1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD FRANK SCHUH, Case No.: 18-cv-1398-GPC-AGS
12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION:
14 ANDREW M. SAUL, COMMISSIONER (1) GRANTING PLAINTIFF'S OF SOCIAL SECURITY, 15 MOTION FOR SUMMARY Defendant. JUDGMENT; AND 16
17 (2) DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY 18 JUDGMENT 19 [Dkt Nos. 13, 18] 20
21 22 INTRODUCTION 23 On June 25, 2018, Plaintiff Richard Schuh (“Plaintiff”), proceeding in forma 24 pauperis and with counsel, filed this action pursuant to § 405(g) of the Social Security 25 Act (“Act”), seeking judicial review of the final decision of the Commissioner of the 26 Social Security Administration (“Defendant” or “Commissioner”) in a claim for disability 27 28 1 insurance benefits under Title II of the Act. 42 U.S.C. § 405(g). Dkt. No. 1, Compl. 2 On October 22, 2018, Defendant filed an answer and lodged the administrative record 3 (“AR”). Dkt. Nos. 10, 11. On December 14, 2018, Plaintiff filed a motion for summary 4 judgment seeking reversal of Defendant’s denial of disability benefits or, alternatively, 5 requesting remand for further administrative proceedings. Dkt. No. 13. On April 9, 6 2019, Defendant filed a cross motion for summary judgment and an opposition to 7 Plaintiff’s motion for summary judgment. Dkt. Nos. 18 & 19. Plaintiff filed a response 8 and a reply on May 8, 2019. Dkt. No. 22. 9 On July 29, 2019, Magistrate Judge Andrew G. Schopler issued a report and 10 recommendation (“Report”) recommending Plaintiff’s motion for summary judgment be 11 granted, that Defendant’s cross-motion for summary judgment be denied, and that the 12 case be remanded for further proceedings. Dkt. No. 26. Magistrate Judge Schopler 13 found that the Administrative Law Judge discounted the opinion of claimant’s treating 14 doctor without considering various regulatory factors and that the error was not harmless. 15 No objections were filed. After careful consideration of the pleadings and supporting 16 documents, this Court ADOPTS in full the Magistrate Judge’s report, DENIES 17 Defendant’s cross motion for summary judgment, and GRANTS Plaintiff’s motion for 18 summary judgment and directs that the case be remanded to the Social Security 19 Administrator for further proceedings. 20 PROCEDURAL BACKGROUND 21 On May 18, 2014, Plaintiff filed an application for disability insurance benefits 22 under Title II of the Social Security Act, claiming disability beginning on July 2, 2012. 23 24 25 1 Plaintiff’s complaint invoked the Courts jurisdiction to “review a decision of the Commissioner of 26 Social Security denying Plaintiff's Application for Social Security Disability benefits [Title II] and Supplemental Security Income benefits [Title XVI] for lack of disability.” Compl. at 1. However, after 27 a careful review of the record, this Court found the Plaintiff never requested Supplemental Security Income Benefits. Therefore, this Court focused its review solely on the Commissioner’s decision to 28 1 AR 18, 29, 31, 46. Plaintiff’s claims were denied at the initial level and again upon 2 reconsideration. Id. at 18. Plaintiff alleged disability based on low back pain. Id. at 21. 3 On March 27, 2017, Plaintiff appeared with counsel and testified before an 4 Administrative Law Judge (“ALJ”) MaryAnn Lunderman. Id. at 18. On April 21, 2017, 5 the ALJ issued a written decision, finding the Plaintiff was not disabled as defined under 6 Title II and Title VI of the Act. Id. at 18-25. On August 11, 2017, Plaintiff filed a 7 request for appeal of the ALJ’s decision with the Appeals Council. Id. at 209-10. The 8 Appeals Council reviewed the record and affirmed the ALJ’s decision, which became the 9 final decision of the Commissioner on August 27, 2018. Compl. at 4. 10 In his motion for summary judgment, Plaintiff argues that the ALJ committed 11 reversible error by: (1) finding that Plaintiff had the residual functional capacity to 12 perform light work (Dkt. No. 13 at 3-5); 2 (2) failing to properly weigh the medical 13 opinions of Plaintiff’s treating physician (id. at 5-7); and (3) failing to consider Plaintiff’s 14 reduction in productivity (id. at 7-8). 