1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERESA P., Case No.: 19cv1321-CAB(RBB)
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY 14 ANDREW M. SAUL, Commissioner of JUDGMENT [ECF NOS. 11, 12] Social Security, 15 Defendant. 16
17 On July 16, 2019, Plaintiff Teresa P.1 commenced this action against Defendant 18 Andrew M. Saul, Commissioner of Social Security, for judicial review under 42 U.S.C. 19 section 405(g) of a final adverse decision for social security benefits [ECF No. 1]. 20 Defendant filed the Administrative Record on September 20, 2019 [ECF No. 7]. On 21 October 25, 2019, Plaintiff filed a motion for remand for payment of benefits or, in the 22 alternative, remand for further administrative proceedings [ECF No. 10]. The 23 Commissioner filed a cross-motion for summary judgment and an opposition to 24 25 26 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court's Civil Local 27 Rules. See S.D. Cal. Civ. R. 7.1.e.6.b. 1 Plaintiff’s motion for remand on November 22, 2019 [ECF No. 12]. Plaintiff did not file 2 a reply. 3 The Court has taken the motions under submission without oral argument [ECF 4 No. 8]. For the following reasons, the Court recommends that Plaintiff's motion for 5 remand be GRANTED IN PART and DENIED IN PART, that Defendant's cross- 6 motion for summary judgment be GRANTED IN PART and DENIED IN PART, and 7 that the case be remanded for further proceedings. 8 I. BACKGROUND 9 On November 2, 2015, Plaintiff filed an application for disability insurance 10 benefits under Title II of the Social Security Act. (Admin. R. 90, 183-84, ECF No. 7.) 2 11 Plaintiff alleged that she has been disabled since July 2, 2015, due to rheumatoid arthritis. 12 (Id. at 183, 234.) Her application was denied on initial review and again on 13 reconsideration. (Id. at 114-17, 120-24.) An administrative hearing was conducted on 14 April 9, 2018, by Administrative Law Judge ("ALJ") Jay E. Levine, who determined on 15 July 27, 2018, that Plaintiff was not disabled. (Id. at 42-51.) Plaintiff requested a review 16 of the ALJ's decision; the Appeals Council for the Social Security Administration 17 ("SSA") denied the request for review on May 24, 2019. (Id. at 1-4.) Plaintiff then 18 commenced this action pursuant to 42 U.S.C. section 405(g). 19 A. Medical Evidence 20 According to the medical evidence in the record, Plaintiff first became aware that 21 she had rheumatoid arthritis in November 2007, when she reported to her primary care 22 provider, Dr. Yenny Lim, that she was experiencing pain, swelling, and stiffness in her 23 24 25 2 The administrative record is filed on the Court’s docket as multiple attachments. The Court will cite to 26 the administrative record using the page references contained on the original document rather than the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). 27 For all other documents, the Court cites to the page numbers affixed by CM/ECF. 1 knuckle, wrist, hands, and elbow. (Id. at 438.) Teresa P. told Dr. Lim that she was very 2 physically active, lived on a farm with her significant other, and took care of many 3 animals that required her to perform work such as lifting bales of hay. (Id.) She also 4 complained of daily headaches and monthly migraines, and stated that she took Imitrex 5 for her migraines when necessary. (Id.) At Dr. Lim's recommendation, Plaintiff was 6 evaluated by Dr. Edward Skol, a rheumatologist, on January 2, 2008. (Id. at 425.) Dr. 7 Skol noted Plaintiff's three-month history of multiple-joint pain and her strong family 8 history of rheumatoid arthritis. (Id.) Dr. Skol suspected early rheumatoid arthritis; he 9 prescribed methotrexate and started a temporary trial of prednisone to provide Teresa P. 10 with relief while waiting for the methotrexate to take effect, which could take up to three 11 months. (Id. at 434.) An anti-CCP antibody test confirmed Plaintiff's rheumatoid 12 arthritis. (Id. at 431.)3 Plaintiff continued to be seen by Dr. Skol through July 2009, (id. 13 at 386-94, 400-17), and, for insurance reasons, she switched her care to Dr. Puja Chitkara 14 from October 2009 until December 2010 (id. 526-39). 15 In 2011, Teresa P. began treatment with Dr. Stacey Schulman, a rheumatologist, 16 (id. at 473-76), and was seen on an annual basis until 2015 (id. at 447-53, 466-72). On 17 July 2, 2015, Plaintiff came in for an urgent visit with complaints of a generalized 18 arthritis flare. (Id. at 310-13.)4 Dr. Schulman noted Plaintiff's longstanding CCP 19 antibody positive rheumatoid arthritis had been managed by a combination therapy that 20 included Simponi injections, methotrexate, and nonsteroidal anti-inflammatory drugs 21 ("NSAIDs"). (Id. at 310.) Teresa P. described aching and stiffness in her hand joints, 22 wrists, shoulders, knees, and ankles, and her pain level was at nine to ten on a scale of 23
24 3 Anti-cyclic citrullinated peptide ("anti-CCP") antibody testing is used to diagnose rheumatoid arthritis. 25 U.S. National Library of Medicine, https://pubmed.ncbi.nlm.nih.gov/17434910-anti-ccp-antibody- 26 testing-as-a-diagnostic-and-prognostic-tool-in-rheumatoid-arthritis/ (last visited Feb. 13, 2020). 4 The terms "flare" and "flare-up" are used interchangeably throughout the record. The Court adopts this 27 practice and will use both terms in this Report and Recommendation. 1 ten. (Id.) Plaintiff explained that she had worked at the YMCA for the last twelve years 2 and felt that the physical demands and stress level of her job were contributing to her 3 symptomatology. (Id. at 310-11.) She also stated that she had been coping with 4 worsening pain over the last five years that had become unbearable in the last six months, 5 and she felt she needed to be placed on medical leave. (Id. at 311.) Upon examination, 6 Plaintiff had positive impingement signs at both shoulders; synovitis at the right elbow, 7 right wrist, finger joints, and left ankle; decreased grip strength; trace effusion of the right 8 knee; bilateral knee crepitation; and tenderness to the left foot. (Id. at 312.)5 Dr. 9 Schulman placed Teresa P. on medical leave, prescribed prednisone, and increased her 10 dosage of methotrexate. (Id.) 11 The following month, Plaintiff reported to Dr. Schulman that the prednisone had 12 calmed her symptoms and she had benefited from being out of her work environment, but 13 still had significant pain. (Id. at 307.) Plaintiff improved over the following months with 14 more aggressive medical management, including an increased dose of methotrexate. (Id. 15 at 303, 304, 306.) She continued to experience residual symptoms and had trace 16 synovitis in her right wrist and elbow, tenderness in her finger joints, and crepitation of 17 the right knee. (Id. at 302.) In November 2015, Dr. Schulman continued Teresa P.'s 18 short-term disability leave through May 2016. (Id. at 303, 377-79.) In January 2016, 19 Plaintiff told Dr. Schulman that she felt she had "turned the corner and [was] going in the 20 right direction." (Id. at 299.) Nonetheless, she still had limitations in her daily activities 21 and a pain level of three to four on a scale of ten, particularly toward the end of her 22 monthly Simponi injection cycle. (Id. at 298.) Dr. Schulman noted bilateral knee 23
