Roach v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

DELBERT F. R., Case No. 6:18-cv-01138-AC

Plaintiff, OPINION AND ORDER

V.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

ACOSTA, Magistrate Judge:

Introduction

Plaintiff Delbert R.! (“Plaintiff”) seeks judicial review of the final decision by the Social

Security Commissioner (“Commissioner”) denying his applications for Disability Insurance

' In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party in this case.

Page 1 —-OPINION AND ORDER

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles IT and XVI of the Social

Security Act, 42 U.S.C. §§ 401-403 and 1381—1383f. This Court has jurisdiction pursuant to 42

§§ 405(g) and 1383(c)(3). Based on careful review of the record, the Commissioner’s

decision is REVERSED AND REMANDED.?

Procedural and Factual Background

Plaintiff protectively filed his DIB and SSI applications on March 11, 2014, alleging

disability beginning September 1, 2013, as a result of bladder cancer, hepatitis B and C, and high

blood pressure. (Tr. Soc. Sec. Admin. R. (“Tr.”) 15, 222, ECF No. 14.) The claim was denied

initially on July 30, 2014, and again upon reconsideration on February 11, 2015. Plaintiff filed a

request for a hearing before an administrative law judge (“ALJ”). The ALJ held a hearing on

January 26, 2017, at which Plaintiff appeared with his attorney and testified. A vocational expert

(“VE”), Steven R. Cardinal, also appeared at the hearing and testified. On June 20, 2017, the ALJ

issued an unfavorable decision. The Appeals Council denied Plaintiff's request for review, and

therefore, the ALJ’s decision became the final decision of the Commissioner for purposes of

review.

Plaintiff was born in 1959, was 54 years old on the alleged onset of disability date, and was

57 years old on the date of the hearing. (Tr. 49, 86.) Plaintiff attended school through the ninth

grade and has not obtained a GED. (Tr. 49.) His past relevant work experience includes press

operator, fast food worker, and squeeze operator. (Tr. 77-78.)

* The parties have consented to jurisdiction by magistrate judge, pursuant to 28 U.S.C. § 636(c)(1).

Page 2 — OPINION AND ORDER

The ALJ's Disability Analysis

The Commissioner has established a five-step sequential process for determining whether

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,

416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps

one through four. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). At step five, the

burden shifts to the Commissioner to show that the claimant can do other work which exists in the

national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

The ALJ determined that Plaintiff meets the insured status requirements through December

31,2018. Atstep one, the ALJ found Plaintiff not engaged in substantial gainful activity since

the alleged onset date. (Tr. 18.) At step two, the ALJ determined Plaintiff has the following

severe impairments: fractures of the lower extremity; bladder cancer (in remission); degenerative

joint disease of the right hip; hammertoe/bunion. (Tr. 18.) Atstep three, the ALJ found Plaintiff

does not have an impairment or combination of impairments that meets or medically equals a listed

impairment. (Tr. 19.)

The ALJ next determined Plaintiff has the residual functional capacity (“RFC”) to perform

a range of light work with the following limitations:

[Plaintiff] is limited to tasks involving about 6 hours total of standing/walking, and

about 6 hours total of sitting in an 8-hour workday (with normal breaks). He can

frequently climb ladders, ropes, and scaffolds, balance, kneel, crouch, crawl, or

stoop/bend.

(Tr. 19.) At step four, the ALJ determined that Plaintiff is able to perform his past relevant work

as a fast food worker. (Tr. 22.) Accordingly, the ALJ concluded Plaintiff is not disabled. (Tr.

23.) The ALJ did not make alternative findings at step five of the analysis.

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Issues on Review

Plaintiff argues the ALJ erred by: (1) rejecting his subjective symptom testimony; and (2)

rejecting the opinion of his treating physician, John Ward, M.D. The Commissioner argues that

the ALJ’s decision is supported by substantial evidence and is free of legal error.