15 FACTUAL BACKGROUND 16 Plaintiff alleges disability as of July 2, 2012. AR 67, 151. In his application, he 17 claims disability due to: (1) back pain; and (2) foot pain. Id. at 69, 70, 76. Plaintiff has a 18 history of back pain arising from a work-related injury in 2008 with subsequent back 19 surgery in 2010. AR 21, 220. After 2010, Plaintiff continued to report significant low 20 back pain and in March 2014, physical examination revealed tenderness in the paraspinal 21 muscles, but there was no weakness or positive straight leg raise testing. Id. In May 22 2014, Plaintiff presented to doctors with complaints of bilateral back pain extending into 23 his feet and legs. AR 22, 231. Upon examination, Plaintiff had tenderness to palpation 24 and an MRI showed evidence of neural encroachment. However, there was no nerve 25 root compromise or stenosis and a normal range of motion in all directions. Plaintiff 26 27 28 1 subsequently underwent epidural injections for pain in June 2014, and afterwards 2 reported some relief from pain to the right calf and left foot. AR 22, 244. 3 In January 2015, Plaintiff underwent a musculoskeletal evaluation, which was 4 completed after the date last insured of March 31, 2014. At this examination, Plaintiff 5 exhibited a slow gait, decreased range of motion in the cervical spine, and decreased 6 range of motion in the lumbar spine. Id. at 22. Plaintiff was unable to heel-walk but had 7 a normal range of motion in the lower extremities and strength. Id. During this time, 8 there was no other treatment in the record. 9 Plaintiff is also obese, with a body mass index ranging from 33.46 – 34.61 kg/m2. 10 I. Personal History 11 Plaintiff was fifty-six years old when he appeared before the ALJ. AR 24. He has 12 a high-school education. Id. From October 1997 to October 2000, Plaintiff delivered 13 newspapers; he was a pizza cook and delivery driver from January 2001 to March 2002; 14 was a driver removing dead animals from July 2002 to April 2005; he worked as a 15 service technician for a trailer supply company from April 2005 to June 2008; and finally 16 was a a laborer from June to July 2012. Id. at 156-166, 171. He stopped working on July 17 2, 2012 because of his medical condition. Id. at 151, 170. 18 II. Medical Evidence 19 a. Treating Physician Evidence 20 i. Raymond Deters III, D.C. 21 On March 3, 2012, Plaintiff saw Dr. Raymond Deters, a chiropractor, regarding 22 multiple chronic spinal and extremity conditions caused from injuries over the years. AR 23 287. Plaintiff complained of constant, severe head pain which occasionally progressed to 24 migraines, bilateral severe shoulder pain and stiffness, tingling in the fingers on his right 25 hand, constant, severe lower back pain that made sitting nearly impossible, and constant, 26 severe pain in the lower thoracic spine. Id. 27 Dr. Deters noted that Plaintiff had previously undergone multiple surgeries, 28 including fusion in the lumbar spine, right wrist surgery, nose surgery, had several 1 lipomas removed, and had cortisone injections for shoulder pain. Id. At that time, 2 Plaintiff was taking Gabapentin, Baclofen, Nabunatone, Hydrocodone, and Somatryptan. 3 Id. Plaintiff was unable to work or drive due to his severe pain and the medication he 4 was required to take. Id. Dr. Deters diagnosed plaintiff with cervical and lumbar 5 radiculopathy, multiple subluxations throughout the cervical, thoracis, lumbar and 6 sacroiliac regions, spondylosis in multiple spinal levels, muscle spasms, and myalgia 7 throughout the spinal muscles and rotator cuffs. Id. He recommended an aggressive 8 course of chiropractic care to help restore more normal joint function in order to relieve 9 the extreme irritation on his spinal nerves. Id. Dr. Deters also recommended rapid 10 release treatments to break up the large amounts of fibrotic scar tissue that had built up in 11 Plaintiff’s soft tissues. Id. 12 ii. William H. Buchner Jr., M.D. 13 On March 12, 2014, Plaintiff saw Dr. William H. Buchner Jr, a physician 14 specializing in Family Medicine. ALR 220. Dr. Buchner’s assessment indicated Plaintiff 15 was suffering from obesity, chronic back pain, left foot pain, chest pain, and shortness of 16 breath. Id. at 224. Plaintiff had a skin biopsy of a mole on his back. Id. Dr. Buchner 17 prescribed Plaintiff Celebrex for pain and scheduled a follow-up one week