1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jul 17, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 ) 7 LORENZO B., ) No. 1:18-CV-3186-LRS ) 8 Plaintiff, ) ORDER GRANTING ) PLAINTIFF’S MOTION FOR 9 vs. ) SUMMARY JUDGMENT, ) INTER ALIA 10 ) COMMISSIONER OF SOCIAL ) 11 SECURITY, ) ) 12 ) Defendant. ) 13 ______________________________ ) 14 BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 15 (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 15). 16 17 JURISDICTION 18 Lorenzo B., Plaintiff, applied for Title XVI Supplemental Security Income 19 benefits (SSI) on April 20, 2015. The application was denied initially and on 20 reconsideration. Plaintiff timely requested a hearing which was held on May 16, 21 2017 before Administrative Law Judge (ALJ) Glenn Meyers. Plaintiff testified at the 22 hearing, as did Vocational Expert (VE) Kimberly Mullinax. On September 29, 2017, 23 the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council 24 denied a request for review of the ALJ’s decision, making that decision the 25 Commissioner’s final decision subject to judicial review. The Commissioner’s final 26 decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 49 years old. He has past 5 relevant work experience as a flagger, material handler and as an industrial truck 6 operator. 7 8 STANDARD OF REVIEW 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). "It means such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 23 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1984). 27 A decision supported by substantial evidence will still be set aside if the proper 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 legal standards were not applied in weighing the evidence and making the decision. 2 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 3 1987). 4 5 ISSUES 6 Plaintiff argues the ALJ erred in: 1) evaluating the medical opinions of record; 7 2) not giving full credit to Plaintiff’s testimony; 3) ignoring lay testimony; and 4) 8 failing to fulfill his Step Five burden. 9 10 DISCUSSION 11 SEQUENTIAL EVALUATION PROCESS 12 The Social Security Act defines "disability" as the "inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can 15 be expected to last for a continuous period of not less than twelve months." 42 16 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 17 to be under a disability only if his impairments are of such severity that the claimant 18 is not only unable to do his previous work but cannot, considering his age, education 19 and work experiences, engage in any other substantial gainful work which exists in 20 the national economy. Id. 21 The Commissioner has established a five-step sequential evaluation process for 22 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 23 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if he is engaged 24 in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. § 25 416.920(a)(4)(i). If he is not, the decision-maker proceeds to step two, which 26 determines whether the claimant has a medically severe impairment or combination 27 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 impairment or combination of impairments, the disability claim is denied. If the 2 impairment is severe, the evaluation proceeds to the third step, which compares the 3 claimant's impairment with a number of listed impairments acknowledged by the 4 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 5 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 6 equals one of the listed impairments, the claimant is conclusively presumed to be 7 disabled. If the impairment is not one conclusively presumed to be disabling, the 8 evaluation proceeds to the fourth step which determines whether the impairment 9 prevents the claimant from performing work he has performed in the past. If the 10 claimant is able to perform his previous work, he is not disabled. 20 C.F.R. § 11 416.920(a)(4)(iv).
Free access — add to your briefcase to read the full text and ask questions with AI
1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jul 17, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 ) 7 LORENZO B., ) No. 1:18-CV-3186-LRS ) 8 Plaintiff, ) ORDER GRANTING ) PLAINTIFF’S MOTION FOR 9 vs. ) SUMMARY JUDGMENT, ) INTER ALIA 10 ) COMMISSIONER OF SOCIAL ) 11 SECURITY, ) ) 12 ) Defendant. ) 13 ______________________________ ) 14 BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment 15 (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 15). 