24 5 According to the Merriam-Webster online medical dictionary, "synovitis" is "inflammation of the 25 synovial membrane." Merriam-Webster, https://www.merriam-webster.com/dictionary/synovitis (last 26 visited Feb. 13, 2020). "Effusion" is defined as escaped fluid. Id., https://www.merriam- webster.com/dictionary/effusion (last visited Feb. 13, 2020). "Crepitation" is a crackling sound. Id., 27 https://www.merriam-webster.com/dictionary/crepitation (last visited Feb. 13, 2020). 1 crepitation and trace synovitis in Teresa P.'s right wrist and finger joints but found that 2 her condition had objectively improved. (Id. at 299.) 3 On April 4, 2016, state agency physician Dr. K. Vu determined that Plaintiff had 4 the residual functional capacity to lift or carry twenty pounds occasionally and ten 5 pounds frequently; to stand, walk, or sit for six hours in an eight-hour workday; and was 6 limited in her ability to push or pull. (Id. at 95-96.) Dr. Vu also found that Teresa P. had 7 postural and manipulative limitations, including a limitation in her handling and fingering 8 abilities. (Id. at 96-97.) On July 27, 2016, state agency physician Dr. B. Harris adopted 9 Dr. Vu's residual functional capacity assessment. (Id. at 107-09.) 10 On April 26, 2016, Plaintiff's treating physician, Dr. Schulman, provided an 11 assessment of Plaintiff's residual functional capacity. (Id. at 355-59.) In contrast to the 12 state agency physicians, Dr. Schulman opined that Plaintiff could stand or walk for less 13 than two hours in an eight-hour workday, sit for two hours, would need a ten to twenty 14 minute break three to four times per day, and could never lift more than ten pounds. (Id. 15 at 357.) She found that Plaintiff had significant limitations in reaching, handling, and 16 fingering and could only perform such activities fifteen percent of the time in an eight- 17 hour workday. (Id. at 358.) She further indicated that Teresa P. would be absent from 18 work more than four days per month. (Id.) Plaintiff's clinical findings and objective 19 signs included positive CCP antibody, synovitis, and intermittently elevated ESR and 20 CRP tests. (Id. at 355.)6 Dr. Schulman indicated that Plaintiff was incapable of even 21 "low stress" jobs because stress aggravated her arthritis symptoms. (Id. at 356.) 22 23 24 25 6 Erythrocyte sedimentation rate (ESR) and C-reactive protein (CRP) level are the most widely used 26 tests to monitor and detect inflammatory disorders. NEJM Journal Watch, https://www.jwatch.org/hm201010250000001/2010/10/25/which-inflammatory-marker-should-we- 27 measure-esr (last visited Feb. 13, 2020). 1 In February 2017, Dr. Schulman reported that Plaintiff had started taking Orencia 2 in place of methotrexate and Simponi, and she was doing much better. (Id. at 549.) 3 Although Plaintiff stated that she was still experiencing flares of her joint symptoms, they 4 had not been as severe. (Id.) Her pain level fluctuated between three and six out of ten. 5 (Id.) Dr. Schulman discussed adding a second agent to Teresa P.'s medical management. 6 (Id. at 550.) On April 20, 2017, Dr. Schulman completed a disability form in which she 7 indicated that Plaintiff was "unable to work." (Id. at 374-76.) In May 2017, Dr. 8 Schulman added low-dose Arava (leflunomide) to Plaintiff's existing medications, 9 Orencia and ketoprofen (an NSAID), because Plaintiff continued to experience symptoms 10 in her wrists, feet, and sometimes knees. (Id. at 481-82.) Plaintiff reported that she 11 experienced thirty minutes of morning stiffness and limited her daily activities due to her 12 joint pain. (Id. at 482.) Upon examination, Teresa P. exhibited bilateral knee crepitation, 13 "slight widening at the right wrist . . . but not red or tender, trace widening of the left 14 wrist, and mild tenderness" in the finger and foot joints. (Id. at 484-85.) 15 On August 3, 2017, Plaintiff decided to discontinue Arava because of its side 16 effects, although she had not had any significant flares since her last visit. (Id. at 493- 17 94.) Dr. Schulman considered that there was possibly a component of myofascial pain 18 contributing to Teresa P.'s symptomology and prescribed a trial of Lexapro. (Id.) When 19 Plaintiff saw Dr. Schulman in November 2017, she reported that she had discontinued 20 taking Lexapro because she found it to be ineffective and declined to try any other 21 medications for her dysthymia.7 (Id. at 507.) Dr. Schulman prescribed azathioprine, to 22 use in combination with Orencia, which Plaintiff felt was effective but which did not 23 24 25 7 Dysthymia is defined in the Merriam-Webster online medical dictionary as "a mood disorder 26 characterized by chronically mildly depressed or irritable mood often accompanied by other symptoms (such as eating and sleeping disturbances, fatigue, and poor self-esteem)." Merriam-Webster, 27 https://www.merriam-webster.com/dictionary/dysthymia (last visited Feb. 13, 2020). 1 completely control her symptoms. (Id. at 507-08.) In January 2018, Teresa P. reported 2 that she had not had much improvement since adding azathioprine, and her symptoms, 3 including pain in her finger joints, had flared with weather changes. (Id. at 519.) Dr. 4 Schulman completed a disability form in which she indicated that Plaintiff was "unable to 5 work at present time." (Id. at 382-84.) 6 Plaintiff saw a new rheumatologist, Dr. Monica Budianu, in February 2018. (Id. at 7 542-48.) Dr. Budianu found no active synovitis but noted that Plaintiff reported frequent 8 flares of her rheumatoid arthritis two to three times per month. (Id. at 542.) Dr. Budianu 9 recommended that Teresa P. increase her azathioprine slightly for better arthritis control, 10 and prescribed prednisone three to five days at a time in case of an arthritis flare. (Id.) 11 For Plaintiff's migraines, Dr. Budianu recommended that Teresa P. discuss preventative 12 medicine with her primary care provider since Imitrex appeared to cause flares in her 13 rheumatoid arthritis. (Id.) Plaintiff stated her pain level was five to six out of ten on 14 average, and up to eight or ten at times. (Id. at 543.) Plaintiff informed Dr. Budianu that 15 she used ibuprofen, ketoprofen, Flector patches, heat, and Tylenol with codeine to 16 manage her pain. (Id.) 17 Dr. Megan Lynch, a rheumatologist, completed a medical report on September 21, 18 2018, after the ALJ's decision. (Id. at 30-33.) She opined that Plaintiff could sit, stand, 19 or walk for one hour in an eight-hour workday; lift, carry, push, or pull only up to ten 20 pounds intermittently; and was unable to work at the present time. (Id. at 32-33.) 