finding 15 || claimant’s failure to obtain medical treatment during period that he lacked 16 || insurance and could not afford any treatment could not be used as a basis to reject 17 || his credibility
How later courts described this case
- finding 15 || claimant’s failure to obtain medical treatment during period that he lacked 16 || insurance and could not afford any treatment could not be used as a basis to reject 17 || his credibility
- “[A]n 25 || ALJ must evaluate the physician’s assessment using the grounds on which it is 26 || based.’’
- setting 12 forth three-part credit-as-true standard for remanding with instructions to calculate 13 || and award benefits
- asserting a 14 || lack of corroborative objective medical evidence may be one factor in evaluating 15 credibility
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 | JEFFREY P., Case No. ED CV 18-2004-SP
12 Plaintiff,
13 V. MEMORANDUM OPINION AND
14 ANDREW M. SAUL, Commissioner of ORDER
15 Social Security Administration,
6 Defendant.
VT
18
19
20 INTRODUCTION
21 On September 20, 2018, plaintiff Jeffrey P. filed a complaint against
22 || defendant, the Commissioner of the Social Security Administration
23 || (‘Commissioner’), seeking a review of a denial of a period of disability and
24 || disability insurance benefits (“DIB”).
25 Plaintiff presents what amount to four issues for decision: (1) whether the
26 || Administrative Law Judge (“ALJ”) properly discounted plaintiff's subjective
27 || complaints; (2) whether the ALJ properly considered the opinions of plaintiff's
28
1 || treating physicians; (3) whether the ALJ’s residual functional capacity (“RFC”)
2 || determination was supported by substantial evidence; and (4) whether the ALJ was
3 || required to address and resolve an alleged conflict between the testimony of a
4 || vocational expert and a social security ruling. Memorandum in Support of
5 || Plaintiff's Complaint (“P. Mem.’) at 1-16; see Memorandum in Support of
6 || Defendant’s Answer (“D. Mem.”) at 1-11.
7 Having carefully studied the parties’ papers, the Administrative Record
8 || (“SAR”), and the decision of the ALJ, the court concludes that, as detailed herein,
9 || the ALJ erred by failing to properly consider plaintiff's testimony and the opinions
10 || of the treating physicians, and improperly assessed plaintiff's RFC. The court
11 therefore remands this matter to the Commissioner in accordance with the
12 principles and instructions set forth in this Memorandum Opinion and Order.
13 Il.
14 FACTUAL AND PROCEDURAL BACKGROUND
15 Plaintiff was 45 years old on his alleged disability onset date. AR 92. He
16 || has a GED and past relevant work as a delivery driver. Id. at 51, 54.
17 On August 13, 2014, plaintiff filed an application for disability and DIB,
18 } alleging disability beginning April 10, 2014 due to severe nerve damage in his
19 } right leg, right calf, and right foot, surgery on both elbows, and degenerative back
20 || disease. Id. at 92. The Commissioner denied plaintiff's application initially and
21 || upon reconsideration, after which he filed a request for a hearing. Jd. at 112-26.
22 On December 22, 2016, and May 18, 2017, plaintiff represented by counsel,
23 || appeared and testified at two hearings before the ALJ. Id. at 44, 53-63, 68, 84-87.
24 || At the December 22, 2016 hearing, the ALJ heard testimony from vocational
25 || expert (“VE”) Mr. Brodinski. Id. at 51-53, 63-64. On the May 18, 2017 hearing,
26 || the ALJ heard testimony from VE Robin Scher and medical expert Louis A. Fuchs,
27 || M.D. 7d. at 73-90. On June 29, 2017, the ALJ denied plaintiff's claim for benefits.
28
1 | Id. at 22-34.
2 Applying the well-known five-step sequential evaluation process, the ALJ
3 || found, at step one, that plaintiff had not engaged in substantial gainful activity
4 || since April 10, 2014, the alleged onset date. Jd. at 24.
5 At step two, the ALJ found plaintiff suffered from the following severe
6 || impairments: lateral epicondylitis of the right elbow, status post surgery for a right
7 || epicondylectomy on May 27, 2011; posttraumatic arthritis of the left elbow, status
8 || post surgery for internal and external fixation of a left distal humerus intraarticular
9 || fracture on January 22, 2006; lumbar spondylosis with sciatica, status post surgery
10 || for a laminectomy and foraminotomy at L5-S1 on May 15, 2014; major depressive
11 || disorder; generalized anxiety disorder; and attention deficit hyperactivity disorder
12 | (“ADHD”). Jd. at 24-25.
13 At step three, the ALJ found that plaintiff's impairments, whether
14 | individually or in combination, did not meet or medically equal one of the listed
15 || impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (“Listing”). Id.
16 at 25.
17 The ALJ then assessed plaintiff's RFC,' and determined plaintiff had the
18 || RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with some
19 | exceptions. /d. at 26. In particular, he could: lift and carry 10 pounds occasionally
20 || and frequently; stand and walk for at least two hours in an eight-hour workday; sit
21 || for about six hours in an eight-hour workday; never crouch, crawl, climb, stoop, or
22 || kneel; and handle and finger on no more than a frequent basis. Jd. The ALJ also
23
0°
' Residual functional capacity is what a claimant can do despite existing
25 | exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-
26 | 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,
the ALJ must proceed to an intermediate step in which the ALJ assesses the
claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151
28 | n.2 (9th Cir. 2007).
