1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JASON R., Case No. 3:23-cv-05491-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of 12 defendant’s denial of plaintiff’s application for disability insurance benefits (DIB). 13 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule 14 MJR 13, the parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. Dkt. 4. Plaintiff challenges the ALJ’s decision finding that plaintiff was 16 not disabled. Dkt. 1, Complaint. 17 A. Procedural History 18 Plaintiff filed his application for DIB on September 23, 2016. AR 15, 158–61. His 19 alleged date of disability onset is July 25, 2016. Id.; AR 914. His date last insured, for 20 the purposes of his DIB eligibility, was December 31, 2021. AR 16, 914. 21 After his application was denied initially and upon reconsideration (AR 73, 84– 22 86), his requested hearing was held before ALJ Marilyn S. Mauer in May 2018. AR 32– 23 72. ALJ Mauer issued a decision finding plaintiff not disabled in September 2018. AR 24 1 12–31. The Appeals Council denied review on April 21, 2020. AR 1–5. Plaintiff appealed 2 to this Court. AR 1003–04. 3 In May 2021, United States Magistrate Judge Mary A. Theiler reversed the ALJ’s 4 decision pursuant to a stipulated motion for an order reversing and remanding for
5 additional proceedings. AR 1005–11. The Appeals Council remanded, on June 16, 6 2021, to the Administrative Law Judge for further administrative proceedings including a 7 new hearing before a different ALJ, and specifically directed the ALJ to review a medical 8 source statement by Dr. Jeffery Smith, MD, dated December 19, 2016. AR 1014–15. 9 On remand, ALJ Malcolm Ross (the ALJ) held hearings on January 27, 2022 (AR 10 909–46), and July 14, 2022 (AR 947–76). The ALJ issued a decision on February 1, 11 2023, finding plaintiff not disabled. AR 842–871.1 12 The ALJ found plaintiff had the following severe impairments: diabetes mellitus; 13 diabetic neuropathy; diabetic foot ulcers; status post-amputation of left big toe; status 14 post-double coronary bypass surgery on November 11, 2019; peripheral artery disease;
15 hypertension; bilateral shoulder abnormalities; and obesity. AR 848. 16 The ALJ posed hypothetical questions to the Vocational Expert (VE) (AR 939– 17 46) and found plaintiff had the Residual Functional Capacity (RFC) to perform light work 18 with the following additional limitations: 19 four hours standing/walking; six hours sitting; occasional operation of foot controls; occasional climbing of ramps and stairs; never climbing ladders, ropes 20 or scaffolds; occasional balancing, stooping, kneeling, crouching and crawling; occasional bilateral overhead reaching; frequent bilateral handling, fingering and 21 1 The record contains two decisions issued by ALJ Ross: a decision dated February 1, 2023 (AR 22 842–71), and a decision issued one day earlier which includes an “Amended Notice of Decision” (AR 872–901). Plaintiff cites the latter decision while Defendant cites the former. See Dkts. 11, 23 15. Other than the inclusion of the amended notice in the January 31st decision, the decisions are identical. All record citations to the ALJ’s decision in this opinion are to the decision issued on February 1, 2023. 24 1 feeling; and frequent exposure to extreme cold and hazards such as unprotected heights and dangerous machinery. 2 AR 849. Based on the VE’s testimony, the ALJ found that, given these restrictions, 3 plaintiff could not perform his past relevant work but could work, instead, as a marker, 4 router, or routing clerk. AR 863. 5 B. Analysis 6 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 7 denial of Social Security benefits if the ALJ's findings are based on legal error or not 8 supported by substantial evidence in the record. Revels v. Berryhill, 874 F.3d 648, 654 9 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such relevant 10 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 11 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). The Court 12 must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 13 1009 (9th Cir. 2014). 14 Where the evidence would reasonably support affirming, or reversing, the 15 decision of the ALJ, the Court may not substitute its judgment for the Commissioner’s. 16 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The Court must weigh both the 17 evidence that supports and evidence that does not support the ALJ’s conclusion. Id. 18 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did 19 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope 20 of the Court’s review. 21 1. Plaintiff’s statements regarding symptoms and limitations 22 Plaintiff argues the ALJ failed to adequately evaluate his subjective testimony. 23 See Dkt. 11 at 14–17. 24 1 Plaintiff testified that he had previously worked for many years in warehouses, 2 and as a delivery person, and he often was required to lift 25 to 75 pounds in those 3 jobs. AR 916–21. In 2016, he had an ulcer of the big toe on his right foot that continued 4 to grow and required more than a year for the open wound to close. AR 923. The open