later. Id. 18 Plaintiff saw Dr. Buchner again on March 19, 2014. Id. at 226. Dr. Buchner noted that 19 the Celebrex did not help with Plaintiff’s pain. Id. 20 On January 16, 2015, Plaintiff saw Dr. Buchner for a follow-up visit to assess his 21 progress. ALR 294. Plaintiff had been prescribed venlafaxine for depression and pain 22 but had not started taking it. Id. Plaintiff was suffering from multiple musculoskeletal 23 ailments ranging from right shoulder pain, numbness and tingling in his right hand and 24 fingers, low back pain, radiating pain, leg pain, and heel pain. Id. Dr. Buchner’s 25 assessment indicated Plaintiff was suffering from chronic back pain, continuous opioid 26 dependence, and major depression. Id. at 296. 27 iii. Kathlyn R. Ignacio, M.D. 28 1 On April 21, 2014, Plaintiff saw Dr. Kathlyn R. Ignacio, a physician specializing 2 in Occupational Medicine. ALR 272. Dr. Ignacio noted Plaintiff’s lumbar vertebral 3 fusion, chronic back pain, and opioid dependence. Id. at 276. She ordered an MRI and 4 scheduled a follow-up appointment for May 14, 2014. Id. On May 14, 2014, Plaintiff 5 saw Dr. Ignacio for his follow-up. ALR 231. He presented with low back pain and 6 shooting pain and parasthesias in both feet and legs. Dr. Ignacio assessed that Plaintiff 7 suffered from chronic back pain and left foot pain. Id. at 236-237. On May 23, 2014, Dr. 8 Ignacio administered to plaintiff an epidural steroid injection. Id. at 243. 9 iv. Dr. Kenneth Altschuler, M.D. 10 In May of 2016, Dr. Kenneth Altschuler, a physician specializing in Family 11 Medicine, began treating Plaintiff. Id. at 316. Dr. Altschuler’s Evaluation opines that 12 Plaintiff cannot sustain long-standing periods of sitting for more than thirty minutes at a 13 time due to lumbar radiculopathy and severe lower back pain. Id. In addition, Dr. 14 Altschuler observed that Plaintiff required continuous analgesic medication, NSAIDs, 15 muscle relaxants, and antidepressants. Id. As his treating physician, Plaintiff saw Dr. 16 Altschuler on a monthly basis. Id. 17 III. Disability Hearing 18 a. Plaintiff’s Testimony 19 Plaintiff testified that he was unable to work as of 2014. ALR 54. He stated that 20 any bending or twisting causes a great deal of pain, and that he cannot drive because of 21 the pain medications he is taking. Id. He also stated that sitting or standing up for 22 prolonged periods “causes problems.” Id. 23 Plaintiff states that, most of the time, he lays on the couch because of the pain. Id. 24 at 55. Despite his physical limitations, Plaintiff tries to go for walks when he can. Id. He 25 states he can walk about a half-mile with breaks. Id. He states that he used to be a very 26 active person and he hates not being able to do anything. Id. He has no hobbies anymore 27 and is unable to lift anything weighing more than a gallon of milk. Id. 28 b. Vocational Expert Testimony 1 The ALJ took testimony from Alan Boroskin, a vocational expert (“VE”). AR 56. 2 Mr. Boroskin testified that he had reviewed the file sufficiently to give an opinion on 3 Plaintiff’s vocational ability. Id. Mr. Boroskin asked Plaintiff what percent of the time 4 during his employment at Pizza Hut was spent cooking, to which Plaintiff responded, 5 “approximately half.” Id. at 58. 6 The ALJ asked Mr. Boroskin to classify Plaintiff’s work history. Id. Mr. Boroskin 7 stated that Defendant previously worked as: (1) a service technician for a trailer supply 8 company, which is a semi-skilled profession with a heavy exertion level, requiring a 9 specific vocational preparation (“SVP”) rating of four3 (Id.); (2) a delivery driver, a semi- 10 skilled profession with a medium exertion level, SVP 34 (Id.); (3) a pizza cook, a skilled 11 profession with a medium exertion level, SVP 55 (Id.); and (4) a cabinet assembler, a 12 semi-skilled profession with a light exertion level, SVP 3. 13 The ALJ then requested the VE to consider a hypothetical individual who is the 14 same age with the same vocational and educational background as Plaintiff who is 15 limited to light exertional work where standing and walking are limited to no more than 16 30 minutes at one time. Id. at 59. The hypothetical individual may occasionally climb 17 ramps and stairs but never ladders, ropes or scaffolds. Id. He may occasionally balance, 18 stoop, bend at the waist, kneel, crouch, and crawl. Id. The ALJ then asked the VE if this 19 hypothetical individual could perform any of the past work of Plaintiff and if other work 20 would be available. Id. The VE asked the ALJ if there was a sitting restriction, and the 21 ALJ said there was not. Id. The VE responded that the hypothetical individual could not 22
