Reynolds v. Saul

• Court: District Court, S.D. California
• Decided: March 30, 2020
• Docket: 3:19-cv-01358
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || DEANNA R., Case No.: 19cv1358-W(RBB) 12 Plant) REPORT AND 13 |] V. RECOMMENDATION REGARDING 14 |} ANDREW M. SAUL, Commissioner of CROSS-MOTIONS FOR SUMMARY Social Security, JUDGMENT [ECF NOS. 13, 14]

6 Defendant. 17 8 On July 19, 2019, Plaintiff Deanna R.! commenced this action against Defendant

19 Andrew M. Saul, Commissioner of Social Security, for judicial review under 42 U.S.C.

0 section 405(g) of a final adverse decision for social security benefits [ECF No. 1]. 51 Defendant filed the Administrative Record on October 21, 2019 [ECF No. 11]. On

39 November 25, 2019, Plaintiff filed a motion for summary judgment or remand [ECF No.

33 13]. The Commissioner filed a cross-motion for summary judgment and an opposition to

24 || ————————— 26 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court's Civil Local 97 || Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 28 19cv1358-W(RBB)

1 || Plaintiffs motion on December 6, 2019 [ECF No. 14]. Plaintiff filed a reply on January 2 || 13, 2020 [ECF No. 15]. 3 The Court has taken the motions under submission without oral argument [ECF 4 ||No. 12]. For the following reasons, the Court recommends that Plaintiff's motion for 5 ||summary judgment be GRANTED, that Defendant's cross-motion for summary 6 judgment be DENIED, and that the case be remanded for further proceedings. 7 I. BACKGROUND 8 On May 26, 2015, Plaintiff protectively filed applications for disability insurance 9 || benefits and supplemental security income under Titles II and XVI of the Social Security 10 || Act, respectively. (Admin. R. 53, 229-38, ECF No. 11.)? Plaintiff alleged that she has 11 || been disabled since May 22, 2015, due to neuropathy in her hands and feet. (Id. at 50, 12 233, 248.)° Her applications were denied on initial review and again on 13 ||reconsideration. (Id. at 133-36, 142-47.) An administrative hearing was conducted on 14 || February 1, 2018, by Administrative Law Judge ("ALJ") Andrew Verne, who determined 15 July 6, 2018, that Plaintiff was not disabled. (Id. at 115-25.) Plaintiff requested a 16 ||review of the ALJ's decision; the Appeals Council for the Social Security Administration 17 ||("SSA") denied the request for review on May 20, 2019. (Ud. at 1-3.) Plaintiff then 18 |}commenced this action pursuant to 42 U.S.C. section 405(g). 19 ||A. Medical Evidence 20 On February 4, 2015, Plaintiff went to Urgent Care at San Ysidro Health Center, 21 || where she reported numbness in both hands. (Id. at 346.) She stated that her symptoms 22 |f__ 23 * The administrative record is filed on the Court’s docket as multiple attachments. The Court will cite to 24 || 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”). 25 || For all other documents, the Court cites to the page numbers affixed by CM/ECE. 36 Ina memorandum prepared in advance of her administrative hearing, Plaintiff, through her counsel, asserted that in addition to neuropathy, she was disabled due to chronic headaches, rheumatoid arthritis, 97 || hepatitis C, and chronic obstructive pulmonary disease (COPD). (Id. at 310.) 28 19cv1358-W(RBB)

1 started one day before, but that she had experienced similar problems with her legs 2 || and feet for "a long time." Ud.) On February 23, 2015, Plaintiff began treatment with 3 Karen Law, M.D., at the San Ysidro Health Center. (Id. at 339-45.) Deanna R. told Dr. 4 || Law that she had been experiencing numbness and electric shocks in her feet for three 5 || years, and that her "feet fell asleep and never woke up." (Id. at 339.) Plaintiff stated that 6 || she had lost sensation in her hand and that, for example, although she could pick up a roll 7 || of quarters, she could not pick up a single quarter. (Id.) She had brown spots on her legs 8 || that had increased since her neuropathy started. (Id.) Dr. Law suspected that Plaintiff's 9 ||symptoms of joint pain, peripheral neuropathy, cognitive defects, headaches, and vision 10 || changes were indicative of lupus, rheumatoid arthritis, and Raynaud's disease. (Id. at 11 |}344.)* Dr. Law ordered lab work, urinalysis, and hand x-rays, and referred Deanna R. for 12 || consultations with rheumatology and ophthalmology. (d.) Dr. Law noted that Plaintiff 13 || worked as a bartender. (Id. at 340.) 14 Plaintiff next saw a neurologist, Edward B. Friedman, M.D., on March 17, 2015. 15 || dd. at 314-17.) She told Dr. Friedman that she had experienced migraine headaches for 16 ||her "whole life” and an "ice pick" type of pain on the right side. (id. at 314.) She had 17 taken Excedrin three to four times per day, six to seven days per week, for years, and had 18 "much better" since starting an allergy pill. id.) Deanna R. stated that she rode a 19 || motorcycle, had issues with her hands, and was having difficulty shifting with her left 20 |/leg. Ud. at 315.) After examining Plaintiff, Dr. Friedman found that she had evidence of 21 peripheral neuropathy affecting her legs which could be related to her hepatitis C, a 22 || liver infection, which she had been diagnosed with since 1995. (Id. at 317, 812.) 23

25 ||4 Raynaud’s disease causes some areas of the body, such as fingers and toes, to feel numb and cold due 26 cold temperatures or stress. See Mayo Clinic, https://www.mayoclinic.org/diseases- conditions/raynauds-disease/symptoms-causes/syc-20363571 (last visited Mar. 20, 2020). Symptoms 97 || can include color changes in the skin and numbness and stinging pain. Id. 28 19cv1358-W(RBB)

1 || Although he initially suspected that Deanna R.'s hand symptoms were related to carpal 2 tunnel syndrome, a subsequent nerve conduction study ruled this out. Ud. at 317-18.) 3 || The nerve conduction study did indicate a primarily sensory neuropathy. (Id. at 318.) 4 ||Dr. Friedman concluded that Plaintiff's migraines did not require treatment at that time. 5 || dd. at 317.) 6 On March 31, 2015, Deanna R. informed Dr. Law, her primary care doctor, that 7 had quit one of her jobs, cut back on the other one, and that her daughter was moving 8 with her in May. (id. at 333.) Dr. Law characterized the lesions on Plaintiff's legs as 9 || vasculitis® of the skin, possibly caused by hepatitis, and considered checking Plaintiff’s 10 |}cryoglobulins.® (Id. at 337.) By May 8, 2015, Plaintiff was considering applying for 11 |/social security disability because she was unable to open bottles or pick things up and 12 || was concerned that she would eventually not be able to work. (Id. at 327.) 13 Plaintiff started seeing Dr. Dana Copeland Reddy, a rheumatologist, on June 8, 14 2015. Ud. at 386-87.) Dr. Reddy’s assessment was that Plaintiff had chronic hepatitis C, 15 |] Raynaud’s syndrome, and purpuric vasculitis, which was most likely due to 16 || cryoglobulinemia. (Id. at 387.) The physician noted that treatment for cryoglobulinemia 17 || included treatment of hepatitis C and possibly Rituxan.’ (Id.) Deanna R.’s lab work 18 confirmed Dr. Reddy’s assessment. (Id. at 385.) Dr. Reddy planned to consult with a 19 || hepatologist, Dr. Hassanein, regarding Plaintiff's case. (Id.) Dr. Hassanein did not return 20 || ——_—_ 22 ||. cea Vasculitis is inflammation of the blood vessels. See Mayo Clinic, 23 || https://www.mayoclinic.org/diseases-conditions/vasculitis/symptoms-causes/syc-20363435 (last visited Mar. 19, 2020). 24 ||° Cryoglobulins are abnormal proteins in the blood. Cryoglobulinemia is the clumping together of these proteins and can cause damage to skin, joints, nerves, and organs. See Mayo Clinic, 25 https://www.mayoclinic.org/diseases-conditions/cryoglobulinemia/symptoms-causes/syc-20371244 (last 2%6 visited Mar. 19, 2020). 7 Rituxan is a type of antibody therapy that can be used alone or with chemotherapy. See 27 || https:/Awww.rituxan.com/patient/what-is-rituxan.html (last visited Mar. 19, 2020). 28 19cv1358-W(RBB)