21 B. Hearing Testimony 22 On April 9, 2018, Teresa P. appeared with her attorney at a hearing before ALJ 23 Levine. (Id. at 56.) Plaintiff testified that she was fifty-nine years old and had worked 24 for twelve years as a director in the food service department at the YMCA. (Id. at 59-60.) 25 She managed eighteen employees and ordered the supplies needed to serve three meals a 26 day to three hundred children. (Id. at 60.) Vocational expert ("VE") Kathleen Macy- 27 1 Powers testified that the Dictionary of Occupational Titles classified a director of food 2 services as light work, but based on her description of her job duties, Plaintiff performed 3 her job at a heavy level of exertion because she typically lifted up to seventy-five pounds. 4 (Id. at 62.) Teresa P. testified that she stopped working in 2015 because her rheumatoid 5 arthritis had progressed so much that she "was literally unable to walk across the kitchen" 6 at work and would sometimes go into her office to rest. (Id. at 62-63.) Her rheumatoid 7 arthritis is most painful in the bottom of her feet and in her hands, and also flares up in 8 her knees, elbow, and back. (Id. at 63.) She experiences flare-ups every week that last 9 three to five days. (Id. at 64.) 10 Teresa P. testified that she and her wife own a home on five acres of land. (Id. at 11 66.) She described her typical day as doing "a lot of sitting down and resting in[] 12 between short intervals of doing things." (Id.) She takes care of the cat and the chickens 13 and walks to visit the horses when her "feet aren't so bad." (Id.) Plaintiff stated that she 14 is able to sustain fifteen to twenty minutes of activity before needing to rest. (Id. at 69.) 15 She rests by putting her feet up in a recliner because this helps her rheumatoid arthritis to 16 calm down. (Id.) She rests for thirty to forty minutes before moving on to the next task 17 of the day. (Id. at 70.) Teresa P. does not perform any activities on the days she has 18 flares; instead, she spends nine to ten hours reclining or lying down. (Id.) Plaintiff 19 testified that her wife retired early in order to help her at home. (Id. at 72.) Plaintiff used 20 to be very active and went camping and hiking. (Id. at 73.) She previously rode her 21 horse every weekend for two to three hours but had not been able to get on her horse 22 since 2013. (Id.) 23 Teresa P. testified that she suffers from migraines, which are brought on by stress 24 and worry, at least once every two weeks. (Id.) She testified that when she was first 25 diagnosed with migraines, she tried many medications and found that only Imitrex 26 provided relief. (Id. at 65.) When she takes Imitrex, however, it causes her rheumatoid 27 1 arthritis to flare up. (Id.) Her migraines last thirty minutes to an hour. (Id. at 75.) She 2 testified that she used to have "cluster" migraines when she was working because "the job 3 was enormously stressed" but had not had cluster migraine headaches since she stopped 4 working. (Id. at 76.) After a migraine, her brain feels "bruised" and she cannot think or 5 function normally for two days. (Id. at 77.) On days on which she does not have an 6 arthritic flare, she is able to crochet or otherwise use her hands for forty-five minutes to 7 an hour before they become stiff, and then she has to rest them for two to three hours 8 before starting back up again. (Id. at 79-80.) Plaintiff testified that she has difficulty 9 concentrating and multitasking is very difficult for her. (Id. at 82-84.) 10 The ALJ did not have any questions for the VE during the hearing. (Id. at 85.) In 11 response to questioning by Plaintiff's counsel, the VE testified that the acceptable level of 12 absenteeism in a skilled level position such as Teresa P.'s prior job would be no more 13 than one-and-a-half days per month. (Id. at 86.) The VE also stated that there would not 14 be any jobs in the national economy in significant numbers for a person of Plaintiff's 15 profile who was limited to sedentary work and using her hands for only fifteen percent of 16 the workday. (Id. at 87.) Additionally, a person requiring unscheduled breaks three to 17 four times per day would not be able to perform Teresa P.'s past work or any other work. 18 (Id.) 19 C. ALJ's and Appeals Council's Decisions 20 On July 27, 2018, the ALJ issued a decision finding that Teresa P. had not been 21 under a disability, as defined in the Social Security Act, from her alleged onset date 22 through the date of the decision. (Id. at 42-51.) ALJ Levine stated that Plaintiff met the 23 insured status requirements of the Social Security Act through December 31, 2020. (Id. 24 at 44.) He also determined that Plaintiff had not engaged in substantial gainful activity 25 since July 2, 2015, the alleged onset date. (Id.) The ALJ found that Teresa P.’s 26 rheumatoid arthritis was a severe impairment, but her migraine headaches were not 27 1 severe. (Id. at 44-45.) The ALJ found that, singly or in combination, Plaintiff did not 2 have impairments that met or medically equaled a listing. (Id. at 45-46.) He further 3 determined that Teresa P. had the residual functional capacity to perform the full range of 4 light work. (Id. at 46-50.) The ALJ concluded that Plaintiff could perform her past 5 relevant work as a director of food services. (Id. at 50-51.) 6 On August 20, 2018, Plaintiff requested that the Appeals Council reconsider the 7 ALJ's decision. (Id. at 181-82.) She provided Dr. Lynch's September 21, 2018 report as 8 additional medical evidence. (Id. at 30-33.) On May 24, 2019, the Office of Appellate 9 Operations notified Teresa P. that the Appeals Council had denied her request for review. 10 (Id. at 1-6.) The Appeals Council found that Dr. Lynch's report did not show a 11 "reasonable probability that it would change the outcome of the decision." (Id. at 2.)8 12 II. LEGAL STANDARDS 13 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 14 applicants to seek judicial review of a final agency decision of the Commissioner. 42 15 U.S.C.A. §§ 405(g), 421(d) (West 2011). The scope of judicial review is limited, 16 however, and the denial of benefits "'will be disturbed only if it is not supported by 17 substantial evidence or is based on legal error.'" Brawner v. Sec'y of Health & Human 18 Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 19 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 20 Substantial evidence means "'more than a mere scintilla but less than a preponderance; it 21 is such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews 23 24 25 8 Plaintiff states that she reapplied for Title II disability insurance benefits after the Appeals Council 26 denied her request for review, and in a notice dated October 19, 2019, she was found by the SSA to be disabled as of May 25, 2019, with an entitlement to monthly benefits starting in November 2019. (Pl.’s 27 Mot. & Mem. Supp. Compl. [“Pl.’s Mem.”] 6 & Attach. #1 [Ex. A], ECF No. 11.) 