23 3 Jobs with an SVP rating of four require over three months of training up to and including six months. 24 Social Security Administration, Program Operations Manual, Section DI 25001.001: Quick Reference 25 Guide, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001#b79. 4 Jobs with an SVP rating of three require up to three months of training. Social Security 26 Administration, Program Operations Manual, Section DI 25001.001: Quick Reference Guide, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001#b79. 27 5 Jobs with an SVP rating of five require over six months of training up to and including one year. Social Security Administration, Program Operations Manual, Section DI 25001.001: Quick Reference 28 1 perform any of Plaintiff’s past work and that any available work would fall into the 2 sedentary category. Id. 3 The ALJ then asked if there would be any light work available. Id. The VE 4 replied that no light work would be available due to the standing and walking restriction. 5 Id. The ALJ then clarified that the standing restriction was to 30 minutes at a time, and 6 also added that the hypothetical individual could walk at a light level. The ALJ posed if 7 these clarifications would change the VE’s answer. Id. at 60. In response, the VE 8 testified that a number of jobs could then accommodate the standing and walking 9 restriction because these jobs can be performed effectively while alternating between 10 sitting and standing. Id. As examples, he identified jobs in the “highly restricted” range, 11 such as the “Cashier II position,” which included cashiers in parking garages and mini- 12 marts.6 Id. The VE gave Ticket Seller and Information Clerk as additional examples of 13 “highly restricted” jobs that could accommodate a 30-minute standing restriction, light 14 walking, and would require only light exertion. Id. 15 IV. The ALJ’s Findings 16 ALJ Lunderman rendered her decision on April 21, 2017, and found the claimant 17 was “not disabled under sections 216(i) and 223(d) of the Social Security Act.” AR 25. 18 ALJ Lunderman performed a five-step sequential evaluation to determine whether 19 Plaintiff was disabled. Id. at 18. She began the analysis by finding that Plaintiff met the 20 insured status requirement for disability benefits on March 31, 2014. Id. at 20. 21 At step one, ALJ Lunderman found that Plaintiff had not engaged in substantial 22 gainful activity since February 28, 2014 through the date last insured of March 31, 2014. 23 Id. 24
25 26 6 The Cashier II positions constitute a highly restricted range of the cashier position. Dkt. No. 11-2 at 61. These positions require only light exertion – only up to 16 percent of the full range of exertion. Id. 27 According to the vocational expert, these cashiers are “typically found in parking garages, minimarts, and the like.” Id. A Cashier II position was classified as a job with an SVP rating of two. Training for 28 1 At step two, the ALJ determined that Plaintiff was severely impaired by lumbar 2 degenerative disease that more than minimally affected the Plaintiff’s ability to perform 3 basic work. Id. 4 At step three, ALJ Lunderman concluded that Plaintiff did not have an impairment 5 or combination of impairments that met or medically equaled the severity of one of the 6 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 20. 7 Before step four, the ALJ found that Plaintiff had the residual functional capacity 8 (“RFC”) to perform “light work as defined in 20 CFR 404.1567(b) except standing and/or 9 walking was limited to 30 minutes continuously and to six hours total during an eight 10 hour workday.” Id. at 21. In addition, the ALJ noted restrictions that precluded the 11 climbing of ladders, ropes, and scaffolds. Id. Plaintiff could also only climb ramps and 12 stairs, balance, stoop, kneel, crouch, and crawl only occasionally in a work context. Id. 13 In coming to this conclusion, the ALJ considered the Plaintiff’s own testimony, all of the 14 medical testimony and evidence, and the vocational expert’s testimony. Id. Moreover, 15 the ALJ assigned little weight to treating physician Dr. Altschuler’s opinion, little weight 16 to Dr. Deter’s opinion, little weight to Dr. Buckner’s opinion, and great weight to the 17 opinions of the state agency medical consultants. Id. at 22-24. 