1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JUAN C. P., ) No. ED CV 19-427-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ) 16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Juan C. P.1 (“plaintiff”) filed this action on March 7, 2019, seeking review of the 22 Commissioner’s denial of his application for Disability Insurance Benefits (“DIB”). The parties filed 23 Consents to proceed before a Magistrate Judge on March 26, 2019, and March 29, 2019. 24 Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on 25 November 4, 2019, that addresses their positions concerning the disputed issues in the case. The 26 27 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth 28 1 Court has taken the Joint Submission under submission without oral argument. 2 3 II. 4 BACKGROUND 5 Plaintiff was born in 1963. [Administrative Record (“AR”) at 197.] He has past relevant 6 work experience as a cook. [Id. at 29, 64-65.] 7 On June 2, 2015, plaintiff protectively filed an application for a period of disability and DIB, 8 alleging that he has been unable to work since May 26, 2014. [Id. at 19; see also id. at 197-98.] 9 After his application was denied initially and upon reconsideration, plaintiff timely filed a request 10 for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 115-17.] A hearing was held on 11 May 10, 2018, at which time plaintiff appeared represented by an attorney, and testified on his own 12 behalf, with the assistance of a Spanish interpreter. [Id. at 36-73.] A vocational expert (“VE”) also 13 testified. [Id. at 63-72.] On June 1, 2018, the ALJ issued a decision concluding that plaintiff was 14 not under a disability from May 26, 2014, the alleged onset date, through June 1, 2018, the date 15 of the decision. [Id. at 19-31.] Plaintiff requested review of the ALJ’s decision by the Appeals 16 Council. [Id. at 193-96.] When the Appeals Council denied plaintiff’s request for review on 17 February 6, 2019 [id. at 1-7], the ALJ’s decision became the final decision of the Commissioner. 18 See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action 19 followed. 20 21 III. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 26 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 27 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 28 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 1 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 2 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 3 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 4 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 5 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 6 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 7 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 8 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 9 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 10 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 11 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 12 be judged are those upon which the record discloses that its action was based.”). 13 14 IV. 15 THE EVALUATION OF DISABILITY 16 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 17 to engage in any substantial gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted or is expected to last for a continuous period of at 19 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 20 42 U.S.C. § 423(d)(1)(A)). 21 22 A. THE FIVE-STEP EVALUATION PROCESS 23 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 24 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 25 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 26 In the first step, the Commissioner must determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 28 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 1 second step requires the Commissioner to determine whether the claimant has a “severe” 2 impairment or combination of impairments significantly limiting his ability to do basic work 3 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 4 a “severe” impairment or combination of impairments, the third step requires the Commissioner 5 to determine whether the impairment or combination of impairments meets or equals an 6 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 7 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 8 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 9 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 10 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 11 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 12 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 13 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 14 the burden of establishing that the claimant is not disabled because there is other work existing 15 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 16 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 17 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 18 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 19 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 20 21 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 23 May 26, 2014, the alleged onset date.2 [AR at 21.] At step two, the ALJ concluded that plaintiff 24 has the severe impairments of degenerative disc disease; sprain/strains of the lumbar-sacral and 25 cervical spine; and carpal tunnel syndrome of the bilateral hands. [Id.] At step three, the ALJ 26 27 2 The ALJ concluded that plaintiff meets the insured status requirements of the Social 28 1 determined that plaintiff does not have an impairment or a combination of impairments that meets 2 or medically equals any of the impairments in the Listing. [Id. at 25.] The ALJ further found that 3 plaintiff retained the residual functional capacity (“RFC”)3 to perform medium work as defined in 4 20 C.F.R. § 404.1567(c),4 “except frequent balancing, stooping, kneeling, crouching, and crawling; 5 frequent climbing of ramps and stairs; frequent handling and fingering; and no climbing of ladders, 6 ropes, or scaffolds.” [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the 7 ALJ concluded that plaintiff is able to perform his past relevant work as a cook. [Id. at 29.] 