1 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the entire 2 record, including the evidence that supports and detracts from the Commissioner's 3 conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 4 1988). If the evidence supports more than one rational interpretation, the court must 5 uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 6 district court may affirm, modify, or reverse the Commissioner's decision. 42 U.S.C.A. § 7 405(g). The matter may also be remanded to the Social Security Administration for 8 further proceedings. Id. 9 To qualify for disability benefits under the Social Security Act, an applicant must 10 show two things: (1) He or she suffers from a medically determinable impairment that 11 can be expected to result in death or that has lasted or can be expected to last for a 12 continuous period of twelve months or more; and (2) the impairment renders the 13 applicant incapable of performing the work that he or she previously performed or any 14 other substantially gainful employment that exists in the national economy. See 42 15 U.S.C.A. §§ 423(d)(1)(A), (2)(A) (West 2011). An applicant must meet both 16 requirements to be classified as "disabled." Id. The applicant bears the burden of 17 proving he or she was either permanently disabled or subject to a condition which 18 became so severe as to disable the applicant prior to the date upon which his or her 19 disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 20 The Commissioner makes this assessment by employing a five-step analysis 21 outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 22 (9th Cir. 1999) (describing five steps). First, the Commissioner determines whether a 23 claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. 24 20 C.F.R. § 404.1520(b) (2019). Second, the Commissioner determines whether the 25 claimant has a "severe impairment or combination of impairments" that significantly 26 limits the claimant's physical or mental ability to do basic work activities. If not, the 27 1 claimant is not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant's 2 impairment is compared to a list of impairments that are presumed severe enough to 3 preclude work; if the claimant's impairment meets or equals one of the listed 4 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 5 functional capacity is assessed and the evaluation proceeds to step four. Id. 6 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 7 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 8 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 9 shifts to the Commissioner. In step five, the Commissioner must establish that the 10 claimant can perform other work. Id. § 404.1520(g). If the Commissioner meets this 11 burden and proves that the claimant is able to perform other work that exists in the 12 national economy, benefits are denied. Id. 13 III. DISCUSSION 14 Plaintiff argues that the ALJ's step two, residual functional capacity, and step four 15 determinations were not supported by substantial evidence; that the ALJ improperly 16 assessed and rejected the opinions of her treating physicians; and that the ALJ improperly 17 rejected her testimony. (Pl.’s Mem. 6-28, ECF No. 11.)9 18 A. Step-Two Severity Finding 19 Plaintiff contends that the ALJ erred in his determination that her migraine 20 headaches were not a "severe" impairment at step two of the disability evaluation. (Id. at 21 8-9.) In doing so, she points out that her history of migraine headaches is documented 22 throughout the record. (Id. at 9.) Defendant argues in response that Plaintiff's clinical 23 findings and treatment history constitute substantial evidence supporting the ALJ's 24 finding that the migraines were not a severe impairment. (Def.'s Mot. Attach. #1 Mem. 25
26 27 9 The Court addresses Plaintiff's arguments in a slightly different order than as presented in her motion. 1 Supp. Summ. J. 8, ECF No. 12.) Defendant also observes that Plaintiff does not identify 2 any migraine-related functional limitations contained in the record. (Id.) 3 In order to be found disabled, a disability claimant must have a “severe” 4 impairment. 20 C.F.R. § 404.1520(c). A severe impairment is one "which significantly 5 limits your physical or mental ability to do basic work activities . . . ." Id. "Basic work 6 activities" include, among other abilities and aptitudes, walking, standing, sitting, and 7 carrying or handling; understanding, carrying out, and remembering simple instructions; 8 using judgment; and dealing with changes in a routine work setting. SSR 85-28, 1985 9 WL 56856, at *3 (Jan. 1, 1985). The requirement that an impairment be severe “allow[s] 10 the Secretary to deny benefits summarily to those applicants with impairments of a 11 minimal nature which could never prevent a person from working.” Id. at *2 (citation 12 omitted). In other words, step two consists of a “de minimus screening device” used to 13 dispose of groundless claims. See Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987); 14 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 15 In this case, the ALJ determined that Plaintiff’s rheumatoid arthritis was "severe” 16 but her migraine headaches were "nonsevere" at step two. (Admin. R. 44-45, ECF No. 17 7.) ALJ Levine found that Plaintiff's migraines were nonsevere because the record did 18 not contain any "objective evidence that symptoms from [her] migraine headaches have 19 objectively caused more than minimal limitations in her ability to perform work-related 20 activities . . . ." (Id. at 45.) While the medical evidence supports that Teresa P.'s medical 21 doctors diagnosed and prescribed medication for her migraines, the ALJ could properly 22 find that the migraines did not significantly limit her ability to perform basic work 23 activities. The records are devoid of any indication that Plaintiff required medical 24 treatment during any of her migraines, and there are no objective findings in the record 25 revealing any migraine-related diagnostics. "[W]hile there may not be a laboratory or 26 blood test to confirm a migraine disorder, and it may be that radiologic studies do not 27 1 always reveal an objectively-defined source of migraine pain, it is possible to present 2 objective-like evidence to establish the severity of the claimed impairment . . . ." 3 Mehrnoosh v. Astrue, No. CV-10-52-HZ, 2011 WL 2173809, at *7 (D. Or. June 2, 2011) 4 (citing Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996)). For example, a 5 treating doctor's observations of any physical manifestations of pain, trips to the 6 emergency room or hospital admissions for disabling migraine pain, or treatment notes 7 reflecting medical signs and symptoms such as nausea, vomiting, dizzy spells, blackouts, 8 or photophobia can establish the severity of a disabling migraine condition. See 9 Mehrnoosh, 2011 WL 2173809, at *7. No such evidence is contained in Plaintiff's 10 medical records. Therefore, the Court finds that the ALJ could properly determine that 11 Plaintiff 's migraines were not severe at step two of the five-step disability analysis. 