1 || found plaintiff is limited to unskilled work involving simple, repetitive tasks. Jd.
2 The ALJ found, at step four, that plaintiff was unable to perform his past
3 || relevant work as a delivery driver. Id. at 32.
4 At step five, the ALJ found there were jobs that existed in significant
5 || numbers in the national economy that plaintiff could perform, such as a
6 || microfilming document preparer and call out operator. Jd. at 33-34. Consequently,
7 || the ALJ concluded plaintiff did not suffer from a disability as defined in the Social
8 || Security Act. Id.
9 Plaintiff filed a timely request for review of the ALJ’s decision, which was
10 || denied by the Appeals Council. Jd. at 1-4. The ALJ’s decision stands as the final
11 decision of the Commissioner.
12 III.
13 STANDARD OF REVIEW
14 This court is empowered to review decisions by the Commissioner to deny
15 || benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security
16 || Administration must be upheld if they are free of legal error and supported by
17 || substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001)
18 | (as amended). But if the court determines the ALJ’s findings are based on legal
19 || error or are not supported by substantial evidence in the record, the court may
20 || reject the findings and set aside the decision to deny benefits. Aukland v.
21 || Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d
22 || 1144, 1147 (9th Cir. 2001).
23 “Substantial evidence is more than a mere scintilla, but less than a
24 || preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such
25 || “relevant evidence which a reasonable person might accept as adequate to support
26 || aconclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276
27 || F.3d at 459. To determine whether substantial evidence supports the ALJ’s
28
1 || finding, the reviewing court must review the administrative record as a whole,
2 || “weighing both the evidence that supports and the evidence that detracts from the
3 || ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be
4 || affirmed simply by isolating a specific quantum of supporting evidence.’”
5 || Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th
6 || Cir. 1998)). If the evidence can reasonably support either affirming or reversing
7 || the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that
8 || of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.
9 | 1992)).
10 IV.
11 DISCUSSION
The ALJ Did Not Offer a Clear and Convincing Reason for Discounting
13 Plaintiff's Testimony
14 Plaintiff argues the ALJ erred by rejecting plaintiff's subjective symptom
15 }| testimony on the ground that it was inconsistent with the objective medical
16 || evidence. P. Mem. at 3-8. Plaintiff argues this reason was the only reason given,
17 || and this reason alone is not a clear and convincing reason for discounting his
18 ]| testimony. P. Mem. at 1-7; Reply at 1-5.
19 The ALJ must clearly articulate specific reasons for the weight given to a
20 || claimant’s alleged symptoms, supported by the record. Social Security Ruling
21 || (“SSR”) 16-3p.? To determine whether testimony concerning symptoms is
22 || credible, the ALJ engages in a two-step analysis. Trevizo v. Berryhill, 862 F.3d
23
24 * “The Commissioner issues Social Security Rulings to clarify the Act’s
implementing regulations and the agency’s policies. SSRs are binding on all
25 components of the SSA. SSRs do not have the force of law. However, because
26 || they represent the Commissioner’s interpretation of the agency’s regulations, we
give them some deference. We will not defer to SSRs if they are inconsistent with
the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th
28 || Cir. 2001) (internal citations omitted).
1 | 987, 1000 (9th Cir. 2017) (citing Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th
2 || Cir. 2014)). First, the ALJ must determine whether a claimant produced objective
3 || medical evidence of an underlying impairment that could reasonably be expected
4 || to produce the symptoms alleged. Jd. Second, “[i]f such evidence exists and there
5 || is no evidence of malingering, the ALJ can reject the claimant’s testimony about
6 || the severity of [his] symptoms only by offering specific, clear and convincing
7 || reasons for doing so,” and those reasons must be supported by substantial evidence
8 || in the record. /d.; Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir.
9 | 2008).
10 An ALJ may consider several factors in weighing a claimant’s testimony at
11 || the second step, including: ordinary techniques of credibility evaluation such as a
12 || claimant’s reputation for lying; the failure to seek treatment or follow a prescribed
13 | course of treatment; and inconsistencies with the claimant’s testimony or between
14 || the testimony and claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 1035,
15 || 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991);
16 || Ynzunza v. Astrue, 2010 WL 3270975, at *3 (C.D. Cal. Aug. 17, 2010). But
17 || “subjective pain testimony cannot be rejected on the sole ground that it is not fully
18 || corroborated by objective medical evidence.” Rollins v. Massanari, 261 F.3d 853,
19 || 857 (9th Cir. 2001) (citation omitted). The ALJ must also “specifically identify the
20 || testimony [from the claimant] that she or he finds not to be credible and . . . explain
21 || what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775
22 || F.3d 1090, 1102 (9th Cir. 2014) (quoting Holohan, 246 F.3d at 1208).