8 Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset 9 date of May 26, 2014, through June 1, 2018, the date of the decision. [Id. at 31.] 10 11 V. 12 THE ALJ’S DECISION 13 Plaintiff contends that the ALJ erred when he: (1) failed to properly consider significant and 14 relevant medical evidence of record in assessing plaintiff’s RFC; and (2) failed to properly consider 15 plaintiff’s subjective symptom testimony. [JS at 4.] As set forth below, the Court agrees with 16 plaintiff, in part, and remands for further proceedings. 17 18 A. THE ALJ’S RFC DETERMINATION 19 1. Legal Standard 20 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 21 and mental activities in a work setting on a regular and continuing basis.” Soc. Sec. Ruling 22 23 3 RFC is what a claimant can still do despite existing exertional and nonexertional 24 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which 25 the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 26 1151 n.2 (9th Cir. 2007) (citation omitted). 27 4 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that 28 1 (“SSR”)5 96-9p, 1996 WL 374184, at *1 (1996). It reflects the most a claimant can do despite his 2 limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC must include an 3 individual’s functional limitations or restrictions as a result of all of his impairments -- even those 4 that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) -- and must assess his “work-related 5 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine 6 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into 7 account a claimant’s limitations is defective”). An ALJ errs when he provides an incomplete RFC 8 ignoring “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 9 2012) (further noting that the error is not harmless when an ALJ fails to discuss significant and 10 probative evidence favorable to a claimant’s position because when the RFC is incomplete, the 11 hypothetical question presented to the VE is incomplete and, therefore, the ALJ’s reliance on the 12 VE’s answers is improper)). An RFC assessment is ultimately an administrative finding reserved 13 to the Commissioner. 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be 14 based on all of the relevant evidence, including the diagnoses, treatment, observations, and 15 opinions of medical sources, such as treating and examining physicians. Id. § 404.1545. A district 16 court must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal standard 17 and substantial evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 18 427 F.3d 1211, 1217 (9th Cir. 2005); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 20 2. Dr. Bernabe’s Opinion 21 Plaintiff argues that the ALJ erred when he gave “substantial weight” to the December 2, 22 2015, opinion of orthopedic consultative examiner, Vicente Bernabe, D.O., and discounted the 23 opinions of his treating orthopedic surgeon for workers’ compensation purposes, Dr. Khalid B. 24 Ahmed. [JS at 5 (citing AR at 28, 276-81).] He notes that counsel objected at the hearing to any 25 26 5 “SSRs do not have the force of law. However, because they represent the Commissioner’s 27 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, 1202 28 1 significant weight being given to Dr. Bernabe’s report for two reasons: first, in light of the objective 2 MRI evidence of plaintiff’s cervical and lumbar spines, counsel stated that “there’s [no] way it’s 3 realistic th[at] [plaintiff] could lift anywhere near 50 pounds”; and, second, Dr. Bernabe “had been 4 terminated as a consultative examiner by the Defendant Administration in the past for 5 unsupportable medical opinions.” [Id. (citing AR at 40).] Defendant does not address plaintiff’s 6 assertion about Dr. Bernabe’s status with the administration, and plaintiff provides no supporting 7 evidence regarding his assertion regarding Dr. Bernabe’s alleged “termination.”6 Plaintiff also 8 argues that the ALJ improperly gave substantial weight to the opinions of the state agency medical 9 consultants, “who simply adopted Dr. Bernabe’s findings and assessment.” [Id. (citing AR at 80- 10 81, 93-94).] Plaintiff further argues that the ALJ’s rejection of the opinions of plaintiff’s treating and 11 workers’ compensation physician was “inappropriate, without legal authority, and simply a 12 manipulation of the evidence by this [ALJ] in order to justify the finding of a medium [RFC] in this 13 case.” [Id. at 5-6.] He notes that because plaintiff was 54 years old at the time of the ALJ’s 14 decision, in order to deny plaintiff benefits “under the appropriate medical vocational guidelines,” 15 the ALJ must establish that plaintiff is able to perform his past work as a cook and is limited to no 16 less than light work. [Id. at 6.] 