1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | DONNA M., Case No. ED CV 18-2554-SP 12 Plaintiff, V. MEMORANDUM OPINION AND
15 | Social Security Administration. 16 Defendant. 17 18 19 INTRODUCTION 20 On December 5, 2018, plaintiff Donna M. filed a complaint against 21 || defendant, the Commissioner of the Social Security Administration 22 || (‘Commissioner’), secking a review of a denial of a period of disability and 23 || disability insurance benefits (“DIB”). The parties have fully briefed the issues in 24 || dispute, and the court deems the matter suitable for adjudication without oral 25 || argument. 26 Plaintiff presents two disputed issues for decision: (1) whether the 27 || Administrative Law Judge (“ALJ”) properly considered the opinion of a 28
1 | consultative examiner, Dr. Jeff Altman; and (2) whether the ALJ properly rejected 2 || plaintiff's testimony. Memorandum in Support of Plaintiff's Complaint (“P. 3 || Mem.”) at 4-10; Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 4} 1-10. 5 Having carefully studied the parties’ memoranda on the issues in dispute, the 6 || Administrative Record (“AR”), and the decision of the ALJ, the court concludes 7 || that, as detailed herein, the ALJ failed to properly consider a portion of Dr. 8 || Altman’s opinion, but properly rejected plaintiff's testimony. The court therefore 9 || remands this matter to the Commissioner in accordance with the principles and 10 || instructions enunciated in this Memorandum Opinion and Order. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was 50 years old on the amended alleged disability onset date, 14 } has a high school education. AR at 131, 134. Plaintiff has past relevant work as a 15 || merchandise displayer. /d. at 146. 16 On March 8, 2015, plaintiff filed an application for a period of disability and 17 || DIB.' Id. at 150. Plaintiff initially alleged an onset date of November 9, 2010 18 || based on hereditary heart disease, high blood pressure, disc degeneration 19 || narrowing, and chronic arthritis. Jd. At the hearing, plaintiff amended the onset 20 || date to April 14, 2011. Jd. at 131. The Commissioner denied plaintiff's 21 || application initially and upon reconsideration, after which she filed a request for a 22 || hearing. Id. at 177-88. 23 On November 14, 2017, plaintiff, represented by counsel, appeared and 24 |i testified at a hearing before the ALJ. Jd. at 128-49. The ALJ also heard testimony 25 26, ©
' Plaintiff previously filed an application for supplemental security income (“SSP’) that was denied because her income was too high. AR at 165-76. The 28 || denial of plaintiff's SSI application is not at issue in this matter.
1 | from Sandra Fioretti, a vocational expert. Jd. at 145-49. On April 3, 2018, the ALJ 2 || denied plaintiff's claim for benefits. d. at 23-32. 3 Applying the well-known five-step sequential evaluation process, the ALJ 4 || found, at step one, that plaintiff did not engage in substantial gainful activity from 5 || November 9, 2010, the initial alleged onset date, through December 31, 2014, the 6 || date last insured. /d. at 26. 7 At step two, the ALJ found plaintiff suffered from the severe impairments of 8 || mild lumbar degenerative disc disease and status post right total knee replacement. 9 || Id. At step three, the ALJ found plaintiff's impairments, whether individually or in 10 || combination, did not meet or medically equal one of the listed impairments set 11 || forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 27. 12 The ALJ then assessed plaintiff's residual functional capacity (“RFC”),’ and 13 | determined that through the date last insured, she had the RFC to perform light 14 || work,’ with the limitations that she could: lift and carry 20 pounds occasionally 15 and 10 pounds frequently; stand and walk for six hours in an eight-hour day; sit for 16 || six hours in an eight-hour day; and frequently climb, balance, stoop, kneel, crouch, 17 || and crawl. Id. at 28. The ALJ precluded plaintiff from concentrated exposure to 18 || fumes, dusts, gases, odors, and hazards. Id. 19 The ALJ found, at step four, that through the date last insured plaintiff was 20 > Residual functional capacity is what a claimant can do despite existing 21 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 22 || 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 73 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 24 |] n.2 (9th Cir. 2007). 25 > “Light work involves lifting no more than 20 pounds at a time with frequent 26 || lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). “T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” Social Security Ruling (“SSR”) 28 || 83-10.