1 |] Dr. Reddy’s call, but his report stated that because Plaintiff's liver looked normal on 2 || ultrasound and her liver function tests were normal, treatment of her hepatitis C was not 3 ||indicated at that time. (Id. at 382-83.) 4 On August 31, 2015, state agency medical consultant Dr. A. Pan, reviewed 5 || Plaintiff’s case and opined that she had the residual functional capacity to perform light 6 || work; could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; 7 ||could occasionally climb ladders, ropes, and scaffolds; and could frequently perform 8 ||handling and fingering tasks. (Id. at 58-60.) The next day, September 1, 2015, Deanna 9 reported to treating physician Dr. Law that her toes had been gradually getting worse 10 || and were locking up, and that she was having more pain in her hand. (Id. at 416.) 11 || Plaintiff stated that she could only stand for five to ten minutes and could sit up for only 12 || thirty minutes because of her leg pain. (Id.) She described constant tingling in her legs 13 || and stated that they would “go blank” and become totally numb. (Id.) Plaintiff related 14 Dr. Hassanein, the hepatologist, had told her that treatment of her hepatitis C would 15 || be “good” but her insurance would likely not pay for it. (Id.) Dr. Law noted that Deanna 16 ||R.’s neuropathy was “somewhat controlled” on gabapentin and that the neuropathy and 17 || tetany® in her toes were likely related to cryoglobulinemia. (Id. at 420.) 18 On September 14, 2015, Plaintiff underwent psychological testing by Marcie 19 ||Goldman, Ph.D., at the request of the Department of Social Services. (Id. at 363-65.) 20 || Deanna R. denied any mental health history and told Dr. Goldman that her hand problems 21 |}came and went, but that day was a relatively good day. (Id. at 363.) Her daily activities 22 ||included bathing and dressing herself, playing with her granddaughter, watching 23 ||television, preparing her own meals, and doing household chores when her hands were 24 || ————————— 26 ||s Tetany is defined as a spasm of muscles. See Merriam-Webster, https://www.merriam- 97 || webster.com/dictionary/tetany (last visited Mar. 19, 2020). 28 19cv1358-W(RBB)