17 6 Courts in the Central District that have considered the claims made by other plaintiffs that the 18 ALJ may not rely on Dr. Bernabe’s opinion in light of his removal as a consultative examiner for 19 the Administration have rejected those arguments. See, e.g., Luis C. v. Berryhill, 2019 WL 2027599 (C.D. Cal. May 8, 2019) (noting that the Court had twice previously rejected this 20 argument and finding that plaintiff did not challenge any specific finding or conclusion drawn by Dr. Bernabe, and did “not even attempt to explain how or why the results of objective tests 21 conducted by Dr. Bernabe and his observations of Plaintiff’s abilities should be discounted based 22 on unrelated events such as malpractice claims and his departure from DDS”); Quijada v. Berryhill, 2018 WL 4725649 (C.D. Cal. Sept. 30, 2018) (noting that the Commissioner submitted 23 uncontradicted evidence that Dr. Bernabe’s contract with the Administration was terminated in March of 2017 due to “ongoing complaints of rudeness”); McIntosh v. Berryhill, 2018 WL 3218105 24 (C.D. Cal. June 29, 2018) (noting that plaintiff’s contentions about Dr. Bernabe were not in the record or supported by evidence); Madison v. Berryhill, 2018 WL 1010191 (C.D. Cal. Feb. 20, 25 2018) (evidence presented by Commissioner that Dr. Bernabe was removed due to complaints 26 of rudeness); Anaya v. Berryhill, 2018 WL 565698 (C.D. Cal. Jan. 24, 2018) (specifically finding this argument “distasteful and disingenuous” in light of the fact that Dr. Bernabe’s license is current 27 and in good standing (as it still is), and because plaintiff did not even attempt to explain how or why the results of Dr. Bernabe’s objective testing and observations should be discounted “based 28 1 Defendant notes Dr. Bernabe’s findings, and generally cites to cases holding that an 2 examining physician’s opinion alone constitutes substantial evidence because it rests on an 3 independent examination, a consultative examiner need not review all of the medical records 4 because his examination is itself substantial evidence, and the opinions of the reviewing 5 physicians can amount to substantial evidence, so long as other evidence in the record (such as 6 Dr. Bernabe’s opinion herein), supports those findings. [Id. at 12 (citations omitted).] 7 In this case, Dr. Bernabe examined plaintiff on one occasion, and it appears that the only 8 medical records he had the benefit of reviewing included a December 2014 cervical spine MRI, 9 and May 27, 2014, and June 2, 2014, progress reports (dated less than a week apart) each 10 reflecting “a diagnosis of low back pain and sciatica.” [AR at 276 (citing id. at 261, 271, 274).] 11 There is no evidence that Dr. Bernabe reviewed any of plaintiff’s workers’ compensation records. 12 The agency reviewers on initial review and on reconsideration also reviewed plaintiff’s December 13 2014 cervical spine MRI, and the reports of Dr. Bernabe and the consultative psychiatrist, but 14 there is no indication that they had any of plaintiff’s workers’ compensation records for review. 15 [See id. at 74-84, 86-97.] 16 As defendant notes, when a treating physician’s opinion is not given controlling weight, the 17 ALJ must consider certain factors enumerated in 20 C.F.R. § 404.1527(c). [JS at 13-14.] Those 18 factors include such things as the nature, extent, and length of the physician-patient working 19 relationship, the frequency of examinations, whether the physician’s opinion is supported by and 20 consistent with the record, the specialization of the physician, and the amount of understanding 21 of disability programs and their evidentiary requirements the acceptable medical source has. [Id. 22 at 14]; see also Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017); 20 C.F.R. § 23 404.1527(c)(2)-(6). In this case, while the ALJ arguably considered it to be significant that Dr. 24 Bernabe and the agency reviewers had more understanding of disability programs and 25 requirements than plaintiff’s workers’ compensation physicians (see discussion below relating to 26 the ALJ’s failure to properly consider the opinions of plaintiff’s workers’ compensation providers), 27 it does not appear that he considered any other relevant factor in giving the consulting sources 28 controlling weight. If he had, he might have noted the long-term treating relationship between 1 plaintiff and Dr. Ahmed, Dr. Ahmed’s specialization, and the fact that his opinions were supported 2 by cervical and lumbar MRIs, numerous positive straight leg raise test results, numerous reports 3 of significantly decreased range of motion (“ROM”) of the lumbar and cervical spines, as well as 4 of the shoulder, and a positive EMG/Nerve Conduction study reflecting mild to moderate bilateral 5 carpal tunnel syndrome. 6 The Court also notes that despite finding significantly reduced ROM of plaintiff’s lumbar 7 spine [see AR at 279], Dr. Bernabe nevertheless determined plaintiff could lift and carry 50 pounds 8 occasionally and 25 pounds frequently, stand and walk for 6 hours out of an 8-hour day, sit for 6 9 hours of an 8-hour day, push and pull with no restrictions, perform postural activities on a frequent 10 basis, perform agility activities on a frequent basis, and had no manipulative limitations. [Id. at 11 281.] At least some of these findings appear to be inconsistent with plaintiff’s reduced lumbar 12 ROM as assessed by Dr. Bernabe, and those inconsistencies are not explained by either Dr. 13 Bernabe or the ALJ. 14 Based on the foregoing, the ALJ did not provide specific and legitimate reasons supported 15 by substantial evidence to give controlling weight to the opinions of Dr. Bernabe and the reviewing 16 consultants. 