5 wound was still growing at the end of 2016 and worsened in February and March of 6 2017. AR 923–24. He used a knee scooter for several months until approximately 7 August 2017; he started wearing diabetic shoes in November 2017. AR 925. Even after 8 the open wound closed, skin was fragile and tender – he often used a protective boot – 9 and “offloading” which is somewhat like a cast on his foot, for ambulation. AR 924–26. 10 Since the end of 2017, when the right toe ulcer initially closed, he has had 11 continued issues: he testified he had other episodes in 2018 and 2019 with ulcers; and 12 he stated it seemed like every year at least once or twice he had ulcers (“an open 13 wound . . . you can actually see the meat . . . a dime, nickel size”) in the same area of 14 his right foot; he stated that often he was unable to walk because he needed to elevate
15 his feet. AR 926–28. Each time the ulcer happened, it would normally take five or six 16 months to close again. AR 927. This would require sitting stationary and raising his foot 17 up to keep it elevated due to swelling. AR 927–28. He stated that he continues to 18 require raising each of his legs and offloading his feet so that his legs will not swell up, 19 and this had been happening for five or six years leading up to the date of the hearing. 20 AR 936–37. 21 Plaintiff testified that, in September of 2021, he did not have much sensation in 22 his feet but felt something was not right, after walking his dog for approximately 1000 - 23 1500 steps. AR 928. He was using a hospital boot while walking. AR 929. Plaintiff
24 1 stated that he, “went home and I took off my shoes and I had ulcers on my big right toe 2 and my big left toe.” AR 928. The left toe was ultimately amputated two months later. 3 AR 928–29. He continues to use a scooter, power cart, or hospital boot if he needs to 4 ambulate. AR 929, 936. He testified that, since his 2016 ulcer of the big toe on his right
5 foot, to prevent further ulceration he has stayed in his room most of the time and 6 avoided using stairs. AR 932. He stated, “I’m relegated to my room . . . [i]t seems like 7 I’m dying . . . I don’t know how to battle it or how to make it better.” AR 937. 8 He had osteomyelitis, and cellulitis, where his “leg exploded and turned all red . . 9 . getting infected and going up my leg . . . “AR 930–31. Regarding ongoing 10 osteomyelitis, plaintiff testified that he is required to elevate his leg and offload it, and he 11 had been receiving IV treatment at the hospital off and on for the four years leading up 12 to the date of the hearing. AR 931. He stated that if he were to “lift something and twist 13 or if I put too much pressure, I could get ulcers again.” AR 931. He also stated that, 14 because of limitations on movement, and because he wants to avoid a nick on the leg
15 or a sore, for the past five years it has been too hazardous to go up and down the stairs 16 – when he absolutely must do so, he “hugs the wall” for support. AR 932. And he cannot 17 sit for more than 15 or 20 minutes at once, because his left leg goes numb and if he sits 18 then his legs begin to swell up. AR 935. 19 Plaintiff also testified that he has had several other recurring issues during the 20 relevant period. For the past five or six years, plaintiff has had a limited ability to move 21 his right shoulder. AR 933. He cannot raise his arm above his neck; he has no strength 22 in the shoulder and no movement. AR 933. He cannot use his arms and hands for lifting 23 and needs assistance to twist jars open. AR 934. He has no strength in his hands,
24 1 sometimes he can pick up small things but often drops things when he picks them up. 2 AR 934. He has periodic blood clots which cause “severe pain” in his left leg. AR 935. 3 He stated that for the six months leading up to the hearing, he spends 22 out of 24 4 hours in his room, he needs to lie down and keep his leg up for several hours per day.
5 AR 936. 6 The ALJ’s determinations regarding a claimant’s statements about limitations 7 “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 8 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In 9 assessing a plaintiff’s credibility, the ALJ must determine whether plaintiff has presented 10 objective medical evidence of an underlying impairment. If, as is the case here, such 11 evidence is present and there is no evidence of malingering, “the ALJ can reject 12 [plaintiff's] testimony about the severity of [his] symptoms only by offering specific, clear, 13 and convincing reasons,” unless there is evidence of malingering. Garrison, 759 F.3d at 14 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
15 “A finding that a claimant's testimony is not credible ‘must be sufficiently specific 16 to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony 17 on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding 18 pain.’” Brown-Hunter v. Colvin, 804 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. 19 Sullivan, 947 F.2d 341, 345–46 (9th Cir.1991)). “The ALJ must state specifically which 20 symptom testimony is not credible and which facts in the record lead to that 21 conclusion.” Smolen, 80 F.3d at 1284. And the ALJ must “set forth the reasoning behind 22 [his] decisions in a way that allows for meaningful review.” Brown-Hunter, 804 F.3d at 23 492.
