder urgency and
22
incontinence episodes, just as Dr. Gardner noted.” Pl. MSJ at 10.
23
Under the regulations that apply in this case, the “treating physician rule” requires that the
24
opinion of a treating physician is entitled to more weight than the opinion of an examining
25
physician, and more weight is given to the opinion of an examining physician than a non-
26
27
1 examining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). Where a treating
2 physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
3 techniques and is not inconsistent with the other substantial evidence” in the record, it must be
4 given controlling weight. 20 C.F.R. § 404.1527(c)(2). The ALJ is required to provide clear and
5 convincing reasons, supported by substantial evidence, for rejecting the uncontradicted opinion of
6 treating physicians. Ghanim, 763 F.3d at 1160; see also Thomas v. Barnhart, 278 F.3d 947, 957
7 (9th Cir. 2002) (holding that ALJ can reject uncontradicted treating physician’s opinion “by
8 setting out a detailed and thorough summary of the facts and conflicting medical evidence, stating
9 his own interpretation thereof, and making findings”) (internal quotation marks and citation
10 omitted). Where contradicted, the opinion of treating physicians may be rejected only for
11 “specific and legitimate reasons that are supported by substantial evidence.” Ghanim, 763 F.3d at
12 1160.
13 In support of her argument that the ALJ improperly discounted portions of Dr. Gardner’s
14 opinion, Plaintiff quotes a list of symptoms that “may be present in patients that have symptomatic
15 Tarlov cysts” that appears on the website of the American Association of Neurological Surgeons.
16 Pl. MSJ 11. These potential symptoms include difficulty in sitting for prolonged periods and
17 changes in bowel and bladder function, including urinary incontinence. Id. However, this generic
18 list of symptoms that individuals with Tarlov cysts “may” have is not evidence that Plaintiff in
19 fact had such symptoms. See Montes v. Astrue, No. CV 08-6668 CW, 2009 WL 3672551, at *4
20 (C.D. Cal. Nov. 2, 2009).
21 The other evidence cited by Plaintiff is Dr. Gardner’s Physician Certification signed in
22 March 2018. Pl. MSJ at 10 (citing AR 1366). As discussed above, in that certification,
23 Dr. Gardner identified the following limitations on Plaintiff’s activities of daily living:
24
Unexpectedly must lie flat, urgent bathroom needs, gets help from family and has
25 household assists, carts, reachers, etc.
AR 1366. The ALJ stated that limitations related to lying flat or bathroom use “are not justified
26
by the evidence,” noting that:
27
there is no report or complaint in the medical record that the claimant must lie flat
1
unexpectedly or use the bathroom urgently, and I have already noted the claimant’s
2 wide range of independent ADLs …
AR 16; see also AR 15 (“no such complaints [of urinary and bowel incontinence] are noted in
3
examination notes”). Moreover, the ALJ also noted that “neither [Plaintiff’s] daughter or her
4
husband noted incontinence issues in their third-party function reports.” AR 15.
5
Contrary to the ALJ’s characterization of the medical record regarding Plaintiff’s
6
incontinence, evidence in the record shows that in April 2015, Plaintiff was assessed to have stress
7
incontinence and was referred to physical therapy, with one treatment goal being to “[i]ncrease
8
pelvic floor muscle strength ½-1 grade to facilitate urge suppression and/or to decrease stress
9
incontinence episodes by 50 percent within 12 Week(s).” AR 507, AR 518. Later medical
10
records also refer to incontinence issues. See, e,g., AR 521, 523, 605, 1014, 1075. The ALJ did
11
not address these medical record in his decision. Although the Commissioner now relies on other
12
portions of the medical record to argue that “[e]ven where incontinence complaints were
13
addressed in the medical evidence, examinations and testing show no results that support a finding
14
that Plaintiff had significant incontinence issues” (Def. MSJ at 16), in this proceeding the Court is
15
limited to evaluating the ALJ’s reasons for his conclusions. Brown-Hunter, 806 F.3d at 492.
16
Here, the Court finds that the ALJ’s decision to give Dr. Gardner’s opinion only partial
17
weight is not supported by substantial evidence because one of the main reasons offered by the
18
ALJ—the alleged lack of medical record evidence regarding Plaintiff’s incontinence issues—
19
ignores portions of the medical record. Accordingly, on this issue, the Court grants Plaintiff’s
20
motion for summary judgment and denies the Commissioner’s motion.