16 17 JURISDICTION 18 Lorenzo B., Plaintiff, applied for Title XVI Supplemental Security Income 19 benefits (SSI) on April 20, 2015. The application was denied initially and on 20 reconsideration. Plaintiff timely requested a hearing which was held on May 16, 21 2017 before Administrative Law Judge (ALJ) Glenn Meyers. Plaintiff testified at the 22 hearing, as did Vocational Expert (VE) Kimberly Mullinax. On September 29, 2017, 23 the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council 24 denied a request for review of the ALJ’s decision, making that decision the 25 Commissioner’s final decision subject to judicial review. The Commissioner’s final 26 decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 49 years old. He has past 5 relevant work experience as a flagger, material handler and as an industrial truck 6 operator. 7 8 STANDARD OF REVIEW 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). "It means such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 23 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1984). 27 A decision supported by substantial evidence will still be set aside if the proper 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 legal standards were not applied in weighing the evidence and making the decision. 2 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 3 1987). 4 5 ISSUES 6 Plaintiff argues the ALJ erred in: 1) evaluating the medical opinions of record; 7 2) not giving full credit to Plaintiff’s testimony; 3) ignoring lay testimony; and 4) 8 failing to fulfill his Step Five burden. 9 10 DISCUSSION 11 SEQUENTIAL EVALUATION PROCESS 12 The Social Security Act defines "disability" as the "inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can 15 be expected to last for a continuous period of not less than twelve months." 42 16 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 17 to be under a disability only if his impairments are of such severity that the claimant 18 is not only unable to do his previous work but cannot, considering his age, education 19 and work experiences, engage in any other substantial gainful work which exists in 20 the national economy. Id. 21 The Commissioner has established a five-step sequential evaluation process for 22 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 23 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if he is engaged 24 in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. § 25 416.920(a)(4)(i). If he is not, the decision-maker proceeds to step two, which 26 determines whether the claimant has a medically severe impairment or combination 27 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 impairment or combination of impairments, the disability claim is denied. If the 2 impairment is severe, the evaluation proceeds to the third step, which compares the 3 claimant's impairment with a number of listed impairments acknowledged by the 4 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 5 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 6 equals one of the listed impairments, the claimant is conclusively presumed to be 7 disabled. If the impairment is not one conclusively presumed to be disabling, the 8 evaluation proceeds to the fourth step which determines whether the impairment 9 prevents the claimant from performing work he has performed in the past. If the 10 claimant is able to perform his previous work, he is not disabled. 20 C.F.R. § 11 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 12 in the process determines whether he is able to perform other work in the national 13 economy in view of his age, education and work experience. 20 C.F.R. § 14 416.920(a)(4)(v). 15 The initial burden of proof rests upon the claimant to establish a prima facie 16 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 17 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 18 mental impairment prevents him from engaging in his previous occupation. The 19 burden then shifts to the Commissioner to show (1) that the claimant can perform 20 other substantial gainful activity and (2) that a "significant number of jobs exist in the 21 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 22 1498 (9th Cir. 1984). 23 24 ALJ'S FINDINGS 25 The ALJ found the following: 1) Plaintiff has “severe” medical impairments, 26 those being cervical and lumbar degenerative disc disease, substance abuse in 27 remission, depression, post-traumatic stress disorder (PTSD), anxiety, diabetes 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 mellitus, and hepatitis C; 2) Plaintiff’s impairments do not meet or equal any of the 2 impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) Plaintiff has the residual 3 functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b) 4 with the caveat that he is capable of engaging in unskilled, repetitive, routine tasks 5 in two hour increments; he can have superficial, incidental contact with the public; 6 he is capable of working in proximity to, but not in coordination with, coworkers; he 7 can have occasional contact with supervisors; he would be off task at work up to 10 8 percent of the time, but would still meet the minimum production requirements of the 9 job; and he would have up to six unscheduled absences from work per year; 4) 10 Plaintiff’s RFC does not allow him to perform his past relevant work, but (5) it does 11 allow him to perform other jobs existing in significant numbers in the national 12 economy as identified by the VE, including assembler, production; cleaner, 13 housekeeping; and packing line worker. Accordingly, the ALJ concluded the 14 Plaintiff is not disabled. 