1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 BRADLEY A. RIDDLE, Case No. 2:16-cv-02003-JAD-BNW 5 Plaintiff 6 v. Order Granting Motion 7 NANCY A. BERRYHILL, Acting to Remand, Denying Commissioner of Social Security, Cross-Motion to Affirm, and 8 Remanding Case Defendant 9 [ECFNOS.16,17] 10 11 This is Plaintiff Bradley A. Riddle’s action for judicial review of the Commissioner of 12 Social Security’s denial of his application for supplemental security incomeunder Title XVI of 13 the Social Security Act. Because I find that the ALJ erred in two respects, and those errors were 14 not harmless, I grant plaintiff’s motion for reversal or remand,1 deny theCommissioner’s cross- 15 motion to affirm,2 and remand this case for further proceedings. 16 BACKGROUND 17 On March 12, 2012,plaintiff applied for supplemental security income under TitleXVI of 18 the Act, alleging an onset date of July 2, 2006.3 Plaintiff’s claim was denied initiallyand on 19 reconsideration.4 AnAdministrative Law Judge (ALJ) conducted a hearing onJanuary 14, 2015.5 20 On February 4, 2015, the ALJ issued a decision finding that plaintiff is not disabled.6 The ALJ’s 21 decision became the Commissioner’s final decision when the Appeals Council denied reviewon 22 23 1 ECF No. 16. 24 2 ECF Nos. 17 and 18. 25 3 AR 49–52, 137–145. AR refers to the Administrative Record in this matter. See Notice of Manual Filing,ECF No. 11. 26 4 AR 64–67, 71–74. 27 5 AR 32–48. 1 June 23, 2016.7 A month later, plaintiff commenced this action for judicial review under 42 2 U.S.C. §§ 405(g).8 3 DISCUSSION 4 I. Standards of Review 5 A. The underlying disability-evaluation process 6 Anindividual seeking disability benefits has the initial burden of proving disability.9 To 7 meet this burden, the individual must demonstrate the “inability to engage in any substantial 8 gainful activity by reason of any medically determinable physical or mental impairment which 9 can be expected . . . to last for a continuous period of not less than 12 months”10 byproviding 10 “specific medical evidence” in support of his claim for disability.11 If the individual establishes 11 an inability to perform his prior work, then the burden shifts to the Commissioner to show that the 12 individual can perform other substantial gainful work that exists in the national economy.12 13 The ALJ follows a five-stepsequential evaluation process in determining whether an 14 individual is disabled.13 If at any step the ALJ determines that he can make a finding of disability 15 or nondisability, a determination will be made, and no further evaluation is required.14 Step one 16 requires the ALJ to determine whether the individual is engaged in substantial gainful activity 17 (SGA).15 SGA is defined as work activity that is both substantial and gainful; it involves doing 18 significant physical or mental activities usually for pay or profit.16 If the individual is engaged in 19 20 7 AR 1–6. 21 8 See IFP App.,ECF No. 1. 22 9 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). 23 10 42 U.S.C. § 423(d)(1)(A). 24 11 20 C.F.R. § 404.1514. 12 Reddick v. Chater, 157 F.3d 715, 721(9th Cir. 1998). 25 13 See20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 26 14 See20 C.F.R. § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 27 15 20 C.F.R. § 404.1520(b). 1 SGA, then a finding of not disabled is made. If the individual is not engaged in SGA, then the 2 analysis proceeds to step two. 3 Step two addresses whether the individual has a medically determinable impairment that 4 is severe or a combination of impairments that significantly limits him from performing basic 5 work activities.17 An impairment or combination of impairments is not severe when medical and 6 other evidence establishes only a slight abnormality or a combination of slight abnormalities that 7 would have no more than a minimal effect on the individual’s ability to work.18 If the individual 8 does not have a severe medically determinable impairment or combination of impairments, then a 9 finding of not disabled is made. If the individual has a severe medically determinable impairment 10 or combination of impairments, then the analysis proceeds to step three. 11 Step three requires the ALJ to determine whether the individual’s impairments or 12 combination of impairments meet or medically equal the criteria of an impairment listed in 20 13 C.F.R. Part 404, Subpart P, Appendix 1.19 If the individual’s impairment or combination of 14 impairments meets or equals the criteria of a listing and the duration requirement,20 then a finding 15 of disabled is made.21 If the individual’s impairment or combination of impairments does not 16 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 17 to step four. 18 Before moving to step four, however, the ALJ must first determine the individual’s 19 residual functional capacity (RFC), which is a function-by-function assessment of the individual’s 20 ability to do physical and mental work-related activities on a sustained basis despite limitations 21 22 17 Id.