12 B. Treating Physician Opinions 13 Plaintiff argues next that the ALJ and the Appeals Council improperly assessed 14 and rejected the opinions of treating physicians Dr. Schulman and Dr. Lynch. (Pl.'s 15 Mem. 17-25, ECF No. 11.) Specifically, she contends that the ALJ did not provide 16 specific and legitimate reasons to reject Dr. Schulman's opinion, (see id. at 18-24), and 17 that the Appeals Council improperly found that Dr. Lynch's evaluations did not "show a 18 reasonable probability that it would change the outcome" of the ALJ's decision, (see id. at 19 24-25). Defendant counters that the ALJ reasonably found that the medical evidence did 20 not support the functional limitations assessed by Dr. Schulman and better comported 21 with Dr. Vu's and Dr. Harris's opinions that Plaintiff could perform light work. (Def.'s 22 Mot. Attach. #1 Mem. Supp. Summ. J. 13-14, ECF No. 12.) Defendant also contends 23 that the Appeals Council properly found Dr. Lynch's opinion immaterial because it post- 24 dated the ALJ's decision. (Id. at 14-15.) 25 26 27 1 Generally, a treating physician's opinion is given more weight by the SSA than a 2 nontreating physician's opinion. 20 C.F.R. § 404.1527(c)(2) (2019).10 A treating 3 physician's opinion is given "controlling weight" if it is "well-supported by medically 4 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the 5 other substantial evidence in [the] record." Id. When the treating source's medical 6 opinion is not given controlling weight, the following factors are considered: length of 7 the treatment relationship and the frequency of examination, and whether the physician 8 has "obtained a longitudinal picture" of the claimant's impairment; the nature and extent 9 of the treatment relationship, and whether the treating source has "reasonable knowledge" 10 of the claimant's impairment; supportability of the medical opinion; consistency of the 11 opinion with the record as a whole; the physician's specialization; and other factors. Id., 12 § 404.1527(c)(2)(i)-(ii), (c)(3)-(6). A finding that a treating physician's medical opinion 13 should not be accorded "controlling weight" does not mean that the opinion is rejected. 14 Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007). "In many cases, a treating source's 15 medical opinion will be entitled to the greatest weight and should be adopted, even if it 16 does not meet the test for controlling weight." Id. at 632. 17 If the treating physician's opinion is not contradicted by another doctor, the ALJ 18 may reject the opinion only by articulating "clear and convincing" reasons supported by 19 substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If 20 the treating physician's opinion is contradicted by another doctor, the ALJ may reject the 21 opinion of the treating physician only by giving "specific and legitimate" reasons for 22 doing so that are based on substantial evidence in the record. Id. (citing Murray v. 23 Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). When a nontreating physician relies on the 24
25 26 10 The evaluation of opinion evidence is set forth in 20 C.F.R. § 404.1527(c)(2) for claims, such as Plaintiff's, filed before March 27, 2017. For claims filed on or after March 27, 2017, the rules in 20 27 C.F.R. § 404.1520c apply. See 20 C.F.R. § 404.1527 (2019); 20 C.F.R. § 404.1520c (2019). 1 same clinical findings as a treating physician, but differs only in his or her conclusions, 2 the conclusions of the nontreating physician are not considered "substantial evidence." 3 Orn, 495 F.3d at 632. By contrast, when a nontreating physician provides "'independent 4 clinical findings that differ from the findings of the treating physician,' such findings are 5 'substantial evidence.'" Id. (citations omitted). Independent clinical findings can consist 6 of either (1) diagnoses that differ from those provided by another physician and that are 7 supported by substantial evidence or (2) findings based on objective medical tests that the 8 treating doctor has not considered. Id. (citing Andrews, 53 F.3d at 1041). A 9 contradictory opinion by a nonexamining physician alone does not constitute substantial 10 evidence. Lester, 81 F.3d at 831; Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 11 1989. 12 1. Dr. Schulman 13 Here, the ALJ stated the following regarding the opinions of Plaintiff's treating 14 rheumatologist, Dr. Schulman: 15 Dr. Schulman's opinions are given little weight because they are inconsistent with Dr. Schulman's own records, as well as those of another 16 rheumatologist, that show the claimant's symptoms were progressively 17 improving after the rheumatoid arthritis flare that she saw Dr. Schulman for on July 2, 2015, and these records also show the claimant's symptoms 18 remained relatively mild for the most part if she was able to remain 19 medication compliant and without stressful exacerbations in her life [exhibit references omitted]. Further, determination of disability is ultimately 20 reserved for the Commissioner of Social Security [citation omitted]. 21 (Admin. R. 50, ECF No. 7.) 22 The Court finds that the ALJ failed to give Dr. Schulman's opinions sufficient 23 weight and that her opinions should have been accorded significant, if not controlling, 24 weight. Even assuming that the ALJ properly could properly find that Dr. Schulman's 25 opinions were not entitled to controlling weight, the factors set forth in 20 C.F.R. 26 27 1 § 404.1527(c) should have led the ALJ to grant more weight to Dr. Schulman's opinions 2 than he did. Dr. Schulman was Teresa P.'s treating rheumatologist over the course of 3 seven years, and she treated Plaintiff both before and after Plaintiff alleges her 4 rheumatoid arthritis stopped her from working. Teresa P.'s doctor therefore "obtained a 5 longitudinal picture" of Plaintiff's impairments that the nonexamining physicians, Drs. 6 Vu and Harris, did not possess. 20 C.F.R. § 404.1527(c)(2)(i). Given that she was a 7 rheumatologist treating Plaintiff for a condition within her specialty, Dr. Schulman had 8 "reasonable knowledge" of Plaintiff's rheumatoid arthritis complaints as contemplated by 9 § 404.1527(c)(2)(ii) as well as the "specialization" discussed in § 404.1527(c)(5). The 10 "supportability" of Dr. Schulman's opinions lends further weight to her opinions. See id. 11 § 404.1527(c)(3). While the ALJ repeatedly characterizes Plaintiff's symptoms as "mild," 12 he ignores that Dr. Schulman's records show that Plaintiff's symptoms never fully 13 resolved after her severe flare in July 2015. Plaintiff's joint pain and stiffness persisted, 14 requiring Dr. Schulman as well as Plaintiff's new rheumatologist, Dr. Budianu, to 15 continually modify Plaintiff's medications in order to provide her with relief. (See, e.g., 16 Admin. R. 481-82, 493-94, 507-08, 542-43, 549, ECF No. 7.) Even with the new 17 medications, Plaintiff's symptoms continued into 2018. (See id. at 519, 542-43.) The 18 "consistency" of Dr. Schulman's opinions with the record as a whole also merits 19 additional weight being placed on her opinions. See 20 C.F.R. § 404.1527(c)(4). Dr. 20 Schulman's diagnosis and treatment plan were consistent with those of Plaintiff's later 21 treating physician, Dr. Budianu, as well as with Plaintiff's testimony. 