Maria Trinidad Velasquez v. Andrew M. Saul

Opinion

MARIA T. V., ) No. CV 19-10879-PLA ) Plaintiff, ) MEMORANDUM OPINION AND ORDER ) v. ) ) OF SOCIAL SECURITY ) ) Defendant. ) ) I. Maria T. V.1 (“plaintiff”) filed this action on December 26, 2019, seeking review of the Commissioner’s denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed before a Magistrate Judge on December 31, 2019, and January 24, 2020. Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on August 6, 2020, that addresses their positions concerning the disputed 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 issues in the case. The Court has taken the Joint Submission under submission without oral argument. II. Plaintiff was born in 1956. [Administrative Record (“AR”) at 165.] She has past relevant work experience as a hand packager (Dictionary of Occupational Title (“DOT”) No. 920.587-018). [AR at 27, 53-54.] On February 23, 2016, plaintiff protectively filed an application for a period of disability and DIB alleging that she has been unable to work since January 1, 2015. [Id. at 21; see also id. at 165-68.] After her application was denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 95-96.] A hearing was held on November 7, 2018, at which time plaintiff appeared represented by an attorney, and testified on her own behalf with the assistance of a Spanish interpreter. [Id. at 21, 34-58.] A vocational expert (“VE”) also testified. [Id. at 53-57.] On November 30, 2018, the ALJ issued a decision concluding that plaintiff was not under a disability from January 1, 2015, the alleged onset date, through November 30, 2018, the date of the decision. [Id. at 21-28.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. [Id. at 163-64.] When the Appeals Council denied plaintiff’s request for review on December 9, 2019 [id. at 1-7], the ALJ’s decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810. Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d at 654 (internal quotation marks and citation omitted). However, the Court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”). IV. Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 U.S.C. § 423(d)(1)(A)). The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant’s impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled because there is other work existing in “significant numbers” in the national or regional economy the claimant can do, either (1) by the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since January 1, 2015, the alleged onset date.2 [AR at 23.] At step two, the ALJ concluded that plaintiff has the severe impairments of right shoulder impingement, status post right shoulder surgery; and 2 The ALJ concluded that plaintiff meets the insured status requirements of the Social degenerative disc disease of the cervical and lumbar spine. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [Id. at 24.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)3 to perform medium work as defined in 20 C.F.R. § 404.1567(c),4 as follows: [L]ifting up to 50 pounds occasionally and 25 pounds frequently, and sitting, standing and/or walking up to six hours in an 8-hour workday, with the following additional restrictions: [she] can only occasionally push and pull with her dominant right upper extremity, can only occasionally climb ladders, ropes or scaffolds, can only occasionally crawl, and can only occasionally reach overhead with her dominant, right upper extremity. [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded that plaintiff is able to perform her past relevant work as a hand packager, as generally performed (at the medium level) and as actually performed (at the light level with some of her employers where she did not have to lift). [Id. at 27, 53-54.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of January 1, 2015, through November 30, 2018, the date of the decision. [Id. at 28.] V. Plaintiff contends that the ALJ erred when she: (1) assessed the medical opinions in the record; (2) rejected plaintiff’s subjective symptom testimony; and (3) found plaintiff capable of performing her past relevant work. [JS at 2.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings. 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9thCir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 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 1. Legal Standards “There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527.5 TheNinth Circuithasrecentlyreaffirmedthat“[t]hemedicalopinionofaclaimant’streatingphysicianisgiven ‘controllingweight’solongasit‘iswell-supportedbymedicallyacceptableclinicalandlaboratory diagnostictechniquesandisnotinconsistentwiththeothersubstantialevidencein[theclaimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2))(secondalterationinoriginal). Thus, “[a]s a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester,81F.3dat830;Garrison,759F.3dat1012(citingBrayv.Comm’rofSoc.Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9thCir. 