17 18 3. Dr. Ahmed’s Opinions 19 Plaintiff maintains that the ALJ’s RFC determination for medium work is not consistent with 20 any evidence except for the unsupported opinions of Dr. Bernabe and the state agency 21 consultants who “simply parroted Dr. Bernabe’s assessment.” [JS at 6.] Additionally, despite 22 plaintiff’s diagnosis of carpal tunnel syndrome, plaintiff complains that the ALJ found him capable 23 of frequently using his hands for gripping and grasping, as well as for fine fingering activities. [Id.] 24 He notes that the ALJ never mentioned “the permanent and stationary findings and limitations set 25 forth by [his] treating orthopedic surgeon, Dr. [Khalid B.] Ahmed . . . , who set forth specific related 26 functional limitations affecting Plaintiff’s use of his neck and lumbar spine,” which are not “terms 27 of art” or “temporary restrictions.” [Id. (citing AR at 397).] Plaintiff contends that the medical 28 evidence reflects that he has “consistently complained of pain affecting his low back and neck with 1 radiating symptoms of pain, and numbness into both his upper extremities and lower extremities.” 2 [Id. (citing AR at 261, 266, 270, 273, 314, 318, 336, 365, 381, 412, 416, 437, 441).] He further 3 states that there is objective evidence in the form of MRIs of plaintiff’s cervical and lumbar spines, 4 which documented multi-level degenerative disc disease with neuroforaminal stenosis. [Id. at 6-7 5 (citing AR at 274-75, 290, 292-93, 300).] Plaintiff observes that he has had at least one positive 6 straight leg raise test,7 indicative of nerve root involvement, and at least one EMG/Nerve 7 Conduction Study of his bilateral upper extremities, which revealed “bilateral carpal tunnel 8 syndrome, mild to moderate.” [Id. at 7 (citing AR at 316, 417).] 9 Plaintiff maintains that the opinions of his treating orthopedic surgeon for workers’ 10 compensation, Dr. Ahmed, were consistent with the Administrative Record and that Dr. Ahmed 11 suggested specific limitations he believes apply to plaintiff, but that the ALJ ignored. [Id. at 7.] 12 Plaintiff states that on August 29, 2014, shortly after plaintiff’s alleged onset date, Dr. Ahmed 13 7 The Court’s review of the record, however, reflects that on at least 15 different occasions 14 between May 2014 and December 2016, plaintiff’s treating provider reported positive straight leg 15 raising test results. [See, e.g., AR at 262 (May 27, 2014); 354 (Aug. 9, 2014); 316 (Sept. 11, 2014); 363 (Sept. 26, 2014); 365 (Nov. 7, 2014); 368 (Dec. 19, 2014); 322 (Dec. 24, 2014); 324 16 (Jan. 21, 2015); 371 (Jan. 30, 2015); 374 (Mar. 13, 2015); 381 (June 12, 2015); 392 (Oct. 16, 2015); 405 (Aug. 23, 2016, initial physical therapy assessment); 409 (Dec. 13, 2016, physical 17 therapy discharge assessment); and 413 (Dec. 13, 2016, physician assessment, noting positive straight leg raising when supine).] On many of these same visits, as well as at other visits, 18 plaintiff’s assessed ROM of his cervical and/or lumbar spines was also found to be reduced, or 19 abnormal findings were noted. [See, e.g., AR at 271 (June 2, 2014, noting abnormal examination findings at L4-S1 and recommending no lifting over 10 pounds, and no repetitive kneeling, 20 crawling, climbing, or use of the back); 267 (June 4, 2014, finding normal ROM in the neck but abnormal examination findings at L1-L3 in the lumbar spine); 351-54 (Aug. 29, 2014, noting 21 decreased ROM in the cervical, thoracic, and lumbar spines, as well as decreased shoulder 22 ROM); 363 (Sept. 26, 2014, noting decreased ROM in lumbar spine); 318 (Oct. 31, 2014, decreased ROM in the lumbar and cervical spines); 365 (Nov. 7, 2014, noting decreased ROM 23 in lumbar and cervical spines); 368 (Dec. 19, 2014, noting decreased ROM in lumbar spine); 322 (Dec. 24, 2014, noting lumbar ROM moderately restricted on all planes due to pain); 324 (Jan. 21, 24 2015, noting decreased lumbar ROM); 371 (Jan. 30, 2015, noting decreased ROM in cervical and lumbar spines); 374 (Mar. 13, 2015, noting decreased ROM in cervical and lumbar spines); 381 25 (June 12, 2015, noting decreased ROM in cervical, thoracic, and lumbar spines, and decreased 26 shoulder ROM); 404 (Aug. 23, 2016, physical therapy initial evaluation noting decreased lumbar ROM); 389-92 (Oct. 16, 2015, noting decreased ROM in cervical and lumbar spines); 413 (May 27 25, 2016, noting cervical and lumbar ROM within 40% of normal); and 407 (Dec. 9, 2016, physical therapy discharge note reflecting decreased lumbar ROM). The Court should not have to search 28 1 stated that plaintiff was capable of performing “modified duties to include no overhead work with 2 right and left shoulder, no standing or walking over 45 minutes, no repeated bending or stooping, 3 no sitting over 45 minutes, no repetitive kneeling, squatting or climbing and no repetitive neck 4 motions.” [Id. at 7-8 (citing AR at 360).] He also notes that in December 2015, Dr. Ahmed 5 declared plaintiff to be “permanent and stationary” based on an October 16, 2015, evaluation. [Id. 6 at 9; see also AR at 385-400.] 