15 16 MEDICAL OPINIONS 17 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 18 of a licensed treating or examining physician or psychologist is given special weight 19 because of his/her familiarity with the claimant and his/her condition. If the treating 20 or examining physician's or psychologist’s opinion is not contradicted, it can be 21 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 22 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 23 ALJ may reject the opinion if specific, legitimate reasons that are supported by 24 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 25 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 26 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 27 1216 (9th Cir. 2005). . The opinion of a non-examining medical advisor/expert need 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 not be discounted and may serve as substantial evidence when it is supported by other 2 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 3 53 F.3d 1035, 1041 (9th Cir. 1995). 4 Nurse practitioners, physicians’ assistants, and therapists (physical and mental 5 health) are not “acceptable medical sources” for the purpose of establishing if a 6 claimant has a medically determinable impairment. 20 C.F.R. § 416.913(a). Their 7 opinions are, however, relevant to show the severity of an impairment and how it 8 affects a claimant’s ability to work. 20 C.F.R. § 416.913(d). In order to discount the 9 opinion of a non-acceptable medical source, the ALJ must offer germane reasons for 10 doing so. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). 11 The ALJ gave “great weight” to the opinions of the non-examining State 12 agency consultants who work for Disability Determination Services (DDS). Based 13 on his review of the record, Howard Platter, M.D., opined in September 2015 that 14 Plaintiff could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 15 10 pounds; stand and/or walk for 6 hours in an 8 hour workday; sit for 6 hours in an 16 8 hour workday; and that reaching overhead with either arm was limited. (AR at pp. 17 101-102). Dr. Platter attributed the reaching limitation to cervical radiculopathy. 18 (AR at p. 103). The findings of fact upon which Dr. Platter relied included the 19 September 2015 x-ray of Plaintiff’s lumbar spine showing “[t]ransitional anatomy 20 [without] significant spondylosis” and an x-ray of his cervical spine showing 21 “[minimal” spondylosis [with] no acute osseous injury appreciated.” (AR at pp. 99 22 and 366-67). He also relied on the range of motion evaluation results noted by 23 Jeremiah Crank, M.D., who treated the Plaintiff. (AR at pp. 99, 334-35). 24 In June 2015, Dr. Crank of Yakima Neighborhood Health Services (YNHS), 25 completed a Washington State Department of Social and Health Services (DSHS) 26 form in which he indicated that Plaintiff’s diagnosis of neck/lower back radiculopathy 27 was “severe” in that it rendered him unable to perform the following basic work 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 activities: sitting, standing, walking, lifting, carrying, handling, pushing, pulling, 2 reaching, stooping and crouching. (AR at p. 284). He opined that Plaintiff was 3 “severely limited” and therefore, unable to meet the demands of sedentary work, and 4 that this limitation would last 12 months. (AR at p. 285). Dr. Crank indicated 5 Plaintiff needed physical therapy, an x-ray/MRI of his cervical and lumbar spine, and 6 possible referral to a neurosurgeon. (Id.). In addition to physical therapy as 7 treatment, Dr. Crank indicated other possible forms of treatment included an injection 8 of pain medication or surgical decompression surgery. (Id.). 9 The ALJ gave little weight to Dr. Crank’s opinion on the basis that his 10 treatment notes did not document such limitations and that he did not review any 11 imaging prior to forming his opinion which “appear[ed] to be primarily based on the 12 claimant’s self-reports.” (AR at p. 27). Furthermore, according to the ALJ, Dr. 13 Crank, “despite alleging such drastic limitations,” provided the Plaintiff with a 14 physical therapy referral indicating he believed the Plaintiff could benefit from 15 conservative treatment. (Id.). 16 It appears June 23, 2015, was the first time Plaintiff was seen by Dr. Crank. 