1 || unable to perform her past relevant work as a merchandise displayer. /d. at 30. 2 At step five, the ALJ determined that given plaintiff's age, education, work 3 || experience, and RFC, there were jobs that existed in significant numbers in the 4 || national economy that plaintiff could perform, including hand packager inspector, 5 || cashier, and office helper. /d. at 31-32. Consequently, the ALJ concluded plaintiff 6 || did not suffer from a disability as defined by the Social Security Act. Id. at 32. 7 8 Plaintiff filed a timely request for review of the ALJ’s decision, which was 9 || denied by the Appeals Council. Jd. at 1-6. The ALJ’s decision stands as the final 10 | decision of the Commissioner. 11 III. 12 STANDARD OF REVIEW 13 This court is empowered to review decisions by the Commissioner to deny 14 || benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 15 || Administration must be upheld if they are free of legal error and supported by 16 || substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 17 || (as amended). But if the court determines that the ALJ’s findings are based on 18 || legal error or are not supported by substantial evidence in the record, the court may 19 || reject the findings and set aside the decision to deny benefits. Aukland v. 20 || Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 21 | 1144, 1147 (9th Cir. 2001). 22 “Substantial evidence is more than a mere scintilla, but less than a 23 || preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 24 | “relevant evidence which a reasonable person might accept as adequate to support 25 || aconclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 26 |] F.3d at 459. To determine whether substantial evidence supports the ALJ’s 27 || finding, the reviewing court must review the administrative record as a whole, 28
1 || “weighing both the evidence that supports and the evidence that detracts from the 2 | ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 3 || affirmed simply by isolating a specific quantum of supporting evidence.’” 4 || Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 5 || Cir. 1998)). If the evidence can reasonably support either affirming or reversing 6 || the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 7 || of the ALJ.” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 8 || 1992)). 9 IV. 10 DISCUSSION 11] A. The ALJ Failed to Properly Consider Dr. Altman’s Opinion 12 Plaintiff argues the ALJ improperly failed to consider a portion of the 13 | opinion of Dr. Jeff Altman, a consultative orthopedist, in determining plaintiffs 14 RFC. P. Mem. at 4-6. Specifically, plaintiff argues the ALJ improperly rejected 15 || the following limitations opined by Dr. Altman without providing any reason: (1) 16 || plaintiff could stand or walk up to four hours in an eight-hour workday; (2) 17 || plaintiff could bend, crouch, kneel, crawl, or stoop only occasionally; and (3) 18 } plaintiff could only frequently perform gross and fine manipulation. Id. 19 In determining whether a claimant has a medically determinable impairment, 20 || among the evidence the ALJ considers is medical evidence. 20 C.F.R. 21 || § 404.1527(b).* In evaluating medical opinions, the regulations distinguish among 22 || three types of physicians: (1) treating physicians; (2) examining physicians; and 23 || (3) non-examining physicians. 20 C.F.R. § 404.157(c), (e); Lester v. Chater, 81 24 |! F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 25 || opinion carries more weight than an examining physician’s, and an examining 26 27 * All citations to the Code of Federal Regulations refer to regulations 28 || applicable to claims filed before March 27, 2017.