24 1 a. Treatment Non-Compliance 2 The ALJ discounted plaintiff’s symptom testimony because plaintiff had “periods 3 of treatment non-compliance such as not taking his medications as prescribed [and] not 4 following up on recommendations.” AR 858. The ALJ similarly noted that plaintiff “did
5 not take his insulin as prescribed.” Id. 6 An ALJ may consider an “unexplained or inadequately explained failure to seek 7 treatment or to follow a prescribed course of treatment.” Smolen v. Chater, 80 F.3d 8 1273, 1284 (9th Cir. 1996). But an ALJ may “not find an individual’s symptoms 9 inconsistent with the evidence in the record on this basis without considering possible 10 reasons [they] may not comply with treatment or seek treatment consistent with the 11 degree of [their] complaints.” SSR 16-3p; see also Fair v. Bowen, 885 F.2d 597, 603 12 (9th Cir. 1989). 13 Here, there were legitimate explanations for plaintiff’s purported lapses in 14 treatment, which the ALJ failed to consider. With respect to plaintiff’s purported failure to
15 take medications or take his insulin, evidence suggested this was due to problems with 16 insurance coverage. See AR 285 (“[Plaintiff] has been out of meds since August first 17 because he was without insurance.”); 1485 (“Runs out of [diabetic insulin] for 1 week 18 every month due to insurance issues.”). 19 With respect to his failure to follow up on treatment recommendations, the ALJ 20 relied on evidence that, from April 2016 through May 2017, plaintiff had failed to seek 21 treatment with a podiatrist or endocrinologist despite referrals for doing so. See AR 858. 22 Yet, evidence from this period suggested plaintiff was having difficulties scheduling 23 appointments – plaintiff was attempting to continue working despite the symptoms of his
24 1 conditions and, due to his work schedule and that plaintiff had insurance problems 2 which may have interfered, there were periods when treatment was interrupted. See AR 3 597 (note from Nurse Mortimer dated 7-11-2016, “[plaintiff] has been unable to schedule 4 [appointments in the spring of 2016 with ophthalmology and dentistry] due to having to
5 take all his time off of work to address the wound on his leg.”); 369 (Dr. Atif Mian notes 6 on 10-14-2016, that podiatrist would not accept plaintiff’s insurance). 7 The ALJ also noted that plaintiff “did not use prescribed compression socks or 8 follow-up with vascular surgery when his ABI was abnormal.” AR 858 (citing AR 1522– 9 23, 1526–27). With respect to plaintiff’s use of compression socks, the evidence cited 10 by the ALJ showed that plaintiff was, at the time of the treatment notes, still trying to 11 attain compression socks. AR 1526 (“he is trying to obtain compression socks”), 1527 12 (prescribing compression socks). 13 With respect to plaintiff’s failure to follow up with vascular surgery, the evidence 14 cited by the ALJ indicated surgical follow up might have been necessary after his
15 September 2021 injury but did not suggest plaintiff failed to heed this advice. See AR 16 1523 (“patient should get a follow-up with vascular surgery if possible for any treatment 17 planning required.”). Defendant cites, for the proposition that plaintiff failed to obtain 18 surgical follow-up, evidence related to plaintiff’s June 2017 surgery. See Dkt. 15 at 5 19 (citing AR 1530–31). That evidence showed plaintiff requested a follow-up appointment 20 be moved back one or two days because of his daughter’s graduation (AR 1531) but it 21 was ultimately moved back one week due to his provider’s availability (AR 1530–31). At 22 the very least, the ALJ was required to consider this explanation for failing to follow up 23 after his surgery.
24 1 In sum, the ALJ erred by not considering legitimate explanations for plaintiff’s 2 purported treatment non-compliance. 3 b. Activities of Daily Living 4 The ALJ also discounted plaintiff’s testimony because plaintiff went on walks,
5 which, according to the ALJ, was inconsistent with his testimony that he had difficulties 6 walking. AR 858 (citing AR 1393, 1420, 1437, 1485). An ALJ may discount a claimant's 7 testimony based on daily activities that either contradict their testimony or that meet the 8 threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 9 Here, plaintiff testified that walking was hazardous, due to recurring ulcers (AR 10 926), but did not indicate he was completely unable to walk during the relevant period. 11 The ALJ cited to evidence showing plaintiff walked during a period from 2019 through 12 early 2021. See AR 1495 (February 2019: “walking daily for 1 mile (takes about half an 13 hour to walk.”), AR 1437 (January 2020: “able to now walk up stairs. Did 45 minutes on 14 the treadmill today.”); AR 1420 (September 2020: “He is . . . walking every day”); AR
15 1393 (April 2021: “he is walking”). 16 The ALJ failed to explain, in a manner which “allows for meaningful review,” 17 Brown-Hunter, 804 F.3d at 492, why plaintiff’s walking activities were inconsistent with 18 plaintiff’s testimony. Plaintiff testified he had difficulties walking but did not testify he was 19 completely unable to walk from 2019 through early 2021. See AR 926. Additionally, 20 medical evidence (not addressed by the ALJ) suggests plaintiff still had pain and was 21 being treated for ulcers on his feet, during the time he continued to attempt walking, 22 suggesting plaintiff’s walking activities were not inconsistent with his claims of difficulties 23 with walking. See e.g., AR 1524 (July 2021: “[H]e currently is having a very heavy
24 1 weighted down feeling to both of his feet and lower legs whenever he is active for a 2 short period of time. He relates he consistently starts to feel this feeling after about ½ 3 mile of walking.”). It is error for the ALJ to selectively consider treatment records in their 4 decision and cherry-pick the items that support the finding of non-disability. Ghanim v.