7 Specifically, after reviewing the medical records, including a July 11, 2014, MRI of plaintiff’s 8 lumbar spine, a December 22, 2014, MRI of plaintiff’s cervical spine, and an October 29, 2014, 9 neurological consultation report, and then conducting a thorough and extensive physical 10 examination, Dr. Ahmed opined in his December 18, 2015, report that plaintiff had the impairments 11 of “[h]erniated cervical disc (+) MRI, with radiculitis/radiculopathy”; “[h]erniated lumbar disc (+) 12 MRI, with radiculitis/radiculopathy, right greater than left”; right shoulder strain/sprain rule out 13 tendinitis impingement, cuff tear, internal derangement; left shoulder strain/sprain rule out 14 tendinitis impingement, cuff tear, internal derangement; right knee strain/sprain rule out internal 15 derangement; right foot strain/sprain; anxiety; and depression.” [AR at 395.] Dr. Ahmed stated 16 that plaintiff “injured his cervical spine, lumbar spine, bilateral shoulders, right knee and right foot 17 due to his repetitive duties [as a cook] of constant heavy lifting, pulling, pushing, bending, 18 stooping, standing and walking, on a continuous trauma basis from August 1, 2013 - May 26, 19 2014.” [Id. at 396.] Among other things, with respect to plaintiff’s cervical spine, Dr. Ahmed’s 20 evaluation reflected reduced ROM; decreased lordosis; positive foramina compression test; and 21 decreased sensation in the bilateral lateral aspect forearm and thumb, bilateral long finger, 22 bilateral medial side of the forearm, and medial side of the left elbow and arm. [Id. at 389.] With 23 respect to plaintiff’s shoulders, Dr. Ahmed noted reduced ROM, and reduced muscle strength in 24 the right arm. [Id. at 390.] With respect to plaintiff’s wrists and hands, Dr. Ahmed noted positive 25 Tinel’s and Phalen’s on the right side, abnormal two-point discrimination of the right median nerve 26 distribution, and abnormal motor power and sensation of the right hand. [Id. at 391.] With respect 27 to plaintiff’s lumbar spine, he found reduced ROM on flexion and extension; positive Lasegue’s 28 on the right; positive straight leg raise on the right; tightness and spasm of the paraspinal 1 musculature; facet joint tenderness at L4 and L5 bilaterally; some weakness in the right foot and 2 knee; and decreased ROM of the right foot/ankle. [Id. at 392-95.] With respect to his objective 3 findings, Dr. Ahmed stated that “there is restricted lumbar mobility with muscle guarding and 4 spasms with asymmetric loss of range of motion with the MRI scan confirming the presence of 2- 5 mm disk bulge at L4-L5[] level[,] and 3-4mm posterior disk bulge at L5-S1 with annular tear,” and 6 clinical findings for radiculopathy. [Id. at 397.] He determined plaintiff had the following work 7 restrictions and capacity: 8 For the cervical spine[,] patient has a disability precluding repetitive motions of the neck or spine. Contemplates the individual has lost approximately 50% of preinjury 9 capacity flexing, extending, bending, and rotating neck or spine. 10 For the lumbar spine the individual can do work approximately 50% of the time in a sitting position, and approximately 50% of the time in standing or walking position, 11 with minimum demands for physical effort weather [sic] standing, walking or sitting. 12 13 [Id.] 14 The ALJ did not specifically discuss Dr. Ahmed’s opinions. With respect to the opinions of 15 plaintiff’s workers’ compensation providers generally, the ALJ stated the following: 16 The undersigned assigns little weight to the various opinions contained in [plaintiff’s] medical records as to [his] ability to return to work in 2014 and 2016, and temporary 17 disability status with various specified restricted work duties while seeking treatment 18 for his work injury. A finding of disability is an ultimate issue that is reserved to the Commissioner. Because the issue is reserved, and because workers’ compensation 19 cases utilize standards very different from Social Security, these opinions cannot be 20 afforded controlling weight, but were nevertheless duly considered . . . . These opinions are given little weight as they are inconsistent with the opinions of the 21 consultative examiner and DDS consultants, and are not supported by the medical evidence showing conservative treatment of impairments limited to prescription 22 medication. As indicated above, [plaintiff’s] severe physical impairments resulted 23 in reduced abilities following the alleged onset date, which are reflected in the assigned residual functional capacity. 24 25 [Id. at 29 (citing id. at 304-400).] 26 / 27 / 28 1 a. Inconsistency With Dr. Bernabe’s Opinion 2 The Court finds that the only opinions the ALJ specifically noted as being inconsistent with 3 the workers’ compensation opinions in the record were the opinions of Dr. Bernabe -- who, as 4 discussed above, evaluated plaintiff on one occasion in 2015 and who reviewed only two 2014 5 medical reports and a 2014 cervical MRI report -- and of the reviewing DDS consultants, who, as 6 plaintiff correctly describes it, simply “parroted” Dr. Ahmed’s findings. [Id. at 29.] In fact, although 7 it appears that the agency reviewers on initial review and on reconsideration also reviewed 8 plaintiff’s December 2014 cervical spine MRI, and the reports of Dr. Bernabe and the consultative 9 psychiatrist, there is no indication that they had any of plaintiff’s workers’ compensation records 10 for review. [See id. at 74-84, 86-97.] 