1 || physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 2 || Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 3 || The opinion of the treating physician is generally given the greatest weight because 4 | the treating physician is employed to cure and has a greater opportunity to 5 || understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 6 || 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 7 Nonetheless, the ALJ is not bound by the opinion of the treating physician. 8 || Smolen, 80 F.3d at 1285. Ifa treating physician’s opinion is uncontradicted, the 9 || ALJ must provide clear and convincing reasons for giving it less weight. Lester, 10 || 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 11 || opinions, the ALJ must provide specific and legitimate reasons supported by 12 || substantial evidence for rejecting it. 7d. at 830. Likewise, the ALJ must provide 13 || specific and legitimate reasons supported by substantial evidence for rejecting the 14 || contradicted opinions of examining physicians. /d. at 830-31. The opinion of a 15 non-examining physician, standing alone, cannot constitute substantial evidence. 16 | Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 17 || Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 18 |] 813, 818 n.7 (9th Cir. 1993). 19 1. Treatment History 20 Plaintiff's medical records reflect that she was treated by various physicians 21 || at Beaver Medical Group, including Dr. Michael Wilson, an internist, from March 22 || 2005 through March 2017. See AR at 37-127, 342-597. No physician from 23 || Beaver Medical Group provided an opinion on plaintiff's RFC. 24 Plaintiff has a history of various conditions; only those which are pertinent 25 || to plaintiff's arguments are discussed here. These conditions include: lumbar back 26 || pain (onset date of December 12, 2014); degenerative joint disease (onset date not 27 || listed); bilateral knee pain (onset date of September 10, 2015); and a total right 28
1 || knee replacement (onset date of September 10, 2015). Id. at 442-46, 448-98, 517- 2 || 34, 548-52. 3 Plaintiff has lumbar back pain that her treatment notes list as having an onset 4 || date of December 12, 2014. See, e.g., id. at 404, 423, 443, 448, 456, 485-90. An 5 || x-ray of plaintiff's spine taken on December 12, 2014 revealed minimal multilevel 6 || degenerative disc disease changes in the lumbar spine, mild osteoarthritis of the 7 || left sacroiliac joint, multilevel facet hypertrophy and ligamentum flavum 8 || hypertrophy of the lumbar spine. /d. at 423, 464, 500. Plaintiff was diagnosed 9 || with unspecified back pain and lumbar disc degeneration. Id. at 487, 494. Plaintiff 10 || received some physical therapy but reported being unable to continue it because of 11 }| financial reasons. Jd. at 423. Plaintiff has also been recommended to use heat, 12 | stretching, gentle massage, regular exercise, and weight loss to alleviate her back 13 } pain. Id. at 348-50, 458, 495. An MRI of plaintiff's lumbar spine on April 23, 14 || 2017 indicated multilevel facet hypertrophy and ligamentum flavum hypertrophy 15 || of the lumbar spine. /d. at 500-03. 16 Plaintiff had a total replacement of her right knee on August 25, 2009, and 17 || after experiencing pain and stiffness after the surgery, had a subsequent surgery to 18 || revise her femoral component on November 9, 2010. Jd. at 584-90. Plaintiff 19 || reported having an overall improved range of motion after the revision, but 20 || remained concerned about still having an small decreased range of motion. /d. at 21 | 591. X-rays of plaintiff's knees taken in September 2014 indicated that there were 22 || no acute abnormalities, but showed arthritis in the left knee and intact right knee 23 || hardware. Id. at 453. 24 2. Medical Opinions 25 State agency physicians Dr. J. Hartman, an opthamologist, and Dr. Leonard 26 || H. Naiman, an internist, reviewed plaintiff's medical records and opined plaintiff 27 || was not disabled because there was insufficient evidence in the file to fully 28
1 | evaluate her claim. /d. at 150-55, 157-63. The state agency physicians did not 2 || opine on plaintiff's RFC. 3 A consultative examiner, Dr. Jeff Altman, an orthopedist, examined plaintiff 4 | on December 11, 2017 and reviewed her medical records. Jd. at 605-17. In 5 || plaintiff's general orthopedic examination, Dr. Altman observed that plaintiff's 6 || gait had normal cadence and velocity without signs of limp or antalgia, claimant 7 || was able to sit in a chair comfortably without tilt, was able to rise from a sitting or 8 || supine position without difficulty, and did not have any assistive device or bracing 9 | for walking. /d. at 614. As for plaintiff's thoracolumbar spine, Dr. Altman 10 || observed plaintiff had flexion to 75 degrees, extension and bends were within 11 || normal limits, there was mild tenderness in the L5-S1 junction and lower 12 || paraspinals, a 90/90 straight leg raise test in the sitting position and 60 degrees in 13 || the supine position. /d. Examinations of plaintiffs right and left upper extremities 14 || showed normal results, with the exception that Dr. Altman observed a dorsal scar 15 } on plaintiffs right wrist, and plaintiff achieved a range of motion in her right wrist 16 } without much pain. /d. at 614-15. As for plaintiff's right knee, Dr. Altman 17 || observed plaintiff had a surgical scar on her right knee compatible with a right 18 || knee replacement, had a range of motion 0 to 90 degrees, and mild tenderness 19 || along the medial and lateral joint lines. /d. at 615. Examinations of plaintiff's left 20 || knee, hips, ankles, and feet indicated normal results. /d. at 615-16. 