2010). “The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan,528F.3d at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan,528 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it 5 The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R. § 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating source,” as well as what is customarily known as the treating source or treating physician rule. See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However, the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed plaintiff’s claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527 according to factors such as the nature, extent, and length of the physician-patient working relationship, the frequency of examinations, whether the physician’s opinion is supported by and consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the [treating or examining] doctors’, are correct.” Id. Although the opinion of a non-examining physician “cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554 F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment” in determining the claimant’s RFC and in rejecting the treating doctor’s testimony regarding the claimant’s functional limitations). Reports of non-examining medical experts “may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). An RFC is “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” Soc. Sec. Ruling (“SSR”)6 96-9p, 1996 WL 374184, at *1 (1996). It reflects the most a claimant can do despite her limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC must include an individual’s functional limitations or restrictions as a result of all of her impairments -- even those that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) -- and must assess her “work-related 6 “SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine, 574 F.3d at 690 (“an RFC that fails to take into account a claimant’s limitations is defective”). An ALJ errs when she provides an incomplete RFC ignoring “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 2012) (further noting that the error is not harmless when an ALJ fails to discuss significant and probative evidence favorable to a claimant’s position because when the RFC is incomplete, the hypothetical question presented to the VE is incomplete and, therefore, the ALJ’s reliance on the VE’s answers is improper). An RFC assessment is ultimately an administrative finding reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the relevant evidence, including the diagnoses, treatment, observations, and opinions of medical sources, such as treating and examining physicians. Id. § 404.1545. A district court must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2. Opinions of Dr. Bleecker, Dr. Habib, and the Reviewing Consultants Plaintiff contends that the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting the opinions of consultative orthopedic examiner H. Harlan Bleecker, M.D., and of plaintiff’s treating physician Shehnaz N. Habib, M.D., who found that plaintiff could perform light work or sedentary work respectively. [JS at 2-3.] She argues that the ALJ’s determination that plaintiff had the RFC to perform medium work, and could lift 50 pounds occasionally and 25 pounds frequently, based as it was on the “great weight” the ALJ gave to the opinions of the State agency reviewing consultants, was not supported by substantial evidence of record. [Id. at 2-3, 4-5.] a. Dr. Bleecker In June 2016, Dr. Bleecker, an orthopedic surgeon, performed a consultative comprehensive orthopedic examination of plaintiff. [AR at 301-07.] Based on his physical examination, and x-rays of plaintiff’s cervical spine, lumbar spine, and right shoulder, Dr. Bleecker diagnosed plaintiff with impingement syndrome right shoulder and “[q]uestionable L5 spondylosis.” [Id. at 304.] He opined that plaintiff is able to lift 20 pounds occasionally and 10 pounds frequently, i.e., she is limited to light work, with additional functional limitations. [Id.] With respect to Dr. Bleecker’s opinion, the ALJ noted the following: On June 7, 2016, [plaintiff] presented to H. Harlan Bleecker, M.D., for a consultative orthopedic examination at the request of the Social Security Administration. [She] complained of pain in the right shoulder when she used it, and back pain when sitting too long. On examination, she was observed to sit and stand with normal posture. She rose from a chair without difficulty. Her gait was normal, and she walked on tiptoes and heels without difficulty, without evidence of weakness in the ankle flexors or extensors. She was able to get on and off the examining table without difficulty. The range of motion of the neck was diminished on forward flexion and extension. Backward extension of the spine was slightly reduced, and straight leg raising was within normal limits. The range of motion of the shoulder was within normal limits. The neurologic examination was intact. X-rays of the cervical spine showed two small calcifications anteriorly at C5-6 and C6-7, and x-rays of the right shoulder evidenced a slightly high-riding humeral head with irregularity of the glenoid inferiorly. There was a prominent medial spike off the acromion status post surgery, and a calcification between the distal end of the clavicle and the acromion. X-rays of the lumbar spine showed a questionable L5 spondylosis. . . . . On June 7, 2016, Dr. Bleecker opined [plaintiff] was capable of lifting and/or carrying 20 pounds occasionally and 10 pounds frequently, sitting six hours in an eight hour day, standing and walking six hours in an eight hour day, and occasionally reaching overhead with the right upper extremity. The