23 At the first step, the ALJ here found plaintiff's medically determinable
24 || impairments could reasonably be expected to cause the symptoms alleged. AR at
25 || 27. At the second step, because the ALJ did not find any evidence of malingering,
26 || the ALJ was required to provide clear and convincing reasons for discounting
27 || plaintiff's testimony. Here, the ALJ discounted plaintiffs testimony because
28
1 || plaintiff's statements concerning the intensity, persistence, and limiting effects of
2 || his symptoms were not consistent with the medical evidence of record, including a
3 || dearth of postoperative treatment records for bilateral elbow dysfunction, initial
4 || diagnostic imaging of the lumbar spine showing only mild degenerative changes
5 || (Exhibits 8F and 9F at 3), subsequent electrodiagnostic testing showing only mild
6 || chronic denervation in the lower extremity muscles (Exhibit 13F at 4), and reports
7 | of unremarkable mental status examinations (Exhibit 33F at 11, 16). Jd. The court
8 || finds the ALJ did not provide sufficient, clear and convincing reasons for finding
9 || plaintiff's testimony not credible.
10 An ALJ “may not reject a claimant’s subjective complaints based solely on a
11 || lack of objective medical evidence to fully corroborate the alleged severity of
12 || pain,” but lack of objective medical evidence may be one factor used to evaluate
13 credibility. Bunnell, 947 F.2d at 345; see Rollins, 261 F.3d at 856-57 (asserting a
14 || lack of corroborative objective medical evidence may be one factor in evaluating
15 credibility). Lack of corroborating objective medical evidence was the primary
16 || reason given by the ALJ here. Although the ALJ accepted much of plaintiff's
17 || testimony, he specifically rejected plaintiff's assertion that he was unable to work.
18 AR at 27; see Treichler, 775 F.3d at 1102 (finding the ALJ must “specifically
19 identify the testimony [from the claimant] that she or he finds not to be credible
20 || and... . explain what evidence undermines the testimony.”).
21 The ALJ rejected plaintiff's allegations of lumbar spine impairment and
22 || severe nerve damage because the initial diagnostic imaging of the lumbar spine
23 || showed only mild degenerative changes, and subsequent electrodiagnostic testing
24 || showed only mild chronic denervation in the lower extremity muscles. AR at 27.
25 || With respect to the initial imaging of plaintiffs lumbar spine, the ALJ cites to a
26 || magnetic resonance imaging (“MRI”) of the lumbar spine from October and
27 || November 2012 showing only mild degenerative changes. Id. at 27, 848-850. But
28
1 || the 2012 MRIs of plaintiff's lumbar spine are of limited relevance since plaintiff
2 |! alleges he became disabled in 2014. See id. at 92; Carmickle, 533 F.3d at 1165
3 || (‘Medical opinions that predate the alleged onset of disability are of limited
4 | relevance.”). Since then, plaintiff's lumbar spine impairment had not improved,
5 || and indeed, became more severe. A medical assessment from April 2014 reveals a
6 || decreased range of motion in plaintiff's lower back, tenderness, and spasm, and as
7 || aresult, plaintiff was given Toradol injections for his pain. AR at 616-17.
8 || Because the more conservative treatment for plaintiff's lumbar spine failed, Dr.
9 || Gene Choi, an orthopedic surgeon, performed surgery on plaintiff for a
10 || laminectomy and foraminotomy on May 15, 2014. Jd. at 477-78. Three months
11 } after plaintiff's laminectomy, Dr. Choi’s evaluation revealed that plaintiff had
12 || decreased range of motion, tenderness, motor loss at 4/5, and positive straight leg
13 raising. Jd. at 840-41. Further, Dr. Choi reported that a post-surgery MRI showed
14 || persistent or recurrent disc herniation, and noted that plaintiff possibly had
15 || permanent nerve injury. /d. at 842.
16 The ALJ also noted that electrodiagnostic testing performed by Dr. Ibrahim
17 || on February 16, 2016 showed mild chronic denervation (see id. at 27, 870);
18 | however, the last MRI from September 12, 2016 indicates that plaintiff had
19 || moderate to severe disc space narrowing at L5-S1 with moderate to severe right
20 || and moderate left neural foraminal narrowing. Id. at 29, 874-75; see Young v.
21 || Heckler, 803 F.2d 963, 968 (9th Cir. 1986) (“Where a claimant’s condition is
22 || progressively deteriorating, the most recent medical report is the most probative.’’)
23 || (citation omitted). Thus, the 2012 MRIs of plaintiff's lumbar spine and the
24 || subsequent electrodiagnostic testing showing mild denervation are not clear and
25 || convincing reasons for rejecting plaintiffs testimony given that recent evidence
26 || regarding plaintiff's lumber spine and nerve damage indicates moderate to severe
27 || impairments.
28
1 In addition, the ALJ cites plaintiffs “unremarkable mental status
2 || examination” as a reason to discount his complaints. AR at 27. The ALJ relies on
3 || reports by psychiatrist Dr. David Atwood, which note that plaintiff had
4 | unremarkable appearance, appropriate and congruent behavior, normal speech,
5 || linear thought process, no delusions or hallucinations, and appropriate and fair
6 || judgment. Jd. at 1086. Despite plaintiffs unremarkable mental status
7 || examination, a review of Dr. Atwood’s psychological progress notes reveal that
8 || plaintiff was diagnosed with generalized anxiety disorder and major depression.