1 not hurting. (Id.) Dr. Goldman found that Plaintiff’s immediate memory, abstract 2 reasoning, general knowledge, and vocabulary were in the low average range. (Id.) 3 From a psychological standpoint, Deanna R. had moderate restrictions in the area of 4 performing complex tasks due to her low average cognitive functioning, but only mild or 5 no restrictions in all other areas. (Id. at 365.) 6 Plaintiff fell at home on October 1, 2015, and went to the emergency room at 7 Sharp Coronado Hospital. (Id. at 373-75.) X-rays showed fractures in her left foot and 8 right ankle. (Id. at 378-79.) Deanna R. received a consultation from orthopedic surgeon 9 Dr. Michael L. Collins and initially opted to not proceed with surgery. (Id. at 558-60.) 10 Dr. Collins provided Plaintiff with CAM (controlled ankle movement) boots for each leg 11 and instructed her to place only partial weight on her right heel and no weight on her left 12 foot. (Id. at 560.) Plaintiff was unsure how the fall happened; she may have tripped over 13 the carpet, or it could have been due to her neuropathy. (Id. at 556; see also id. at 373.) 14 Deanna R. continued to follow up with Dr. Collins over the next several months; he 15 eventually determined that she had exhausted all conservative measures and required 16 surgical intervention. (Id. at 546-57.) She underwent open reduction and internal 17 fixation of the fifth metatarsal in her left foot on February 12, 2016. (Id. at 529-30.) Dr. 18 Reddy, the treating rheumatologist, decided that Plaintiff would need to hold off on 19 Rituxan treatment for her cryoglobulinemia until she had recovered from surgery. (Id. at 20 381, 477.) Deanna R. reported to Dr. Law around this time that her neuropathy was 21 getting worse; she was feeling more electric shocks in her fingers; the toes on her left foot 22 were locking up; and she had numbness in her left thigh. (Id. at 660, 669.) 23 Plaintiff saw Dr. Collins, the orthopedic surgeon, for periodic post-surgical follow- 24 up appointments. (Id. at 540-45.) By April 19, 2016, she was bearing full weight on her 25 left foot and was able to work in the yard and go about normal activities with minimal 26 discomfort. (Id. at 540-41.) On April 20, 2016, state agency physician R. Dwyer, M.D., 27 1 agreed with the previous assessment of Plaintiff’s residual functional capacity offered by 2 state agency physician Dr. Pan. (Id. at 89-91.) 3 On May 17-18 and May 31-June 1, 2016, Plaintiff was admitted overnight into 4 Scripps Mercy Hospital for Rituxan therapy, which was administered intravenously in 5 two doses in a manner similar to chemotherapy. (Id. at 567-68, 578, 604-06, 611.) On 6 June 15, 2016, she told Dr. Law that the treatment had not helped and that her pain was 7 getting worse. (Id. at 648.) Deanna R. stated that she took 300 milligrams of gabapentin 8 during the day, less than the recommended dosage, because it made her sleepy, but she 9 was feeling more electric shocks down her legs. (Id.) Dr. Law recommended that 10 Plaintiff go back to her regular dose of gabapentin and suggested that other therapies for 11 her neuropathy and mood be considered. (Id. at 652.) The treating physician also 12 referenced Plaintiff’s history of migraine headaches with blurred vision, and noted that 13 Deanna R.’s ear, nose, and throat physician was referring her to neurology for further 14 work-up. (Id.) Plaintiff’s diagnoses included memory problems, rheumatoid arthritis 15 involving both hands with positive rheumatoid factor, mixed cryoglobulinemia, frequent 16 headaches, viral hepatitis C, and polyneuropathy. (Id.) Because Plaintiff’s condition was 17 worsening and the Rituxan therapy was having no effect, Dr. Reddy, the rheumatologist, 18 decided to contact another hepatologist about treatment of Plaintiff’s hepatitis C. (Id. at 19 718.) 20 On July 12, 2016, Deanna R. informed Dr. Collins, the orthopedic surgeon, that 21 she was no longer able to bear weight in her left foot for extended periods due to pain and 22 discomfort. (Id. at 932.) Plaintiff consulted Dr. Friedman, her neurologist, on July 27, 23 2016, regarding her daily headaches. (Id. at 871.) Dr. Friedman instructed Deanna R. to 24 stop her chronic usage of Excedrin and suggested that her daily headaches would abate 25 within two weeks if she did so. (Id.) He also noted that Plaintiff’s migraine headaches 26 were infrequent and had occurred only once over the last year. (Id.) On August 9, 2016, 27 1 Plaintiff started seeing Dr. Daniel Park, an infectious disease specialist, regarding her 2 hepatitis C, at Dr. Reddy’s referral. (Id. at 812.) Dr. Park agreed with Dr. Reddy’s 3 assessment that Deanna R. should receive curative hepatitis treatment and that the 4 treatment would likely improve Plaintiff’s cryoglobulinemia and prevent it from getting 5 worse. (Id. at 716, 816.) Dr. Reddy had also recommended that Plaintiff continue taking 6 gabapentin as well as tramadol for pain. (Id. at 716.) 7 On August 19, 2016, treating physician Dr. Law completed a “Disability 8 Impairment Questionnaire” on Plaintiff’s behalf. (Id. at 731-35.) She listed Deanna R.’s 9 primary symptoms as numbness and tingling of hands and feet, pain in left foot status 10 post-surgery, inability to grip due to sensory loss, gait instability due to neuropathy, and 11 cramping of extremities; she also set forth the clinical and laboratory findings supporting 12 her diagnoses. (Id. at 731-32.) Dr. Law opined that Plaintiff could sit for less than one 13 hour in an eight-hour workday, would need to get up every fifteen minutes if she sat for 14 longer than an hour, and could stand or walk for one hour at best in an eight-hour day. 15 (Id. at 733.) She also stated that Plaintiff could never lift or carry more than ten pounds 16 and had significant limitations in reaching, handling, and fingering. (Id. at 733-34.) In a 17 letter dated August 20, 2016, Dr. Law explained that Deanna R. might have some 18 recovery of function after treatment of her hepatitis C, but it was possible that her 19 neuropathic pain would persist after treatment. (Id. at 737.) Dr. Law concluded that 20 Plaintiff’s disability had lasted more than twelve months and her ability to work full-time 21 was impaired. (Id.) On August 25, 2016, Plaintiff presented to Dr. Park, who was 22 managing her hepatitis C treatment, with complaints of profound fatigue, sleeping all 23 day, no energy, and difficulty performing activities of daily living. (Id. at 802.) He 24 requested approval to treat Deanna R.’s hepatitis C with a medication called Harvoni. 25 (Id. at 805.) 26 27 1 Dr. Reddy, Plaintiff’s treating rheumatologist, completed a “Disability Impairment 2 || Questionnaire” on September 15, 2016. (Id. at 739, 743.) She described Plaintiff's 3 || diagnosis as “cryoglobulinemia with severe sensory neuropathy leading to pain in hands 4 feet and fall with bilateral lower extremity fractures requiring surgery on the left 5 || foot.” (Ud. at 739.) The clinical and laboratory findings supporting her diagnosis 6 ||included a hepatitis C viral load of 10,200,000,’ cryoglobulins of 58, limited sensation 7 || distal!® to wrists and ankles, rash of lower extremities with scarring, and fractures of the 8 || left foot and right ankle. (id.) She believed that Plaintiff could sit for five to six hours or 9 more in an eight-hour workday and could stand or walk for one to two hours. (Id. at 10 741.) Plaintiff would need to get up from a seated position to move around every one to 11 hours, could never lift and carry over twenty pounds, but could occasionally lift and 12 || carry ten to twenty pounds. (Id. at 741.) Dr. Reddy also noted that Deanna R. had 13 || significant limitations in reaching, handling, and fingering due to decreased sensation in 14 hands; she would need to take unscheduled breaks at unpredictable intervals during 15 || the workday. (Id. at 742.) 16 On October 3, 2016, Plaintiff complained of migraines and heart palpitations to Dr. 17 || Law, her treating doctor. (Id. at 792, 795-96.) Dr. Law recommended that Plaintiff wean 18 down on Excedrin to help her headaches. (Id. at 795.) The following day, Dr. Park 19 ||counseled Deanna R. on taking Harvoni, which he prescribed to be taken once daily for 20 twelve weeks. (Id. at 791.) On November 15, 2016, around the midpoint of the twelve- 21 || week regimen, Plaintiff reported to Dr. Park that she was doing well and had no 22 |} 23 ? The “viral load” of hepatitis C refers to the amount of virus present in the bloodstream. A “high” viral 24 |} load is usually greater than 800,000 IU/L and a “low” viral load is usually less than that amount. United States Department of Veterans Affairs, https://www.hepatitis.va.gov/hcv/patient/diagnosis/labtests- 25 RNA-quantitative-testing.asp (last visited Mar. 20, 2020). 2%6 10 “Distal” means “situated away from the point of attachment or origin or a central point especially of the body.” Merriam-Webster, https://www.merriam-webster.com/dictionary/distal (last visited Mar. 23, 97 || 2020). , 28 19cv1358-W(RBB)

1 complaints regarding the treatment other than fatigue. (Id. at 781.) Her hepatitis C viral 2 load was 7,000,000. (Id. at 785.) By November 29, 2016, the amount of virus in her 3 bloodstream was undetectable and she was considered hepatitis free. (Id. at 774, 778.) 4 On January 5, 2017, she reported to Dr. Park that she felt better, had much more energy, 5 and did not have any further rashes. (Id. at 769.) 6 The following month, on February 7, 2017, Deanna R. saw her orthopedic surgeon, 7 Dr. Collins, because she felt that one of the screws from her foot surgery was coming 8 loose. (Id. at 934-35.) At that time, however, she was able to walk on the beach, walk 9 her granddaughter a half mile to school, and ride her motorcycle with minimal 10 discomfort. (Id.) Dr. Collins recommended that Plaintiff keep the hardware in her foot 11 unless the pain affected her normal activities. (Id. at 935.) On February 9, 2017, Plaintiff 12 told Dr. Law that her neuropathy was not progressing as fast, she was planning to visit 13 Minnesota for two months to see her baby granddaughter, and was taking daily walks on 14 the beach, but was often tired. (Id. at 763.) On February 13, 2017, Dr. Reddy observed 15 that although Plaintiff was feeling well after her curative hepatitis C treatment and her 16 cryoglobulinemia had not progressed, symptoms relating to her chronic neuropathy and 17 Raynaud’s syndrome continued. (Id. at 757-58.) 18 Deanna R. next saw Dr. Law on June 23, 2017. (Id. at 836, 841.) She reported 19 that her whole body felt sore all the time and her condition had been gradually worsening 20 over the last six months. (Id. at 836.) Plaintiff also stated that she felt depressed and had 21 little interest or pleasure in doing things. (Id. at 838.) Dr. Law thought that Plaintiff’s 22 generalized pain might be due to fibromyalgia and recommended that Plaintiff stop 23 taking gabapentin and start taking Lyrica. (Id. at 839-40.) On July 11, 2017, Plaintiff 24 told Dr. Collins, the orthopedic surgeon, that she wanted to move forward with removal 25 of the surgical hardware from her left foot as she had developed discomfort there. (Id. at 26 936-37.) Deanna R. informed Dr. Reddy, her treating rheumatologist, of her diffuse body 27 1 || pain on July 27, 2017. (id. at 834.) Plaintiff stated that Lyrica was helping her 2 ||symptoms more than gabapentin had, but she felt lightheaded when taking Lyrica so had 3 || stopped taking it in the morning. Ud.) Dr. Reddy recommended that Plaintiff decrease 4 ||her dosage of Lyrica if needed, but she should continue taking it twice per day. (Id. at 5 ||835.) Dr. Reddy also suggested that Plaintiff consider taking another medication, 6 ||Cymbalta, for both neuropathy and fibromyalgia, but Plaintiff opted not to do so at that 7 ||time. (1d.) 8 On August 4, 2017, Plaintiff was seen at San Ysidro Health Center for pre- 9 || operative clearance for her left foot revision surgery. (Id. at 842.) In relation to her 10 |}recent complaints of dyspnea," she stated that she could walk several blocks and climb 11 stairs, but pain in both of her lower extremities usually limited her ability to do so rather 12 difficulty breathing. (id.) Deanna R. underwent surgery to remove the painful 13 || hardware from her foot on August 31, 2017. Ud. at 940.) She told Dr. Collins that her 14 ||symptoms had significantly improved two days following her surgery. (id.) Two months 15 || later, on October 24, 2017, she explained to Dr. Collins that she was satisfied with her 16 || surgical outcome but was experiencing pain all over her body and was unable to 17 || determine if the symptoms in her foot were due to her recent surgery or her chronic pain. 18 || dd. at 943.) On January 5, 2018, Dr. Law reiterated her diagnoses of fibromyalgia and 19 || neuropathy, and recommended that Plaintiff follow up a pulmonologist for her dyspnea. 20 || dd. at 306-07.) 21 Hearing Testimony 22 On February 1, 2018, Deanna R. appeared with her attorney at a hearing before 23 || ALJ Verne. (Id. at 56.) Plaintiff testified that her date of birth was June 15, 1963, she 24 || ————————— 26 Dyspnea is “difficult or labored respiration.” See Merriam-Webster, https://www.merriam- 97 || webster.com/dictionary/dyspnea (last visited Mar. “0. 2020). 28 19cv1358-W(RBB)