Standard of Review

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). “Substantial evidence

is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Hill, 698 F.3d at 1159;

(internal quotations omitted); Garrison, 759 F.3d at 1009. The court must weigh all the evidence,

whether it supports or detracts from the Commissioner’s decision. Trevizo, 871 F.3d at 675;

Garrison, 759 F.3d at 1009. The Commissioner’s decision must be upheld, even if the evidence

is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,

359 F.3d 1190, 1193 (9th Cir. 2004). Ifthe evidence supports the Commissioner’s conclusion,

the Commissioner must be affirmed; “the court may not substitute its judgment for that of the

Commissioner.” Edlund vy. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison, 759 F.3d

at 1010.

Discussion

I. Plaintiff's Subjective Symptom Testimony

Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting

his subjective symptom testimony. To determine whether a claimant’s testimony regarding

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subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo,

871 F.3d at 678; 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the

claimant must produce objective medical evidence of an underlying impairment that could

reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112

(9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage,

absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and

convineing reasons for discrediting the claimant’s testimony regarding the severity of the

symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007),

The ALJ must make findings that are sufficiently specific to permit the reviewing court to

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v.

Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such

credibility determinations include the objective medical evidence, the claimant’s treatment history,

the claimant’s daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d

1154, 1163 (9th Cir, 2013); Tommasetti, 533 F.3d at 1039.

At the hearing, Plaintiff testified that he left the workforce due to liver pain and blood in

his urine. (Tr. 57-58.) Plaintiff testified that he has ongoing pain on the right side of his

abdomen that he attributes to his liver. (Tr. 62-63.) Plaintiff described what feels like a knot in

his liver, and he explained that turning to his right causes a cramping sensation in his liver and

sitting in certain positions causes his lower rib to push into his liver.> (Tr. 62-63.) Plaintiff

3 The court notes that Plaintiff was observed to have “a very large gallstone nearly filling the

gallbladder” on July 12, 2013 (CT urogram), measured at 4.4 centimeters on May 12, 2014

Page 5 — OPINION AND ORDER

testified that he has pain in both feet and explained that a callus on his right foot feels like stepping

onanail. (Tr. 66-69.) He testified that he has pain with walking, and that because of pain in his

feet, he can stand for only thirty to forty-five minutes before feeling burning heat and pain in his

foot. (Tr. 67-68.) Plaintiff testified that he has constant bladder discomfort and experiences

urinary urgency every time he rises from a seated position. (Tr. 59-62.) Plaintiff stated he needs

to use the restroom about ten times per day and every ninety minutes throughout the night. (Tr.

59-61.) Plaintiff additionally testified that he has pain in his hip with walking and bending and

estimated he is able to walk 1,500 feet before experiencing pain in his right hip. (Tr. 63,72.) He

also testified that he experiences wrist pain and shooting pain in his fingers. (Tr. 72.)

Ina Function Report on April 26, 2014, Plaintiff endorsed constant liver pain and explained

that he has to be careful bending over to avoid pinching his liver. (Tr. 229.) He also endorsed

shooting pains in his foot. (Tr. 229.) He indicated that he frequently awakens during the night

to empty his bladder. (Tr. 229.) In addition, he indicated feeling anxious about his medical

problems and experiencing nausea every morning. (Tr. 229.)

In the decision, the ALJ gave several reasons for discounting Plaintiff's subjective

symptom testimony about disabling pain: (1) Plaintiffs testimony is not supported by objective

medical evidence; (2) Plaintiffs testimony regarding debilitating pain is inconsistent with clinical

observations; (3) Plaintiff's own testimony is inconsistent; and (4) Plaintiff's right abdominal

symptoms improved. Plaintiff argues that the ALJ failed to identify clear and convincing reasons

(abdominal ultrasound). (Tr. 539, 311-12.) Aside from a brief note from Dr. Gallup on

September 4, 2013 (Tr. 276), nothing in the record indicates that Plaintiffs gallbladder stone has

been either treated or investigated as a possible cause of ongoing symptoms.

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for discounting his subjective symptom testimony. After careful examination, the court finds that

the ALJ’s reasons are neither clear nor convincing.

A. Lack of Objective Medical Evidence

When evaluating a claimant’s subjective symptom testimony, an ALJ may consider

consistency with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-

(3); Social Security Regulation (“SSR”) 16-3p, available at 2017 WL 5180304, at *7-8 (Oct. 25,

2017). When coupled with other permissible reasons, inconsistencies between a claimant’s

allegations and objective medical evidence may be used to discount a claimant’s testimony.