9 || See id. at 1082-85. Additionally, Dr. Atwood prescribed plaintiff with medication
10 || for his depression, anxiety, and sleep latency. /d. But regardless of plaintiff's
11 || mental health status, plaintiff did not allege that he was limited in his ability to
12 | work due to mental health impairments. See id. at 27. Thus, the fact that plaintiff
13 | had an unremarkable mental status examination is not a clear and convincing
14 || reason to discount plaintiff's testimony that he was unable to work.
15 Contrary to plaintiff's contention, the ALJ gave a second reason for
16 || discounting plaintiff's testimony beyond lack of supporting objective medical
17 || evidence, namely, that there was a dearth of postoperative treatment records for
18 || bilateral elbow dysfunction. AR 27; see Parra v. Astrue, 481 F.3d 742, 751 (9th
19 Cir. 2007) (“[E]vidence of conservative treatment is sufficient to discount a
20 || claimant’s testimony regarding severity of an impairment.” (internal quotation
21 || marks and citation omitted); SSR 96-7p (“the [plaintiff]’s statements may be less
22 || credible if the level or frequency of treatment is inconsistent with the level of
23 || complaints”). But a review of the record reveals that plaintiff had a legitimate
24 || reason for not seeking further treatment given that surgery was not a viable option
25 || for his elbow. See AR at 1067. During a consultation in January 2017, plaintiff
26 || was referred to Loma Linda University due to the complexity of his elbow injury
27 || and the possibility of “total elbow replacement.” Jd. at 1056-1058. On March 28,
28
1 | 2017, Dr. Fabio Caetano Figueiredo evaluated plaintiff regarding his left elbow
2 || condition and discouraged plaintiff from further procedures since there was a
3 || significant chance that such treatment would exacerbate his elbow impairments.
4 | Id. at 1067. In addition, plaintiff was unable to seek treatment for about six months
5 || to a year in 2014, because he lost his health insurance when he was terminated
6 || from his job. See id. at 58, 837. Thus, the lack of postoperative treatment records
7 || relating to plaintiff's elbow is not a clear and convincing reason to discount
8 || plaintiffs testimony given that further treatment would have exacerbated
9 || plaintiff's elbow impairment and there was a period of time in which plaintiff
10 || could not afford any treatment. See Carmickle, 533 F.3d at 1162 (citing Orn v.
11 || Astrue, 495 F.3d 625, 638 (9th Cir. 2007)) (“[A]lthough a conservative course of
12 || treatment can undermine allegations of debilitating pain, such fact is not a proper
13 }| basis for rejecting the claimant’s credibility where the claimant has a good reason
14 || for not seeking more aggressive treatment.”); Orn, 495 F.3d at 638 (finding
15 || claimant’s failure to obtain medical treatment during period that he lacked
16 || insurance and could not afford any treatment could not be used as a basis to reject
17 || his credibility).
18 Accordingly, the ALJ failed to provide a clear and convincing reason
19 || supported by substantial evidence for discounting plaintiff's testimony.
The ALJ Improperly Rejected the Opinions of Plaintiffs’ Treating
21 Physicians
22 Plaintiff argues the ALJ erred by failing to properly weigh the opinions of
23 | his treating physicians, Dr. Choi and Dr. Almudhafar. P. Mem. at 8-12.
24 |! Specifically, plaintiff contends the ALJ failed to provide legally sufficient reasons
25 || for rejecting their opinions. Id.
26 In determining whether a claimant has a medically determinable impairment,
27 || among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§
28
10
1 || 404.1527(b), 416.927(b).’ In evaluating medical opinions, the regulations
2 || distinguish among three types of physicians: (1) treating physicians; (2) examining
3 || physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c),
A (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as
5 || amended). “Generally, a treating physician’s opinion carries more weight than an
6 || examining physician’s, and an examining physician’s opinion carries more weight
7 || than a reviewing physician’s.” Holohan, 246 F.3d at 1202; 20 C.F.R. §§
8 | 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the treating physician is
9 || generally given the greatest weight because the treating physician is employed to
10 || cure and has a greater opportunity to understand and observe a claimant. Smolen,
11 | 80 F.3d at 1285; Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
12 Nevertheless, the ALJ is not bound by the opinion of the treating physician.
13 || Smolen, 80 F.3d at 1285. Ifa treating physician’s opinion is uncontradicted, the
14 || ALJ must provide clear and convincing reasons for giving it less weight. Lester,
15 || 81 F.3d at 830. If the treating physician’s opinion is contradicted by other
16 || opinions, the ALJ must provide specific and legitimate reasons supported by
17 || substantial evidence for rejecting it. Jd. Likewise, the ALJ must provide specific
18 || and legitimate reasons supported by substantial evidence in rejecting the
19 || contradicted opinions of examining physicians. Jd. at 830-31. The opinion of a
20 || non-examining physician, standing alone, cannot constitute substantial evidence.
21 || Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v.
22 || Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d
23 || 813, 818 n.7 (9th Cir. 1993).
24
25
26, ©
> The Social Security Administration issued new regulations effective March
27, 2017. All regulations cited in this decision are effective for cases filed prior to
28 |} March 27, 2017.