1 lived with her daughter and granddaughter, and she had a high school education. (Id. at 2 18, 20.) She had worked as a bartender for twenty-five years; for the last ten years, she 3 had worked at the Manhattan full-time and at another bar on weekends. (Id. at 21-22.) 4 She described her job duties as, “[Y]ou’re dealing with the bands, you’re dealing with 5 customers good and bad, you have to keep track of all the drinks and all the money and 6 all the tabs . . . plus the stocking and the running and the tapping kegs and, you know, 7 things like that.” (Id. at 24.) She had also performed occasional part-time work doing 8 biohazard cleanup on cruise ships and filing for a property management office. (Id. at 9 23-24.) When the ALJ asked Deanna R. why she could no longer work, she responded: 10 Well, it started about five years ago, actually. My feet fell asleep and they wouldn’t wake up. And it progressively just started getting worse and 11 worse and worse. It’s like if you went to a dentist and you got a shot for 12 Novocain and your jaw gets all crazy and tingly. That’s my hands and my feet all the time. And then when they go out, it’s like when it turns into, 13 like, a block of wood and you can’t feel it at all. That’s what my feet 14 progressed to and so it would be like there’s nothing there, and you can’t even, like, walk until the depth perception [sic]. Your hands, when that 15 happens, we had to put flip handles in my house to open the doors. And 16 trying to use the thumb when my hand does that, it’s just, like, stupid. So, they put me on medicine and the medicine helps keep the, like, the block of 17 wood at bay. But all that tingling and agitation is still there, but the 18 medicine makes me so spacy and so out there that a simple thing like at home, like washing the dishes, I’d wash all the dishes and get all the way 19 through them and realize I didn’t rinse a single one of those dishes. 20 (Id. at 25-26.) 21 Plaintiff testified that she had used a wheelchair and a walker after she sustained 22 fractures to both of her feet, and still used a shower chair because she was unable to stand 23 long enough in the shower to wash her hair, but otherwise did not use any assistive 24 devices. (Id. at 30-31.) She stated that she took Lyrica to keep the “block of wood” 25 feeling at bay but that it made her “spacy” and sleepy. (Id. at 32.) Deanna R. explained 26 that she was not able to tend bar because she could not “run up and down the bar” and if 27 1 picked up a bottle, it would fall right out of her hands and shatter. (Id. at 33.) She 2 stated that her daughter performed the household chores, but Deanna R. helped when she 3 |}could. (Id. at 34.) 4 Vocational expert (“VE”) Ron Fleck also testified at the hearing. (Id. at 36.) He 5 || testified that Plaintiff's past relevant work was as a bartender and general office clerk, 6 || both of which were semi-skilled occupations in the light category. (Id. at 38.)” 7 Referencing the residual functional capacity provided by the state agency medical 8 ||consultants, Drs. Pan and Dwyer, the ALJ posed the following hypothetical question to 9 || the VE: 10 Let’s assume a hypothetical person of the claimant’s age, education, and il with the past work as described. Further assume that this individual has the capacity to lift and carry, push and pull, [twenty] pounds occasionally and 12 [ten] pounds frequently. This person is capable of standing and/or walking six hours and sitting six hours in an eight-hour workday. This person can 13 frequently climb ramps and stairs but only occasionally climb ladders, ropes, 14 and scaffolds. The individual is capable of frequently balancing, stooping, 15 kneeling, crouching, and crawling. This individual can frequently handle, finger, and feel bilaterally. 16 17 (Id. at 39.) The VE testified that such a person could perform both the bartender and 18 general clerk jobs. (Id. at 39-41.) If a reaching limitation was added, such that the 19 ||Person could only reach in all directions frequently, she could still do the bartending job. 0 (Id. at 47.) If the person could only stand or walk for four hours, she could perform work 31 an office clerk but not as a bartender. (Id. at 42.) The VE also stated that a person 9 who could stand or walk for four out of eight hours could perform other jobs in the light 73 category including gate guard, marker, sewing machine operator, and ticket taker. (Id. at 24 25 2%6 '? Light work involves lifting no more than twenty pounds at a time with frequently lifting or carrying of objects weighing up to ten pounds, and either significant walking or standing, or sitting with some 97 || pushing and pulling of arm or leg controls. See 20 C.F.R. $$ 404.1567(b), 416.967(b) (2019). 13 28 19cv1358-W(RBB)