11 This was not a specific and legitimate reason to reject the opinions of Dr. Ahmed, an 12 orthopedic surgeon who treated plaintiff over the period of several years and whose opinion was 13 supported by objective clinical findings. 14 15 b. Rejection of Workers’ Compensation Opinions 16 An ALJ “may not disregard a . . . medical opinion simply because it was initially elicited in 17 a state workers’ compensation proceeding . . . .” Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 18 (C.D. Cal. 2002). Instead, an ALJ must evaluate the medical records prepared in the context of 19 workers’ compensation in the same way he would evaluate records obtained otherwise. Id. (citing 20 Coria v. Heckler, 750 F.2d 245, 248 (3d Cir. 1984)) (“[T]he ALJ should evaluate the objective 21 medical findings set forth in the medical reports for submission with the workers’ compensation 22 claim by the same standards that s/he uses to evaluate medical findings in reports made in the 23 first instance for the Social Security claim”). Further, an ALJ is not entitled to reject a medical 24 opinion based “on the purpose for which medical reports are obtained.” Batson v. Comm’r of Soc. 25 Sec. Admin., 359 F.3d 1190, 1200 n.5 (9th Cir. 2004) (citing Lester, 81 F.3d at 830). 26 Plaintiff argues that the ALJ failed to provide “any logical or legally supported rationale 27 supporting his decision to reject [Dr. Ahmed’s] specific work function limitations,” and rejected 28 them “simply because these limitations were set forth as part of Plaintiff’s worker’s compensation 1 case.” [JS at 9 (citing AR at 25, 397).] He argues that a “simple common sense interpretation of 2 Dr. Ahmed’s limitations . . . would clearly preclude the ALJ’s residual functional capacity 3 assessment which contemplates that [plaintiff] is capable of ‘frequent balancing, stooping, 4 kneeling, crouching, crawling, climbing of ramps and stairs, handling, and fingering.’” [Id. (citing 5 AR at 25).] Plaintiff further explains that Dr. Ahmed’s limitation to performing certain activities 50% 6 of a work day is inconsistent with the ALJ’s finding that plaintiff can engage in “frequent balancing, 7 stooping, kneeling, crouching, crawling, climbing of ramps and stairs, handling and fingering,” 8 because “frequent” in the Social Security context contemplates the ability to perform an activity 9 two-thirds of the work day. [Id. (citing AR at 25).] Thus, Dr. Ahmed’s statements that plaintiff can 10 work approximately 50% of the time in a sitting position, and approximately 50% of the time in a 11 standing or walking position, is “similarly at odds with the ALJ’s [RFC] assessment that plaintiff is 12 capable of standing and walking in virtually an unlimited manner,” with no RFC limitations 13 whatsoever. [Id. at 10.] 14 Defendant concedes that the ALJ’s findings were “not flawless,” and were a “bit 15 inarticulate,” but argues that the ALJ still provided specific and legitimate reasons for how he 16 evaluated the medical opinions of record. [Id. at 14, 15 (citations omitted).] Defendant submits 17 that the ALJ did not disregard the workers’ compensation opinions solely because they were 18 generated as part of a workers’ compensation matter, but instead found that the workers’ 19 compensation opinions were inconsistent with other opinions in the record. [Id. at 13 (citing AR 20 at 29).] 21 The Court disagrees with plaintiff’s argument that “common sense” suggests that Dr. 22 Ahmed’s finding that plaintiff has lost approximately 50% of his pre-injury capacity to flex, extend, 23 bend, and rotate his cervical neck or spine, is related to his ability to engage in balancing, 24 stooping, kneeling, crouching, crawling, or climbing ramps and stairs, which logically appear to 25 involve the lower extremities, and not the cervical neck or spine. However, Dr. Ahmed’s August 26 2014 statements precluding plaintiff from overhead work with his bilateral upper extremities 27 arguably relate to plaintiff’s cervical spine limitations, and the ALJ completely failed to include any 28 such limitation in his RFC, or even to mention those assessed limitations, even though such 1 limitations were arguably in “effect” from plaintiff’s alleged onset date, up until at least Dr. Ahmed’s 2 October 2015 report. [AR at 360.] Likewise, the ALJ ignored Dr. Ahmed’s sitting and 3 standing/walking limitations, and failed to mention those limitations, or to include any sitting or 4 standing/walking limitations in plaintiff’s RFC for medium work. Indeed, plaintiff’s past relevant 5 medium-level work as a cook requires standing/walking and/or sitting requirements in excess of 6 those required for light work.8 7 This was not a specific and legitimate reason supported by substantial evidence to reject 8 Dr. Ahmed’s opinions. 9 10 c. Conservative Treatment 11 The ALJ also stated that the opinions of plaintiff’s workers’ compensation providers, 12 including Dr. Ahmed, were not supported by plaintiff’s “conservative treatment . . . limited to 13 prescription medications.” [Id. at 29.] 