11
1 1. The Medical Opinions and Records
2 a. Treating Physicians
3 Dr. Gene Choi, an orthopedic surgeon, treated plaintiff between April 2014
4 | and April 2015. AR at 840, 843. Between April and August 2014, Dr. Choi
5 || examined plaintiff every two months. Jd. at 840. Dr. Choi performed surgery on
6 || plaintiff for a laminectomy and foraminotomy at L5-SI on May 15, 2014. /d. at
7 | 477-79. This procedure was completed to address plaintiff's lumbar disc disease
8 || with radiculopathy which caused numbness, heaviness, and cramping in his right
9 || calf, along with mild back pain. Id. at 477. Dr. Choi examined plaintiff three
10 || months after his laminectomy, and noted that plaintiff had a decreased range of
11 || motion, tenderness, motor loss at 4/5, and positive straight leg raising. Jd. at 840-
12 41. Dr. Choi advised plaintiff to avoid reaching at a distance and lifting, and
13 || indicated that plaintiff was still experiencing numbness and heaviness in the right
14 || calf when he walks or stands. Jd. at 841-42. Dr. Choi reported that a post-surgery
15 | MRI showed persistent or recurrent disc herniation, and noted that permanent
16 || nerve injury is a possibility. Jd.
17 On April 2, 2015, Dr. Choi completed a Residual Functional Capacity
18 || Questionnaire regarding plaintiff's spine. Id. at 843-47. Therein, Dr. Choi
19 | diagnosed plaintiff with posttraumatic arthritis of the left elbow and lumbar disc
20 || disease with radiculopathy. Id. at 843. Dr. Choi indicated plaintiff experienced
21 || numbness and heaviness with spasms, and decreased range of motion to the left
22 || elbow. Jd. Dr. Choi also reported positive straight leg raising, abnormal gait,
23 || muscle weakness, and sensory loss. Jd. Dr. Choi then opined plaintiff: could lift
24 || and carry 20 pounds rarely and 10 pounds occasionally; could sit for only an hour
25 || at a time, and for a total of two hours in an eight-hour workday; could stand for 30
26 || minutes at a time; could stand or walk for less than a total of two hours in an eight-
27 || hour workday; required the option to walk every 45 minutes for five minutes; and
28
12
1 | would need to miss four or more days of work per month. Id. at 844-47.
2 On July 20, 2016, Dr. Farah Almudhafar, plaintiff's primary care physician
3 || provided a completed Medical Assessment of Ability to do Work-Related
4 || Activities. Id. at 872. Dr. Almudhafar opined plaintiff: could lift and carry under
5 | 10 pounds; could stand and walk for about 30 minutes total in an eight-hour
6 || workday; and could sit for about 30 minutes total in an eight-hour workday. Jd.
7 | Dr. Almudhafar also indicated plaintiff's upper extremities were limited to:
8 || occasional reaching of the right arm and no reaching of the left arm; occasional
9 || grasping with either hand; and occasional fine manipulation with the left hand and
10 || none with the right. Jd.
11 On November 28, 2016, Dr. Almudhafar provided a supplemental Medical
12 | Assessment of Ability to do Work-Related Activities, 1n which she opined the
13 | same limitations as in her prior opinion, and also noted that plaintiff was likely to
14 || be absent from work more than three times a month due to his impairments. Id. at
15 1050. Dr. Almudhafar indicated that the basis for her opinion was her diagnostic
16 || impressions of lumbosacral spondylosis, lumbar radiculopathy, and chronic healed
17 || left humerous fracture and right tennis elbow. Jd.
18 b. Examining Physician
19 On October 20, 2016, Dr. William Wang, a consultative examiner,
20 || completed an orthopedic evaluation of plaintiff. Plaintiff presented complaints of
21 || bilateral elbow and low back pain. Jd. at 887. A physical examination was
22 || completed, which revealed diffuse tenderness to palpation over the right lateral
23 || epicondyle, and Dr. Wang observed a full range of motion of the right elbow. Id.
24 || at 890. Plaintiff was found to have a reduced range of motion of the left elbow.
25 |i Id. Dr. Wang found diffuse tenderness to palpation in the midline of the lumbar
26 || spine and a reduced range of motion of the lumbar spine. /d. at 889-90. Straight
27 || leg raising tests were positive at 45 degrees. Id. at 890. Dr. Wang’s diagnostic
28
13
1 || impressions revealed lateral epicondylitis of the right elbow, posttraumatic arthritis
2 || of the left elbow, and lumbar spondylosis with sciatica. Id. at 892.
3 Dr. Wang then provided a functional assessment, opining that plaintiff:
4 | could lift and carry 10 pounds occasionally and frequently; stand and walk for two
5 || hours in an eight-hour workday; and sit for six hours in an eight-hour workday. Jd.
6 || Dr. Wang stated that plaintiff could never crouch, crawl, climb, stoop, or kneel. □□□
7 || He also opined that plaintiff is “frequently limited in performing gross and fine
8 || manipulations using the left upper extremity due to his post-traumatic elbow
9 || arthritis.” Id.