undersigned does not find this opinion fully persuasive and gives it only partial weight. [Plaintiff] has activities of daily living that show she drives, waters, mops, and does errands including grocery shopping. Consistent with the findings of Dr. Ornsby [sic] who reviewed the medical evidence, Dr. Bleecker’s opinion documented normal lumbar rage [sic] of motion, normal posture, gait, normal motor, sensory and reflexes with imaging showing only mild lumbar spondylosis. The examination revealed right upper extremity limits which are accounted for in the above residual functional capacity. Subsequently, upon review of the evidence, a State Agency non-examining consultant opined [plaintiff] was capable of lifting and/or carrying 50 pounds occasionally and 25 pounds frequently, sitting about six hours in an eight hour day, standing and walking about six hours in an eight hour day, pushing and pulling 25 pounds occasionally with the right upper extremity, occasionally climbing ladders, ropes or scaffolds, frequently crawling, and occasional overhead reaching with the right upper extremity. This opinion is consistent with the opinion of Dr. Ornsby [sic]. The undersigned finds this opinion persuasive and gives it great weight. It is consistent with [plaintiff’s] activities of daily living and minimal treatment, but considers [her] subjective complaints and the imaging studies. [Id. at 25-26 (citations omitted).] Plaintiff contends that in rejecting Dr. Bleecker’s expert opinion because of plaintiff’s activities of daily living, the ALJ “second-guessed” Dr. Bleecker’s opinion and failed to offer any explanation as to how plaintiff’s activities undermined Dr. Bleecker’s opinion that plaintiff was limited to light work.7 [JS at 5.] She also asserts that the ALJ’s rejection of Dr. Bleecker’s opinion on the ground that his “examination findings of the spine were within ‘normal’ limits,” cannot constitute substantial evidence, as Dr. Bleecker’s lifting limitations were “well supported by abnormal imaging studies of the cervical spine, lumbar spine and right shoulder (AR 304), and the ALJ acknowledged that Dr. Bleecker’s ‘examination revealed upper extremity limits,’ however made a blanket assertion that she ‘accounted’ for these limits in her RFC findings, while rejecting Dr. Bleecker’s assessment of Plaintiff’s limitations on lifting.” [JS at 5-6.] Plaintiff further argues that the ALJ based her rejection of Dr. Bleecker’s opinion (that plaintiff was limited to light work) “on her own lay interpretation of the medical findings, which is not a legally sufficient reason for rejecting the opinion of an examining physician.” [Id. at 6.] Plaintiff argues that Dr. Bleecker’s opinions were entitled to “substantially greater weight than the opinions of non-examining physicians,” the medical consultants M. Ormsby, M.D., and R. Dwyer, M.D., who opined in September 2016 and December 2016, respectively, that plaintiff was able to perform medium-level work with certain limitations. [Id. at 7 (citing AR at 26, 65-67, 79-80).] She notes that Dr. Bleecker is a specialist in orthopedic surgery, and his opinion concerning the impact of plaintiff’s orthopedic impairments of the spine and right shoulder is entitled to greater deference than the opinions of the reviewing consultants “whose specialty, if any, was not stated in the record.” [Id. (citation omitted).] Defendant responds that although plaintiff alleges disability since January 2015, she “only 7 The Court agrees with plaintiff’s arguments and does not find the ALJ’s reliance on plaintiff’s daily activities to be a specific and legitimate reason, supported by substantial evidence, began seeking any treatment in April 2017,”8 and that, “[e]ven then, her progress reports recorded few abnormal findings,” and her treatment record is “remarkably sparse.” [Id. at 8.] He contends, therefore, that the ALJ reasonably found that “the opinions most consistent with the objective medical evidence [i.e., the opinions of the State agency reviewing consultants] had the most weight,” and met the substantial evidence standard. [Id. at 8-9.] In that respect, defendant notes that there are “four conflicting medical opinions in this case, which widely diverge in their estimate of Plaintiff’s functional ability.” [Id. at 9.] Dr. Ormsby and Dr. Dwyer, the State agency reviewing consultants, noted that plaintiff’s lumbar range of motion was within normal limits, and that she had a negative straight leg raising test; normal posture and gait; normal muscle motor strength; normal sensation; and normal reflexes. [Id. (citing AR at 63).] Although these consultants did note evidence of a previous right shoulder rotator cuff repair and imaging evidence of mild spinal arthritis, based on the medical evidence they opined that plaintiff had the functional ability to perform medium-level work with an additional limitation to occasional right shoulder overhead reaching. [Id. at 10-11 (citing AR at 63, 65-67, 79-80).] Defendant argues that the ALJ reasonably gave Dr. Bleecker’s opinion “partial weight” because it was inconsistent with his “mostly normal objective findings upon examination,” and inconsistent with plaintiff’s reported daily activities. [Id. at 11-12 (citing AR at 26).] Defendant also suggests that if the Court determines the ALJ’s reliance