5 Colvin, 763 F.3d at 1164. The ALJ erred by failing to consider this evidence of plaintiff’s 6 difficulties with ambulation. 7 c. Inconsistency with Medical Evidence 8 The ALJ noted that plaintiff “testified that he has had three or four episodes with 9 ulcers since the end of 2017” but “the medical evidence shows from July 2017 to 10 September 2021 that the claimant did not have any ulcerations.” AR 858 (citing AR 11 1512–33). However, an ALJ may not reject a claimant’s subjective symptom testimony 12 “solely on a lack of objective medical evidence to fully corroborate the alleged severity 13 of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). 14 The evidence relied upon by the ALJ included only four treatment notes from July
15 2017 to September 2021; yet the record shows continued symptoms from ulcerations. 16 See e.g., 1525 (in September 2020, “extremely high risk of reulceration”); 1528 (in June 17 2018, “significant edema to his lower legs after being on his feet for about 30 minutes,” 18 and “patient would require a sitting job, with only occasional walking [less than 30 min 19 per hour] if possible”, and “patient is at an extremely high risk of reulceration given the 20 color changes and thinness of skin to the prior ulceration site”); 1529 (Dr. Neitzel notes 21 in June 2017 “swelling may have increased”); 1535–46 (plaintiff reports foot and leg 22 pain during November of 2021 – ulcer appears to be infected and Dr. Neitzel notes that 23 he may need to go to the hospital).
24 1 Defendant also points to the ALJ’s summary of the medical evidence and argues 2 “the ALJ outlined that from 2018 through 2021 plaintiff has yearly podiatry care with 3 improvement and treatment simply consist[ing] of yearly prescriptions for compression 4 socks, diabetic shoes, and inserts.” Dkt. 15 at 5. The ALJ pointed out, in summarizing
5 the medical evidence, some treatment notes indicating plaintiff’s condition had 6 improved. See AR 852–53. But “some improvement” in a person’s symptoms “does not 7 mean that the person’s impairments no longer seriously affect [their] ability to function in 8 a workplace.” See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). The ALJ 9 did not find plaintiff’s impairments had improved such that they would no longer affect 10 his ability to function. See AR 852–55. 11 With respect to the period following plaintiff’s 2021 amputation, defendant argues 12 “the ALJ highlighted inconsistencies in the medical evidence following amputation.” Dkt. 13 15 at 6. Defendant asserts one inconsistency: that plaintiff testified he used a scooter 14 for walking, while other treatment notes indicated he walked without difficulty. Id. (citing
15 AR 856–58, 1393–94, 1420, 1437, 1485, 1512–33, 1678). Yet, all but one of the 16 treatment notes cited by defendant for the proposition that plaintiff indicated he 17 ambulated without difficulty occurred prior to his December 2021 amputation of the big 18 toe on his left foot. See AR 1493–94 (April 2021), 1420 (September 2020), 1437 19 (January 2020), 1485 (February 2019). 20 The only note cited by defendant pertaining to treatment after plaintiff’s toe 21 amputation indicated plaintiff was from the emergency room at Allenmore Hospital, on 22 December 22, 2021, and the treatment provider states: “ambulating without difficulty 23 and without pain” but also indicated plaintiff had mild join pain to the site of the
24 1 amputation, left leg pain similar to a constant muscle spasm in his anterior thigh, he 2 contacted his podiatrist and was told to go to the emergency room, and earlier in the 3 week he needed a knee scooter when going to the store. See AR 1678–90. An 4 observation in the limited circumstance of a single examination that plaintiff was
5 ambulating unassisted is not necessarily inconsistent with plaintiff having difficulties 6 walking. And the treatment note said plaintiff’s leg pain was related to post-operative 7 care – body mechanics associated with wearing the specialized shoe – and that plaintiff 8 had been using a scooter, which is consistent with plaintiff’s testimony that he often 9 used a scooter for walking during this period. AR 1678, 1681, 1687. 10 Moreover, the reasons given by the ALJ for discounting plaintiff’s subjective 11 testimony also fail for lack of specificity. The ALJ does not describe why any of the 12 inconsistencies he identified detract from the other recurring issues plaintiff identified 13 during the relevant period, such as his limitations in sitting for prolonged periods or in 14 performing bilateral reaching. For example, the medical record shows that plaintiff had
15 shoulder pain, limited range of motion, and limitations with bilateral reaching, in 16 November 2018, and was in treatment for those conditions. AR 2333 (treatment notes 17 dated 11-15-2018 regarding bilateral frozen shoulder, by Dr. Spencer Coray, MD). The 18 ALJ therefore failed to give specific reasons for failing to credit this part of plaintiff’s 19 testimony, as he was required to do. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th 20 Cir. 1996); Brown-Hunter v. Colvin, 804 F.3d 487, 493 (9th Cir. 2015). 21 The Court finds that the ALJ did not give specific, clear, and convincing reasons, 22 supported by substantial evidence, to reject plaintiff’s testimony about symptoms and 23 limitations.