18 At step four, the ALJ found that Plaintiff would be unable to complete his past 19 relevant work as the “demands of said past work would exceed the residual functional 20 capacity.” Id. at 23. 21 At step five, the ALJ, in considering the Plaintiff’s age, high school education, and 22 work experience, concluded that Plaintiff’s RFC would enable him to make a successful 23 adjustment to jobs that existed in significant numbers in the national economy. Id. at 24. 24 Specifically, the ALJ relied on the vocational expert’s testimony that given Plaintiff’s 25 age, education, work experience, and RFC, he would be able to perform the requirements 26 of representative occupations such as cashier II, ticket seller, and information clerk. Id. at 27 24. 28 1 Therefore, the ALJ concluded that Plaintiff was not disabled at any time from 2 February 28, 2014, the alleged onset date, through March 31, 2014, the date last insured. 3 Id. at 25. 4 5 LEGAL STANDARD 6 I. Standard of Review of Magistrate Judge’s Report and Recommendation 7 In reviewing a Magistrate Judge’s Report and Recommendation,“[a] judge of the 8 court shall make a de novo determination of those portions of the report . . . to which 9 objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b); United States 10 v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 11 objection, “the court need only satisfy itself that there is no clear error on the face of the 12 record in order to accept the recommendation.” Fed. R. Civ. P. 72; Advisory 13 Committee’s Notes. When no objections are filed, a district court may assume the 14 correctness of the magistrate judge’s findings and recommendations, and decide the 15 motion on the applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 16 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). 17 II. Standard of Review for Commissioner’s Final Agency Decision 18 Section 205(g) of the Act permits unsuccessful claimants to seek judicial review of 19 the Commissioner’s final agency decision. 42 U.S.C. § 405(g). The reviewing court may 20 enter a judgment affirming, modifying, or reversing the Commissioner’s decision, and 21 may also remand the matter to the Social Security Administrator for further proceedings. 22 Id. 23 The scope of the reviewing court is limited; it may only “set aside the ALJ’s denial 24 of benefits . . . when the ALJ’s findings are based on legal error or are not supported by 25 substantial evidence in the record as a whole.” Parra v. Astrue, 481 F.3d 742, 746 (9th 26 Cir. 2007) (internal quotations omitted). “‘Substantial evidence’ means more than a mere 27 scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind 28 might accept as adequate to support a conclusion.” Robbins v. SSA, 466 F.3d 880, 882 1 (9th Cir. 2006). However, “[e]ven when the evidence is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are supported 3 by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 4 (9th Cir. 2012). 5 III. Determination of Disability 6 In order to qualify for disability benefits under the Act, an applicant must show 7 that: (1) she suffers from a medically determinable impairment that can be expected to 8 result in death, or which lasted, or can be expected to last, for a continuous period of 9 twelve months or more; and (2) the impairments renders the applicant incapable of 10 performing the type of work that the applicant previously performed, and incapable of 11 performing any other substantially gainful employment within the national economy. 42 12 U.S.C. § 423(d)(1). “[A] ‘physical or mental impairment’ is an impairment that results 13 from anatomical, physiological, or psychological abnormalities which are demonstrable 14 by medically acceptable clinical and laboratory diagnostic techniques.” Id. 423(d)(3). 15 The ALJ employs a sequential, five-step process to determine whether an applicant 16 is disabled under the Act. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). They 17 are set out as follows: 18 (i) At the first step, we consider your work activity, if any. If you are doing 19 substantial gainful activity, we will find that you are not disabled . . . 20 (ii) At the second step, we consider the medical severity of your impairment(s). 21 If you do not have a severe medically determinable physical or mental 22 impairment that meets the duration requirement . . . or a combination of 23 impairments that is severe and meets the duration requirement, we will find 24 that you are not disabled . . . 25 (iii) At the third step, we also consider the medical severity of your 26 impairment(s). If you have an impairment(s) that meets or equals one of our 27 listings . . . and meets the duration requirement, we will find that you are 28 disabled . . . 1 (iv) At the fourth step, we consider our assessment of your residual function 2 capacity and your past relevant work. If you can still do your past relevant 3 work, we will find that you are not disabled . . . 4 (v) At the fifth and last step, we consider our assessment of your residual 5 functional capacity and your age, education, and work experience to see if 6 you can make an adjustment to other work. If you can make an adjustment 7 to other work, we will find that you are not disabled . . . . 8 20 C.F.R. § 404.1520(a)(4) 9 If the ALJ finds that an applicant is not disabled at any step, he may make his 10 determination as to that condition and need not proceed to the next step. 20 C.F.R. § 11 404.1520(a)(4). “The burden of proof is on the claimant at steps one through four, but 12 shifts to the Commissioner at step five.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1222 13 (9th Cir. 2009). At steps four and five, The ALJ determines a claimant’s residual 14 functional capacity (“RFC”), which is the most a claimant can still do considering “all 15 relevant medical and physical evidence in [the] case record” and any “limiting effects 16 caused by medically determinable impairments.” Garrison, 759 F.3d at 1011 (9th Cir. 17 2014). Additionally, the ALJ may “‘call upon a [VE] to testify as to: (1) what jobs the 18 claimant, given his or her [RFC], would be able to do; and (2) the availability of such 19 jobs in the national economy.’” Id. (quoting Tackett v. Apfel, 180 F.3d 1094, 1101 (9th 20 Cir. 1999). 21 DISCUSSION 22 Plaintiff’s motion for summary judgment argues that the ALJ erred at step five by 23 “giving little to no weight to any of the doctor’s7 opinions provided in this case.” Dkt. 24
25 26 7 Referring to the opinion of Plaintiff’s “treating physician,” Dr. Altschuler. Although Schuh also identifies chiropractor Raymond Deters III, D.C., as a “treating physician” (ECF No. 13-1, at 6), Dr. 27 Altschuler is the only medical professional to opine on Schuh’s limitations who qualifies as a treating doctor or “acceptable medical source.” See 20 C.F.R. § 404.1502(a) (defining an “[a]cceptable medical 28 1 No. 13-1 at 5. Specifically, Plaintiff notes that the ALJ did not provide an adequate basis 2 for giving controlling weight to the state reviewer’s opinion over that of Plaintiff’s 3 treating physician, Dr. Altschuler. Dkt. No. 22 at 3. Since the ALJ is required to 4 consider all of the necessary factors for determining the weight given to a medical 5 opinion under 20 C.F.R. § 404.1527(c), Plaintiff contends that failure to do so is grounds 6 for remand. Id. Finally, Plaintiff also asserts that the ALJ did not properly question the 7 vocational expert with respect to Plaintiff’s limitations as prescribed by his treating 8 physicians. 9 Defendant’s cross-motion countered by arguing the ALJ did not err, as: (1) she 10 properly considered the opinion of Dr. Altschuler and gave germane reasons for 11 according it little weight (Dkt. No. 18-1 at 10); (2) the ALJ properly considered and gave 12 great weight to the opinions of non-treating physicians and state agency medical 13 consultants (Id. at 11-12); and (3) the ALJ properly found that Plaintiff failed to meet his 14 burden of proof that he could not perform light work with the thirty-minute limitation to 15 standing or walking. Id. at 17. 