10 Cc. Non-Examining Physician
11 During the May 18, 2017 hearing, the testifying medical expert Dr. Louis
12 || Fuchs, a Board Certified orthopedic surgeon, reviewed Dr. Wang’s clinical
13 || findings and determined that plaintiff's motor strength appeared “quite
14 || satisfactory,” but that he had some decreased sensation in the right lower extremity
15 laterally. Id. at 78; see id. at 890-91. In reviewing plaintiff's nerve test conducted
16 || by Dr. Waseem Ibrahim on February 17, 2016, Dr. Fuchs concluded that the right
17 || H reflex was absent, but explained that he placed more weight on the physical
18 || exam which indicated that plaintiff's reflexes were normal. Jd. at 79; see id. at
19 || 870. Dr. Fuchs then reviewed plaintiff's last MRI from September 12, 2016, and
20 || found that the neurological exams were reasonable. Jd. at 79; see id. at 874-75.
21 || Dr. Fuchs noted that Dr. Wang found full range of motion of the shoulders and
22 || wrists, and plaintiff's elbows showed some tenderness and pain with motions. Id.
23 || at 81. Dr. Fuchs explained that he reviewed Dr. Wang’s findings for weakness,
24 || reflex inequalities, muscle pains, and abnormality patterns, and found that
25 || neurological strength and sensory examination in the upper extremities were
26 || normal except for the right lower extremity. /d. Upon further questioning
27 || regarding plaintiffs left upper extremities, Dr. Fuchs stated that plaintiff was
28
14
1 || limited to occasional flexion and extension of his left elbow. Jd. at 83-84. Dr.
2 || Fuchs found that Dr. Wang’s limitation that plaintiff could stand and walk for two
3 || hours in an eight-hour workday was reasonable. Jd. at 82.
4 2. The ALJ’s Findings
5 The ALJ determined plaintiff had the RFC to perform sedentary work, but
6 || with the limitations that he could: lift and carry 10 pounds occasionally and
7 || frequently; stand and walk for at least two hours in an eight-hour workday; sit for
8 || about six hours in an eight-hour workday; never crouch, crawl, climb, stoop, or
9 || kneel; handle and finger on no more than a frequent basis; and perform only
10 || unskilled work involving simple, repetitive tasks. /d. at 26.
11 In reaching his RFC determination, the ALJ credited the opinions of
12 | consultative examiner Dr. Wang and testifying medical expert Dr. Fuchs, finding
13 that their opinions were consistent with the objective medical evidence. See id. at
14 || 30-32. The ALJ gave little weight to the medical opinions of Dr. Choi and Dr.
15 || Almudhafar on the basis that their opinions regarding plaintiff's functional and
16 || exertional limitations were inconsistent with the relevant medical evidence of
17 || record, including a dearth of probative postoperative treatment records for bilateral
18 | elbow dysfunction, initial diagnostic imaging of the lumbar spine showing only
19 || mild degenerative changes, and subsequent electrodiagnostic testing showing only
20 || mild chronic denervation in the lower extremity muscles. See id. at 29-30.; Batson
21 | v. Comm’r, 359 F.3d 1190,1195 (9th Cir. 2004) (holding that an ALJ may discredit
22 || physicians’ opinions that are “unsupported by the record as a whole. . . or by
23 || objective medical findings”). In short, the ALJ rejected Dr. Choi’s and Dr.
24 || Almudhafar’s opinions for essentially the same reasons he rejected plaintiff's
25 || testimony that he could not work. See AR at 27.
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1 3. The ALJ Failed to Properly Consider the Opinions of Dr. Choi
2 and Dr. Almudhafar
3 To reject a treating physician’s opinion that is contradicted by other
4 | opinions, the ALJ must provide specific and legitimate reasons supported by
5 || substantial evidence for rejecting it. Lester, 81 F.3d at 830. Here, the opinions of
6 || Dr. Choi and Dr. Almudhafar concerning plaintiff's functional limitations were
7 || contradicted by the opinions of Dr. Wang and Dr. Fuchs. Compare AR at 843-47,
8 || 1050 with 79-84, 892. Although plaintiff characterizes Dr. Almudhafar’s opinion
9 || concerning plaintiffs right upper extremity limitations as uncontradicted (see P.
10 || Mem. at 10-11), Dr. Almudhafar’s observation that plaintiff was limited to
11 || occasional reaching of the right arm (see id. at 872) 1s contradicted by Dr. Wang
12 | who found that plaintiff was only frequently limited in performing gross and fine
13 manipulations with the left arm and not the right arm. /d. at 892. Thus, the ALJ
14 || was required to provide specific and legitimate reasons supported by substantial
15 || evidence for rejecting the opinions of plaintiffs treating physicians Dr. Choi and
16 | Dr. Almudhafar.
17 As discussed above, a review of the medical record indicates that there is
18 | more recent evidence regarding plaintiff's lumbar spine and elbow impairments
19 that contradicts and supersedes the evidence cited by the ALJ in rejecting Dr.