1 42-44.) The VE further testified that if handling, fingering, and feeling could only be 2 || performed “occasionally” rather than “frequently,” the person would not be able to 3 || perform Plaintiffs past work or any work. (Id. at 44.)!° If a person was “off-task” ten 4 || percent or more of the time, this would also preclude any work. (Id.) 5 ||C. ALJ's Decision 6 On July 6, 2018, the ALJ issued a decision finding that Deanna R. had not been 7 under a disability, as defined in the Social Security Act, from her alleged onset date 8 || through the date of the decision. (Id. at 42-51.) ALJ Verne stated that Plaintiff met the 9 insured status requirements of the Social Security Act through December 31, 2020. (Id. 10 117.) He also determined that Plaintiff had not engaged in substantial gainful activity 11 since May 22, 2015, the alleged onset date. (Id. at 118.) The ALJ found that Deanna 12 peripheral neuropathy, history of right leg fracture, and status post-removal of 13 || hardware from her left foot fifth metatarsal were severe impairments, but her migraine 14 || headaches, hepatitis C, Raynaud's syndrome, depression, and anxiety were not severe. 15 || dd. at 118-19.) The ALJ found that, singly or in combination, Plaintiff did not have 16 ||impairments that met or medically equaled a listing. (id. at 120.) He further determined 17 Deanna R. has the residual functional capacity to perform light work with the 18 || following exceptions: she is able to lift, carry, push, and pull twenty pounds occasionally 19 || and ten pounds frequently; she is able to stand and/or walk for six hours in an eight-hour 20 || workday; she is able to sit for six hours in an eight-hour workday; she is frequently able 21 ||to climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; she is occasionally 22 || able to climb ropes, ladders, and scaffolds; and she is frequently able to handle, finger, 23 24 25 36 || “Frequently” is defined as occurring from one-third to two-thirds of an eight-hour workday; “occasionally” means occurring from very little to up to one-third of the workday. SSR 83-10, 1983 97 || WL 31251, at *5, *6 Jan. 1, 1983). 28 19cv1358-W(RBB)

1 and feel bilaterally. (Id. at 121.) The ALJ concluded that Plaintiff could perform her past 2 relevant work as a bartender. (Id. at 124.) 3 On August 8, 2018, Plaintiff requested that the Appeals Council reconsider the 4 ALJ's decision. (Id. at 225-28.) On May 20, 2019, the Office of Appellate Operations 5 notified Deanna R. that the Appeals Council had denied her request for review and that 6 the ALJ's decision was the final decision of the Commissioner in her case. (Id. at 1-3.) 7 II. LEGAL STANDARDS 8 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 9 applicants to seek judicial review of a final agency decision of the Commissioner. 42 10 U.S.C.A. §§ 405(g), 421(d) (West 2011). The scope of judicial review is limited, 11 however, and the denial of benefits "'will be disturbed only if it is not supported by 12 substantial evidence or is based on legal error.'" Brawner v. Sec'y of Health & Human 13 Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 14 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 15 Substantial evidence means "'more than a mere scintilla but less than a preponderance; it 16 is such relevant evidence as a reasonable mind might accept as adequate to support a 17 conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews 18 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the entire 19 record, including the evidence that supports and detracts from the Commissioner's 20 conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 21 1988). If the evidence supports more than one rational interpretation, the court must 22 uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 23 district court may affirm, modify, or reverse the Commissioner's decision. 42 U.S.C.A. § 24 405(g). The matter may also be remanded to the Social Security Administration for 25 further proceedings. Id. 26 27 1 To qualify for disability benefits under the Social Security Act, a claimant must 2 show two things: (1) The applicant suffers from a medically determinable impairment 3 that can be expected to result in death or that has lasted or can be expected to last for a 4 continuous period of twelve months or more; and (2) the impairment renders the 5 applicant incapable of performing the work that he or she previously performed or any 6 other substantially gainful employment that exists in the national economy. See 42 7 U.S.C.A. §§ 423(d)(1)(A), (2)(A) (West 2011). An applicant must meet both 8 requirements to be classified as "disabled." Id. The applicant bears the burden of 9 proving he or she was either permanently disabled or subject to a condition which 10 became so severe as to disable the applicant prior to the date upon which his or her 11 disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 12 The Commissioner makes this assessment by employing a five-step analysis 13 outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 14 (9th Cir. 1999) (describing five steps). First, the Commissioner determines whether a 15 claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. 16 20 C.F.R. § 404.1520(b) (2019). Second, the Commissioner determines whether the 17 claimant has a "severe impairment or combination of impairments" that significantly 18 limits the claimant's physical or mental ability to do basic work activities. If not, the 19 claimant is not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant's 20 impairment is compared to a list of impairments that are presumed severe enough to 21 preclude work; if the claimant's impairment meets or equals one of the listed 22 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 23 functional capacity is assessed and the evaluation proceeds to step four. Id. 24 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 25 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 26 27 1 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 2 shifts to the Commissioner. In step five, the Commissioner must establish that the 3 claimant can perform other work. Id. § 404.1520(g). If the Commissioner meets this 4 burden and proves that the claimant is able to perform other work that exists in the 5 national economy, benefits are denied. Id. 6 III. DISCUSSION 7 Plaintiff argues that the ALJ failed to properly evaluate the opinions of her treating 8 physicians, failed to properly evaluate her residual functional capacity, and failed to 9 present a complete hypothetical question to the VE. (Pl.'s Mot. Attach. #1 Mem. Supp. 10 Summ. J. 13-23, ECF No. 13.) 11 A. Treating Physician Opinions 12 Plaintiff maintains that the ALJ improperly evaluated the opinions of treating 13 physicians Dr. Law and Dr. Reddy. (Id. at 13-18.) Specifically, she contends that the 14 ALJ should have accorded the opinions controlling weight or at least some deference, and 15 he failed to articulate specific and legitimate reasons for giving the opinions reduced 16 weight. (Id.) Defendant counters that the ALJ reasonably found that the medical 17 evidence did not support the functional limitations assessed by Drs. Law and Reddy and 18 better comported with the opinions of the state agency physicians, Dr. Pan and Dr. 19 Dwyer, regarding Plaintiff’s residual range of functioning. (Def.'s Mot. Attach. #1 Mem. 20 Supp. Summ. J. 4-5, ECF No. 14.) Defendant also argues that the ALJ properly found 21 that the efficacy of Plaintiff’s treatment was consistent with his formulation of her 22 residual functional capacity, which was based upon Dr. Pan’s and Dr. Dwyer’s opinions. 23 (Id. at 5-6.) 24 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). 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)G)-(i), (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 4 For claims, such as Plaintiff’ s, filed before March 27, 2017, the standard for evaluating opinion evidence is set forth in 20 C.F.R. § 404.1527(c)(2). For claims filed on or after March 27, 2017, the 97 || rules in 20 C.F.R. § 404.1520c apply. See 20 CER S 404.1527 (2019); 20 C.F.R. § 404.1520c (2019). 28 19cv1358-W(RBB)