24 1 d. Harmless Error 2 An error that is inconsequential to the non-disability determination is harmless. 3 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If the errors of 4 the ALJ result in a residual functional capacity (RFC) that does not include relevant
5 work-related limitations, the RFC is deficient and the error is not harmless. Id. Here, 6 plaintiff’s subjective testimony evidence showed several limitations not included in the 7 RFC: plaintiff testified he could not use his right shoulder, while the RFC permitted 8 occasional bilateral overhead reaching; he testified his hands were numb and he could 9 not reliably use his fingers to open or grip, while the RFC assumes he can work in a 10 position that requires fingering; he testified he had difficulties sitting for more than 15 11 minutes at a time because his legs would swell and he needed to elevate his feet – 12 there is a sitting limitation of six hours in the RFC; and he testified he had difficulties 13 standing and walking, which is inconsistent with the RFC’s allowance of four hours of 14 standing or walking per day. The RFC contains limitations that do not account for the
15 severity of symptoms and the full extent of work-related limitations described in 16 plaintiff’s testimony. Thus, the ALJ’s erroneous evaluation of plaintiff’s subjective 17 testimony was not harmless error. 18 2. Medical evidence. 19 Plaintiff argues the ALJ erred in addressing the medical opinions of Jeffrey 20 Smith, MD, and Kimberly Sales, ARNP; Emily Robinson, ARNP; Sarah Neitzel, DPM; 21 Raheela Sadiq, MD; William Biles, MD; Wil Nelp, MD; and two state agency 22 consultants. See Dkt. 11 at 3–14. 23
24 1 After discussing the medical evidence in the record from 2016 through the date 2 of the decision, the ALJ found that plaintiff would have the following residual functional 3 capacity – he would be able to work in an occupation that required: 4 four hours standing/walking; six hours sitting; occasional operation of foot controls; occasional climbing of ramps and stairs; never climbing ladders, ropes 5 or scaffolds; occasional balancing, stooping, kneeling, crouching and crawling; occasional bilateral overhead reaching; frequent bilateral handling, fingering and 6 feeling; and frequent exposure to extreme cold and hazards such as unprotected heights and dangerous machinery. 7 Plaintiff filed his application prior to March 27, 2017, and therefore under the 8 applicable regulations, an ALJ must provide “clear and convincing” reasons to reject the 9 uncontradicted opinions of a treating or examining doctor, and “specific and legitimate” 10 reasons to reject the contradicted opinions of a treating or examining doctor. See Lester 11 v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). When a treating or examining 12 physician's opinion is contradicted, the opinion can be rejected “for specific and 13 legitimate reasons that are supported by substantial evidence in the record.” Id. 14 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 15 F.2d 499, 502 (9th Cir. 1983)). 16 a. Jeffrey Smith, MD, and Kimberly Sales, ARNP 17 Treating providers Dr. Smith and ARNP Sales submitted a joint opinion in 18 January 2017. AR 621–24. They opined plaintiff could stand for one hour intermittently, 19 could walk for less than one hour at a time, and could not push or pull bilaterally. AR 20 622. 21 The ALJ gave the opinion “little weight” because it was “inconsistent with the 22 longitudinal record, unexplained, inadequately supported, and brief and conclusory.” AR 23 860 (citations omitted). The ALJ did not explain this statement any further. “[A]n ALJ 24 1 errs when he rejects a medical opinion . . . while doing nothing more than . . . asserting 2 without explanation that another medical opinion is more persuasive, or criticizing it with 3 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. 4 Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014). The ALJ so erred here.
5 With respect to the ALJ’s contention that the opinion was inconsistent with the 6 record, the ALJ’s summary of the medical evidence contains few findings which can 7 reasonably be imported to the ALJ’s opinion regarding these medical professionals. The 8 decision did not discuss plaintiff’s capacity for standing. See AR 850–56. The decision 9 discussed plaintiff’s ability to walk, noting that some treatment notes indicated he could 10 ambulate without pain or difficulty and that he had reported to providers that he was 11 walking for exercise. See id. But as discussed above, the ALJ failed to explain how 12 either the activities or treatment notes in question were inconsistent with limitations 13 related to walking. 14 The decision similarly did not discuss plaintiff’s abilities to push or pull. AR 850–
15 56. It did broadly discuss plaintiff’s “musculoskeletal concerns,” noting that several 16 treatment notes indicated he had bilateral shoulder pain and reduced range of motion, 17 but that “physical therapy notes document good progress.” AR 856 (citing AR 824–25). 18 But the physical therapy notes in question show plaintiff continued to have a limited 19 range of motion. See AR 824 (“still limited” in “overhead ranges,” “limited with reaching 20 and lifting”), 825 (same). Thus, the ALJ did not adequately explain how the opinion was 21 inconsistent with the record and, to the extent the ALJ found bilateral pushing and 22 pulling limitations inconsistent with plaintiff’s physical therapy progress, such a finding 23 was not supported by substantial evidence.
24 1 With respect to the ALJ’s contention that the opinion was unexplained, not 2 supported, and brief and conclusory, although this is a valid reason to discount an 3 opinion, the ALJ must consider the opinion in the context of the remainder of the 4 medical evidence put forth by the opinion’s authors. See Garrison, 759 F.3d at 1014
5 n.17. Here, there was ample evidence from ARNP Sales’ treatment notes which 6 supported and explained her opinion: she consistently noted plaintiff’s diabetic foot ulcer 7 (e.g., AR 284, 293, 510, 733, 746, 770) and noted plaintiff “need[ed] to stay off his feet” 8 in a January 2017 appointment (AR 504), for example. 9 The ALJ also noted that he “g[a]ve greater weight to [non-examining medical 10 advisor] Dr. Biles as he was able to review all of the evidence, including evidence 11 arising after this opinion.” AR 860. However, a “nonexamining medical advisor’s 12 testimony does not by itself constitute substantial evidence that warrants a rejection of . 13 . . [a] treating doctor’s” opinion. Lester, 81 F.3d at 832. 14 Thus, the ALJ failed to give specific and legitimate reasons for discounting the
15 joint opinion of Dr. Smith and ARNP Sales. The limitations opined by Dr. Smith and 16 ARNP Sales—one hour of standing and walking and no bilateral reaching—were not 17 included in the RFC, and thus this error was not harmless. Stout, 454 F.3d at 1054. 18 b. Sarah Neitzel, DPM 19 Treating podiatrist Dr. Neitzel authored opinions from 2017, 2018, and 2020. The 20 first was an opinion from May 2017. AR 416–21. She opined plaintiff could not stand or 21 walk for more than three hours at a time or over the course of the workday because of 22 his “chronic ulcer to major weight bearing joint in foot.” AR 417. She opined plaintiff 23
24 1 could never climb stairs or ladders because of plaintiff’s “chronic ulcer to major load 2 bearing joint to right foot [with] minimal effort or pressure.” AR 419. 3 In June 2018, Dr. Neitzel opined plaintiff “would require a sitting job, with only 4 occasional walking (less than 30 min per hour) if possible.” AR 1528. She explained
5 elsewhere in the same opinion that plaintiff was “at an extremely high risk of 6 reulceration . . . when on his foot for more than 30 [minutes] every hour.” Id. 7 In September 2020, Dr. Neitzel opined that “with [plaintiff’s history] of foot 8 ulcerations, he is unable to do work that requires a lot of time spent on his feet, however 9 a sedentary job is unlikely to be adequate for his heart health.” AR 1525. She said that 10 plaintiff “is at an extremely high risk of reulceration.” AR 1525. 11 The ALJ gave “some weight” to these opinions. AR 860. With respect to Dr. 12 Neitzel’s May 2017 opinion, the ALJ explained that Dr. Neitzel “did not consider 13 shoulder impairments and she completed this form when [plaintiff’s] foot ulcer was not 14 yet fully healed, and he was still wearing a weight-off-loading boot.” AR 860. The ALJ
15 failed to explain why Dr. Neitzel’s failure – as a podiatrist, specializing in feet – to 16 consider plaintiff’s shoulder impairments would detract from the validity of her opined 17 limitations related to plaintiff’s abilities to stand, walk, and climb. And even though 18 plaintiff’s 2016 ulcer had not healed at the time of the opinion, Dr. Neitzel’s opinion was 19 based on the chronic nature of plaintiff’s foot ulcer. For this reason, without further 20 explanation from the ALJ, it is unclear how the status of the ulcer unhealed would 21 provide substantial evidence upon which the ALJ would find it undermined Dr. Neitzel’s 22 opinion. 23
24 1 The ALJ also discounted Dr. Neitzel’s opinion because she had only treated 2 plaintiff for three months, “rendering her opinions somewhat less convincing than” those 3 of Drs. Nelp and Biles. AR 861. Although this is a factor which the ALJ may consider, 4 see 20 C.F.R. § 404.1527(b)(2)(i)–(ii), it does not by itself justify the ALJ’s decision
5 giving no deference to Dr. Neitzel’s opinion – particularly in a situation where plaintiff 6 was later treated by the same doctor and that doctor provided additional medical 7 opinions. See Revels, 874 F.3d at 664. 8 With respect to the June 2018 and September 2020 opinions, the ALJ said that 9 the “opinions are inconsistent with [Dr. Neitzel’s] own treatment notes which showed no 10 ulcerations until September 2021.” AR 861. But Dr. Neitzel did not opine plaintiff was 11 limited due to ongoing open wounds. See AR 1525, 1528. Rather, she opined 12 prophylactic limitations were critical, for plaintiff to avoid new ulcers.2 See id. 13 The ALJ failed to state specific and legitimate reasons for rejecting Dr. Neitzel’s 14 June 2018 and September 2020 opinions. Dr. Neitzel’s opinions span 2017 through
15 2021, and show that plaintiff’s chronic ulcers, along with infections, caused him to be 16 unable to stand or walk for the number of hours found by the ALJ, and made it 17 impossible for plaintiff to put full weight on the joints in his foot. See, e.g., AR 416–417 18 19 2 The measures to prevent recurrence of foot ulcers were of great importance; the record shows 20 that plaintiff ultimately did experience another foot ulcer, and in December 2021 his toe required amputation due to the ulcer becoming infected. AR 2200, 2204, 2216, 2223, 2243–46. The 21 defendant suggests that plaintiff would have been able to work, but he was not able to comply with a safety requirement of wearing steel-toed boots. Dkt. 15, at 1–2. Yet the defendant also 22 acknowledges the reason plaintiff was unable to wear work-protective footwear was due to the need for specialized diabetic shoes to mitigate risk of injury and symptoms of diabetic 23 neuropathy. Dkt. 15, at 5; AR 385, 851. Plaintiff testified that from 2016 through the date of the hearing before the ALJ, he was using a variety of specialized shoes, a scooter, and a boot, to 24 address recurring ulcers and to prevent further injury. AR 923–29. 1 (May 2017), AR 1525 (September 2018), AR 1517, 1519, 1543 (October and November 2 2021). 3 The ALJ failed to provide adequate reasons for not giving full weight to Dr. 4 Neitzel’s opinions. Because the opinions of Dr. Neitzel regarding plaintiff’s limitations in
5 standing and walking were not accounted for in the RFC, this error was not harmless. 6 c. Emily Robinson, ARNP 7 In May 2016, ARNP Robinson completed an application for a disability parking 8 permit for plaintiff. See AR 627; see also AR 598. In the application, she checked a box 9 indicating plaintiff had a disability which severely limited his walking abilities that would 10 last for twelve months. AR 627. 11 Under the regulations applicable to this case, Ms. Robinson is classified as an 12 “other source,” rather than an “acceptable medical source[]” who can provide medical 13 opinions. See 20 C.F.R. § 416.902(a), 416.927(a). “The ALJ may discount testimony 14 from these ‘other sources’ if the ALJ ‘gives reasons germane to each witness for doing
15 so.’” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 The ALJ found Ms. Robinson’s statement “to be inconsistent with the record, 17 unexplained, inadequately supported, and brief and conclusory.” AR 860. As with the 18 opinion of Dr. Smith and ARNP Sales, the ALJ erred by “criticizing [the] opinion with 19 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 20 759 F.3d at 1012–13. With respect to the purported inconsistency with the record, the 21 ALJ explained that “the claimant is not severely limited in his walking, so the box that is 22 checked is inconsistent with the record.” Id. As discussed above, the ALJ did not 23
24 1 adequately explain his finding that plaintiff was not severely limited in his walking 2 abilities. 3 The ALJ failed to state adequate reasons to discount Ms. Robinson’s statement. 4 d. Raheela Sadiq, MD
5 In July 2016, treating wound care physician Dr. Sadiq completed paperwork for 6 plaintiff to take short term disability leave. See AR 348, 434. The ALJ wrote that “Dr. 7 Sadiq’s exact short-term disability opinions are missing from the record. However, given 8 that they are only short term, Dr. Sadiq’s opinions are given limited weight as the record 9 does support ongoing impairments, but also supports the residual functional capacity 10 set out above.” AR 861. 11 Plaintiff argues only that “the ALJ did not state any legitimate reason for rejecting 12 Dr. Sadiq’s opinion that [plaintiff] would need to be able ‘to offload his foot as is needed’ 13 and would need time off work to ‘help make all his appointments that he needs.’” Dkt. 11 14 at 8 (citing AR 348). But the ALJ stated that Dr. Sadiq, when rendering an opinion, did
15 not opine limitations based on long-term impairments. This is a legitimate reason to not 16 include those limitations in the RFC. See 20 C.F.R. § 404.1509 (requiring that an 17 impairment “must have lasted or must be expected to last for a continuous period of at 18 least 12 months”). The ALJ did not err in discounting Dr. Sadiq’s 2016 opinion. 19 e. State Agency Consultants 20 Plaintiff argues the ALJ improperly adopted the opinion of a state agency 21 consultant who opined plaintiff could stand or walk for four hours in a regular workday. 22 Dkt. 11 at 14. Plaintiff only states the “opinion is contrary to the longitudinal evidence, 23 and is entitled to no weight.” Id. Plaintiff also argues “the ALJ improperly rejected the
24 1 March 2017 opinions of [two state agency consultants who opined] that [plaintiff’s] 2 impairments met Listing 11.14B.” Dkt. 11 at 14. 3 But plaintiff has presented no argument demonstrating the ALJ improperly 4 evaluated whether plaintiff’s impairments met or equaled a listing at step three.
5 Plaintiff’s conclusory assertions are insufficient to meet this burden. See Independent 6 Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). And, having 7 determined that the ALJ harmfully erred in evaluating the medical opinions of Dr. Smith 8 and ARNP Sales and Dr. Neitzel, the Court need not consider these arguments. 9 f. William Biles, MD, and Wil Nelp, MD 10 Plaintiff argues the ALJ improperly gave substantial weight to the testimony of 11 nonexamining medical advisors Dr. Nelp and Dr. Biles. Dkt. 11 at 13–14. With respect 12 to Dr. Nelp’s opinion, plaintiff argues that “Dr. Nelp’s analysis included many significant 13 factual errors” and therefore was not entitled to great weight. Dkt. 11 at 13. 14 With respect to Dr. Biles’ opinion, plaintiff argues “Dr. Biles should be disqualified
15 because he did not reveal in his resume that his medical license had been placed on 16 probationary status in 2018 for providing substandard treatment to patients with similar 17 impairments to [plaintiff].” Dkt. 11 at 14. 18 Having determined that the ALJ harmfully erred in evaluating the medical 19 opinions of Dr. Smith and ARNP Sales and Dr. Neitzel, the Court need not consider 20 these arguments. 21 3. Lay witness evidence 22 Plaintiff argues the ALJ erred in his assessment of the lay witness statement of 23 plaintiff’s fiancé. Dkt. 11 at 17–18. Plaintiff’s fiancé submitted a lay witness statement in
24 1 January 2022 describing plaintiff’s medical history and his condition. AR 1289. In the 2 statement, she said plaintiff required assistance for basic household tasks, was unable 3 to go upstairs, and he avoids walking around the house due to his history of ulcers. Id. 4 When evaluating opinions from non-acceptable medical sources such as a
5 therapist or a family member, an ALJ may expressly disregard such lay testimony if the 6 ALJ provides “reasons germane to each witness for doing so.” Turner v. Comm'r of Soc. 7 Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 8 (9th Cir. 2001). 9 Here, the ALJ gave the statement little weight because it was a “lay opinion[] 10 based upon casual observation, rather than objective medical evidence.” AR 862. A 11 “lack of support from medical records is not a germane reason” to reject lay witness 12 testimony. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Indeed, “the fact that 13 lay testimony and third-party function reports may offer a different perspective than 14 medical records alone is precisely why such evidence is valuable at a hearing.” Id.