on plaintiff’s reported daily activities is inconsistent with the standard of review (which it does (see supra note 7)), any such error is harmless, as the ALJ’s other reason “would remain valid” and sufficient to meet the standard of review. [Id. at 12 n.6.] Defendant submits that “this is a case in which Plaintiff presented an extraordinarily sparse medical record in support of her claim,” and “has not met her burden of proof.” [Id. at 13 (citation omitted).] b. Dr. Habib In September 2018. Dr. Habib, plaintiff’s treating physician since April 2017, completed a 8 The Court notes that there is some indication in the record that plaintiff may have filed for Workers’ Compensation benefits sometime between 2014 and 2016. [AR at 73-76, 296-98, 308- Physical Residual Functional Capacity Questionnaire (“Questionnaire”), in which she indicated plaintiff was diagnosed with cervical disc degeneration and lumbar spine degeneration, and opined that plaintiff was able to lift up to 10 pounds, i.e., she was limited to sedentary work. [AR at 319- 22.] Dr. Habib also noted that pushing and/or pulling was affected by plaintiff’s impairments and, therefore, that these impairments “limited” her ability to push and/or pull with her upper and lower extremities. [Id. at 321.] With respect to Dr. Habib’s Questionnaire, the ALJ noted the following: On September 11, 2018, Shehnaz N. Habib, M.D., completed a medical source statement wherein he [sic] noted [plaintiff] had limited range of motion of the cervical and lumbar spine, and she had side effects like drowsiness from her medication. . . . . . . . Dr. Habib . . . opined [plaintiff] was capable of lifting and/or carrying no more than 10 pounds occasionally, standing and/or walking about two hours in an eight hour day, sitting less than six hours in an eight hour day, and she needed to change positions due to pain and stiffness and rest three to four hours per day. He [sic] opined [plaintiff] would be absent from work more than three times a month. He [sic] further opined [plaintiff] could never perform postural activities, and occasionally kneel, and she had to avoid cold temperatures, as they were pain-provoking. The undersigned does not find this opinion persuasive and gives it little weight. Dr. Habib’s findings are not supported by detailed examination findings, and are inconsistent with Dr. Habib’s minimal medical records, including generally good physical examinations without neurological deficits. This opinion appears to rely on [plaintiff’s] subjective complaints with no supportive objective evidence. Furthermore, he [sic] did not find any reaching limitations or any limitations regarding [plaintiff’s] upper extremities, although [she] had consistent complaints of pain in the right shoulder -- and that appeared to be her primary complaint at the hearing and imaging and all other doctors found severe limitations in the functionality of her shoulder. Dr. Habib’s failure to mention the shoulder suggests a lack of thoroughness in reaching his [sic] opinion. [Id. at 26-27 (citations omitted).] Plaintiff contends that the ALJ failed to provide any specific and legitimate reason for rejecting the opinion of Dr. Habib, and that the ALJ’s reasoning was “factually and legally deficient.” [JS at 6.] She states that Dr. Habib regularly examined plaintiff during that period, and consistently reported plaintiff’s complaints of neck, back, and right shoulder pain, reviewed MRIs of plaintiff’s shoulder and cervical spine, and noted clinical findings of “tender cervical spine and lumbar spine, ROM [range of motion] limited to 30 degrees.” [Id. (citing AR at 319, 327).] Plaintiff argues that Dr. Habib’s failure to specifically mention plaintiff’s right shoulder impairment in her Questionnaire, “was an inadvertent omission on the part of Dr. Habib, as he [sic] consistently reported Plaintiff’s complaints of right shoulder pain, included the right shoulder in his [sic] diagnoses in all progress notes, and [in August 2017] even made a referral to ‘ortho/right shoulder rotator cuff near tear.’” [Id. at 6-7 (citing AR at 328).] Plaintiff contends, therefore, that the ALJ improperly only pointed to those portions of the record that bolstered her findings. [Id. at 7 (citing Holohan, 246 F.3d at 1207).] She further argues that Dr. Habib’s opinion -- as a treating physician -- was entitled to “substantially greater weight than the opinions of non-examining physicians.” [Id.] Defendant responds that Dr. Habib “opined extreme functional limitations and that Plaintiff was essentially unable to do any activities.” [Id. at 12 (citing AR at 319-22).] He argues that the only objective findings cited to by Dr. Habib to support her opinion, were “tender cervical and lumbar spine” and “range of motion (ROM) limited to 30 degrees.” [Id. (citing AR at 319-21) (internal quotation marks omitted).] Defendant contends that Dr. Habib “did not explain what part of Plaintiff’s body had limitation in range of motion and what the normal range of motion would be expected to measure.” [Id. (citing AR at 319).] He submits that the ALJ reasonably gave Dr. Habib’s opinion “little weight,” as her opinion is inconsistent with her treatment records; Dr. Habib saw plaintiff three times a year in 2017 and 2018; and, with the exception of plaintiff’s September 2018 