§ 404.1520(c). 23 18 Id.§ 404.1521; see also Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p. The SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. Comm’r of 24 Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see also20 C.F.R. § 402.35(b)(1). They 25 are entitled to some deference if they are consistent with the Social Security Act and regulations. Bray, 554 F.3d at 1223 (finding ALJ erred in disregarding SSR 82-41). 26 19 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. 27 20 20 C.F.R. § 404.1509 1 from impairments.22 In makingthis finding, the ALJ must consider all the relevant evidence, 2 such as all symptoms and the extent to which the symptoms can reasonably be accepted as 3 consistent with the objective medical evidence and other evidence.23 To the extent that 4 statements about the intensity, persistence, or functionally limiting effects of pain or other 5 symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on 6 the credibility of the individual’s statements based on a consideration of the entire case record. 7 The ALJ must also consider opinion evidence in accordance with the requirements of 20 C.F.R. § 8 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 9 Step four requires the ALJ to determine whether the individual has the RFC to perform his 10 past relevant work (PRW).24 PRW means work performed either as the individual actually 11 performed it or as it is generally performed in the national economy within the last 15 years or 15 12 years before the date that disability must be established. In addition, the work must have lasted 13 long enough for the individual to have learnedthe job andperformed anSGA.25 If the individual 14 has the RFC to perform his past work, then a finding of not disabled is made. If the individual is 15 unable to perform any PRW or does not have any PRW, then the analysis proceeds to step five. 16 The fifth and final step requires the ALJ to determine whether the individual can do any 17 other work,considering his RFC, age, education, and work experience.26 If he can do other work, 18 then a finding of not disabled is made. Although the individual generally continues to have the 19 burden of proving disability at this step, a limited burden of going forward with the evidence 20 shifts to the Commissioner. The Commissioner is responsible for providing evidence that 21 demonstrates that other work exists in significant numbers in the national economy that the 22 individual can do.27 23 24 22 See20 C.F.R. § 404.1520(e); see alsoSSR 96-8p. 23 20 C.F.R. § 404.1529; see alsoSSRs 96-4p and 96-7p. 25 24 20 C.F.R. § 404.1520(f). 26 25 20 C.F.R. §§ 404.1560(b) & 404.1565. 27 26 20 C.F.R. § 404.1520(g). 1 B. Summary of the ALJ’s five-step analysis of Riddle’s claim 2 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 3 §§ 404.1520, 416.920.28 At step one, the ALJ found that plaintiff had not engaged in substantial 4 gainful activity since the application date of March 12, 2012.29 At step two, the ALJ found that 5 he had a medically determinable “severe” impairment of degenerative disc disease of the cervical 6 and lumbar spine.30 At step three, the ALJ found that the plaintiff did not have an impairment or 7 combination of impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 8 404, Subpart P, Appendix 1.31 At step four, the ALJ found that hehas the RFC to perform 9 medium work as defined in 20 C.F.R. §§ 416.967(c).32 The ALJ foundthat plaintiff has no 10 PRW.33 The ALJ noted that plaintiff was born on November 4, 1968, and was 43 years old, 11 which is defined as a younger individual age18–49,on the alleged disability-onset date.34 The 12 ALJ further stated that the plaintiff has at least a high-school education and is able to 13 communicate in English.35 Moreover, the ALJ found transferability of job skills is not an issue 14 because plaintiff does not have PRW.36 Considering the claimant’s age, education, work 15 experience, and the residual functional capacity, the ALJ found there are jobs that exist in 16 significant numbers in the national economy that the claimant can perform.37 So, the ALJ 17 concluded that the plaintiff was not under a disability at any time from March 12, 2012,through 18 the date of the February 4, 2015, decision.38 19 28 AR 16–23. 20 29 AR 18. 21 30 Id. 22 31 AR 18. 