21 Based on the examination, review of records, and history, Dr. Altman 22 || diagnosed plaintiff with status post right knee replacement and revision, and a 23 || history of right wrist fracture. 7d. at 617. Dr. Altman opined plaintiff was capable 24 | of: lifting and carrying 20 pounds occasionally and 10 pounds frequently; standing 25 || and walking for four hours out of an eight-hour workday; sitting for six hours out 26 || of an eight-hour workday; occasionally bending, crouching, kneeling, crawling, or 27 || stooping; occasionally climbing, balancing, walking on uneven terrain, or working 28
1 || at heights; and unlimited use of her left hand and frequent use of her right hand for 2 || fine and gross manipulation. Jd. Dr. Altman noted plaintiff had no overhead 3 || restrictions, and no assistive device is needed for ambulation. /d. 4 3. The ALJ’s Findings 5 The ALJ determined plaintiff had the RFC to perform light work with the 6 || limitations that plaintiff could lift and carry 20 pounds occasionally and 10 pounds 7 || frequently; stand and walk for six hours in an eight-hour day; sit for six hours in an 8 || eight-hour day; frequently climb, balance, stoop, kneel, crouch, and crawl; and 9 || should avoid concentrated exposure to fumes, dusts, gases, odors, and hazards. Id. 10 at 28. In reaching his RFC determination, the ALJ stated he gave great weight to 11 } the opinions of Dr. Hartman, Dr. Naiman, and Dr. Altman. /d. at 30. The ALJ 12 || found Dr. Hartman and Dr. Naiman’s opinions that there was insufficient evidence 13 || to determine plaintiff's functional capacity were consistent with the ALJ’s finding 14 } that plaintiff's physical impairments do not preclude her from performing regular 15 and continuous work activity at the light exertional level. Jd. As for Dr. Altman’s 16 | opinion, the ALJ noted Dr. Altman’s opined limitations were consistent with the 17 | medical evidence showing that plaintiff retains the functional capacity to perform 18 } light work. Jd. 19 Plaintiff contends the ALJ erred by stating he gave Dr. Altman’s opinion 20 || great weight, but implicitly rejecting parts of Dr. Altman’s opinion without 21 || providing any explanation. P. Mem. at 4-6. Plaintiff argues the ALJ failed to 22 || provide any reason for rejecting Dr. Altman’s opinions about plaintiff's ability to 23 || stand and walk for only four hours in a workday, only occasionally bend, crouch, 24 || kneel, crawl, or stoop, and only frequently perform gross and fine manipulation, 25 || and that this failure to give a reason to reject these opinions 1s legal error. Jd. at 5. 26 || The court agrees. 27 An ALJ must consider opinions from medical sources, but is not required to 28
1 || adopt verbatim a medical opinion because the RFC determination is ultimately 2 || reserved to the Commissioner. See 20 C.F.R. § 404.1527(e) (“[T]he final 3 || responsibility for deciding these issues is reserved to the Commissioner.”). But “to 4 || reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 5 || state clear and convincing reasons that are supported by substantial evidence.” 6 || Bayliss vy. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 7 | 830-31). 8 The ALJ here identified plaintiffs lumbar pain and right knee pain as mild 9 || based on examination notes and conservative treatment regimens. See AR at 27-29 10 || (back pain treated by medication, physical examinations show normal results, and 11 little evidence of further treatment for plaintiff's right knee since 2010). 12 || Additionally, the ALJ stated that he assessed plaintiff as being capable of 13 || performing a modified range of light work because the “laboratory diagnostic 14 | pathology reveals mild degenerative issues, [but] does not appear to be severe to 15 || warrant more than a conservative course of treatment as evidenced by the records” 16 || and “the nature and scope of the claimant’s treatment does not reflect an intensity 17 || or frequency of symptom exacerbation or suggest an inability to sustain regular 18 and continuous work.” Jd. at 30. But the ALJ did not provide any explanation as 19 | to why he implicitly rejected Dr. Altman’s opinion that plaintiff is only capable of 20 || standing or walking for up to four hours, able to only occasionally bend, crouch, 21 | kneel, crawl, and stoop, and is frequently but not always capable of performing 22 || gross and fine manipulation with her right hand. 23 Defendant argues even if the ALJ erred by failing to provide reasons for 24 || rejecting some parts of Dr. Altman’s opinion, such error was harmless because 25 || plaintiff could likely perform the jobs identified by the vocational expert even with 26 || Dr. Altman’s more restrictive limitations. D. Mem. at 3-5. Defendant argues the 27 || DOT job descriptions for inspector/hand packager, cashier II, and office helper 28 10