20 || Choi’s and Dr. Almudhafar’s medical opinions. Specifically, plaintiff's lack of
21 || elbow treatment does not undermine the opinions of Dr. Choi and Dr. Almudhafar
22 || because further treatment was not a viable option for plaintiff, and there was a
23 || period of time in which plaintiff could not afford any treatment. See id. at 58,
24 || 1067; Carmickle, 533 F.3d at 1162; Orn, 495 F.3d at 638. In addition, the 2012
25 initial diagnostic imaging of plaintiffs lumbar spine showing mild degenerative
26 || changes was taken prior to plaintiff's alleged onset of disability. See id. at 848-
27 || 850. The ALJ ignores the more recent medical evidence regarding plaintiff’ s
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1 || lumbar spine and nerve impairments, in which Dr. Choi indicated that a post-
2 || surgery MRI continued to show moderate to severe right and moderate left
3 || neuroforaminal narrowing, persistent or recurrent disc herniation, and the
4 | possibility of permanent nerve damage. /d. at 477-78, 825-26, 841-42. Further,
5 || Dr. Choi observed plaintiff had a decreased range of motion, tenderness, decreased
6 || sensation, motor loss at 4/5, and positive straight leg raising. /d. at 840. Although
7 || asubsequent MRI showed only mild chronic denervation in the lower extremity
8 || muscles, a later 2016 MRI of plaintiff's lumbar spine showed moderate to severe
9 || disc space narrowing at L5-S1 with moderate to severe right and moderate left
10 || neuroforaminal narrowing. Id. at 29 (citing AR at 870), 874-75. As such, in
11 || reviewing the record as a whole, the evidence provided by the ALJ in rejecting the
12 | opinions of Dr. Choi and Dr. Almudhafar does not amount to a specific and
13 || legitimate reason supported by substantial evidence.
14 Moreover, the ALJ apparently did not consider the objective medical
15 || evidence underlying the opinions of Dr. Choi and Dr. Almudhafar. See id. at 29-
16 | 30. With respect to Dr. Choi’s opinion, the ALJ did not address Dr. Choi’s
17 || observation that plaintiff had numbness and heaviness with spasms, decreased
18 || range of motion in the left elbow, positive straight leg raising, abnormal gait,
19 || muscle weakness, and sensory loss. Jd. at 843. Likewise, the ALJ did not consider
20 || the basis of Dr. Almudhafar’s opinion regarding plaintiffs functional limitations,
21 || including her diagnosis of plaintiff with lumbosacral spondylosis, lumbar
22 || radiculopathy, chronic healed left humerous fracture, and right tennis elbow. Id. at
23 | 1050. Thus, the ALJ erred by rejecting the opinions of Dr. Choi and Almudhafar
24 || without considering the basis for their opinions. See Orn, 495 F.3d at 635 (“[A]n
25 || ALJ must evaluate the physician’s assessment using the grounds on which it is
26 || based.’’).
27 Accordingly, the ALJ failed to cite specific and legitimate reasons supported
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1 || by substantial evidence for rejecting the opinions of Dr. Choi and
2 || Dr. Almudhafar.
The ALJ’s RFC Determination Concerning Plaintiff's Left Upper
4 Extremity Limitation Was Not Supported by Substantial Evidence
5 Plaintiff contends the ALJ’s determination that plaintiff could use his left
6 || arm frequently was not supported by substantial evidence. P. Mem. at 12. Plaintiff
7 || further asserts that the ALJ’s failure to consider plaintiffs left upper extremity
8 || limitation was harmful, because a vocational expert testified that with this
9 || limitation plaintiff would be considered disabled. □□□ at 13.
10 In his RFC determination, the ALJ concluded that plaintiff “can handle and
11 || finger on no more than a frequent basis,” meaning he could handle and finger up to
12 | two third of the time. AR at 26; see SSR 83-10 (defining “frequent” as occurring
13 || up to two thirds of the time). But the ALJ’s determination appears to be
14 inconsistent with the medical opinions of Dr. Wang and Dr. Fuchs, which indicate
15 || that plaintiff had more severe left upper extremity limitations. See id. at 84, 892.
16 | The consultative expert Dr. Wang determined that plaintiff “is frequently limited in
17 || performing gross and fine manipulations using the left upper extremity due to his
18 }| post-traumatic elbow arthritis.” Jd. at 892. Dr. Wang’s use of the words
19 || “frequently limited” is somewhat confusing. The ALJ apparently interpreted these
20 || words to mean plaintiff could perform manipulative work with his left upper
21 || extremity frequently. But Dr. Wang did not opine plaintiff could perform such
22 || actions frequently; under the plain meaning of the words, Dr. Wang opined
23 || plaintiff would be frequently limited — meaning limited two thirds of the time — in
24 || performing such actions. In other words, it appears Dr. Wang opined plaintiff
25 || could only perform manipulative actions with his left upper extremity one third of
26 || the time, or occasionally. See SSR 83-10 (defining “occasionally” as occurring up
27 || to one third of the time). This is also how Dr. Fuchs apparently interpreted Dr.
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1 || Wang’s findings, since after reviewing Dr. Wang’s report he found plaintiff would
2 || be restricted to occasional flexion and extension of his left upper extremity. See id.
3 || at 83-84.
4 The ALJ expressly credited the opinions of Dr. Wang and Dr. Fuchs, but he
5 || at least misinterpreted Dr. Wang’s opinion with respect to plaintiffs left upper
6 || extremity, and he entirely disregarded Dr. Fuchs’s opinion relating to plaintiff's
7 || left upper extremity limitations. See Fleenor v. Berryhill, 752 Fed. Appx. 451, 453
8 || (9th Cir. 2018) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014))
9 | (“An ALJ may not cherry-pick a doctor’s characterization of claimant’s issues.”’).
10 || Thus, the ALJ erred in his RFC determination, but whether this error was harmless
11 1s less clear.