visit, all of plaintiff’s physical examinations revealed no abnormal results. [Id. at 12-13 (citing AR at 324-30).] Defendant further states that although Dr. Habib indicated plaintiff was “‘limited’ in both her upper and lower extremities, [she] provided no actual opinion regarding such functional limitations.”9 [Id. at 13 (citing AR at 321).] Defendant agrees with the ALJ’s statement, therefore, that this “‘suggests a lack of thoroughness’ by Dr. Habib that tends to undermine the probative value of his [sic] opinion overall.” [Id. (citing AR at 27).] / 9 The ALJ -- who questioned Dr. Habib’s “thoroughness” in preparing her Questionnaire because Dr. Habib failed to “mention the shoulder” and “did not find . . . any limitations regarding [plaintiff’s] upper extremities” [AR at 27 (emphasis added)] -- herself failed to mention Dr. Habib’s opinion that plaintiff was limited with respect to pushing and pulling with both her upper and lower 3. Analysis Based on the above discussion and evidence of record, the Court determines the following: the ALJ erred when she failed to discuss whether or how she considered Dr. Bleecker’s orthopedic specialization10; the ALJ’s reliance on plaintiff’s daily activities to discount Dr. Bleecker’s opinion was not specific and legitimate and supported by substantial evidence; while the ALJ “accounted” for Dr. Bleecker’s limitation to occasional overhead reaching with the right upper extremity, she failed to “account” for his weight limitation to light level work; and, contrary to the ALJ’s determination, Dr. Habib did not fail to suggest that plaintiff had upper extremity limitations as a result of her impairments -- in fact she specifically noted that pushing and/or pulling would be limited as a result of plaintiff’s impairments. Accordingly, the ALJ’s reasons for discounting the opinions of Dr. Bleecker and Dr. Habib were not specific and legitimate and supported by substantial evidence. Moreover, even assuming, without deciding, that substantial evidence supports the opinions of the State agency reviewing consultants to which the ALJ gave “great weight,”11 those consultants both opined that in addition to being limited to only occasional overhead reaching with her right upper extremity (i.e., up to 1/3 of the time), plaintiff should also be limited to occasional pushing and pulling of no more than 25 pounds with her right upper extremity due to her right shoulder impingement. [AR at 63, 66, 79.] Indeed, as specifically noted by reviewer Dr. Ormsby, Dr. Bleecker’s RFC for light work “is suggestive of RUE [right upper extremity] limits only (w/occas OHR [overhead reaching]) . . . . Therefore, RECOMMEND 1. 50/25 [pounds, lifting and/or carrying frequently/occasionally] w/25 [pound] occas RUE push/pull and RUE OHR . . . .” [Id. at 63.] On reconsideration, Dr. Dwyer affirmed Dr. Ormsby’s recommendations. [Id. at 80, 84.] In her RFC determination, however, the ALJ simply limited plaintiff to occasional (i.e., no 10 As explained in the regulations, when the treating physician’s opinion is not given controlling weight, the Administration will “generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). 11 As noted elsewhere, the reviewing examiners, who issued their reports in 2016, did not more than 1/3 of the time) overhead reaching with her right upper extremity and occasional pushing/pulling with her right upper extremity. The ALJ did not specify a weight limit for plaintiff’s pushing and pulling, and the Court interprets the ALJ’s silence as an assertion that -- at best -- plaintiff can occasionally (up to 1/3 of the time) push or pull with her right upper extremity within the same range of weight specified for lifting and carrying that is set forth in the definition of medium work for the hand packager occupation12 (i.e., 20 to 50 pounds). DOT No. 920.587-018. This determination is not only inconsistent with Dr. Bleecker’s and Dr. Habib’s opinions limiting plaintiff to light and sedentary work respectively,13 it is also inconsistent with the recommendations of the reviewing consultants who -- in finding that Dr. Bleecker’s RFC recommendation was “overly restrictive” in light of his examination findings and clinical conclusion -- nevertheless interpreted Dr. Bleecker’s limitation to light work to be consistent with a limitation to occasional pushing or pulling of no more than 25 pounds with the right upper extremity. [See AR at 63.] In fact, no provider -- treating, examining, or reviewing -- opined that plaintiff could occasionally push or pull between 25 and 50 pounds with her right upper extremity as determined by the ALJ. Thus, the ALJ improperly ignored, without explanation, significant and probative evidence, favorable to plaintiff, in determining plaintiff’s RFC and, therefore, substantial evidence did not support her finding that plaintiff was able to push or pull up to 50 pounds occasionally with her right upper extremity. Based on the foregoing, the Court determines that the ALJ’s stated reasons for discounting 12 Similarly, the Court interprets Dr. Bleecker’s opinion that plaintiff can “lift 20 pounds occasionally, 10 pounds frequently” [AR at 304], and Dr. Habib’s opinion that plaintiff can lift up to 10 pounds occasionally and that she would have pushing and/or pulling limitations in her upper extremities, to imply that plaintiff can -- at best -- push or pull within those same weight limits with her right upper extremity. 