Tatyana K. v. Berryhill, No. 3:17-cv-01816-AC, 2019 WL 464965, at *4 (D. Or. Feb. 6, 2019)

(citing Batson, 359 F.3d at 1197-98). However, a lack of objective medical evidence may not

form the ALJ’s sole basis for discounting a claimant’s testimony. Tammy S. v. Comm’r Soc, Sec.

Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick

v. Chater, 157 F.3d 715, 722 (9th Cir, 1998) (“the Commissioner may not discredit [a] claimant’s

testimony as to the severity of symptoms merely because they are unsupported by objective

medical evidence.”)).

Here, the ALJ found that when Plaintiff renewed his complaints of right upper quadrant

pain to Dr. Ward in early 2016, Dr. Ward observed that there was no clear diagnosis for those

symptoms. (Tr. 21 (citing Tr. 490).) Dr. Ward opined that he did not think the pain was related

to Plaintiff's hepatitis C and continued to seek a diagnosis through a future ultrasound or referral

to gastroenterology.4 (Tr. 490.) The ALJ’s finding that Plaintiff's subjective symptom

4 Evidence from the hearing suggests that Dr. Ward referred Plaintiff to a gastroenterologist for

Page 7 - OPINION AND ORDER

testimony is inconsistent with objective medical evidence is supported by substantial evidence in

the record; however, it cannot form the sole basis for discrediting Plaintiff's subjective symptom

testimony. See Tammy S., 2018 WL 5924505, at *4.

B. Inconsistency with Clinical Observations

In assessing Plaintiff's subjective symptom testimony, the ALJ may consider

inconsistencies with treatment records in light of the overall diagnostic record. Ghanim, 763 F.3d

at 1164. A determination that a claimant’s subjective complaints are inconsistent with clinical

observations can provide a clear and convincing reason for discrediting a claimant’s testimony

where the ALJ specifies how particular complaints are contradicted by particular clinical

observations. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999)

(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). However, this reasoning is insufficient

where “the ALJ dfoes] not specify what complaints are contradicted by what clinical

observations.” Id.

Here, the ALJ found that clinical observations from Drs. Gallup, Schindell, and Patel were

“inconsistent with a debilitating pain disorder” and “undermine[d Plaintiffs] allegations of

debilitating pain symptoms.” (Tr. 21.) The ALJ found that when Plaintiff reported his right

flank pain to Dr. Gallup in early September 2013, he denied other symptoms including fatigue,

joint and back pain, weakness, anxiety, and depression, and he was alert, cooperative, and in no

acute distress, with normal attention span and concentration. (Tr. 21 (citing Tr. 276—78).)

further investigation of the source of his symptoms, but no conclusion was reached on the cause

of the symptoms. (Tr. 42-43.)

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Additionally, the ALJ found that when Dr. Schindell saw Plaintiff in late August 2014, Dr.

Schindell noted that Plaintiff “presented as far more comfortable than his stated level of pain.”

(Tr. 21 (citing Tr. 349-50).) Finally, the ALJ found that when Dr. Patel saw Plaintiff on July 1,

2015, Plaintiffs right upper quadrant symptoms had resolved. (Tr. 21 (citing Tr. 359-60).) At

that time, Plaintiff showed with “no pain with active passive range of motion” in any major joints

and was alert, oriented, and in no apparent distress. (Tr. 21 (citing Tr. 359-60).)

The ALJ’s findings comparing Plaintiff's complaints to clinical observations lack clarity

regarding particular complaints and how they are contradicted. Regarding Dr. Gallup’s

September 2013 treatment note, the ALJ discounted the Plaintiff's complaint of right flank pain

because Plaintiff complained of no symptoms other than right flank pain. The ALJ failed to

explain how lack of additional symptoms contradicts Plaintiff's chief complaint. Regarding Dr.

Schindell’s August 2014 treatment note, the ALJ did not make clear what complaints are at issue.