22 Because Dr. Schulman's opinions were contradicted by other medical opinions in 23 the record, those of Dr. Vu and Dr. Harris, the ALJ was required to articulate "specific 24 and legitimate" reasons to reject the treating physician's opinions based on substantial 25 evidence in the record. Lester, 81 F.3d at 830-31. He failed to do so. The ALJ's finding 26 that Dr. Schulman's opinions were inconsistent with her own records and with those of 27 1 "another rheumatologist" (presumably Dr. Budianu) is not specific and legitimate. 2 Although Plaintiff's clinical findings and symptoms certainly improved following her 3 flare in July 2015, and thus became more "mild," they did not, as discussed above, ever 4 fully resolve. "That a person . . . makes some improvement does not mean that the 5 person's impairments no longer seriously affect her ability to function in a workplace." 6 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Notwithstanding Teresa P.'s 7 "mild" symptoms, both Dr. Schulman and Dr. Budianu, specialists in handling 8 rheumatoid arthritis, deemed it necessary to continue to prescribe new and increased 9 dosages of medication to Plaintiff. The ALJ's reference to Plaintiff remaining 10 "medication compliant" is misleading, because viewing the record as a whole, there is no 11 indication that Plaintiff was anything other than diligent about taking her prescribed 12 medications. The ALJ's statement that Teresa P.'s symptoms remained "mild" as long as 13 she avoided "stressful exacerbations" in her life is similarly misleading, as the record is 14 clear that it was the stress of her work that led to Plaintiff's most severe symptoms, and 15 those symptoms gradually lessened after she stopped working. (See, e.g., Admin. R. 305, 16 307, 310, ECF No. 7.) As for the ALJ discounting Dr. Schulman's opinion that Plaintiff 17 was unable to work on the basis that this is an issue reserved for the Commissioner, the 18 regulations require the ALJ to "carefully consider medical source opinions about any 19 issue, including opinions about issues at are reserved to the Commissioner." SSR 96-5P, 20 1996 WL 374183, at *2 (July 2, 1996). 21 In sum, the ALJ erred by failing to give sufficient weight to Dr. Schulman's 22 opinions and by failing to articulate specific and legitimate reasons, based on substantial 23 evidence in the record, to reject her opinions. "If additional proceedings can remedy 24 defects in the original administrative proceedings, a social security case should be 25 remanded." Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). The Court 26 27 1 recommends that this matter be remanded in order for the ALJ to provide due 2 consideration to Dr. Schulman's opinions. 3 2. Dr. Lynch 4 Plaintiff provided the Appeals Council a September 21, 2018 medical report 5 prepared by Dr. Lynch after the ALJ's July 17, 2018 decision. (See Admin. R. 1-4, 30- 6 33, ECF No. 7.) Plaintiff contends that the Appeals Council improperly found that Dr. 7 Lynch's report did not "show a reasonable probability that it would change the outcome" 8 of the ALJ's decision. (Pl.'s Mem. 24-25, ECF No. 11.) Defendant argues that Dr. 9 Lynch's evaluation is immaterial because it was not prepared until after the ALJ's 10 decision. (Def.'s Mot. Attach. #1 Mem. Supp. Summ. J. 15, ECF No. 12.) 11 The district court’s function is to review the correctness of the Commissioner’s 12 decision at the time it was made. Hudson v. Bowen, 849 F.2d 433, 435 (9th Cir. 1988). 13 A court may consider any additional materials submitted to the Appeals Council in 14 conjunction with a claimant’s request for review. Harman v. Apfel, 211 F.3d 1172, 15 1179-80 (9th Cir. 2000). Here, Dr. Lynch's report is consistent with Dr. Schulman's 16 findings and therefore may bear upon the ALJ's evaluation of the record as a whole. 17 Upon remand, the ALJ should evaluate this additional evidence. See id. at 1180 18 (remanding case to ALJ for consideration of additional evidence postdating the ALJ's 19 decision). 20 C. Plaintiff's Symptom Testimony 21 The parties disagree whether the ALJ properly evaluated Plaintiff's symptom 22 testimony. Plaintiff contends that the ALJ failed to articulate clear and convincing 23 reasons for rejecting her testimony. (Pl.’s Mem. 25-28, ECF No. 11.) Defendant argues 24 that the ALJ properly found that the medical evidence and Plaintiff's treatment history 25 undermined the degree of limitations alleged. (Def.'s Mot. Attach. #1 Mem. Supp. 26 Summ. J. 17-19, ECF No. 12.) 27 1 An ALJ engages in a two-step analysis to determine the extent to which a 2 claimant’s report of symptoms must be credited. First, an ALJ must determine whether 3 the claimant has presented objective medical evidence of an underlying impairment 4 which could reasonably be expected to produce the pain or other symptoms alleged. 5 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison, 759 F.3d at 6 1014-15). In this analysis, the claimant is not required to show that her impairment could 7 reasonably be expected to cause the severity of the symptoms alleged; nor is she required 8 to produce objective evidence of the pain or its severity. Id. (citing Garrison, 759 F.3d at 9 1014-15). If the claimant satisfies step one of the analysis, and there is no evidence of 10 malingering, the ALJ can reject the claimant’s testimony about the severity of her 11 symptoms only by offering “specific, clear and convincing reasons” for doing so. Id. 12 ALJ Levine determined that Teresa P. satisfied step one of the two-step analysis 13 because her "medically determinable impairments could reasonably be expected to cause 14 the alleged symptoms." (Admin. R. 47, ECF No. 7.) Nevertheless, he found Plaintiff's 15 allegations of debilitating symptoms were "neither entirely consistent nor entirely 16 supported by the evidence." (Id. at 50.) He observed that although Plaintiff testified that 17 she has three flare-ups of rheumatoid arthritis per month, and reported this to her new 18 rheumatologist (Dr. Budianu), her "longitudinal history of treatment does not support this 19 allegation and there was no synovitis noted" by Dr. Budianu. (Id.) The ALJ further 20 stated, "Likewise, she testified that she gets migraine headaches at least every two weeks, 21 but this is not supported in the objective evidence of record." (Id. [exhibit references 22 omitted].) 23 The clear and convincing standard is "not an easy requirement to meet" and is "the 24 most demanding [standard] in Social Security cases." Trevizo, 871 F.3d at 678 (citing 25 Garrison, 759 F.3d at 1014-15). The Court finds that the ALJ did not articulate clear and 26 convincing reasons to discount Plaintiff's testimony regarding the severity of her 27 1 symptoms. Even after Plaintiff's condition "turned the corner" in January 2016, 2 following her severe flare-up in July 2015, the medical evidence shows that Plaintiff 3 continued to experience flares of her rheumatoid arthritis on a regular basis. (See, e.g., 4 Admin. R. 549 ["still having some flares of joint symptoms"]; 482 [limits daily activities 5 due to joint pain]; 508 [medications not completely controlling symptoms]; 519 [noting 6 that symptoms flared with weather changes], ECF No. 7.) The record does not support 7 the ALJ's finding that Plaintiff's longitudinal treatment history undermined her testimony 8 that she experienced rheumatoid arthritis flare-ups three times a month. 9 Also, the absence of active synovitis observed during Dr. Budianu's examination, 10 (see id. at 542), does not constitute a clear and convincing reason to discredit Plaintiff's 11 subjective symptoms. In discrediting Teresa P.'s testimony regarding the severity of her 12 symptoms because one examination showed no active synovitis, the ALJ essentially 13 required Plaintiff to provide objective medical evidence of her pain, which he is not 14 permitted to do. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) 15 (stating that an ALJ may not disregard a claimant's pain testimony solely because it is not 16 substantiated affirmatively by objective medical evidence). Additionally, the ALJ's 17 finding disregards the chronic nature of rheumatoid arthritis. In Salazar v. Astrue, 859 18 F.Supp.2d 1202 (D. Or. 2012), the district court, citing information from the American 19 Arthritis Association, observed, "Rheumatoid arthritis is a chronic disease, meaning it 20 can't be cured, and some people have intermittent symptoms or 'flares,' while others have 21 ongoing symptoms that worsen over time." Id. at 1227 (internal quotations and citation 22 omitted). The ALJ also discounted Plaintiff's subjective symptom testimony because he 23 found that her statement that she gets migraine headaches every two weeks is not 24 supported by the record. (See Admin. R. 50, ECF No. 7.) While this is a legitimate 25 reason to discredit Teresa P.'s testimony, it does not, by itself, constitute a clear and 26 convincing reason. 27 1 The Court recommends that Plaintiff's symptom testimony, upon remand, be 2 reexamined after proper consideration has been given to her treating physicians' opinions, 3 as discussed above. 4 D. Step-Four Analysis and Residual Functional Capacity 5 Plaintiff contends that the ALJ erred in his formulation of her residual functional 6 capacity ("RFC") by not including any functional limitations caused by her rheumatoid 7 arthritis and migraine headaches. (Pl.’s Mem. 8, ECF No. 11.) She points out that her 8 rheumatoid arthritis causes pain and swelling in her hands, wrists, arms, elbows, 9 shoulders, knees, ankles, and feet, and she has arthritic flares three to four times per 10 month that last three or four days. (Id. at 8-9.) She also gets migraines two to three times 11 per month that require her to lie down for thirty to sixty minutes and which impact her 12 ability to think and function for two days. (Id. at 9.) She argues that at a minimum, her 13 RFC should have included handling and fingering limitations due to her wrist and hand 14 impairments, her need for unscheduled work breaks or work absences when her flare-ups 15 and migraines occur, and focus and concentration deficits due to pain and fatigue. (Id. at 16 8.) Teresa P. contends that as a result of her incomplete RFC, the ALJ further erred when 17 he found that she was capable of performing her past work as a director of food services 18 as this job is generally performed. (Id. at 14-17.) Defendant responds that the ALJ 19 properly assessed Plaintiff's RFC and his finding at step four was proper. (Def.'s Mot. 20 Attach. #1 Mem. Supp. Summ. J. 9-10, 15-17, ECF No. 12.) 21 Residual functional capacity is defined as “the most you can still do despite your 22 limitations.” See 20 C.F.R. § 404.1545(a)(1) (2019). “Ordinarily, RFC is the 23 individual’s maximum remaining ability to do sustained work activities in an ordinary 24 work setting on a regular and continuing basis, . . . mean[ing] 8 hours per day, for 5 days 25 a week, or an equivalent work schedule." SSR 96-8P, 1996 WL 374184, at *2 (July 2, 26 1996) (emphases omitted). The RFC assessment is first used at step four of the 27 1 sequential evaluation process to decide if the claimant can perform her past relevant 2 work. 20 C.F.R. § 404.1545(a)(5)(i). If the ALJ decides that the claimant cannot 3 perform her past relevant work, the same RFC assessment is used at step five of the 4 sequential evaluation process to decide if the claimant can adjust to any other work that 5 exists in the national economy. Id. § 404.1545(a)(5)(ii). In determining a claimant’s 6 RFC at steps four and five, the ALJ must consider all relevant evidence in the record, 7 including medical history; medical signs and laboratory findings; lay evidence; the 8 effects of treatment, including disruption to routine and side effects of medication; and 9 the effects of symptoms, including pain. SSR 96-8P, 1996 WL 374184, at *5; see also 10 Robbins, 466 F.3d at 883 (9th Cir. 2006). 11 The RFC determination addresses both the remaining exertional and nonexertional 12 capacities of the claimant. SSR 96-8P, 1995 WL 374184, at *5. "Exertional" capacities 13 relate to an individual's physical strength and include the claimant's remaining abilities 14 with respect to sitting, standing, walking, lifting, carrying, pushing, and pulling. Id. 15 "Nonexertional" capacities do not depend on physical strength but rather assess the 16 individual's remaining abilities in the following areas: postural (e.g., stooping and 17 climbing), manipulative (e.g., reaching and handling), visual (seeing), communicative 18 (hearing and speaking), mental (e.g., understanding and remembering instructions and 19 responding appropriately to supervision), and ability to tolerate environmental factors 20 (e.g., tolerance of temperature extremes). Id. at *6. The determination of RFC is 21 reserved to the Commissioner. Id. § 404.1527(d)(2). But the RFC assessment must 22 always consider and address medical source opinions and, if the RFC conflicts with an 23 opinion from a medical source, the adjudicator must explain why the opinion was not 24 adopted. SSR 96-8P, 1995 WL 374184, at *7. 25 Here, the ALJ found that Plaintiff has the residual functional capacity to perform 26 the full range of light work as defined in 20 C.F.R. § 404.1567. (Admin. R. 46, ECF No. 27 1 7.) "Light work" is defined in this regulation as follows: 2 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 3 weight lifted may be very little, a job is in this category when it requires a 4 good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be 5 considered capable of performing a full or wide range of light work, you 6 must have the ability to do substantially all of these activities.
7 20 C.F.R. § 404.1567(b) (2019). The ALJ summarized Teresa P.'s hearing testimony 8 and treatment records, and then evaluated the medical opinions in the record, including 9 those by Drs. Vu, Harris, and Schulman, regarding Plaintiff's impairment-related 10 restrictions. (Id. at 46-50.) Again, Dr. Vu determined that Plaintiff had the RFC to lift 11 or carry twenty pounds occasionally and ten pounds frequently; to stand, walk, or sit for 12 six hours in an eight-hour workday; and was limited in her ability to push or pull with 13 either both upper extremities or her right upper extremity. (Id. at 95-96.)11 Dr. Vu also 14 found that Teresa P. had postural and manipulative limitations, including a limitation in 15 her handling and fingering abilities on the right side. (Id. at 96-97.) Dr. Harris adopted 16 Dr. Vu's assessment. (Id. at 107-09.) The ALJ gave Dr. Vu's and Dr. Harris's opinions 17 "some weight" because they supported a finding that Plaintiff can perform light work. 18 (Id. at 49.) He did not, however, adopt their push and pull, postural, and manipulative 19 limitations. 20 The ALJ also evaluated opinions from Plaintiff's treating rheumatologist, Dr. 21 Schulman, regarding Teresa P.'s impairment-related restrictions. (Id.) Dr. Schulman 22
23 24 11 Dr. Vu's assessment regarding Plaintiff's push and pull limitations is ambiguous. Dr. Vu stated that Plaintiff's ability to push and pull is limited in both upper extremities, but also appeared to indicate that 25 Plaintiff could "frequently" push and pull with her right upper extremity. (Admin. R. 96, ECF No. 7.) It 26 is unclear whether Dr. Vu intended to say that Plaintiff could frequently push and pull with her right upper extremity, or whether with frequent pushing and pulling, the limitations in her right upper 27 extremity were more severe. 1 indicated on April 26, 2016, that Plaintiff could lift and carry less than ten pounds rarely, 2 stand and walk less than two hours in an eight-hour workday, sit for about two out of 3 eight hours, and would have to walk for five minutes every twenty minutes. (Id. at 355- 4 57.) Dr. Schulman also opined that Teresa P. would be absent from work more than four 5 times a month. (Id. at 358.) On November 13, 2015, April 20, 2017, January 18, 2018, 6 Dr. Schulman completed forms conveying "similar restrictive assessments" of Plaintiff's 7 work-related abilities. (Id. at 50 [citing id. at 374-79, 382-84].) As discussed above, the 8 ALJ gave Dr. Schulman's opinions "little weight." Plaintiff argues that the ALJ 9 improperly relied on the opinions of the state agency nonexamining physicians, Dr. Vu 10 and Dr. Harris, instead of crediting the opinions of her treating physician, Dr. Schulman. 11 (Pl.'s Mem. 12-14, ECF No. 11.) Teresa P. observes that while the ALJ adopted Dr. 12 Vu's and Dr. Harris's findings that Plaintiff could perform light work, he erroneously 13 omitted their findings that she had limitations in her pushing and pulling, postural, and 14 manipulation activities. (Id. at 13.) 15 The Court, as discussed above, agrees that the ALJ did not provide due 16 consideration to Dr. Schulman's opinions. The Court also finds that the ALJ erred by 17 according the opinions of nonexamining physicians Vu and Harris more weight than 18 those of Dr. Schulman. Dr. Vu's and Dr. Harris's opinions did not constitute substantial 19 evidence because neither of their opinions was based on independent clinical findings. 20 Neither doctor offered a different diagnosis of Plaintiff's condition, and neither of their 21 opinions was based on objective medical tests that Dr. Schulman did not consider. See 22 Orn, 495 F.3d at 632 ("When a [nontreating] physician relies on the same clinical 23 findings as a treating physician, but differs only in his or her conclusions, the 24 conclusions of the [nontreating] physicians are not 'substantial evidence.'"); see also 25 Lester, 81 F.3d at 831 ("The opinion of a nonexamining physician cannot by itself 26 constitute substantial evidence that justifies the rejection of either an examining 27 1 physician or a treating physician.") (citation and emphasis omitted). The ALJ further 2 erred by omitting the push and pull, postural, and manipulative limitations set forth by 3 Drs. Vu and Harris without explanation. If the RFC formulated by the ALJ conflicts 4 with an opinion from a medical source, he must explain why the opinion was not 5 adopted. SSR 96-8P, 1995 WL 374184, at *7. ALJ Levine failed to do so here. 6 Judge Levine's finding that Plaintiff had the residual functional capacity to 7 perform the full range of light work, and thus could perform her prior work as it is 8 generally performed, is not supported by substantial evidence in the record. He did not 9 provide due consideration to Dr. Schulman's opinions, as discussed above, and the 10 evaluation of Dr. Lynch's opinion as well as the reexamination of Plaintiff's subjective 11 symptom testimony may impact the formulation of her RFC. Moreover, the ALJ 12 improperly failed to include the push and pull, postural, and manipulative limitations 13 found by Drs. Vu and Harris without adequate explanation. Therefore, Plaintiff's RFC, 14 upon remand, should be reexamined.12 15 III. CONCLUSION 16 For the reasons stated above, the Court recommends that Plaintiff's motion for 17 remand be GRANTED IN PART and DENIED IN PART, that Defendant's cross- 18 motion for summary judgment be GRANTED IN PART and DENIED IN PART, and 19 that the case be remanded for further proceedings. 20 This Report and Recommendation will be submitted to the Honorable Cathy A. 21 Bencivengo, United States District Court Judge assigned to this case, pursuant to the 22
23 24 12 As for Plaintiff's contention that limitations caused by her migraines should have been included in her RFC, the Court notes that in assessing a claimant's RFC, the ALJ is required to consider the limitations 25 imposed by all of the claimant's impairments, including those that are not severe. See SSR 96-8P, 1996 26 WL 374184, at *5; see also 20 C.F.R. § 404.1545(e). Because Plaintiff's subjective-symptom testimony should be reevaluated on remand, the Court need not presently decide whether the ALJ erred by not 27 including any migraine-related impairments in the RFC. 1 || provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the 2 Court and serve a copy on all parties on or before March 20, 2020. The document should 3 || be captioned “Objections to Report and Recommendation.” Any reply to the objections 4 || shall be served and filed on or before April 3, 2020. The parties are advised that failure 5 || to file objections within the specified time may waive the right to appeal the district 6 ||court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: February 27, 2020 ( , 8 Hon. Ruben B. Brooks 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 27 28 19ev1321-CAB(RBB)