15 Similarly, that the opinion was based on casual observation is not a germane reason for 16 rejecting the opinion but, rather, such observations are competent testimony. See 17 Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir.1993) (“[F]riends and family members in 18 a position to observe a claimant's symptoms and daily activities are competent to testify 19 as to her condition.”). 20 Defendant argues any error with respect to the ALJ’s assessment of the 21 statement was harmless because it “mirrors plaintiff’s subjective complaints.” Dkt. 15 at 22 15. Where an ALJ has provided clear and convincing reasons to discount a claimant's 23 testimony, those reasons are germane reasons for rejecting similar lay witness
24 1 testimony. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2 2009). Here, however, the Court has determined that the ALJ did not provide clear and 3 convincing reasons for discounting plaintiff’s subjective testimony. 4 Thus, the ALJ failed to provide germane reasons for rejecting the statement of
5 plaintiff’s fiancé. 6 4. RFC 7 The ALJ’s decision assessing plaintiff’s RFC and step five finding were not 8 supported by substantial evidence because they did not include the limitations opined 9 by Dr. Smith, ARNP Sales, Ms. Robinson, and Dr. Neitzel, and those described by 10 plaintiff himself, and plaintiff’s fiancé who was also his caregiver. Because the Court has 11 found in plaintiff’s favor that the errors were not harmless, and the hypotheticals posed 12 by the ALJ to the Vocational Expert did not include all relevant limitations, the RFC was 13 erroneous. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040–41 (9th Cir. 2007) (holding 14 ALJ’s RFC assessment and step five determination were not supported by substantial
15 evidence where the ALJ’s RFC and hypotheticals to vocational expert failed to include 16 all the claimant’s impairments). 17 5. Whether the Court should reverse with a direction to award benefits. 18 “‘The decision whether to remand a case for additional evidence, or simply to 19 award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 20 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If 21 an ALJ makes an error and the record is uncertain and ambiguous, the court should 22 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 23 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy
24 1 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 2 at 668. 3 The Ninth Circuit has developed a three-step analysis for determining when to 4 remand for a direct award of benefits. Such remand is generally proper only where
5 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed 6 to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 7 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 8 Trevizo, 871 F.3d at 682–83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 9 2014)). The Ninth Circuit emphasized in Leon that even when each element is satisfied, 10 the district court still has discretion to remand for further proceedings or for award of 11 benefits. Leon, 80 F.3d at 1045. If remand for additional proceedings would not serve a 12 purpose, and a finding of non-disability would not be supported by substantial evidence, 13 the Court should remand for an award of benefits. Compare, Garrison v. Colvin, 759 14 F.3d at 1020–1023 (when credit-as-true factors are met, and there is no serious doubt 15 whether the plaintiff meets the criteria for disability, remand for purposes of allowing the 16 ALJ to have a “mulligan” is not a useful purpose); with Dominguez v. Colvin, 808 F.3d 17 403, 409–10 (9th Cir. 2015) (as amended) (citing Luna v. Astrue, 623 F.3d 1032, 1035 18 (9th Cir.2010) (if significant factual issues are outstanding, remand for additional 19 proceedings is the appropriate remedy). 20 The Court concludes that the record is free from important and relevant conflicts, 21 and remand for a new hearing would not serve a useful purpose. The errors of the ALJ 22 were harmful, and there is no need for additional evidence to clarify the nature of 23 plaintiff’s symptoms or work-related limitations during the relevant period. The 24 1 Commissioner has conducted two hearings and considered plaintiff’s testimony from 2 2018 and 2022, and medical information from 2016 through 2022, and there was a 3 stipulated remand in 2021. 4 Applying the credit-as-true rule, if the Court credits plaintiff’s testimony and his
5 fiancé’s statement as true, and credits the opinions of Dr. Smith, ARNP Sales, Ms. 6 Robinson, and Dr. Neitzel; the only result possible would be a finding of disability. See, 7 AR 942–945 (Vocational Expert testifies that there would not be any work available for a 8 person who required extra breaks, would be off-task more than 10% of the time, or who 9 could not stand or walk for more than fifteen minutes, or who could stand and walk less 10 than two hours in an eight-hour day). 11 Therefore, this matter should be reversed with a direction to award benefits. 12 CONCLUSION 13 Based on the foregoing discussion, the Court concludes the ALJ improperly 14 determined plaintiff to be not disabled. The ALJ’s decision is reversed and remanded for 15 an award of benefits. 16
17 Dated this 17th day of April 2024. 18 A
19 Theresa L. Fricke United States Magistrate Judge 20 21 22 23 24