14 “Conservative treatment” has been characterized by the Ninth Circuit as, for example, 15 “treat[ment] with an over-the-counter pain medication” (see, e.g., Parra v. Astrue, 481 F.3d 742, 16 751 (9th Cir. 2007) (emphasis added); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) 17 (holding that ALJ properly considered the plaintiff’s use of “conservative treatment including 18 physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve 19 stimulation unit, and a lumbosacral corset”)), or a physician’s failure “to prescribe . . . any serious 20 medical treatment for [a claimant’s] supposedly excruciating pain.” Meanel v. Apfel, 172 F.3d 21 1111, 1114 (9th Cir.1999). Many courts have previously found that strong narcotic pain 22 medications and spinal epidural injections are not considered to be “conservative” treatment. See, 23 e.g., Yang v. Barnhart, 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (ALJ’s finding that 24 25 8 Light work “requires a good deal of walking or standing, or . . . involves sitting most of the 26 time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). The physical demand requirements for the occupation of cook are in excess of those for light work. Dictionary 27 of Occupational Titles No. 313.361-014 (noting that the occupation of cook is medium-exertional level work and that the “[p]hysical demand requirements are in excess of those for Light Work”). 28 1 claimant received conservative treatment was not supported by substantial evidence when 2 claimant underwent physical therapy and epidural injections, and was treated with several pain 3 medications); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be 4 difficult to fault Plaintiff for overly conservative treatment when he has been prescribed strong 5 narcotic pain medications.”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) 6 (refusing to characterize treatment with narcotics, steroid injections, trigger point injections, and 7 epidural injections as conservative). 8 In this case, plaintiff testified at the hearing that he was taking Tramadol -- a narcotic-like 9 pain reliever used to treat moderate to severe pain (see https://www.drugs.com) -- two to three 10 times a day, and a muscle relaxer once a day. [AR at 62-63.] In 2014, it appears that plaintiff may 11 also have been prescribed and taken the narcotic pain reliever Norco, in addition to Tramadol and 12 a muscle relaxer. [Id. at 306, 359-60.] The record also reflects that authorization was sought for 13 both cervical and lumbar epidural injections, and plaintiff may have received those injections. 14 [See, e.g., id. at 372 (requesting authorization for cervical and lumbar epidural steroid injections).] 15 Plaintiff also was issued a TENS unit, a lumbar support brace, wrist braces for his carpal tunnel 16 syndrome, and received authorization for physical therapy and chiropractic sessions. [See, e.g., 17 id. at 362, 373, 398.] 18 Even if plaintiff’s treatment is considered to be “conservative” -- which the Court does not 19 determine -- the ALJ points to no evidence in the record that any treatment other than the 20 treatment plaintiff was receiving or had been recommended to receive -- i.e., prescription pain 21 medication, physical therapy, electrical stimulation, chiropractic treatment, and epidural injections 22 -- is a standard method for treating individuals with plaintiff’s impairments and the type of pain 23 caused by plaintiff’s physical impairments. 24 Accordingly, this was not a specific and legitimate reason supported by substantial 25 evidence for discounting the opinions of Dr. Ahmed. 26 27 d. “High” Activities of Daily Living 28 To the extent the ALJ rejected the opinions of Dr. Ahmed or plaintiff’s other workers’ 1 compensation physicians because plaintiff’s testimony indicated “high activities of daily living such 2 as driving, caring for animals, watering plants, tending to personal care tasks, and attending 3 appointments,” this was not a specific and legitimate reason supported by substantial evidence 4 to discount those opinions. 5 An ALJ may reject a medical opinion because the claimant’s activities of daily life contradict 6 it, but only if substantial evidence supports that conclusion. See Rollins v. Massanari, 261 F.3d 7 853, 856 (9th Cir. 2001) (finding that inconsistency between doctor’s opinion and claimant’s 8 “maintaining a household and raising two young children, with no significant assistance from her 9 ex husband” supported discounting the doctor’s opinion). The record must provide details about 10 the nature, extent, and frequency of the activities for them to “constitute ‘substantial evidence’ 11 inconsistent with [an examining physician’s] informed opinion.” Trevizo, 871 F.3d at 666. 12 Here, although the ALJ specifically identified a few of the daily activities engaged in by 13 plaintiff and found that plaintiff’s testimony supported the RFC determination [AR at 26, 29], the 14 amount of involvement plaintiff described in those activities was minimal, and cannot be called 15 “high.” For instance, plaintiff testified that he “can’t drive too long” and drives no more than five 16 minutes from his house to the store, but his wife handles the grocery basket; he goes out and 17 “tr[ies] to water the plants,” he “look[s] in” on the chickens his family keeps to be sure they have 18 water or food, and sometimes he gives them their food and water; and he does not help with the 19 housecleaning or the yard work. [Id. at 59-62.] Similarly, as reported by the psychiatric 20 consultative examiner, plaintiff is “able to drive short distances and take care of his ADLs,” but has 21 a history of “poor self-care skills of dressing, bathing, eating, toileting, and safety precautions,” he 22 does “light cooking only,” he does not manage his own money, and he does not “go to places by 23 himself.” [Id. at 284-85.] Accordingly, to the extent the ALJ determined that plaintiff’s testimony 24 regarding the limiting effects of his symptoms was consistent with the RFC and, therefore, 25 inconsistent with Dr. Ahmed’s or other workers’ compensation provider’s opinions, this reason was 26 not supported by substantial evidence. 