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. Law 13 The ALJ described the opinion of Plaintiff's treating primary care physician, Dr. 14 Law, and explained why he gave the opinion little weight: 15 Dr. Law opined that the claimant is able to sit for less than one hour in an eight-hour workday, she must get up from a seated position every [fifteen] 16 minutes and she is able to return to a seated position in less than five 17 minutes, she must elevate both legs six inches or less while sitting, she is able to stand and/or walk for one hour in an eight-hour workday, she is able 18 to lift and carry [ten] pounds occasionally, she is occasionally able to grasp 19 and use her hands for fine manipulations bilaterally, she is frequently able to reach (including overhead) bilaterally, she would need to take unscheduled 20 rest breaks for approximately five minutes approximately every [twenty] 21 minutes, and she is likely to be absent from work as a result of her impairments or treatments three times a month on average [exhibit reference 22 omitted]. Dr. Law’s opinion is not consistent with the medical evidence of 23 record, which indicates that, other than when recovering from her fractures, the claimant remained active, including riding a motorcycle and walking on 24 the beach. 25 (Admin. R. 123, ECF No. 11.) 26 27 1 The ALJ failed to properly consider Dr. Law's opinion and should have accorded 2 her opinion significant, if not controlling, weight. Even assuming the ALJ could properly 3 find that Dr. Law's opinions were not entitled to controlling weight, the factors set forth 4 in 20 C.F.R. § 404.1527(c) should have led the ALJ to give more weight to Dr. Law's 5 opinion than he did. Dr. Law was Deanna R.'s treating primary care physician for the 6 better part of three years, and she saw Plaintiff approximately every six weeks. (See id. 7 at 731; see also id. at 306-09, 321-45, 416-21, 489-90, 648-53, 660-70, 763-68, 774-80, 8 792-97, 807-11, 818-23, 836-41.) Dr. Law therefore "obtained a longitudinal picture" of 9 Plaintiff's impairments that the nonexamining physicians, Drs. Pan and Dwyer, did not 10 possess. See 20 C.F.R. § 404.1527(c)(2)(i) (“When the treating source has seen you a 11 number of times and long enough to have obtained a longitudinal picture of your 12 impairment, we will give the medical source’s medical opinion more weight than we 13 would give it if it were from a nontreating source.”). The "supportability" of Dr. Law's 14 opinion lends further weight to her opinion. See id. § 404.1527(c)(3) (“The more a 15 medical source presents relevant evidence to support a medical opinion, particularly 16 medical signs and laboratory findings, the more weight we will give that medical 17 opinion.”). Plaintiff’s treating physicians, including Dr. Law, believed that Deanna R.’s 18 cryoglobulinemia (the clumping together of abnormal proteins in the blood possibly 19 leading to damage in the skin, joints, nerves, and organs) was the cause of her 20 neuropathy, and her blood tests confirmed the presence of cryoglobulinemia. (Admin. R. 21 387, 420, 731, ECF No. 11.) Plaintiff also exhibited scarring around her ankles from 22 vasculitis and mild synovitis in her joints, and her nerve conduction study showed 23 evidence of polyneuropathy. (Id. at 318, 731.) The "consistency" of Dr. Law's opinion 24 with the record as a whole also merits additional weight being given to it. See 20 C.F.R. 25 § 404.1527(c)(4). Dr. Law’s diagnoses and opinion regarding Plaintiff’s functional 26 27 1 abilities were largely consistent with those of Plaintiff's treating rheumatologist, Dr. 2 Reddy, as well as with Plaintiff's testimony. 3 Because Dr. Law's opinion was contradicted by other medical opinions in the 4 record, those of Dr. Pan and Dr. Dwyer, the nonexamining state agency physicians, the 5 ALJ was required to articulate "specific and legitimate" reasons to reject the treating 6 physician's opinion that were based on substantial evidence in the record. Lester, 81 F.3d 7 at 830-31. He failed to do so. But the ALJ’s sole reason for giving Dr. Law’s opinion 8 little weight was that he found her opinion “not consistent with the medical evidence of 9 record, which indicates that, other than when recovering from her fractures, the claimant 10 remained active, including riding a motorcycle and walking on the beach.” (Admin. R. 11 123, ECF No. 11.) Although there are brief mentions in the record of Plaintiff riding a 12 motorcycle and walking on the beach, the ALJ did not consider these activities in context. 13 For example, although Deanna R. did tell Dr. Friedman that she rode a motorcycle, she 14 also stated that when she did so, she had “issues with her hands” and “difficulty shifting 15 with her left leg,” (see id. at 315), which the ALJ ignored. Similarly, when Plaintiff told 16 her medical providers that she took walks on the beach, she also mentioned that she was 17 “still tired [a lot]” and that she was “unable to walk on the beach barefoot” due to her 18 condition. (Id. at 763, 934.) While Plaintiff did state that she was able to walk several 19 blocks and climb stairs, she also explained to her physician that pain in both of her lower 20 extremities limited her ability to do so. (Id. at 842.) “The Social Security Act does not 21 require that claimants be utterly incapacitated to be eligible for benefits, and many . . . 22 activities may not be easily transferable to a work environment where it might be 23 impossible to rest periodically or take medication.” Garrison, 759 F.3d at 1016 (citing 24 Smolen v. Chater, 80 F.3d 1273, 1285 n.7 (9th Cir. 1996)); see also Vertigan v. Halter, 25 260 F.3d 1044, 1050 (“[T]he mere fact that a plaintiff has carried on certain daily 26 27 1 activities, such as grocery shopping, driving a car, or limited walking for exercise, does 2 not in any way detract from her credibility as to her overall disability.”). 3 The Court finds that the ALJ’s reason for discounting Dr. Law’s opinion, that she 4 “remained active,” was cursory and not supported by substantial evidence in the record. 5 2. Dr. Reddy 6 The ALJ, likewise, gave little weight to the opinion of Plaintiff’s treating 7 rheumatologist, Dr. Reddy: 8 I have given little weight to the opinion of Dana Reddy, M.D., as set forth in the Disability Impairment Questionnaire dated May 29, 2015 [sic]. 9 Dr. Reddy opined that the claimant is able to sit for five to six or more hours 10 in an eight-hour workday, she is able to stand and/or walk for one to two hours in an eight-hour workday, she does not need to avoid continuous 11 sitting, she does not need to elevate her legs while sitting, she must get up 12 from a seated position for five minutes every one to two hours, she is able to lift [ten] pounds frequently, she is able to carry [five] pounds frequently, and 13 she is able to lift and carry [twenty] pounds occasionally, she is occasionally 14 able to grasp, turn, and twist objects bilaterally, she is frequently able to use her arms for reaching (including overhead) bilaterally, and she is 15 never/rarely able to use her hands/fingers for fine manipulations bilaterally, 16 she would need to take unscheduled breaks at unpredictable intervals for five to [fifteen] minutes two to three times per day in an eight-hour workday, and 17 she is likely to be absent from work as a result of her impairments or 18 treatments two or three times a month (Ex. 23F [Disability Impairment Questionnaire completed by Dana Reddy, M.D., Sept. 15, 2016]). Dr. 19 Reddy provided no explanation for the difference between the amount of 20 weight the claimant is able to lift as opposed to the weight the claimant is able to carry on an occasional basis, or for the limitation on reaching. 21 Furthermore, her opinion is inconsistent with the medical evidence of 22 record, which indicates that the claimant was active in her activities of daily living, and she was observed handling objects during her appointment with 23 the consultative psychological evaluation (Ex. 4F, p. 1 [Amended 24 Psychological Testing Report completed by Marcie Goldman, Ph.D., tests administered Sept. 14, 2015]). 