1 || “sugges[t] that Plaintiff could perform these jobs even if she were limited to four 2 || hours of standing and walking, as Dr. Altman opined.” Jd. at 4. Defendant further 3 || argues one of these jobs — inspector/hand packager — would alone satisfy the 4 || Commissioner’s requirement at step five because “nothing in this job description 5 || suggests that the job cannot be performed by a person limited to four hours of 6 || standing and walking a day.” Jd. at 5. Such a conclusion is speculative. Indeed, 7 || the hypotheticals posed by the ALJ to the vocational expert did not address how 8 || the limitations identified by Dr. Altman would affect plaintiff's ability to perform 9 || these jobs, and it is unclear how these limitations would have affected the 10 || vocational expert’s testimony. 11 In sum, the ALJ failed to properly consider Dr. Altman’s opinion, and the 12 || court cannot say this error was harmless. The ALJ Provided Clear and Convincing Reasons for Discounting 14 Plaintiff's Subjective Complaints 15 Plaintiff contends the ALJ failed to properly consider her testimony. P. 16 | Mem. at 7-10. Specifically, plaintiff argues the ALJ failed to provide clear and 17 || convincing reasons for rejecting plaintiff's testimony regarding the severity of her 18 || symptoms to the extent she claimed limitations that would restrict her from light 19 | work. See AR at 29-30. 20 An ALJ must make specific credibility findings, supported by the record. 21 || SSR 96-7p. To determine whether testimony concerning symptoms is credible, an 22 || ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035- 23 || 36 (9th Cir. 2007). First, an ALJ must determine whether a claimant produced 24 || objective medical evidence of an underlying impairment “‘which could reasonably 25 || be expected to produce the pain or other symptoms alleged.’” Jd. at 1036 (quoting 26 || Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 27 || is no evidence of malingering, an “ALJ can reject the claimant’s testimony about 28 11
1 || the severity of her symptoms only by offering specific, clear and convincing 2 || reasons for doing so.” Smolen, 80 F.3d at 1281 (citation omitted); accord Burrell 3 | v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). The ALJ may consider several 4 || factors in weighing a claimant’s testimony, including: (1) ordinary techniques of 5 || credibility evaluation such as a claimant’s reputation for lying; (2) the failure to 6 || seek treatment or follow a prescribed course of treatment; and (3) a claimant’s 7 || daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); 8 || Bunnell, 947 F.2d at 346-47. 9 Contrary to plaintiff's argument, the ALJ here identified plaintiffs 10 || testimony he found to be not entirely credible: 11 The claimant testified that she is not entirely functional due to her 12 right knee pain which most recently has extended to the left knee. She 13 testified that after both a knee replacement and revision surgery, her 14 right knee still gets swollen and it is very painful, forcing her to 15 elevate it and using ice and heat packs to alleviate the pain. The 16 claimant testified that she experiences back pain requiring her to use a 17 brace. Per the claimant’s testimony, due to her impairments, she is 18 unable to drive, sit, stand or walk for long. 19 || AR at 28-29; see Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (ALJ 20 || must identify which testimony she found not credible, and which evidence 21 || contradicts that testimony) (citing Burrell, 775 F.3d at 1138). 22 Then, at the first step, the ALJ found plaintiff's medically determinable 23 || impairments could reasonably be expected to cause the symptoms alleged. AR at 24 || 29. At the second step, because the ALJ did not find any evidence of malingering, 25 |] the ALJ was required to provide clear and convincing reasons for discounting 26 | plaintiff's testimony. The ALJ provided three reasons for discounting plaintiffs 27 || testimony: (1) the objective medical evidence did not support plaintiff's 28 12