27 Based on the foregoing, the ALJ failed to provide specific and legitimate reasons supported 28 by substantial evidence to give “little weight” to the opinions of Dr. Ahmed and other workers’ 1 compensation opinions. 2 Remand is warranted on this issue. 3 4 B. SUBJECTIVE SYMPTOM TESTIMONY 5 Plaintiff argues that none of the reasons provided by the ALJ for discounting his subjective 6 symptom testimony is clear and convincing, and defendant counters those arguments. For the 7 same reasons discussed above with respect to the ALJ’s consideration of plaintiff’s activities, to 8 the extent the ALJ failed to take into consideration plaintiff’s description of the limiting effects of 9 his symptoms on performing these activities, the ALJ failed to provide clear and convincing 10 reasons, supported by substantial evidence to discount that testimony. 11 Because the matter is being remanded for reconsideration of the medical opinions, and the 12 ALJ on remand as a result must reconsider plaintiff’s RFC in light of the record evidence, the ALJ 13 must also reconsider on remand, pursuant to SSR 16-3p,9 plaintiff’s subjective symptom testimony 14 and, based on his reconsideration of plaintiff’s RFC, provide specific, clear and convincing reasons 15 for discounting plaintiff’s subjective symptom testimony, if warranted. See Trevizo, 871 F.3d at 16 678 n.5; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citation 17 omitted) (the “ALJ must identify the testimony that was not credible, and specify ‘what evidence 18 undermines the claimant’s complaints.’”); Brown-Hunter v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 19 2015) (the ALJ must identify the testimony he found not credible and “link that testimony to the 20 particular parts of the record” supporting his non-credibility determination). 21 / 22 / 23 / 24 9 The Ninth Circuit in Trevizo noted that SSR 16-3p, which went into effect on March 28, 2016, 25 “makes clear what our precedent already required: that assessments of an individual’s testimony 26 by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be 27 expected to produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.’” Trevizo, 871 F.3d at 687 n.5 (citing SSR 16-3p). 28 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 4 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where 5 the record has been fully developed, it is appropriate to exercise this discretion to direct an 6 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding 7 issues that must be resolved before a determination can be made, and it is not clear from the 8 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 9 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 10 In this case, there are outstanding issues that must be resolved before a final determination 11 can be made. In an effort to expedite these proceedings and to avoid any confusion or 12 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 13 proceedings. First, because the ALJ failed to provide specific and legitimate reasons supported 14 by substantial evidence for discounting the opinions of Dr. Ahmed and plaintiff’s other workers’ 15 compensation providers, the ALJ on remand shall reassess the medical opinions of record, 16 including the opinions of Dr. Ahmed. The ALJ must explain the weight afforded to each opinion 17 and provide legally adequate reasons for any portion of an opinion that the ALJ discounts or 18 rejects. Second, because the ALJ failed to provide specific, clear and convincing reasons, 19 supported by substantial evidence in the case record, for discounting plaintiff’s subjective symptom 20 testimony, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s subjective 21 allegations and either credit his testimony as true, or provide specific, clear and convincing 22 reasons, supported by substantial evidence in the case record, for discounting or rejecting any 23 testimony. Finally, based on his reevaluation of the medical evidence and of plaintiff’s subjective 24 symptom testimony, the ALJ shall reassess plaintiff’s RFC and determine at step four, with the 25 assistance of a VE if necessary, whether plaintiff is capable of performing his past relevant work 26 as a cook. If plaintiff is not so capable, or if the ALJ determines to make an alternative finding at 27 step five, then the ALJ shall proceed to step five and determine, with the assistance of a VE if 28 necessary, whether there are jobs existing in significant numbers in the regional and national 1 || economy that plaintiff can still perform. See Shaibi v. Berryhill, 870 F.3d 874, 882-83 (9th Cir. 2|| 2017). 3 4 VIL. 5 CONCLUSION 6 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 8 || proceedings consistent with this Memorandum Opinion. 9 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the 10 || Judgment herein on all parties or their counsel. 11 This Memorandum Opinion and Order is not intended for publication, nor is it 12 || intended to be included in or submitted to any online service such as Westlaw or Lexis. 13 ROK eam DATED: November 14, 2019 PAUL L. ABRAMS 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 on