17 In his treatment note of that date, the doctor assessed Plaintiff as suffering from 18 uncontrolled diabetes and cervical and lumbar radiculopathy. The doctor provided 19 Plaintiff with a form to call for an appointment of physical therapy. Dr. Crank also 20 requested prior imaging of Plaintiff’s lower back. (AR at p. 327). What the ALJ 21 failed to note, however, was that what Dr. Crank significantly based his opinion on 22 was the range of motion (ROM) evaluation he performed on Plaintiff. The results of 23 that evaluation revealed the Plaintiff was significantly limited regarding extension 24 and flexion of his back; lateral (flexion) movement of his back; extension and flexion 25 of his neck; lateral bending of his neck; rotation of his neck; backward extension of 26 his hips; flexion of his hips; adduction of his hips; abduction of his hips; flexion of 27 his knees; abduction and adduction of his shoulders; and extension and flexion of his 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 shoulders. (AR at pp. 334-35). In the DSHS form he completed, Dr. Crank 2 specifically singled out the “ROM Sheet.” (AR at p. 284). And in his treatment notes 3 from June 23, 2015, Dr. Crank noted that his musculoskeletal examination of Plaintiff 4 revealed that his back was tender to palpation (TTP) and that he had a positive 5 bilateral straight leg raise test (SLT) indicating nerve root irritation in the back. (AR 6 at p. 333). 7 Although the September 2015 x-rays of Plaintiff’s cervical and lumbar spine 8 seemingly did not reveal anything very significant, those imaging results and earlier 9 imaging results were not wholly devoid of things to which Plaintiff’s back pain could 10 be attributed. Imaging results from 2010 showed sacralization of L5 on the left, early 11 facet arthrosis of L3-4, and broad-based disc bulge with bilateral facet arthrosis on 12 L4-5 producing mild bilateral neural foraminal narrowing and “moderate central canal 13 stenosis with likely contact of the left L5 nerve root in the lateral recess.” (AR at pp. 14 376-77).1 15 Dr. Crank continued to treat the Plaintiff after June 2015 and after the 16 September 2015 imaging results had been received. On September 23, 2015, Dr. 17 Crank noted that Plaintiff had symptoms of cervical/lumbar radiculopathy and a “trial 18 of physical therapy” would start soon. (AR at p. 577). Dr. Crank again found that 19 Plaintiff had a spine TTP and a positive bilateral SLT. (AR at p. 584). Dr. Crank 20 offered the same assessment on October 28, 2015 (AR at pp. 569 and 575), January 21 29, 2016 (AR at pp. 561 and 568), February 19, 2016 (AR at pp. 553-54 and 560), 22 and May 21, 2016 (AR at pp. 545 and 552). 23 In sum, the ALJ erred in concluding that Dr. Crank relied primarily based on 24 Plaintiff’s self-report. Furthermore, Dr. Crank did not merely provide a physical 25 26 1 In 2010, based on these imaging results, Daniel Seltzer, M.D., opined that 27 Plaintiff remained capable of performing medium level work. (AR at p. 382). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 therapy referral. He suggested other forms of treatment remained a possibility, 2 including an injection of pain medication or surgical decompression surgery. 3 Eventually, Plaintiff started seeing Maryalice R. Hardison, and Advanced 4 Registered Nurse Practitioner (ARNP), at YNHS. In March 2017, Hardison ordered 5 a CT scan which she noted had to be processed through Plaintiff’s insurance, 6 although she also advised Plaintiff to try physical therapy “since we don’t have any 7 records for you regarding this.” (AR at p. 521). She remarked that “[f]urther 8 treatment depends on these results/actions.” (Id.). Hardison completed a DSHS 9 “Physical Functional Evaluation” form which included a “Range Of Joint Motion 10 Evaluation Chart” indicating ROM limitations similar to those previously reported 11 by Dr. Crank. (AR at pp. 604-06). Hardison, however, also opined, consistent with 12 Dr. Crank’s previous opinion, that Plaintiff was unable to perform one or more basic 13 work-related activities such that it rendered him unable to meet the demands of even 14 sedentary work. (AR at pp. 603-04). Like Dr. Crank, Hardison recommended 15 physical therapy, pain medications, or possible surgery. (AR at p. 604). At the same 16 time that she completed the DSHS evaluation, Hardison completed a form prepared 17 by Plaintiff’s attorney in which Hardison indicated Plaintiff would miss four or more 18 days of work per month “due to pain and side effects of medication.” (AR at p. 439). 19 According to Hardison, Gabapentin, Methocarbamol and Tramadol can cause 20 drowsiness. (AR at p. 438). Hardison indicated the Plaintiff rests all day due to pain. 21 (Id.). 