25 26 (Admin. R. 124, ECF No. 11.) 27 1 As with Dr. Law’s opinion, even assuming the ALJ could properly find that Dr. 2 Reddy's opinion was not entitled to controlling weight, he should have given more than 3 “little weight” to her opinion based upon the factors set forth in 20 C.F.R. § 404.1527(c). 4 According to the record, Dr. Reddy was Deanna R.'s primary treating rheumatologist for 5 two years, and she saw her on eleven occasions. Dr. Reddy was thus able to obtain a 6 longitudinal picture of Plaintiff's impairments. See 20 C.F.R. § 404.1527(c)(2)(i). 7 Because she was a rheumatologist treating Plaintiff for a condition within her specialty, 8 Dr. Reddy had "reasonable knowledge" of Plaintiff's cryoglobulinemia complaints as 9 contemplated by § 404.1527(c)(2)(ii) as well as the "specialization" discussed in 10 § 404.1527(c)(5). Deanna R.’s laboratory findings, limited sensation in her wrists and 11 ankles, and rash with scarring on her lower extremities provided support for Dr. Reddy’s 12 opinion. (See Admin. R. 739, ECF No. 11; 20 C.F.R. § 404.1527(c)(3).) The 13 "consistency" of Dr. Schulman's opinions with the record as a whole also merits 14 additional weight being given to her opinion because it also comported with the opinion 15 of Dr. Law, Plaintiff’s primary treating physician, and other substantial evidence in the 16 record. See 20 C.F.R. § 404.1527(c)(4). 17 The ALJ was required to articulate "specific and legitimate" reasons based on 18 substantial evidence in the record to reject Dr. Reddy’s opinion. Lester, 81 F.3d at 830- 19 31. He did not meet this standard. The ALJ's finding that Dr. Reddy’s opinion was 20 entitled to little weight because she “provided no explanation for the difference between 21 the amount of weight the claimant is able to lift as opposed to the weight the claimant is 22 able to carry on an occasional basis” is not legitimate. Although lifting and carrying 23 abilities are often paired, each of a claimant’s exertional capacities (sitting, standing, 24 walking, lifting, carrying, pushing, and pulling) are required to be considered separately. 25 See SSR 96-8P, 1996 WL 374184, at *5 (July 2, 1996). By assigning differing weights 26 to what Plaintiff could lift and carry on an occasional basis, Dr. Reddy was properly 27 1 assessing a claimant’s functional capacity. The ALJ’s criticism of Dr. Reddy’s opinion 2 ignores the distinctions between lifting and carrying objects, and the ALJ’s conclusion is 3 without substantial evidence to support it. It is also unclear why Dr. Reddy’s finding that 4 Plaintiff had a reaching limitation diminished her opinion, and the ALJ did not provide 5 any rationale for this in his decision. The Court has already addressed, with respect to 6 Dr. Law’s opinion, that Plaintiff’s report of activities, including riding a motorcycle and 7 walking on the beach, does not necessitate a finding that Plaintiff is not disabled. The 8 ALJ’s statement that Deanna R. was “observed handling objects during her appointment 9 with the consultative psychological evaluat[or]” lacked specificity, and Plaintiff’s 10 statement to the psychologist that her “hand problems come and go and that today is a 11 good day,” (see Admin. R. 363, ECF No. 11), was not sufficiently probative to 12 undermine the doctor’s opinion. There is other ample evidence in the record of Plaintiff 13 experiencing problems with her hands. (See id. at 25-26 (flip handles installed on doors 14 at home); 33 (unable to hold a bottle); 327 (unable to open bottles or pick things up); 339 15 (loss of sensation in hands, able to pick up a roll of quarters but not a single quarter); 363 16 (able to do chores only when hands not hurting).) The ALJ selectively relied on some 17 entries in the record and ignored many others; therefore, substantial evidence does not 18 support discounting Dr. Reddy’s opinion. See, e.g., Holohan v. Massanari, 246 F.3d 19 1195, 1207 (9th Cir. 2001) (finding error when the ALJ selectively relied on certain 20 medical records while excluding others). 21 In short, the ALJ’s reasons for discounting Dr. Reddy’s opinion were not 22 sufficiently legitimate and were not supported by substantial evidence in the record. 23 3. Efficacy of Plaintiff’s Treatment 24 Defendant contends that the efficacy of Plaintiff’s treatment was consistent with 25 the residual range of functioning assessed by Drs. Pan and Dwyer, the state agency 26 nonexamining physicians, that was relied on by the ALJ. (Def.'s Mot. Attach. #1 Mem. 27 1 Supp. Summ. J. 5-6, ECF No. 14.) Specifically, Defendant notes that throughout the 2 alleged disability period, Plaintiff reported that ibuprofen and gabapentin relieved her 3 symptoms. (Id. at 6.) To the contrary, the record makes it clear that Plaintiff’s 4 medications only “took the edge off” her discomfort but did not relieve her symptoms. 5 For example, Dr. Law noted that Deanna R.’s neuropathy was “controlled somewhat,” 6 but not fully, by gabapentin, (Admin. R. 420, ECF No. 11), which she did not take during 7 the day because it made her sleepy. (Id. at 321.) Plaintiff told Dr. Reddy that despite 8 taking 800 milligrams of Motrin for pain control, “sometimes the shooting pain and 9 muscle spasms are so severe she cannot sleep.” (Id. at 715.) It is also apparent in the 10 record that Plaintiff reported that medications caused significant side effects that the ALJ 11 did not account for in relying on the medical opinions of Drs. Pan and Dwyer instead of 12 the treating physicians. (See, e.g., id. at 648 (stating gabapentin caused sleepiness); 834 13 (reporting that Lyrica helped more than gabapentin but caused lightheadedness); see also 14 id. at 26 [“[T]he medicine made me so spacy and so out there . . . .”).) It was improper 15 for the ALJ to rely on the effectiveness of Plaintiff’s treatment and give greater weight to 16 the opinions of the nonexamining physicians over the treating physicians, particularly 17 when he ignored the side effects of those medications. 18 Under the standards in effect at the time Plaintiff filed her claim, (see 20 C.F.R. § 19 404.1527(c)(2)), Deanna R.’s treating physicians’ opinions were entitled to more weight 20 than the ALJ accorded to them. The ALJ erred by failing to give sufficient weight to 21 these opinions and by failing to articulate specific and legitimate reasons, based on 22 substantial evidence in the record, to discount them. "If additional proceedings can 23 remedy defects in the original administrative proceedings, a social security case should 24 be remanded." Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). The Court 25 recommends that this matter be remanded for the ALJ to provide appropriate 26 consideration to Dr. Law's and Dr. Reddy’s opinions. 27 1 B. Residual Functional Capacity 2 Plaintiff contends that the ALJ erred in his formulation of her residual functional 3 capacity ("RFC") by not including the findings and opinions of her treating physicians. 4 (Pl.'s Mot. Attach. #1 Mem. Supp. Summ. J. 19-21, ECF No. 13.) Defendant responds 5 that the ALJ properly assessed Plaintiff's RFC and his finding at step four, that Plaintiff 6 could perform her past relevant work as a bartender, was proper. (Def.'s Mot. Attach. #1 7 Mem. Supp. Summ. J. 9-10, ECF No. 14.) 8 Residual functional capacity is defined as “the most you can still do despite your 9 limitations.” See 20 C.F.R. § 404.1545(a)(1) (2019). “Ordinarily, RFC is the 10 individual’s maximum remaining ability to do sustained work activities in an ordinary 11 work setting on a regular and continuing basis, . . . mean[ing] 8 hours per day, for 5 days 12 a week, or an equivalent work schedule." SSR 96-8P, 1996 WL 374184, at *2 13 (emphases omitted). The RFC assessment is first used at step four of the sequential 14 evaluation process to decide if the claimant can perform her past relevant work. 20 15 C.F.R. § 404.1545(a)(5)(i). If the ALJ decides that the claimant cannot perform her past 16 relevant work, the same RFC assessment is used at step five of the sequential evaluation 17 process to decide if the claimant can adjust to any other work that exists in the national 18 economy. Id. § 404.1545(a)(5)(ii). In determining a claimant’s RFC at steps four and 19 five, the ALJ must consider all relevant evidence in the record, including medical 20 history; medical signs and laboratory findings; lay evidence; the effects of treatment, 21 including disruption to routine and side effects of medication; and the effects of 22 symptoms, including pain. SSR 96-8P, 1996 WL 374184, at *5; see also Robbins v. 23 Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 24 The RFC determination addresses both the remaining exertional and nonexertional 25 capacities of the claimant. SSR 96-8P, 1995 WL 374184, at *5. "Exertional" capacities 26 relate to an individual's physical strength and include the claimant's remaining abilities 27 1 with respect to sitting, standing, walking, lifting, carrying, pushing, and pulling. Id. 2 "Nonexertional" capacities do not depend on physical strength but rather assess the 3 individual's remaining abilities in the following areas: postural (e.g., stooping and 4 climbing), manipulative (e.g., reaching and handling), visual (seeing), communicative 5 (hearing and speaking), mental (e.g., understanding and remembering instructions and 6 responding appropriately to supervision), and ability to tolerate environmental factors 7 (e.g., tolerance of temperature extremes). Id. at *6. The determination of RFC is 8 reserved to the Commissioner. Id. § 404.1527(d)(2). But the RFC assessment must 9 always consider and address medical source opinions and, if the RFC conflicts with an 10 opinion from a medical source, the adjudicator must explain why the opinion was not 11 adopted. SSR 96-8P, 1995 WL 374184, at *7. 12 Here, the ALJ found that Plaintiff has the residual functional capacity to perform 13 light work with the following exceptions: 14 [T]he claimant is able to lift, carry, push, and pull [twenty] pounds occasionally and [ten] pounds frequently; she is able to stand and/or walk for 15 six hours in an eight-hour workday with normal breaks; she is able to sit for 16 six hours in an eight-hour workday with normal breaks; she is frequently able to climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; she 17 is occasionally able to climb ropes, ladders, and scaffolds; and she is 18 frequently able to handle, finger, and feel bilaterally. 19 (Admin. R. 121, ECF No. 11.) The ALJ’s determination of Plaintiff’s RFC mirrors the 20 opinions of the state agency physicians, Drs. Pan and Dwyer, regarding Plaintiff’s 21 functional capacity. (See id. at 58-60, 89-91.) 22 The Court finds that substantial evidence in the record does not support the RFC 23 formulated by the ALJ. Specifically, substantial evidence does not support the ALJ’s 24 finding that Deanna R. could stand or walk for six hours in an eight-hour workday or 25 that she is able to handle, finger, and feel on a frequent basis, or up to two-thirds of a 26 workday. Additionally, the ALJ did not provide due consideration to the opinions of 27 1 treating physicians Drs. Law and Reddy. Had he done so, he would have arrived at a 2 comprehensive assessment of Plaintiff’s RFC that addressed all the evidence in the 3 record. Specifically, Dr. Reddy found that while Plaintiff could sit for five to six hours 4 in an eight-hour workday, she could only stand or walk for one to two hours. (See id. at 5 741.) Dr. Law similarly found that Plaintiff could stand or walk for approximately one 6 hour a day. (Id. at 733.) The ALJ should have incorporated these findings into his RFC 7 analysis because they were supported by substantial evidence in the record. Both 8 treating physicians also found that Plaintiff could grasp only occasionally and could only 9 occasionally (per Dr. Law) or never (per Dr. Reddy) perform fine manipulations with 10 her hands and fingers. (See id. at 734, 742.) These restrictions were also supported by 11 substantial evidence in the record and should have been included in determining 12 Plaintiff’s RFC. The ALJ additionally failed to account for any limitations that may 13 have resulted from the side effects of Deanna R.’s medications or her diagnosis of 14 Raynaud’s syndrome. See Robbins, 466 F.3d at 883 (stating that the RFC determination 15 should consider side effects of medication); SSR 96-8P, 1996 WL 374184, at *5 16 (requiring ALJ to consider the limitations imposed by all of the claimant's impairments, 17 including those that are not severe). 18 The ALJ erred by according the opinions of nonexamining physicians Drs. Pan 19 and Dwyer more weight than those of the treating physicians when he assessed 20 Plaintiff’s RFC. Dr. Pan's and Dr. Dwyer's opinions did not constitute substantial 21 evidence because neither of their opinions was based on independent clinical findings. 22 Neither doctor offered a different diagnosis of Plaintiff's condition, and neither of their 23 opinions was based on objective medical tests that the treating doctors did not consider. 24 See Orn, 495 F.3d at 632 ("When a [nontreating] physician relies on the same clinical 25 findings as a treating physician, but differs only in his or her conclusions, the 26 conclusions of the [nontreating] physicians are not 'substantial evidence.'"); see also 27 1 Lester, 81 F.3d at 831 ("The opinion of a nonexamining physician cannot by itself 2 constitute substantial evidence that justifies the rejection of either an examining 3 physician or a treating physician.") (citation and emphasis omitted). 4 The ALJ’s RFC assessment is adequate only if it considers all relevant evidence in 5 the record. Robbins, 466 F.3d at 883. That is not the case here. Therefore, Plaintiff's 6 RFC, upon remand, should be reevaluated. 7 C. Hypothetical Question to the VE 8 “In order for the testimony of a VE to be considered reliable, the hypothetical 9 posed must include all of the claimant’s functional limitations . . . supported by the 10 record.” Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (internal quotations and 11 citation omitted). “[A]n ALJ is not free to disregard properly supported limitations.” 12 Robbins, 466 F.3d at 886. Notwithstanding Plaintiff’s argument that the ALJ failed to 13 present a complete hypothetical question to the VE, (see Pl.'s Mot. Attach. #1 Mem. 14 Supp. Summ. J. 21-23, ECF No. 13), the ALJ modified his original hypothetical 15 question several times and presented multiple hypothetical questions to the VE. (See 16 Admin. R. 41-46, ECF. No. 11.) Thus, on remand, the ALJ will be able to revisit his 17 hypothetical questions to the VE and ensure that they accurately depict Plaintiff’s 18 residual functional capacity. Based on the current state of the record, the ALJ’s reliance 19 on the VE’s response to his primary hypothetical question to support his step four 20 determination that Plaintiff could perform her past relevant work as a bartender was 21 error. 22 III. CONCLUSION 23 For the reasons stated above, the Court recommends that Plaintiff's motion for 24 summary judgment be GRANTED, Defendant's cross-motion for summary judgment be 25 DENIED, and the case be remanded for further proceedings. 26 / / / 27 1 This Report and Recommendation will be submitted to the Honorable Thomas J. 2 || Whelan, United States District Court Judge assigned to this case, pursuant to the 3 || provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the 4 || Court and serve a copy on all parties on or before April 29, 2020. The document should 5 || be captioned “Objections to Report and Recommendation.” Any reply to the objections 6 ||shall be served and filed on or before May 20, 2020. The parties are advised that failure 7 || to file objections within the specified time may waive the right to appeal the district 8 ||court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 9 || Dated: March 30, 2020 ) | 2, 10 Hon. Ruben B. Brooks 1] United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 30 28 19cv1358-W(RBB)