23 32 Id. 24 33 AR 23. 34 Id. 25 35 Id. 26 36 Id. 27 37 Id. 1 C. General standards for judicial review of a Commissioner’s decision 2 Administrative decisions in social-security disability-benefits cases are reviewed under 42 3 U.S.C. § 405(g),39 whichreads: “Any individual, after any final decision of the Commissioner of 4 Social Security made after a hearing to which he was a party, irrespective of the amount in 5 controversy, may obtain a review of such decision by a civil action . . . brought in the district 6 court of the United States for the judicial district in which the plaintiff resides.” The court may 7 enter “upon the pleadings and transcripts of the record, a judgment affirming, modifying, or 8 reversing the decision of the Commissioner of Social Security, with or without remanding the 9 cause for a rehearing.”40 The Ninth Circuit reviews a decision affirming, modifying, or reversing 10 a decision of the Commissioner de novo.41 11 The Commissioner’s findings of fact are conclusive if supported by substantial 12 evidence.42 But thosefindings may be set aside if they are based on legal error or not supported 13 by substantial evidence.43 The Ninth Circuit defines substantial evidence as “more than a mere 14 scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.”44 In determining whether the Commissioner’s 16 findings are supported by substantial evidence, the court “must review the administrative record 17 as a whole, weighing both the evidence that supports and the evidence that detracts from the 18 Commissioner’s conclusion.”45 19 20 21 22 39 See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 40 Id. 23 41 See Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 24 42 See42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). 25 43 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 26 44 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 27 1211, 1214 n.1 (9th Cir. 2005). 1 Under the substantial-evidence test, findings must be upheld if supported by inferences 2 reasonably drawn from the record.46 When the evidence will support more than one rational 3 interpretation, the court must defer to the Commissioner’s interpretation.47 Consequently, the 4 issue before the court is not whether the Commissioner could reasonably have reached a different 5 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent 6 on the ALJ to make specific findings so that the court neednot speculate about the basis of the 7 findings when determining if the Commissioner’s decision is supported by substantial evidence. 8 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 9 appropriate, should include a statement of subordinate factual foundations on which the ultimate 10 factual conclusions are based.”48 Mere cursory findings of fact without explicit statements about 11 what portions of the evidence were accepted or rejected are not sufficient.49 12 II. Analysis 13 A. The ALJ’s discounting of Dr. Larson’s opinion 14 Plaintiff first argues that the ALJ improperly evaluatedthe opinion of examining 15 physicianDr. Larsonby not providing specific and legitimate reasons for rejectingher opinion. 16 Dr. Larson, who conducted a consultative psychological evaluation of plaintiffon June 13, 2013, 17 opined that he had developed depression and frustration secondary to physical symptoms.50 She 18 diagnosed him with a mood disorder due to a general medical condition with depressive features 19 and a pain disorder associated with both psychological factors and a general medical condition.51 20 The ALJ gave little weight to Dr. Larson’sopinionbecause, as the ALJ explained,it was 21 primarily dependent on the plaintiff’s physical concerns,his self-reports, and a one-time 22 23 46 Batson, 359 F.3d at 1193. 24 47 See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). 25 48 Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 26 49 Id. 27 50 AR 289. 1 evaluation.52 The Commissioner responds that the ALJ properly evaluated and discountedDr. 2 Larson’s opinions. 3 The ALJ must evaluate every medical opinion received according to a list of factors set 4 forth by the Social Security Administration.53 But the ALJ is not required to provide a robust 5 discussion of every piece of evidence.54 TheALJ must consider all the relevant evidence in the 6 record and may not point to only those portions of the record that bolster his findings.55 And to 7 reject an examining physician’s opinion, the ALJ must provide “specific and legitimate reasons 8 that are supported by substantial evidence in the record.”56 9 Adoctor’s clinical interview and Mental Status Examination (MSE) are objective 10 measures,57 soan ALJ cannot discount a doctor’s clinical interview and MSE as self-reports (i.e., 11 subjective medical evidence).58 An ALJ also may not discredit a medical opinion solely because 12 the provider examined the claimant only once.59 Finally,an error is harmless if it is 13 “inconsequential to the ultimate nondisability determination.”60 An error is not harmless unless 14 15 16 52 AR 18. 