1 || allegations; (2) plaintiff received conservative treatment for her back pain and no 2 || treatment for her right knee pain since her surgery; and (3) her alleged symptoms 3 || were inconsistent with her activities of daily living. Id. at 29. 4 The first reason the ALJ cited for finding plaintiffs testimony to be not 5 || entirely credible was that the medical evidence did not support plaintiff's 6 || allegations about the intensity, persistence, and limiting effects of her symptoms. 7 || Id. at 29; see Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of 8 || objective medical evidence is a factor the ALJ can consider in a credibility 9 || analysis). The ALJ noted that although records substantiate plaintiff's complaints 10 of low back pain, plaintiff's imaging studies showed minimal or mild degenerative 11 || disc disease, osteoarthritis, multilevel facet hypertrophy, and hypertrophy of the 12 || lumbar spine. AR at 29, 404, 423, 448, 464, 490, 495. Physical examinations 13 indicated that plaintiff's back was straight with no obvious scoliosis, she had no 14 || pain in the buttocks over the sciatic nerve, and her gait was normal with no signs of 15 } limp or antalgia. /d. at 29,518, 614. Plaintiff's consultative examination by Dr. 16 | Altman also indicated plaintiff is able to sit in a chair comfortably without tilt, rise 17 | from a sitting and supine position without difficulty, exhibits no tenderness in the 18 || paraspinal muscle bilaterally, exhibits mild tenderness in the L5-S1 junction and 19 || lower paraspinals, and her straight leg raise test was 90/90 in the sitting position 20 || and 60 degrees in the supine position. Jd. at 29, 614. 21 As for plaintiff's right knee pain, the ALJ found there was little evidence of 22 || treatment since her right knee replacement surgery in 2010, and although plaintiff 23 || complained of her pain limiting her ability to walk down hills, imaging studies of 24 | her right knee showed “intact right knee hardware.” Id. at 29, 423, 453; see id. at 25 | 513-97. Plaintiff's consultative examination by Dr. Altman also indicated that 26 || plaintiff's knees had no scars, gross deformity, swelling, or warmth, and plaintiff 27 || exhibited a pain-free full range of motion, no tenderness on palpation along the 28 13
1 || medial or lateral joint lines and her apprehension was negative. Id. at 29, 616. 2 Plaintiff argues the ALJ failed to consider additional evidence submitted to 3 || the Appeals Council indicating that she continued to have knee pain in 2011, and 4 | the ALJ is required to review plaintiff's record as a whole rather than a single snap 5 || shot from a single examination. But the additional evidence cited by plaintiff does 6 || not entirely support her assertion that she continued to have right knee pain in 7 | 2011. Plaintiff first cites a February 2011 examination by Dr. Wilson in which he 8 || noted that plaintiff's “pain is fine” and that plaintiff wanted a second opinion on a 9 || small decreased range of motion in her knee. See id. at 120. Plaintiff also cites a 10 || January 2014 examination by Dr. Wilson noting that plaintiff previously had a 11 || motor vehicle accident that “does lead to knee pain and back pain and this is why 12 || [plaintiff] 1s considering long-term disability.” Jd. at 365. But apart from this brief 13 || observation implying that plaintiff was experiencing knee and back pain in 2014, 14 || the treatment notes include no further explanation. /d. Indeed, the only change 15 made to plaintiff's medication list during this examination was an additional 16 prescription for her benign hypertension. Id. 17 Plaintiff's further argues that an x-ray of her right knee hardware would not 18 reveal any swelling, pain, or tenderness. The court agrees an x-ray of plaintiffs 19 || knees would not necessarily capture any swelling, pain, or tenderness that would 20 || support her subjective symptom testimony. The ALJ also erred when he cited to 21 || portions of Dr. Altman’s examination of plaintiff's left knee rather than her right 22 || knee. In examining plaintiff's right knee, Dr. Altman observed plaintiff had a 23 || surgical scar compatible with a right knee replacement, had a range of motion 0 to 24 || 90 degrees, and mild tenderness along the medial and lateral joint lines. Jd. at 615. 25 || The ALJ thus incorrectly cited to an irrelevant portion of Dr. Altman’s 26 || examination in discussing plaintiff's right knee limitations. Nonetheless, despite 27 || these two errors, there is substantial evidence in the record to support the ALJ’s 28 14
1 || finding that the objective medical evidence does not support the severity of 2 || plaintiff's claimed symptoms. 3 The ALJ cited a second reason for discounting plaintiffs testimony, that 4 || plaintiff received conservative treatment for her back pain and appears to have 5 || received no treatment for her right knee pain since her 2010 surgery. AR at 29. 