13 The Court again notes that contrary to the ALJ’s finding that Dr. Habib “did not find any reaching limitations or any limitations regarding [plaintiff’s] upper extremities,” although Dr. Habib did not describe the nature and degree of plaintiff’s upper extremity pushing/pulling limitations, she did specifically find that pushing and/or pulling were affected by plaintiff’s impairments and that she was limited in both her upper and lower extremities in that regard. [AR at 321.] As discussed herein, it is reasonable to assume that Dr. Habib’s unspecified upper extremity pushing and pulling limitation would at the very least mirror her finding that plaintiff should no more than occasionally Dr. Bleecker’s and Dr. Habib’s opinions limiting plaintiff to light work (or less) were not specific and legitimate or supported by substantial evidence. Moreover, it was error for the ALJ to fail to take into consideration the orthopedic surgery specialization of Dr. Bleecker, instead giving greater weight to the conflicting opinions of the State agency reviewing consultants (neither of whom, the Court observes, indicated an area of specialization, and neither of whom had the benefit of reviewing Dr. Habib’s records or opinion). Similarly, the ALJ’s reliance on the opinions of the reviewing consultants to which she gave “great weight,” without explaining her rejection of their significant and probative opinion that plaintiff should be limited to occasionally pushing or pulling no more than 25 pounds with her right upper extremity, was error. That error rendered the RFC incomplete and, notwithstanding defendant’s argument that the ALJ did not need to obtain VE testimony at step four [JS at 25], the hypotheticals posed to the VE were incomplete, and the ALJ’s reliance on the VE’s answers [AR at 27-28] was thus improper. Plaintiff argues that none of the reasons provided by the ALJ for discounting her subjective symptom testimony is clear and convincing, and defendant counters those arguments. Because the matter is being remanded for reconsideration of the medical opinions, and the ALJ on remand as a result must reconsider plaintiff’s RFC in light of the record evidence, the ALJ must also reconsider on remand, pursuant to SSR 16-3p,14 plaintiff’s subjective symptom testimony and, based on her reconsideration of plaintiff’s RFC, provide specific, clear and convincing reasons for discounting plaintiff’s subjective symptom testimony if warranted. See Trevizo, 871 F.3d at 678 n.5; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citation omitted) (the “ALJ must identify the testimony that was not credible, and specify ‘what evidence 14 The Ninth Circuit in Trevizo noted that SSR 16-3p, which went into effect on March 28, 2016, “makes clear what our precedent already required: that assessments of an individual’s testimony 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 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). undermines the claimant’s complaints.’”); Brown-Hunter v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015) (the ALJ must identify the testimony she found not credible and “link that testimony to the particular parts of the record” supporting her non-credibility determination). VI. The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. In this case, there are outstanding issues that must be resolved before a final determination can be made. In an effort to expedite these proceedings and to avoid any confusion or misunderstanding as to what the Court intends, the Court will set forth the scope of the remand proceedings. First, because the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for discounting the opinions of Dr. Bleecker and Dr. Habib, and for ignoring the findings of the reviewing consultants regarding plaintiff’s pushing/pulling limitation with her right upper extremity, the ALJ on remand shall reassess the medical opinions of record, including the opinions of Dr. Bleecker, Dr. Habib, Dr. Ormsby, and Dr. Dwyer. The ALJ must explain the weight afforded to each opinion and provide legally adequate reasons for any portion of an opinion that the ALJ discounts or rejects. Second, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s subjective allegations and either credit her testimony as true, or provide specific, clear and convincing reasons, supported by substantial evidence in the case record, for discounting or rejecting any testimony. Finally, if warranted, the ALJ shall reassess plaintiff’s RFC and determine at step four, with the assistance of a VE if necessary, whether plaintiff is capable of performing her past relevant work as a hand packager. If plaintiff is not so capable, or if the ALJ determines to make an alternative finding at step five, then the ALJ shall proceed to step five and determine, with the assistance of a VE if necessary, whether there are jobs existing in significant numbers in the regional and national economy that plaintiff can still perform. 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 proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. DATED: September 17, 2020 ______________________________________ PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE