Martha Rosa Leyva v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: March 9, 2020
• Docket: 5:18-cv-02207
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 MARTHA R. L., ) No. ED CV 18-2207-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 Martha R. L.1 (“plaintiff”) filed this action on October 17, 2018, seeking review of the 22 Commissioner’s2 denial of her applications for a period of disability and Disability Insurance 23 Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments. The parties filed Consents 24 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses 25 plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth 26 date. See Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, the newly-appointed Commissioner of the Social Security Administration, is hereby substituted as the 28 1 to proceed before a Magistrate Judge on November 5, 2018, and November 19, 2018. Pursuant 2 to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on March 3, 2020, that 3 addresses their positions concerning the disputed issue in the case. The Court has taken the Joint 4 Submission under submission without oral argument. 5 6 II. 7 BACKGROUND 8 Plaintiff was born in 1956. [Administrative Record (“AR”) at 189, 193.] She has past 9 relevant work experience as a childcare worker; as a guitar string maker; and as a fast food 10 worker. [Id. at 28, 60-67.] 11 On February 26, 2015, plaintiff filed an application for a period of disability and DIB and an 12 application for SSI payments alleging that she has been unable to work since November 1, 2012. 13 [Id. at 20, 189-91, 193-99.] After her applications were denied initially and upon reconsideration, 14 plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 15 128.] A hearing was held on August 24, 2017, at which time plaintiff appeared represented by an 16 attorney, and testified on her own behalf, with the assistance of an interpreter. [Id. at 34-76.] A 17 vocational expert (“VE”) also testified. [Id. at 59-73.] On November 8, 2017, the ALJ issued a 18 decision concluding that plaintiff was not under a disability from November 1, 2012, the alleged 19 onset date, through November 8, 2017, the date of the decision. [Id. at 20-29.] Plaintiff requested 20 review of the ALJ’s decision by the Appeals Council. [Id. at 186-88.] When the Appeals Council 21 denied plaintiff’s request for review on August 28, 2018 [id. at 1-7], the ALJ’s decision became the 22 final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per 23 curiam) (citations omitted). This action followed. 24 25 III. 26 STANDARD OF REVIEW 27 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 28 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 1 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 2 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 3 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 4 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 5 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 6 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 7 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 8 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 9 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 10 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 11 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 12 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 13 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 14 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 15 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 16 be judged are those upon which the record discloses that its action was based.”). 17 18 IV. 19 THE EVALUATION OF DISABILITY 20 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 21 to engage in any substantial gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted or is expected to last for a continuous period of at 23 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 24 42 U.S.C. § 423(d)(1)(A)). 25 26 A. THE FIVE-STEP EVALUATION PROCESS 27 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 28 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 1 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 2 In the first step, the Commissioner must determine whether the claimant is currently engaged in 3 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 4 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 5 second step requires the Commissioner to determine whether the claimant has a “severe” 6 impairment or combination of impairments significantly limiting her ability to do basic work 7 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 8 a “severe” impairment or combination of impairments, the third step requires the Commissioner 9 to determine whether the impairment or combination of impairments meets or equals an 10 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 11 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 12 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 13 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 14 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 15 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 16 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 17 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 18 the burden of establishing that the claimant is not disabled because there is other work existing 19 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 20 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 21 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 22 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 23 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 24 25 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 26 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 27 28 1 November 1, 2012, the alleged onset date.3 [AR at 22.] At step two, the ALJ concluded that 2 plaintiff has the severe impairments of degenerative disc disease of the cervical spine, status post 3 partial corpectomy and fusion in March 2013; and degenerative disc disease of the lumbar spine, 4 status post anterior fusion and decompression in February 2015. [Id. at 22-23.] At step three, the 5 ALJ determined that plaintiff does not have an impairment or a combination of impairments that 6 meets or medically equals any of the impairments in the Listing. [Id. at 24.] The ALJ further found 7 that plaintiff retained the residual functional capacity (“RFC”)4 to perform light work as defined in 8 20 C.F.R. §§ 404.1567(b) and 416.967(b),5 as follows: 9 [S]he can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk 6 hours in an 8-hour workday and sit 6 hours in an 8-hour 10 workday with normal breaks; she can never climb ladders, ropes or scaffolds, but can occasionally perform all other postural activities; and she must avoid 11 concentrated exposure to hazards such as unprotected heights and dangerous moving machinery. 12 13 [AR at 24.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 14 that plaintiff -- taking into account the fact that she is very limited in English -- is able to perform 15 her past relevant work as a childcare worker, as a guitar string maker, and as a fast food worker, 16 all as generally but not as actually performed. [Id. at 28-29, 67-69.] Accordingly, the ALJ 17 determined that plaintiff was not disabled at any time from the alleged onset date of November 1, 18 19 3 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2017. [AR at 22.] 20 4 RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps 22 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, 23 1151 n.2 (9th Cir. 2007) (citation omitted). 24 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this 25 category when it requires a good deal of walking or standing, or when it involves sitting most of the 26 time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. 27 If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 28 1 2012, through November 8, 2017, the date of the decision. [Id. at 29.] 2 3 V. 4 THE ALJ’S DECISION 5 Plaintiff contends that the ALJ erred when he failed to provide specific and legitimate 6 reasons for giving little weight to the opinion of orthopedic surgeon Jeffrey Holmes, M.D., J.D., 7 who conducted a qualified orthopedic medical evaluation for plaintiff’s workers’ compensation 8 action on January 9, 2016. [JS at 4.] As set forth below, the Court agrees with plaintiff, and 9 remands for further proceedings. 10 11 A. LEGAL STANDARD 12 “There are three types of medical opinions in social security cases: those from treating 13 physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec. 14 Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527.6 The Ninth 15 Circuit has recently reaffirmed that “[t]he medical opinion of a claimant’s treating physician is given 16 ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and laboratory 17 diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] 18 case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 19 404.1527(c)(2)) (second alteration in original). Thus, “[a]s a general rule, more weight should be 20 given to the opinion of a treating source than to the opinion of doctors who do not treat the 21 claimant.” Lester, 81 F.3d at 830; Garrison, 759 F.3d at 1012 (citing Bray v. Comm’r Soc. Sec. 22 23 6 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 24 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 25 medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating 26 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, 27 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 28 1 Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 F.3d 2 1217, 1222 (9th Cir. 2010). “The opinion of an examining physician is, in turn, entitled to greater 3 weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’r 4 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 5 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical 6 opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d 7 at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and 8 legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan, 528 9 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it 10 according to factors such as the nature, extent, and length of the physician-patient working 11 relationship, the frequency of examinations, whether the physician’s opinion is supported by and 12 consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see 13 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard 14 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 15 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 16 Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the 17 [treating or examining] doctors’, are correct.” Id. 18 Although the opinion of a non-examining physician “cannot by itself constitute substantial 19 evidence that justifies the rejection of the opinion of either an examining physician or a treating 20 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, 21 psychologists, and other medical specialists who are also experts in Social Security disability 22 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554 23 F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment” in 24 determining the claimant’s RFC and in rejecting the treating doctor’s testimony regarding the 25 claimant’s functional limitations). Reports of non-examining medical experts “may serve as 26 substantial evidence when they are supported by other evidence in the record and are consistent 27 with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 28 1 B. DR. HOLMES 2 By way of background, in February 2011 plaintiff injured herself while working in the 3 childcare occupation that she had performed for 12 years. [JS at 4; AR at 216, 309.] She filed 4 a worker’s compensation claim, and had cervical spine surgery on March 21, 2013 -- a fusion of 5 C4-C5. [AR at 309.] On February 17, 2015, due to ongoing lumbar symptoms, plaintiff underwent 6 a lumbar fusion at L5-S1. [Id.] She received treatment from her treating physician, board-certified 7 orthopedic surgeon, Eric Korsh, M.D., for her worker’s compensation claim, and was evaluated 8 by Dr. Holmes on January 9, 2016. [Id. at 306-31.] 9 Dr. Holmes’ examination reflected that plaintiff’s range of motion of the neck was reduced. 10 [Id. at 311.] Specifically, flexion on the right was 40 degrees (normal is 50 degrees); extension 11 on the right was 40 degrees (normal is 60 degrees); rotation was 50 degrees on the right and 60 12 degrees on the left (normal is 80 degrees); and lateral flexion was 30 degrees on the right and 20 13 degrees on the left (normal is 45 degrees). [Id.] Dr. Holmes also noted that the range of motion 14 of plaintiff’s neck “is accompanied with some cogwheeling[7] and some histrionic movements.” [Id.] 15 He stated that the numbers reflected his “best efforts at measurements of neck motion.” [Id.] Dr. 16 Holmes further stated that plaintiff complained of pain in her shoulders during the grip tests, both 17 on the right and the left, and that a “full effort appeared to be provided” by plaintiff. [Id. at 312.] 18 He also noted the following objective findings regarding plaintiff’s cervical spine: “surgical scar, 19 decreased range of motion of the cervical spine and paracervical tenderness as well as cervical 20 spondylosis with cervical spinal stenosis, MRI documented.” [Id.] He determined that she “would 21 have to be precluded from repetitive motion of the cervical spine as well as precluded from cervical 22 spine prolonged forward bent posturing.” [Id. at 317.] 23 Dr. Holmes’ examination of plaintiff’s range of motion of her lumbar spine reflected that 24 flexion on the right was 10 degrees (60 degrees is normal); extension on the right was 12 degrees 25 (25 degrees is normal); and lateral bending on the right was 25 degrees and 12 degrees on the 26 27 7 Cogwheeling is a “jerky” feeling in an arm or leg that the physician can sense when rotating 28 1 left (normal is 25 degrees). [Id. at 314.] Dr. Holmes noted that active range of motion of plaintiff’s 2 lumbar spine also “is accompanied by cogwheeling and histrionics.” [Id.] He also noted that 3 straight leg raising “shows marked cogwheeling on carrying ou[t] ankle dorsiflexion testing on both 4 the right and the left.” [Id.] He opined that despite surgical interventions, plaintiff has “marked 5 ongoing symptoms in the cervical spine and the lumbar spine.” [Id. at 315.] Dr. Holmes also 6 noted the following objective findings relating to plaintiff’s lumbar spine: “surgical scars, decreased 7 range of motion of the lumbar spine and degenerative disc disease L5-S1 with some mild central 8 canal stenosis pre-operatively.” [Id. at 316.] He determined that plaintiff “would have to be 9 precluded from heavy lifting as well as repeated bending and stooping. She will have to have a 10 lifting restriction of 20 pounds on a repetitive basis.” [Id.] 11 The ALJ discounted Dr. Holmes’ opinions as follows: 12 The undersigned gives partial weight, but not full weight, to the opinion of Dr. Holmes’. . . . Specifically, the undersigned gives less weight to the limitations 13 precluding repetitive motion of the cervical spine as well as being precluded from cervical spine prolonged forward bent posturing because it is inconsistent with the 14 other evidence in the record. For example, in July 2014, [plaintiff’s] treating physician, Dr. Korsh, indicated that [plaintiff] had cervical surgery due to her 15 industrial injury and her cervical symptoms have essentially resolved. Thus, the undersigned finds that there is no support in the record for a limitation of occasional 16 head turning side to side as indicated by [plaintiff’s] representative. However, the undersigned gives more weight to precluding [plaintiff] from heavy lifting up to 20 17 pounds on a repetitive basis and from repetitive bending and stooping. The undersigned has adopted those specific restrictions on a function-by-function basis 18 that are best supported by the objective evidence as a whole. 19 [Id. at 27 (citations omitted).] 20 Plaintiff argues that the ALJ only gave one reason for discounting Dr. Holmes’ cervical 21 limitations, and that one reason was based only on Dr. Korsh’s July 2014 progress report, which 22 briefly stated that cervical surgery had essentially resolved plaintiff’s symptoms. [JS at 6 (citing 23 AR at 27, 446).] She argues that it was legal error for an ALJ to isolate portions of the record and 24 focus on one treatment note “where Dr. Korsh was attempting to persuade the workers 25 compensation board to approve [plaintiff’s] lumbar fusion,” and was not focusing on her cervical 26 limitations. [Id. at 7 (citing AR at 446).] She submits that the fact that her symptoms resolved with 27 her cervical surgery “does not mean that [she] does not continue to have limitations to her cervical 28 spine due to the surgery.” [Id. (emphasis added).] Plaintiff also argues that the ALJ failed to take 1 into account Dr. Holmes’ objective findings, including limited range of motion of the neck’s rotation 2 and lateral flexion, diffuse inconsistent paracervical tenderness in the right and left posteriorly, and 3 cogwheeling and some histrionic movements. [Id. (citing AR at 311).] She states that Dr. Holmes 4 “specifically differentiated between cervical and lumbar objective findings as well as cervical and 5 lumbar work restrictions,” and the ALJ provided no other reason as to why only the cervical 6 limitations were deserving of less weight. [Id. at 7-8 (citing AR at 311, 315-16, 317).] Moreover, 7 plaintiff argues, in evaluating a medical opinion, an ALJ must consider the examining relationship, 8 treatment relationship, supportability, consistency, specialization, and other factors, and that the 9 ALJ here considered only one of those factors -- supportability. [Id. at 8-9 (citing 20 C.F.R. § 10 404.1527(c)).] 11 Defendant responds that Dr. Holmes noted that at the time of his January 2016 evaluation 12 plaintiff was not scheduled to see a treating physician and was not taking any pain medication. 13 [Id. at 10 (citing AR at 309).] Although plaintiff reported pain in her neck and back in January 14 2016, defendant notes that Dr. Holmes found “no atrophy, no muscle spasm, no tenderness in the 15 cervical spine or suprascapular/trapezius areas, but some tenderness in her neck muscles.” [Id. 16 (citing AR at 311-12).] Defendant acknowledges that Dr. Holmes found plaintiff’s range of motion 17 in her neck to be “somewhat reduced,” but states that he also found that “muscle strength in her 18 shoulders and arms was normal,” and her reflexes were “slightly increased.” [Id. (citing AR at 313- 19 14).] Defendant contends that the ALJ properly gave “great weight” to the opinions of the State 20 agency reviewing physicians, who “reviewed the record and found Plaintiff could perform work 21 consistent” with the RFC assessed by the ALJ. [Id. at 11 (citing AR at 27).] Defendant notes that 22 Dr. Korsh’s July 16, 2015, report noted normal reflexes, sensation, and nerve impingement in 23 plaintiff’s arms and legs; normal gait; and no tenderness in the neck. [Id. at 12 (citing AR at 3008).] 24 Defendant acknowledges Dr. Korsh’s additional findings that plaintiff’s neck range of motion was 25 “decreased ‘about 10%,’” that she was taking naproxen for pain, and that her pain was reported 26 27 8 The Court finds no specific mention of nerve impingement on this page of the record. [AR 28 1 to be at a level of 4-5 out of 10 with medication, and 6-7 out of 10 without medication. [Id. (citing 2 AR at 302, 306).] Defendant submits, however, that substantial evidence supports the ALJ’s 3 interpretation of the facts and that Dr. Korsh’s objective findings “are consistent with the ALJ’s 4 conclusion that no limitations on neck position were warranted, notwithstanding the opinion from 5 Dr. Holmes.” [Id.] 6 The Court observes that Dr. Korsh’s July 2014 observation that plaintiff’s cervical symptoms 7 had resolved with surgery (the report actually cited to by the ALJ as support for discounting Dr. 8 Holmes’ opinion) -- was buried in his report that was prepared to strongly support plaintiff’s need 9 for lumbar surgery. [Id. at 443-49.] Dr. Korsh’s observation, however, is not an indication that the 10 surgery performed on plaintiff’s neck eliminated limitations relating to repetitive neck movements 11 or forward bending. Indeed, in March and April 2014 (one year after her cervical surgery and 12 shortly before his July 2014 report), Dr. Korsh reported that plaintiff’s cervical spine range of 13 motion was “decreased about 20%” and, in May and June 2014, he reported it was “decreased 14 about 10%.” [Id. at 449, 451, 454, 475.] And, even in his July 2015 report (more than two years 15 after her cervical surgery), a report that was referred to only by the Commissioner in the JS [see 16 JS at 12] and not by the ALJ,9 Dr. Korsh continued to note “about” a 10% decrease in cervical 17 range of motion. [AR at 300; see also id. at 299 (April 2015 note reflecting 10% decrease in 18 cervical range of motion and also that plaintiff “has had some recent neck pain . . . radiating to the 19 left shoulder”), 302 (June 2015 note reflecting 10% decrease in cervical range of motion), 303 20 (May 2015 note reflecting same), 369 (September 2015 note reflecting same).] In short, Dr. Korsh 21 in his July 2014 report did not conflate plaintiff’s cervical symptoms that were resolved by her 22 23 9 “Long-standing principles of administrative law require [this Court] to review the ALJ’s 24 decision based on the reasoning and factual findings offered by the ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray, 554 F.3d 25 at 1225-26 (emphasis added, citation omitted); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 26 2001) (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”). The Court will not consider reasons for rejecting Dr. Holmes’ opinions 27 that were not given by the ALJ in the Decision. See Trevizo, 871 F.3d at 677 & nn. 2, 4 (citation omitted). Defendant did not discuss Dr. Korsh’s July 2014 report -- the one that was relied on by 28 1 surgery, with any cervical limitations remaining after her surgery; indeed, the purpose of his July 2 2014 report was not to address cervical limitations at all, it was to make a strong case for lumbar 3 surgery. [Id. at 444-47.] And, Dr. Korsh’s reports are clear that plaintiff continued to experience 4 decreased cervical range of motion several years after her surgery. The ALJ, however, who relied 5 on only one July 2014 report -- in which Dr. Korsh primarily discussed plaintiff’s need for lumbar 6 surgery -- did not acknowledge any distinction between cervical symptoms necessitating surgery, 7 and cervical limitations remaining after that surgery or resulting from that surgery. 8 Additionally, although the ALJ gave “great weight” to the State agency reviewing physicians, 9 their reports were issued on May 21, 2015, and August 17, 2015, well prior to Dr. Holmes’ January 10 2016 evaluation. As discussed above, when a treating physician’s opinion is not controlling, the 11 ALJ should weigh it according to factors such as the nature, extent, and length of the 12 physician-patient working relationship, the frequency of examinations, whether the physician’s 13 opinion is supported by and consistent with the record, and the specialization of the physician. 14 Trevizo, 871 F.3d at 676; see 20 C.F.R. § 404.1527(c)(2)-(6). In this case, Dr. Holmes is an 15 orthopedic surgeon who first examined plaintiff in December 2011, and who examined her again 16 on January 9, 2016, after reviewing “four inches of medical records,” including his initial 17 examination. [AR at 309.] Although Dr. Holmes noted that plaintiff last saw orthopedic surgeon 18 Dr. Korsh in October 2015 and has “no further appointments scheduled,” he also noted that 19 plaintiff had instead been referred to a pain management specialist “but the services were never 20 authorized so she never saw the doctor and was never treated by him.” [Id.] Dr. Holmes also 21 observed that plaintiff “has now run out of pain medications and they have been denied as well,” 22 and stated that she “[t]hus has no treating physician and no pain medication.”10 [Id.] In no way 23 24 10 In his July 16, 2015, report, Dr. Korsh noted that prior to plaintiff’s examination, he reviewed the results from a mandatory urinary drug screen (“UDS”) administered at plaintiff’s previous visit, 25 to determine whether modifications to her treatment regimen were appropriate. [AR at 300.] Dr. 26 Korsh stated the following: Incredibly, the UDS that are mandated by the guidelines was denied by an 27 anonymous IMR [Independent Medical Review] physician and as such I will no longer be able to provide analgesic medications and [plaintiff] will now need to be 28 1 did Dr. Holmes imply that plaintiff was not in need of a treating physician/pain management 2 specialist or pain medications. Indeed, at her January 2016 evaluation, plaintiff was complaining 3 of posterior pain and stiffness in her cervical spine at a 7 on a 10-point scale, and “radiating to the 4 trapezius ridge and shoulders bilaterally.” [Id. at 310.] Dr. Holmes’ assessment of plaintiff’s 5 cervical range of motion generally reflected decreased range of motion in all planes ranging from 6 about a 20% decrease to more than a 50% decrease. [Id. at 311.] The ALJ discounted Dr. 7 Holmes’ opinion relating to plaintiff’s cervical limitations based only on one report in the record 8 from Dr. Korsh that, as discussed above, did not provide support for the ALJ’s determination to 9 give Dr. Holmes’ opinion “less weight”11 with respect to plaintiff’s cervical limitations. Moreover, 10 the State agency reviewing physicians also did not have the benefit of reviewing Dr. Holmes’ July 11 2016 report. 12 Based on the above, the Court determines that the ALJ failed to provide a specific and 13 legitimate reason supported by substantial evidence to discount Dr. Holmes’ cervical limitations, 14 based on Dr. Korsh’s January 2014 report. 15 Moreover, the error in this case was not harmless because the VE testified that an 16 individual with plaintiff’s vocational history and RFC, and with the cervical movement limitations 17 suggested by Dr. Holmes, would not be able to perform her past relevant work as generally 18 performed. [Id. at 71-73.] As acknowledged by the ALJ, because of her age and other factors, 19 “we have a grid at light” and if plaintiff is not able to do light work or some range of light work, then 20 “she wins.” [Id. at 67, 70.] 21 Remand is warranted on this issue. 22 23 24 10(...continued) referred to pain management. The pain is about the same and it is 5/10 with 25 medications and 6-7/10 without. 26 [Id.] 27 11 As the ALJ did not include any cervical movement-related limitations in his hypotheticals to the VE or in his RFC determination, in actuality he gave Dr. Holmes’ assessment of plaintiff’s 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 (9th Cir. 2017) (citation omitted). Where no useful purpose would be served by further 5 proceedings, or where the record has been fully developed, it is appropriate to exercise this 6 discretion to direct an immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where 7 there are outstanding issues that must be resolved before a determination can be made, and it 8 is not clear from the record that the ALJ would be required to find plaintiff disabled if all the 9 evidence were properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 10 In this case, there is an outstanding issue 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. Because the ALJ failed to provide specific and legitimate reasons for discounting 14 the opinion of Dr. Holmes regarding plaintiff’s cervical limitations, the ALJ on remand shall 15 reassess the medical opinions of record, including the opinions of Dr. Holmes. The ALJ must 16 explain the weight afforded to each opinion and provide legally adequate reasons for any portion 17 of an opinion that the ALJ discounts or rejects. Then, if warranted, the ALJ shall reassess 18 plaintiff’s RFC and determine at step four, with the assistance of a VE if necessary, whether 19 plaintiff is capable of performing her past relevant work as a childcare worker, guitar string maker, 20 and fast food worker, as generally performed.12 If plaintiff is not so capable, or if the ALJ 21 determines to make an alternative finding at step five, then the ALJ shall proceed to step five and 22 determine, with the assistance of a VE if necessary, whether there are jobs existing in significant 23 numbers in the regional and national economy that plaintiff can still perform. 24 25 26 12 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to perform her past relevant work as actually performed, i.e., at the medium level, or his 27 determination to give “more weight” to Dr. Holmes’ limitations precluding plaintiff from heavy lifting up to 20 pounds on a repetitive basis and from repetitive bending and stooping. [AR at 27, 28.] 28 1 VIL. 2 CONCLUSION 3 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 5 || proceedings consistent with this Memorandum Opinion. 6 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the 7 || Judgment herein on all parties or their counsel. 8 This Memorandum Opinion and Order is not intended for publication, nor is it 9| intended to be included in or submitted to any online service such as Westlaw or Lexis. JROK. Mane DATED: March 9, 2020 PAUL L. ABRAMS 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AR