12 The first vocational expert, Mr. Brodinski, testified that if plaintiff were
13 limited to occasional use of the left upper extremity he would be precluded from all
work. See AR at 63. Although Dr. Fuchs found plaintiff's limitation to occasional
15 use pertained only to flexion and extension, Dr. Wang’s limitation to occasional
16 || use of the left upper extremity pertained to gross and fine manipulations. Mr.
17 || Brodinski reasoned that in order to do unskilled sedentary work, plaintiff must be
18 || able to use both upper extremities at least at the frequent level. Jd. By contrast, the
19 || second VE, Robin Shear, testified that a limitation to occasional use of the left
20 || upper extremity would not change her opinion that there are jobs plaintiff could do.
21 Id. at 84-85.
22 Plaintiff argues the ALJ was required to resolve this conflict between the
23 || two VEs, but he cites no authority so holding. Nonetheless, the ALJ appears to
24 || have improperly cherry picked and relied on different aspects of each VE’s
25 || testimony without a legitimate rationale. See Gallant v. Heckler, 753 F.2d 1450,
26 || 1456 (9th Cir. 1984) (“Although it is within the power of the Secretary to make
27 || findings . . . and to weigh conflicting evidence, he cannot reach a conclusion first,
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1 || and then attempt to justify it by ignoring competent evidence in the record that
2 || suggests an opposite result.”).
3 Given that this case must be remanded for the reasons discussed above, the
4 | court need not here decide the legal issue of whether the ALJ was required to
5 || resolve the conflict between the VEs. But on remand, the ALJ must reconsider the
6 || evidence concerning plaintiff's left upper extremity limitations in reassessing
7 || plaintiff's RFC, and should resolve any conflicts in VE testimony.
8] D. The ALJ Need Not Resolve an Alleged Conflict Between the VE
9 Testimony and a Social Security Ruling
10 In addition to the conflict between the two VEs with respect to the effect of a
11 limitation to occasional use of the left arm, plaintiff also argues the ALJ
12 | improperly relied on VE testimony indicating that plaintiff could perform certain
13 || occupations despite his inability to stoop because such testimony conflicts with
14 SSR 96-9p. P. Mem. at 13-14. But as noted above, social security rulings do not
15 || have the force of law. Holohan, 246 F.3d at 1203 n.1. Moreover, SSR 96-9p
16 || states only that a complete inability to stoop “would significantly erode the
17 || unskilled sedentary occupational base” such that a finding of disability “would
18 | usually apply.” See SSR 96-9. Contrary to plaintiff's interpretation, the SSR does
19 || not state that a complete inability to stoop necessarily means that plaintiff is
20 || disabled. Here, VE Shear testified that if plaintiff was prohibited from stooping he
21 || would not be precluded from the identified sedentary work, because he would be
22 || able to use a picker to pick something up or ask someone for help. AR at 75. As
23 || such, the VE’s testimony does not conflict with SSR 96-9p because a complete
24 || inability to stoop does not automatically render a claimant disabled, and the VE
25 || addressed the issue.
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1 V.
2 REMAND IS APPROPRIATE
3 The decision whether to remand for further proceedings or reverse and
4 || award benefits is within the discretion of the district court. McAllister v. Sullivan,
5 || 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this
6 || discretion to direct an immediate award of benefits where: “(1) the record has been
7 || fully developed and further administrative proceedings would serve no useful
8 || purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
9 || evidence, whether claimant testimony or medical opinions; and (3) if the
10 | improperly discredited evidence were credited as true, the ALJ would be required
11 | to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 (setting
12 forth three-part credit-as-true standard for remanding with instructions to calculate
13 || and award benefits). But where there are outstanding issues that must be resolved
14 || before a determination can be made, or it is not clear from the record that the ALJ
15 would be required to find a plaintiff disabled if all the evidence were properly
16 || evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart,
17 | 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80
18 || (9th Cir. 2000). In addition, the court must “remand for further proceedings when,
19 | even though all conditions of the credit-as-true rule are satisfied, an evaluation of
20 || the record as a whole creates serious doubt that a claimant is, in fact, disabled.
21 || Garrison, 759 F.3d at 1021.
22 Here, as set forth above, remand is appropriate because there are outstanding
23 || issues that must be resolved before it can be determined whether plaintiff is
24 || disabled. The ALJ must reconsider plaintiffs subjective complaint testimony and
25 || either credit his testimony or provide clear and convincing reasons to reject it. The
26 || ALJ also must reconsider and appropriately assess the opinions of treating
27 | physicians Dr. Choi and Dr. Almudhafar, and either credit their opinions or
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1 || provide specific and legitimate reasons supported by substantial evidence for
2 || rejecting them. The ALJ must also reconsider the other medical evidence as
3 || discussed above, and resolve any conflicts. The ALJ must then reassess plaintiff's
4 | RFC and proceed through steps four and five to determine what work, if any,
5 || plaintiff is capable of performing.
6 VI.
7 CONCLUSION
8 IT IS THEREFORE ORDERED that Judgment shall be entered
9 || REVERSING the decision of the Commissioner denying benefits, and
10 || REMANDING the matter to the Commissioner for further administrative action
11 || consistent with this decision.
12
13 Cp
14 | DATED: March 25, 2020
15 SHERI PYM
6 United States Magistrate Judge
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