The ALJ implied that Dr. Schindell’s observations address the same right abdominal pain that

Plaintiff had reported to Dr. Ward earlier in August 2014, but the treatment note indicates that

Plaintiff complained to Dr. Schindell of /eft flank pain in connection with an emergency room

visit. The ALJ failed to account for the changing complaints at issue. Regarding Dr. Patel’s July

2015 treatment note, the ALJ again failed to specify the complaint or contradiction at issue. As

the ALJ notes, Plaintiffs right abdominal pain had temporarily resolved at the time. Accordingly,

the ALJ’s finding that Plaintiffs presentation to Dr. Patel did not support an allegation of

debilitating pain merely confirms Plaintiffs own report of a period of improved abdominal

symptoms. To the extent that the ALJ may have reasoned that Plaintiffs lack of distress in his

presentation to Dr. Patel undermined his other complaints, such as his complaints of debilitating

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foot pain, this reasoning also fails because the ALJ failed to specify these complaints and how they

were contradicted.> In sum, because “the ALJ did not specify what complaints are contradicted

by what clinical observations,” see Regennitter, 166 F.3d at 1297, the ALJ’s findings regarding

inconsistency between Plaintiff's complaints and physicians’ clinical observations are not

supported by substantial evidence in the record. Accordingly, they do not provide a clear or

convincing reason to reject Plaintiff's subjective symptom testimony.

C. Inconsistency in Plaintiff's Testimony

The ALJ may also consider inconsistencies in a plaintiffs testimony. Ghanim y. Colvin,

763 at 1163; Tommasetti, 533 F.3d at 1039. In the decision, the ALJ compared symptom

testimony that Plaintiff gave two different doctors in August 2014.° (Tr. 21.) In early August

2014, Dr. Ward noted that Plaintiff complained of his recurrent right abdominal pain, which

prevented him from driving equipment. (Tr. 349.) In late August 2014, Dr. Schindell reported

that Plaintiff had recently been seen in the emergency department. (Tr. 350.) Dr. Schindell

noted that the description of severe left flank pain Plaintiff gave Dr. Schindell differed “pretty

substantially” from Plaintiff's pain description in the emergency department. (Tr. 350). The

record lacks any documentation as to Plaintiff's pain description in the emergency department.

The ALJ’s reasoning implies that Dr. Schindell was noting inconsistency between what Plaintiff

> Plaintiff's complaints of foot pain appear throughout his medical record beginning in

September 2014. (Tr. 351, 455-56, 482-83, 485-87, 489, 492.)

6 The Commissioner argues that the ALJ found evidence of exaggeration based on these facts.

Such reasoning is absent from the ALJ’s decision, and this court is constrained “to review the

reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).

Page 10 - OPINION AND ORDER

told him and what Plaintiff told Dr. Ward earlier that month; in contrast, the record indicates that

Dr. Schindell was noting inconsistency between Plaintiff’s report to him of left abdominal pain

and a different report in the emergency department. Although Plaintiff appears to have given

some inconsistent testimony regarding various symptoms, the ALJ’s finding fails to specify the

inconsistency or relate that inconsistency to particular symptoms. Thus, the ALJ’s finding

regarding Plaintiff's inconsistent testimony is not supported by substantial evidence in the record

and fails to provide clear or convincing support to reject Plaintiffs subjective symptom testimony.

D. Symptom Improvement

The Commissioner argues the ALJ also noted evidence that Plaintiffs conditions improved

with treatment (Tr. 21) and argues that this observation provides an additional basis to discount

Plaintiff's subjective symptom testimony. The Commissioner’s rationale stretches what can

reasonably be inferred from the ALJ’s decision. See Connett v. Barnhart, 340 F.3d 871, 876 (9th

Cir. 2003) (holding the court is constrained “to review the reasons the ALJ asserts”).

Furthermore, even if the ALJ’s decision could be interpreted to provide such a rationale, such a

finding is unsupported by substantial evidence.

On July 1, 2015, Dr. Patel reported that Plaintiff’s right upper quadrant pain worsened in

the first week of his hepatitis C treatment, then resolved. (Tr. 359.) At that time, Plaintiff said

he was doing well. (Tr. 359.) Although there are treatment notes in the record that do not

mention Plaintiff's abdominal pain, the July 1, 2015 note from Dr. Patel is the only instance in the

record in which Plaintiff reported his abdominal pain had fully resolved. The ALJ found that

Plaintiff also reported doing “OK” and “managing fairly well” to Dr. Ward in November 2015.

(Tr. 21 (quoting Tr. 482).) However, this report was in the context of Dr. Ward’s note on mental

Page 11 — OPINION AND ORDER

health treatment, indicating that the statements did not address Plaintiff's physical pain. (Tr. 482.)

Finally, the ALJ noted that by early 2016, Plaintiff was once again complaining of debilitating

right upper quadrant pain, and Dr. Ward reported that the area was painful to palpation, though the

pain lacked a clear diagnosis. (Tr. 490.) An ALJ may not cherry-pick instances of improvement

when the record as a whole reflects ongoing symptoms. See Ghanim, 763 F.3d at 1164.

Accordingly, although a finding that Plaintiff's abdominal symptoms improved in summer 2015

is supported by substantial evidence, the record as a whole does not provide substantial evidence

of long-term improvement. Therefore, Plaintiffs temporary improvement is not a specific, clear

or convincing reason for discounting Plaintiffs subjective symptom testimony.

E. Failure to Address Significant Symptoms

The ALJ’s opinion failed to adequately address Plaintiff's subjective symptom testimony

regarding his urinary frequency and urgency and his foot pain. Although an ALJ need not discuss

all evidence, the ALJ must explain why significant probative evidence has been rejected. See

Murray v. Comm’r Soc. Sec. Admin, 226 F. Supp. 3d 1122, 1136 (D. Or. 2017) (citing Vincent ex

rel, Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (noting ALJ need not discuss all

medical evidence presented, but must explain why significant, probative evidence has been

rejected)).

Plaintiff's urinary frequency and urgency problems appear throughout his medical record.

(Tr. 352~53, 370, 406, 512, 518.) In a treatment note on May 15, 2014, Dr. Brant, Plaintiff's

treating physician for his bladder cancer, noted that Plaintiff has “bladder irritability including

significant urgency and frequency . . . occur[ing] both day and night.” On January 16, 2017,

shortly before the hearing, Dr. Brant noted that Plaintiff continues to experience bladder urgency

Page 12 OPINION AND ORDER

that is “stable at baseline.” (Tr. 512.) At the hearing, Plaintiff endorsed needing to empty his

bladder every time-he rises from sitting and needing to use the restroom about ten times during the

day and every ninety minutes at night. (Tr.59-61.) hearing, the VE testified that a worker

who needs to use the bathroom very frequently would spend too much time off-task to maintain

competitive employment. (Tr. 83.) The ALJ’s decision did not mention Plaintiff's urinary

frequency and urgency, and did not explain why Plaintiffs testimony regarding these symptoms

was rejected.

Plaintiff's complaints of foot pain also appear throughout his medical record beginning in

September 2014. (Tr. 351, 455-56, 482-83, 485-87, 489, 492.) Plaintiff endorsed debilitating

foot pain at the hearing. (Tr. 66-69.) Plaintiff’s medical record shows that he has a hammertoe

on his left foot and that his insurance company denied surgical repair. (Tr. 455-57, 486-87, 490,

492.) Additionally, Plaintiff has a thick callus on his right foot, for which a podiatrist treats him.

(Tr. 455, 485-87, 490, 492.) However, the ALJ’s analysis of Plaintiffs foot pain was limited to

a passing reference. (Tr. 21.) The ALJ failed to explain why he rejected Plaintiff's testimony

regarding his foot pain. With no discussion of Plaintiffs urinary symptoms and only a brief

reference to Plaintiff's foot symptoms, the ALJ’s reasoning falls well below the clear and

convincing level necessary to discount Plaintiff's reports of urinary frequency and urgency, and

debilitating foot pain with standing and walking. Accordingly, the court finds that the ALJ erred

by failing to articulate specific, clear and convincing reasons supported by substantial evidence in

the record for rejecting Plaintiff's subjective symptom testimony on these points.

In summary, the ALJ’s reasoning in discounting Plaintiffs subjective symptom testimony

concerning abdominal pain based on the lack of objective medical evidence is supported by

Page 13 -OPINION AND ORDER

substantial evidence. However, the ALJ’s rationale is otherwise unsupported by substantial

evidence in the record. Because a lack of objective medical evidence alone cannot support the

ALJ’s rejection of Plaintiffs subjective symptoms, see Tammy S., 2018 WL 5924505, at *4, the

ALJ failed to articulate specific, clear and convincing reasons for rejecting Plaintiff's subjective

symptom testimony.

Il. Treating Medical Opinion Evidence

Plaintiff argues that the ALJ erred in giving only limited weight to the opinion of treating

physician John Ward, MD. “There are three types of medical opinions in social security cases:

those from treating physicians, examining physicians, and non-examining physicians.” Valentine

y. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). In general, the opinion of a

treating physician is given more weight than the opinion of an examining physician, and the

opinion of an examining physician is afforded more weight than the opinion of a non-examining

physician. Ghanim, 763 F.3d at 1160; Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); 20 C.F.R.

§§ 404.1527, 416.927. “Where a treating or examining physician’s opinion is contradicted by

another doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’”” Valentine, 574

F.3d at 692 (citation omitted). “An ALJ may only reject a treating physician’s contradicted

opinions by providing ‘specific and legitimate reasons that are supported by substantial evidence.’”

Ghanim, 763 F.3d at 1161 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (Oth Cir.

2008)). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is

not supported by clinical findings or is brief or conclusory. Bray v. Comm’r of Soc. Sec. Admin.,

554 F.3d 1219, 1228 (9th Cir. 2009).

“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and

Page 14 —-OPINION AND ORDER

thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof,

and making findings.’” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725). Merely

stating conclusions is insufficient: “The ALJ must do more than state conclusions. He must set

forth his own interpretations and explain why they, rather than the doctors’, are correct.” Jd.

“[A|n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing

more than ignoring it, asserting without explanation that another medical opinion is more

persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his

conclusion.” Jd. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).

Plaintiff established primary care with Dr. Ward on February 20, 2014. (Tr. 285, 444.)

The record contains Dr. Ward’s treatment notes from eleven visits in advance of Dr. Ward’s

medical evaluation. (Tr. 285, 289, 349, 351, 352, 357, 370, 396, 482, 485, 489.) Dr. Ward

conducted a medical evaluation on April 2016. (Tr. 444-48.) He reported diagnoses of right

upper quadrant pain and bilateral foot pain. (Tr. 444.) He noted that Plaintiff exhibited pain on

exam of his right upper quadrant and had hammertoe deformities on his feet. (Tr. 445.)

Although Dr. Ward opined that Plaintiffs conditions were capable of causing his symptoms, he

noted that the symptoms were not corroborated with objective medical findings, that the cause of

the abdominal pain had not been elucidated, and that Plaintiff needed podiatric evaluation of his

feet. (Tr. 445.)

Based on these findings, Dr. Ward opined that Plaintiff would need to rest for two hours

periodically during the day. (Tr. 445.) He indicated that Plaintiff could walk one city block

without rest or significant pain, that he could sit for only twenty minutes at a time, and that he

could stand or walk for only twenty minutes at atime. (Tr. 446.) He indicated that in an eight-

Page 15 — OPINION AND ORDER

hour workday, Plaintiff could sit for eight hours and stand or walk for four hours. (Tr. 446.) He

opined that Plaintiff would need a job that permits shifting positions from sitting, standing, or

walking at will and would need an unscheduled ten-minute break each day. (Tr. 446-47.) He

indicated that Plaintiff could lift ten pounds frequently and twenty pounds occasionally. (Tr.

447.) He opined that Plaintiff's medical impairments would cause him to miss work three or four

days per month. (Tr. 448.)

The ALJ gave Dr. Ward’s opinion “only very limited weight” because: (1) there are

discrepancies between Dr. Ward’s proposed limitations and medical evidence; and (2) Dr. Ward

provided little support for his opinions. Dr. Ward’s opinion is contradicted by state agency

medical consultants Bill Hennings, Ph.D., and Roy Brown, M.D. (Tr. 91, 99, 113-14, 124-25.)

The ALJ was therefore required to provide specific, legitimate reasons for discounting Dr. Ward’s

opinion. Ghanim, 763 F.3d at 1161.

A, Inconsistency with Medical Evidence

The ALJ identified three ways in which Dr. Ward’s proposed limitations are inconsistent

with medical evidence: (1) Dr. Ward acknowledged that Plaintiff's symptoms “aren’t

corroborated with objective medical findings;” (2) Plaintiff “had specifically denied significant

impairment only weeks before delivering disability paperwork to Dr. Ward;” and (3) Dr. Ward’s

proposed limitations conflict with clinical observations in Dr. Houston’s treatment notes three

months later.

1, Lack of corroboration with objective medical findings

The ALJ reasoned that Dr. Ward’s opinion lacks corroboration with objective medical

findings. (Tr. 21-22.) Dr. Ward acknowledged in his opinion that although he found that

Page 16 OPINION AND ORDER

Plaintiff was fatigued and his right upper quadrant was painful to palpation, Plaintiff's symptoms

“aren’t corroborated with objective medical findings.” (Tr. 445.) As discussed above, although

Dr. Ward’s contemporaneous treatment notes document his efforts to identify the cause of

Plaintiff's pain, there is no indication that he was ever successful. (Tr. 42-43, 489-90.) An ALJ

may discredit a treating physician’s opinion that is unsupported by objective medical findings.

Batson, 359 F.3d at 1195 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). The

ALJ’s finding that Dr. Ward’s opinion lacks corroboration with objective medical findings is fully

supported by substantial evidence in the record. Accordingly, the lack of objective medical

findings provides a specific and legitimate reason to reject Dr. Ward’s opinion.

2. Plaintiff's prior denial of impairments

The ALJ next reasoned that Plaintiff “specifically denied significant impairment only

weeks before delivering disability paperwork to Dr. Ward.” (Tr. 22.) An ALJ may reject a

treating physician’s opinion when it is inconsistent with the objective medical record.

Tommasetti, 533 F.3d at 1041. However, here, Plaintiff correctly notes that the ALJ’s citations

to reports “only weeks before” Plaintiff provided with Dr. Ward with disability paperwork on

March 31, 2016, in fact cite treatment notes from months earlier, in April 2015, July 2015, and

December 2015. (Tr. 22 (citing Tr. 359, 482).) Furthermore, the correct treatment notes from

“only weeks before” do not provide substantial evidence supporting the ALJ’s conclusion that

Plaintiff denied significant impairment. Dr. Ward’s treatment notes from March 1, 2016, about a

month before Plaintiff delivered disability paperwork, include Plaintiffs reports of ongoing

bilateral foot pain and Dr. Ward’s objective medical findings regarding Plaintiff's foot deformities.

(Tr. 485-87.) Although Plaintiff did not complain of abdominal pain at that visit, the treatment

Page 17 — OPINION AND ORDER

notes provide no indication that he “specifically denied” such pain, and abdominal pain remained

on his “Patient Active Problem List.” (Tr. 485-86.) Accordingly, the ALJ’s finding that

Plaintiff “had specifically denied significant impairment only weeks before delivering disability

paperwork to Dr. Ward” is unsupported by substantial evidence in the record.

3. Inconsistency with subsequent clinical observations

The ALJ additionally reasoned that Dr. Ward’s opinion is inconsistent with the clinical

observations that Dr. Houston made a few months later. (Tr. 22.) An ALJ may reject a treating

or examining physician’s opinion when it is contradicted by clinical evidence. Ryan, 528 F.3d at

1199. Ina treatment note on June 7, 2017, Dr. Houston indicated that Plaintiff did not exhibit

swelling or tenderness in his abdomen, back, or paraspinal region, had normal range of motion,

was not in distress, and had normal mental functioning. (Tr. 470-71.) Although the ALJ

provided limited explanation of his finding of inconsistency, Dr. Houston’s treatment notes

directly contradict those of Dr. Ward on the narrow issue of Plaintiff's abdominal tenderness on

exam. Plaintiff notes that the visit to Dr. Houston was an emergency room examination after

Plaintiff came in for acute pain in his left chest and back, not an evaluation of the severity or

limiting effects of Plaintiff's persistent symptoms. (Tr. 468.) Plaintiff argues that Dr. Houston’s

observations in that context are not a sufficient basis for rejecting Dr. Ward’s opinion. Regardless

of the context, however, the ALJ’s identification of an inconsistency between Dr. Ward’s opinion

and clinical observations made a few months later is supported by substantial evidence in the

record,

B. Inadequate Support for Dr. Ward’s Opinion

The ALJ additionally noted that there was little support for Dr. Ward’s opinion that

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Plaintiff would have excessive absenteeism and that Plaintiff had severe limitations standing,

walking, or sitting. An “ALJ need not accept the opinion of any physician, including a treating

physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”

Bray, 554 F.3d at 1228 (citation omitted). Dr. Ward’s limitations on Plaintiff's sitting and

standing/walking of twenty minutes at a time find support in Dr. Ward’s clinical findings regarding

Plaintiff's abdominal and foot pain. (Tr. 489-91.) Accordingly, the ALJ’s finding that these

limitations lacked support is not supported by substantial evidence in the record. However, Dr.

Ward provided no support for his opinion that the Plaintiff would miss work three to four days a

month, and none is apparent from the record. Accordingly, the ALJ’s findings regarding a lack

of support for Dr. Ward’s opinion on excessive absenteeism is supported by substantial evidence.

In summary, the ALJ’s findings that Dr. Ward’s opinion is unsupported by objective

medical findings, inconsistent with Dr. Houston’s clinical observations, and lacking support

regarding excessive absenteeism are supported by substantial evidence in the record. However,

the ALJ’s finding regarding Plaintiff's denials of significant impairment is unsupported by

substantial evidence. Additionally, this court notes that in rejecting Dr. Ward’s opinion, the ALJ

failed entirely to mention or account for Plaintiffs foot symptoms, which Dr. Ward’s opinion

endorsed. Despite these shortcomings, the ALJ provided sufficient specific and legitimate

reasons supported by substantial evidence in the record to reject Dr. Ward’s opinion. Ghanim,

763 F.3d at 1161; Garrison, 759 F.3d at 1012. Accordingly, the ALJ did not err in giving although

giving Dr. Ward’s opinion only very limited weight.

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Il. Remand

After finding the ALJ erred, this court applies a three-part test to determine whether the

case should be remanded for further proceedings or remanded to calculate and award benefits.

Garrison, 759 F.3d at 1020; Harman vy, Apfel, 211 F.3d 1172, 1178 (th Cir. 2000). The court

should grant an immediate award of benefits when these three conditions are met:

(1) the record has been fully developed and further administrative proceedings

would serve no useful purpose, (2) the ALJ has failed to provide legally sufficient

reasons for rejecting evidence, whether claimant testimony or medical opinion; and

(3) if the improperly discredited evidence were credited as true, the ALJ would be

required to find the claimant disabled on remand.

Garrison, 759 F.3d at 1020. Where, after evaluating the record as a whole, there are serious

doubts that the claimant is, in fact, disabled, the court may exercise its discretion and remand the

case for further administrative proceedings. Jd. at 1021; Connett, 340 F.3d at 876.

Here, the ALJ erred by improperly rejecting Plaintiff’s subjective symptom testimony. If

properly credited, Plaintiffs subjective complaints would require changes to the RFC, but would

not necessarily require an ultimate finding of disability. Accordingly, an immediate award of

benefits is not appropriate. On remand, the ALJ should be given the opportunity to reassess

Plaintiffs subjective symptom testimony, resolve the outstanding conflicts in the record, formulate

a correct RFC, and continue in the sequential analysis with assistance of a VE, if necessary.

Because there are outstanding issues that must be resolved before a finding of disability can be

made, this case is reversed and remanded for further proceedings consistent with this opinion.

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Conclusion

Based on the foregoing, the Commissioner’s decision denying Plaintiff's applications for

benefits is REVERSED and this proceeding is REMANDED for further administrative

proceedings.

IT IS SO ORDERED.

SA

DATED this 2 ” “day of April, 2020.

Ai

. 3

HN V. ACOSTA

Unit d States Magistrate Judge

\

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