21
22 C. Issue Three: Evaluation of Plaintiff’s Credibility
Where, as here, the ALJ made no finding of malingering, a reviewing court must determine
23
whether the ALJ identified specific, clear and convincing reasons for his conclusion regarding
24
Plaintiff’s credibility. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). “This
25
requires the ALJ to specifically identify the testimony [from a claimant] she or he finds not to be
26
credible and … explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d
27
1 Plaintiff testified that she had episodic urinary and bowel incontinence. AR 52-57.
2 However, the ALJ found that “no such complaints are noted in examination notes.” AR 15. He
3 also cited the absence of references to incontinence in third-party function reports prepared by
4 Plaintiff’s husband and daughter. Id.; see also AR 393-401, AR 413-420. Plaintiff challenges the
5 ALJ’s assessment, citing evidence in the record where Plaintiff complained of urinary and bowel
6 incontinence. Pl. MSJ at 12-13 and evidence cited therein. Plaintiff also cites progress notes in
7 her medical record that note urinary incontinence. Pl. MSJ at 13-14 and evidence cited therein.
8 It is evident from the ALJ’s decision that a critical portion of his credibility determination
9 was tied to his evaluation of the medical evidence (see, e.g., AR 15), which the Court has
10 concluded was erroneous. Accordingly, on this issue, the Court grants Plaintiff’s motion for
11 summary judgment and denies the Commissioner’s motion.
12 D. Issue Four: Evaluation of Lay Witness Testimony
13 “Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must take
14 into account, unless he or she expressly determines to disregard such testimony and gives reasons
15 germane to each witness for doing so.” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014).
16 (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Stout v. Comm’r, Soc. Sec. Admin., 454
17 F.3d 1050, 1053 (9th Cir. 2006)). “[L]ay witness testimony is ‘incompetent’ when it consists of a
18 medical diagnosis, because ‘medical diagnoses are beyond the competence of lay witnesses’ to
19 make.” Tobeler, 749 F.3d at 833 (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)).
20 But “lay witness testimony as to a claimant’s symptoms or how an impairment affects ability to
21 work is competent evidence and therefore cannot be disregarded without comment.” Id. (citations
22 and internal quotation marks omitted).
23 Plaintiff challenges the ALJ’s decision to give “limited weight” to third-party function
24 statements prepared by Plaintiff’s husband and daughter. AR 16-17. The ALJ summarized these
25 function reports and noted that “[w]ith regard to the claimant’s impairments, the opinions of [the
26 daughter] and [the husband] are important evidence to consider.” AR 17. However, the ALJ gave
27 “limited weight” to the third-party reports due to “the lack of corroborating documentation and the
1 The ALJ’s comment that Plaintiff’s relatives are “non-medical sources” is problematic
2 given that as lay witnesses, those individuals may base their testimony on their observations,
3 rather than medical expertise. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). The
4 ALJ’s other reason for discounting the lay witness testimony—the lack of corroborating
5 documentation—is insufficient in the context of this case. The lay witnesses offered information
6 about Plaintiff’s limitations, including limitations on her ability to sit upright for long periods
7 without pain. See, e.g, AR 393, 418. The ALJ’s RFC determination included several limitations
8 on Plaintiff’s ability to perform light work, including a requirement that Plaintiff be able to change
9 position every hour. AR 14. Accordingly, it appears that the ALJ gave some weight to the lay
10 witness testimony. But the ALJ fails to specify which of that testimony he credited and which he
11 found lacked corroborating documentation. Moreover, the third party testimony was at least in
12 some respects consistent with Dr. Gardner’s opinion which, as discussed above, the ALJ erred in
13 evaluating.
14 Accordingly, on this issue, the Court grants Plaintiff’s motion for summary judgment and
15 denies the Commissioner’s motion.
16 V. CONCLUSION AND DISPOSITION
17 The Social Security Act permits courts to affirm, modify, or reverse the Commissioner’s
18 decision “with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g); see also
19 Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). “[W]here the record has been developed
20 fully and further administrative proceedings would serve no useful purpose, the district court
21 should remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th
22 Cir. 2004). However, “[r]emand for further proceedings is appropriate where there are
23 outstanding issues that must be resolved before a disability determination can be made, and it is
24 not clear from the record that the ALJ would be required to find the claimant disabled if all the
25 evidence were properly evaluated.” Luther v. Berryhill, 891 F.3d 872, 877–78 (9th Cir. 2018)
26 (citations omitted).
27 Because it is not clear from the record that the ALJ would be required to find Plaintiff
1 must properly evaluate the issues discussed above based on applicable law and the guidance
2 || provided in this opinion. It is not the Court’s intent to limit the scope of the remand.
3 For the foregoing reasons, the Court GRANTS Plaintiff's motion for summary judgment,
4 || DENIES Defendant’s cross-motion for summary judgment, and REMANDS this case for further
5 || proceedings.
6 SO ORDERED.
7 || Dated: January 3, 2022
8
9 Sesion vant
SUSAN VAN KEULEN
10 United States Magistrate Judge
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