22 The ALJ gave little weight to the opinion of ARNP Hardison, finding her 23 opinion not consistent with the objective findings in the medical records in that 24 “[i]maging results show only minor pathology and there is no EMG 25 [electromyography] or NCV [nerve conduction velocity] testing to support the 26 [Plaintiff’s] pain complaint.” (AR at p. 27). The ALJ also stated the treatment notes 27 showed Plaintiff was generally able to ambulate pretty well and that this was contrary 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 to Hardison’s opinion that Plaintiff needed to rest all day due to pain. (Id.). 2 The ALJ made no mention of Hardison’s ROM findings. Furthermore, no 3 medical professional (including Dr. Platter) stated that an EMG or NCV was 4 necessary, or that Plaintiff’s imaging results categorically precluded the ROM 5 limitations found by Dr. Crank and ARNP Hardison, and the exertional limitations 6 opined by them. Instead, the ALJ essentially offered his own medical assessment of 7 the imaging results. This is improper. As a lay person, an ALJ is “simply not 8 qualified to interpret raw medical data in functional terms.” Padilla v. Astrue, 541 9 F.Supp. 2d 1102, 1106 (C.D. Cal. 2008), quoting Nguyen v Chater, 172 F.3d 31, 35 10 (1st Cir. 1999)(per curiam) 11 The ALJ did not provide specific and legitimate reasons for rejecting the 12 opinion of Dr. Crank, nor did he provide germane reasons for rejecting the opinion 13 of ARNP Hardison. 14 15 TESTIMONY RE SYMPTOMS AND LIMITATIONS 16 Where, as here, the Plaintiff has produced objective medical evidence of an 17 underlying impairment that could reasonably give rise to some degree of the 18 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 19 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Burrell 20 v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 95, 1014 21 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, “the 22 ALJ must make a credibility determination with findings sufficiently specific to 23 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 24 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 25 Among other things, the ALJ may consider: 1) the claimant's reputation for 26 truthfulness; 2) inconsistencies in the claimant's testimony or between his testimony 27 and his conduct; 3) the claimant’s daily living activities; 4) the claimant's work 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 record; and 5) testimony from physicians or third parties concerning the nature, 2 severity, and effect of claimant's condition. Id. 3 The ALJ found that while Plaintiff complained of “drastic physical limitations 4 due to back pain, the records show no significant treatment for this issue to include 5 never following through with a physical therapy referral.” (AR at p. 24). It is true 6 there are repeated references to Plaintiff awaiting to commence physical therapy and 7 in fact, Dr. Crank’s May 2016 report refers to Plaintiff being on a waiting list. (AR 8 at p. 545). There is no indication that Plaintiff had undergone any physical therapy 9 pursuant to the referral by Dr. Crank at the time of the hearing in May 2017. The 10 question is does the record allow for a reasonable inference that it was Plaintiff who 11 failed to follow through on physical therapy as opposed to there not being an 12 available spot for him. The record does not allow for such an inference, and certainly 13 not a “clear and convincing” one, that it was the Plaintiff who failed to pursue 14 therapy. Furthermore, Plaintiff did receive “significant treatment” for his back pain 15 as evidenced by his numerous visits to YNHS and the pain medications prescribed 16 for him, including Gabapentin, Methocarbamol and Tramadol. 17 The ALJ noted that while incarcerated, Plaintiff was able to work in the kitchen 18 for two hours a day and that he worked with about 50 other people in a production 19 line type setting. (AR at p. 23). The ALJ also noted that Plaintiff had not applied for 20 any jobs since being released from prison. (Id.). Plaintiff’s time in prison occurred 21 before his alleged disability onset date of April 20, 2015. Furthermore, working two 22 hours a day in a controlled prison environment is simply not comparable to the 23 exertional and non-exertional demands of a full-time job in the outside world. Not 24 applying for jobs following release from prison is not a “clear and convincing” reason 25 for discounting Plaintiff’s testimony about his symptoms and limitations. 