17 53 20 C.F.R. § 416.927(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 100 18 F.3d 1462, 1464 (9th Cir. 1996)). 19 54 See, e.g., Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (stating that “in interpreting the evidence and developing the record, the ALJ does not need to ‘discuss every 20 piece of evidence’” (citations omitted)). 21 55 See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207–08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some entries in plaintiff’s records while ignoring others). 22 56 Regennitter v. Comm’r. of Soc. Sec. Admin., 166 F.3d 1294, 1298–99 (9th Cir. 1999) (citing 23 Lester v. Chater,81 F.3d 821, 830–31 (9th Cir. 1996)). 57 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). 24 58 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (finding that the ALJ erred by 25 discounting a medical opinion on the grounds that it was too heavily based on plaintiff’s self- reports when the opinion discussed the provider’s observations, diagnoses, and prescriptions in 26 addition to self-reports). 27 59 See 20 C.F.R. § 416.927(c). 1 the reviewing court “can confidently conclude that no ALJ, when fully crediting the [evidence], 2 could have reached a different disability determination.”61 3 Here, the ALJ erred by improperly discounting Dr. Larson’s opinion for relying on 4 subjective complaints. The ALJ failed to recognize that Dr. Larson did in fact rely on both 5 objective medical evidence (i.e., clinical interview, Mental Status Examination)and subjective 6 complaints. The ALJ also erredby discounting Dr. Larson’s opinion for onlyexaminingPlaintiff 7 oncegiven that a one-time evaluation is not a legally sufficient reason for discounting a 8 physician’s opinion. These legal errors are not harmless because if Dr. Larson’s opinion was 9 fully credited, an ALJ “could have reached a different disability determination.”62 10 The ALJ evaluated and discounted Dr. Larson’s opinion because of its subjective nature 11 and found that the plaintiff was not restricted by any mental health limitations.63 According to 12 the ALJ, Dr. Larson’s reliance on subjective complaints indicated that there was a lack of 13 objective medical evidence to find a medically determinable mental impairment.64 However, Dr. 14 Larson did not exclusively rely on the plaintiff’s subjective complaints. She also performed a 15 clinical interview and an MSE65 to diagnoseplaintiff with (1) a pain disorder associated with both 16 psychological factors and a general medical condition chronic and, (2)a mood disorder due to a 17 general medical condition with depressive features.66 Dr. Larson also opined that chronic-pain 18 and narcotic-pain medication would diminish plaintiff’s concentration, persistence, and pace.67 19 She further concluded that he hada Global Assessment of Functioning (GAF) of49, which 20 21 22 23 61 Id.at 1056. 24 62Id. 63 AR 18. 25 64 Id. 26 65 AR 285–89. 27 66 AR 289. 1 indicates severe symptoms.68 In light of all this objective evidence,the ALJ erred by discounting 2 Dr. Larson’s clinical interview and MSE as founded on merely subjective complaints. 3 Nor did the ALJ properly discount Dr. Larson’s opinion because she evaluatedplaintiff 4 only once.69 The fact Dr. Larson evaluated plaintiff one timeis not a legally sufficient basis to 5 reject heropinion.70 This just-once reasoning is also inconsistent with the ALJ’s decision to 6 assign “great weight” to the opinions of examining orthopedic surgeon Dr. Jerrold Sherman who, 7 like Dr. Larson, only examined plaintiff just one time.71 8 The Commissioner argues the ALJ properly discounted Dr. Larson’s opinion because, in 9 part, Dr. Larson’s opinion “was not consistent with Plaintiff’s own allegations at the consultative 10 examination[with Dr. Larson].” The Commissioner cites to page 18 of the administrative record 11 but does not quote the ALJ. The court was unable to identify this ALJ comment in thedecision. 