6 || “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 7 || testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 8 || 751 (9th Cir. 2007) (citation omitted). Here, as the ALJ noted, the record indicates 9 || plaintiff was recommended physical therapy, analgesics, and home exercises to 10 || address her back pain. See AR at 29, 458, 495. This is fairly characterized as 11 || conservative treatment. See Tommasetti, 533 F.3d at 1040 (describing physical 12 | therapy and anti-inflammatory medication as conservative treatment); see also 13 || Huizar v. Comm’r, 428 Fed. Appx. 678, 680 (9th Cir. 2011) (finding that plaintiff 14 responded favorably to conservative treatment, which included “the use of 15 || narcotic/opiate pain medications’). There are also no records showing further 16 || treatment for plaintiff's right knee pain after her surgery, and the additional 17 || evidence cited by plaintiff does not support her argument, as previously discussed. 18 || This second reason for discounting plaintiff's testimony is also clear and 19 | convincing. 20 The third reason cited by the ALJ for finding plaintiffs testimony less 21 | credible was that her alleged symptoms were inconsistent with her activities of 22 || daily living. Id. at 29; see Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 || 2002) (in making a credibility determination, an ALJ may consider inconsistencies 24 || between a claimant’s testimony and conduct). The ALJ found, and plaintiff 25 |i testified, that plaintiff was able to perform activities of daily living such as 26 || “cleaning, doing laundry, doing light grocery shopping, and driving on occasion.” 27 || AR at 29, 139-40. 28 15
1 Inconsistency between a claimant’s alleged symptoms and her daily 2 || activities may be a clear and convincing reason to find a claimant’s testimony less 3 | credible. Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346. But “the mere 4 || fact a [claimant] has carried on certain daily activities, such as grocery shopping, 5 || driving a car, or limited walking for exercise, does not in any way detract from her 6 || credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 7 || (9th Cir. 2001). A claimant does not need to be “utterly incapacitated.” Fair v. 8 || Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, plaintiffs activities as reported at 9 || the hearing were not inconsistent with her alleged physical symptoms. At the 10 hearing, plaintiff testified that she was unable to walk for more than an hour and 11 } could only sit for 30 minutes to an hour. AR at 138. Plaintiff also testified that she 12 || alternated some of her cleaning chores across different days because she would get 13 || too fatigued, her husband mostly cleaned the bathroom and kitchen, and she would 14 } usually go grocery shopping with her husband because she was unable to lift 15 anything heavy. /d. at 139. The activities of daily living that plaintiff testified to 16 || were not inconsistent with her stated limitations, especially given that plaintiff 17 || testified she modified the activities to accommodate her alleged physical 18 | symptoms. Plaintiff's reported daily activities were therefore not a clear and 19 || convincing reason for discounting her subjective complaints. 20 Although the ALJ cited one reason that was not clear and convincing, the 21 || ALJ cited sufficient other reasons to find plaintiffs testimony less than entirely 22 || credible that were clear and convincing. Accordingly, the ALJ did not err in 23 || discounting plaintiff's subjective complaints. 24 25 26 27 28 16
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 v. Colvin, 759 F.3d 995, 1020 12 || (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 13 || instructions to calculate and award benefits). But where there are outstanding 14 |] issues that must be resolved before a determination can be made, or it is not clear 15 || from the record that the ALJ would be required to find a plaintiff disabled if all the 16 || evidence were properly evaluated, remand for further proceedings is appropriate. 17 || See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 18 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 19 | further proceedings when, even though all conditions of the credit-as-true rule are 20 || satisfied, an evaluation of the record as a whole creates serious doubt that a 21 || claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 22 Here, remand is required because it is unclear what the ALJ would have 23 || determined plaintiff's RFC to be had he properly considered Dr. Altman’s opinion, 24 |i or plaintiff all the limitations opined by Dr. Altman would have affected the 25 || vocational expert’s testimony. On remand, the ALJ shall reconsider the opinion of 26 || Dr. Altman and either credit his medical opinion or provide legally sufficient 27 || reasons supported by substantial evidence for rejecting it. The ALJ shall then 28 17
1 || reassess plaintiff's RFC, and proceed through steps four and five to determine what 2 || work, if any, plaintiff was capable of performing during the relevant period. 3 VI. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment shall be entered 6 || REVERSING the decision of the Commissioner denying benefits, and 7 || REMANDING the matter to the Commissioner for further administrative action 8 || consistent with this decision. 9 Rey 11 | DATED: March 31, 2020 12 SHERIPYM 3 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18