26 The ALJ did not offer “clear and convincing” reasons for discrediting 27 Plaintiff’s testimony about his symptoms and limitations, particularly so when his 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 testimony is consistent with the limitations opined by his treating physician and 2 treating ARNP. 3 4 REMAND 5 Social security cases are subject to the ordinary remand rule which is that when 6 “the record before the agency does not support the agency action, . . . the agency has 7 not considered all the relevant factors, or . . . the reviewing court simply cannot 8 evaluate the challenged agency action on the basis of the record before it, the proper 9 course, except in rare circumstances, is to remand to the agency for additional 10 investigation or explanation.” Treichler v. Commissioner of Social Security 11 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 12 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 13 In “rare circumstances,” the court may reverse and remand for an immediate 14 award of benefits instead of for additional proceedings. Id., citing 42 U.S.C. §405(g). 15 Three elements must be satisfied in order to justify such a remand. The first element 16 is whether the “ALJ has failed to provide legally sufficient reasons for rejecting 17 evidence, whether claimant testimony or medical opinion.” Id. at 1100, quoting 18 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If the ALJ has so erred, the 19 second element is whether there are “outstanding issues that must be resolved before 20 a determination of disability can be made,” and whether further administrative 21 proceedings would be useful. Id. at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 22 887 (9th Cir. 2004). “Where there is conflicting evidence, and not all essential factual 23 issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 24 Finally, if it is concluded that no outstanding issues remain and further proceedings 25 would not be useful, the court may find the relevant testimony credible as a matter of 26 law and then determine whether the record, taken as a whole, leaves “not the slightest 27 uncertainty as to the outcome of [the] proceedings.” Id., quoting NLRB v. Wyman- 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Where all three elements are satisfied- 2 ALJ has failed to provide legally sufficient reasons for rejecting evidence, there are 3 no outstanding issues that must be resolved, and there is no question the claimant is 4 disabled- the court has discretion to depart from the ordinary remand rule and remand 5 for an immediate award of benefits. Id. But even when those “rare circumstances” 6 exist, “[t]he decision whether to remand a case for additional evidence or simply to 7 award benefits is in [the court’s] discretion.” Id. at 1102, quoting Swenson v. 8 Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). 9 In this case, the ALJ did not provide legally sufficient reasons for rejecting the 10 medical opinions of Dr. Crank and ARNP Hardison, and for discounting the 11 Plaintiff’s testimony. There are no outstanding issues which need to be resolved and 12 therefore, further administrative proceedings would not be helpful. Dr. Crank and 13 ARNP Hardison opined that Plaintiff is unable to meet the demands of even sedentary 14 work. The VE acknowledged there are no jobs available for an individual who is 15 unable to meet the exertional demands of sedentary work. (AR at p.77). ARNP 16 Hardison opined the Plaintiff would miss four or more days of work per month due 17 to back pain. The VE testified that an employer will tolerate approximately six 18 unscheduled absences in a year and anymore than that would likely result in 19 termination. (AR at pp. 77-78). There is no question the Plaintiff is physically 20 disabled in that he cannot perform the exertional demands of even sedentary work.2 21 22 23 2 As such, the court deems it unnecessary to address the contentions related 24 to Plaintiff’s mental RFC, including the ALJ’s failure to consider the letter 25 26 submitted by Plaintiff’s sister. (AR at p. 282). Nor is it necessary to address 27 Plaintiff’s contention related to the availability of other jobs in the national 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 Accordingly, the court exercises its discretion to remand this matter for an immediate 2 award of Title XVI SSI benefits. 3 4 CONCLUSION 5 Plaintiff’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 6 Defendant’s Motion For Summary Judgment (ECF No. 15) is DENIED. The 7 Commissioner's decision is REVERSED. 8 Pursuant to sentence four of 42 U.S.C. §405(g), this matter is REMANDED 9 for payment of Title XVI SSI benefits to the Plaintiff. 10 IT IS SO ORDERED. The District Executive shall enter judgment 11 accordingly, forward copies of the judgment and this order to counsel of record, and 12 close this file. 13 DATED this 17th day of July, 2019. 14
15 s/Lonny R. Suko
16 LONNY R. SUKO Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 economy considering his limited ability to reach overhead (a non-exertional 27 limitation). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14