12 The Commissioner additionallyargues that the ALJ properly discounted Dr. Larson’s opinion 13 because plaintiff’s testimony at the hearing was inconsistent with her findings: the plaintiff was 14 able at the hearing “to focus and pay attention” and “concentrate well enough to answer [the 15 ALJ’s] questions in detail . . . .”72 16 A physician’s opinion may be rejected if it is based on a claimant’s subjective complaints 17 that were properly discounted.73 However, when an opinion is not more heavily based on a 18 patient’s self-reports than on clinical observations, there is no evidentiary basis toreject the 19 opinion.74 A clinical interview and MSEare objective measures and cannot be discounted as 20 “self-report[s].”75 Here, the ALJ made a specific finding that the medical source, Dr. Larson, 21 68 AR 289. 22 69 AR 18. 23 70 See 20 C.F.R. § 416.927(c). 24 71 AR 21. 25 72 AR 22. 73 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. 26 Admin., 169 F.3d 595, 602 (9th Cir. 1999). 27 74 Ghanim, 763 F.3d at 1162; Ryan,528 F.3d at 1199–1200. 1 relied on plaintiff’s self-reports, but the record reflects that Dr. Larsonalso reliedon objective 2 medical evidence in conductingboth a clinical interview and MSE. So, although the ALJ 3 provided specific reasons for discounting Dr. Larson’s opinion, thosereasons either did not 4 account for the fact that Dr. Larson alsorelied on objective medical evidenceor are a legally 5 insufficient reason todiscount a physician’s opinion. I thus find that the ALJ did not provide 6 specific and legitimate reasons supported by substantial evidence in discounting Dr. Larson’s 7 opinion. This legal error is notharmless because,if Dr. Larson’s opinion were fully credited, an 8 ALJ “could have reached a different disability determination.”76 9 b. Severity of plaintiff’s headaches 10 Plaintiff next argues that the ALJ improperly rejected his migraines77 as non-severe. The 11 ALJ found there was no objective medical evidence to support restrictions of any kind stemming 12 from the plaintiff’s headaches. The ALJ also found the claimant’s headaches were non-severe 13 because they did not affect his ability to perform basic work activities more thanminimally. 14 Plaintiff argues that this finding is not supported by substantial evidence and that the ALJ should 15 evaluate the impact of his headaches on his RFC. The Commissioner responds that the ALJ 16 properly evaluated the plaintiff’s headaches because there was no objective evidence to support 17 work-related functional limitations and because the ALJ was not required to consider a brain MRI 18 that the plaintiff underwent. 19 Step two of the five-step evaluation process establishes a de minimis threshold for 20 determining whether a medically determinable impairment or combination of impairments is 21 severe.78 An ALJ may find a medically determinable impairment or combination of impairments 22 non-severe “‘only if the evidence establishes a slight abnormality that has no more than a minimal 23 24 76 Stout, 454 F.3d at 1056. 25 77 Plaintiff uses the term “migraines” whereas the ALJ and the Commissioner use the term 26 “headaches[.]” Medical records in the administrative record use the terms “migraine[,]” AR 220, “cervicogenic migraines[,]” AR 223, “headaches (Cervicogenic),” AR 224, “headaches,” AR 291, 27 and “migraine control,” AR 293. The court uses the term the ALJ uses in his decision. 1 effect on an individual’s [physical or mental] ability to work.’”79 Basic work activities include 2 physical functions like walking, standing, and carrying as well as the capacity to see, hear, speak, 3 understand, remember simple instructions, respond appropriately to work situations, and deal 4 with changes in a routine work setting.80 5 An ALJ may not discredit a claimant’s symptom testimony and deny benefits solely 6 because the degree of the symptoms alleged is not supported by objective medical evidence.81 7 But objective medical evidence is a relevant factor—along with the medical source’s information 8 about the claimant’s pain or other symptoms—in determining the severity of a claimant’s 9 symptoms and their disabling effects.82 And when concluding a claimant’s impairment or 10 combination of impairments is not severe, the ALJ must demonstrate his conclusion is “clearly 11 established by medical evidence.”83 Wherethere are discrepancies or ambiguities in the record, 12 the ALJ is responsible for resolving both conflicts in medical testimony and ambiguities.84 13 Finally, if there is any error in the ALJ’s finding at step two, it is harmless if all impairments, 14 both severe and non-severe, are considered when determiningthe plaintiff’s RFC.85 Otherwise, 15 an RFC that fails to take into account plaintiff’s limitations is defective.86 16 Here, at step two of the analysis, the ALJ found the plaintiff’s headaches non-severe 17 because of their minimal impact on his ability to perform basic work activities87 and due to a lack 18 19 79 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290) 20 (emphasis added)). 21 80 20 C.F.R. § 416.921(b); Tagger v. Astrue, 536 F.Supp.2d 1170, 1179 (9th Cir. 2008). 22 81 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346–47 (9th Cir. 1991); Fair v. Bowen,885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 23 680. 24 82 Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). 83 S.S.R. 85-28. 25 84 Reddick, 157 F.3d at 723 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 26 85 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 27 86 Samples v. Commissioner of Social Sec. Admin., 466 Fed. Appx. 584, 586 (9th Cir. 2012). 1 of objective medical evidence to support restrictions of any kind.88 The ALJ later discusses a 2 negative brain CT that the plaintiffunderwent that was noted in a report completed byDr. Keith 3 S. Blum, D.O.,who recommended that the plaintiff undergo updated cervical-spine and lumbar- 4 spine MRIs; the ALJ does not, however, discuss headaches within the scope of the negative brain 5 CT.89 6 As early as January 30, 2007, Dr. Russell J. Shah, a neurologist and plaintiff’s treating 7 physician for approximately three years,diagnosed him with cervicogenic migraines, a 8 concussion unspecified, a closed-head injury, and post-concussive syndrome.90 On June 18, 9 2007, Dr. Shah opined that the plaintiff suffered from migraines and head-pain syndrome, mood 10 disorder secondary to chronic head and neck etiology.91 Dr. Shahrecommended various pain 11 medication for the migraines,the use of a headache calendar, the use of Werner Balance physical 12 therapy to help alleviate dizziness, and a referral toamigraineclinic.92 On May 6, 2008, Dr. 13 Yoon-Hee Cha evaluated plaintiff at UCLA Medical Center and noted a two-year history of 14 cognitive dysfunction and headaches.93 Dr. Cha prescribed pain medications for the migraines 15 and a psychological evaluationfor adjustment disorder leading to depression and anxiety.94 On 16 July 1, 2009, Dr. Marjorie Belskydiagnosed plaintiff with post-concussive syndrome with central 17 pain components.95 Two months later, Dr. Shah found that plaintiff had to wear sunglasses due to 18 light sensitivityand that he suffered from a traumatic brain injury with axonal shearing.96 19 20 21 88 Id. 22 89 AR 21. 23 90 AR 217. 24 91 AR 232. 92 AR 224, 232. 25 93 AR 291. 26 94 AR 293. 27 95 AR 295. 1 Examining and treating physicians continued to diagnose plaintiff with migraines, 2 photophobia, insomnia, and memory loss from 2011 through 2014.97 Plaintiff complainedof 3 headaches and difficulty tolerating lights and sounds to examining physician Dr. Larson during 4 her psychological evaluation on June 13, 2013. In this same consultation, Dr. Larson opined that 5 plaintiff’s “ability to tolerate work setting stressors would be fully dependent upon his physical 6 concerns.”98 Further, a brain MRI performedon December 15, 2013, at University Medical 7 Center of Southern Nevada indicated “small chronic microhemorrhages with the right postcentral 8 gyrus and left parietal robe.”99 These clinical records and imaging studies reveal objective 9 evidence of a severe medical impairment. But plaintiff completed brain CTs on July 2, 2006,and 10 on February 17, 2014,at University Medical Center of Southern Nevadaand Mountain View 11 Hospital, respectively, with normal findings.100 12 This medical evidence in the record reveals conflicting conclusions about the headaches. 13 Whenthere is conflicting evidence in the medical record, the ALJ is required to acknowledge and 14 resolve these conflicts. A resolution, however,is not the equivalent offinding there is no 15 objective medical evidence available to support a severe impairment, which is what the ALJ did 16 here. Becausethe ALJ did not resolvethe conflicts in the medical evidence,101 I find that the ALJ 17 erred by not providing clear and convincing reasons to identify plaintiff’s headaches as non- 18 severe and by not resolvingthis conflicting evidence in the medical record. This error at step two 19 is not harmless becausethe ALJ did not consider all impairments, severe and non-severe, in the 20 determination of plaintiff’s RFC.
21 22 23 24 97 AR 265, 271, 305, 334. 25 98 AR 289. 99 AR 391. 26 100 AR 392, 398. 27 101 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“[T]he ALJ is the final arbiter 1 CONCLUSION 2 IT IS THEREFORE ORDERED that plaintiffs motion to remand [ECF No. 16] is 3 || GRANTED and the Commissioner’s cross-motion to affirm [ECF No. 17, 18] is DENIED. This 4 || case is remand for further proceedings consistent with this opinion. The Clerk of Court is 5 || directed to ENTER JUDGMENT ACCORDINGLY and CLOSE THIS CASE. 6 Dated: September 23, 2019 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28