16 The Magistrate Judge found that the ALJ erred in failing to undertake a sufficient 17 regulatory-factor analysis when rejecting Dr. Altschuler’s opinion, and that the error was 18 not harmless. Dkt. No. 26 at 4-5. This Court agrees for the reasons set forth below. 19 I. The ALJ Improperly Discounted the Opinion of Plaintiff’s Treating 20 Physician 21 a. Treating Physician Rule 22 In social security disability cases, the ALJ must consider all medical opinion 23 evidence. See C.F.R. § 404.1527(b), (c). Generally, the opinion of a treating physician is 24 entitled to more weight than the opinion of an examining physician, and more weight is 25 given to the opinion of an examining physician than a non-examining physician. Russell 26 v. Berryhill, 2017 WL 4472630 at *4 (N.D. Cal. Oct. 6, 2017). 27 A treating physician’s opinion is given “controlling weight” so long as it “is well- 28 supported by medically acceptable clinical and laboratory diagnostic techniques and is 1 not inconsistent with the other substantial evidence in the claimant’s case record.” 2 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (alterations omitted). If the ALJ 3 gives a treating physician’s opinion less than controlling weight, the ALJ must comply 4 with two requirements. First, the ALJ must consider all of the following factors in 5 deciding the weight to give any medical opinion: (1) length and frequency of the 6 examining relationship; (2) nature and extent of the treatment relationship; (3) 7 supportability and whether the medical opinion includes supporting explanations and 8 relevant evidence such as laboratory findings; (4) consistency with the record as a whole; 9 (5) physician specialization and; (6) other factors. Id. The failure to consider these 10 factors constitutes reversible error. Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 11 2017). Next, the ALJ must provide reasons for rejecting the treating physician’s opinion. 12 Id. at 675. 13 When a treating doctor’s opinion is not controlling, the ALJ must determine the 14 appropriate weight to give it after at least some consideration of all the following factors 15 listed above. See 20 C.F.R § 404.1527(c)(2)-(6). And when a treating doctor’s opinion is 16 contradicted by another doctor, as here, the ALJ may only discount the treating 17 physician’s opinion “by providing specific and legitimate reasons that are supported by 18 substantial evidence.” Trevizo, 871 F.3d at 675. 19 Although ALJs need not engage in a full-blown written analysis of all of these 20 regulatory factors, they must show “some indication” that they considered each one. 21 Hoffman v. Berryhill, 2017 WL 3641881, at *4 (S.D. Cal. Aug. 24, 2017), adopted, 2017 22 WL 4844545 (Sept. 14, 2017). 23 i. Magistrate Judge’s Findings 24 The Magistrate Judge found that the ALJ offered a specific and legitimate reason – 25 that physician-patient relationship did not begin until two years after the Plaintiff’s date 26 last insured – for rejecting the treating physician’s opinion. However, the Magistrate 27 Judge also observed that the ALJ failed to undertake a sufficient regulatory-factor 28 analysis. Specifically, the R&R finds that the ALJ’s six-sentence treatment of Dr. 1 Altschuler’s medical assessment fails to consider the consistency of Dr. Altschuler’s 2 opinion with the record as a whole. See AR 23. In addition, the ALJ neither mentions 3 Dr. Altschuler’s specialty (“Family Medicine”) nor whether Dr. Altschuler’s opinion was 4 sufficiently related to his specialty. AR 23, 315. The Magistrate Judge found that the 5 failure to consider these regulatory factors “alone constitutes reversible error.” Dkt. No 6 26 at p. 3; Quoting Trevizo v. Berryhill, 871 F.3d at 676. 7 ii. Analysis and Review 8 Since the ALJ decided not to afford Dr. Altschuler’s opinion controlling weight, 9 she was required to analyze the factors under section 404.1527(c)(2). The ALJ cursorily 10 addressed some of these factors and noted that Dr. Altschuler did not begin treating the 11 patient until two years after his date last insured. However, the ALJ failed to properly 12 consider Dr. Altschuler’s medical assessment through the lens of all required factors, 13 such as the nature and extent of the treatment relationship, the consistency of Dr. 14 Altschuler’s opinion, and Dr. Altschuler’s specialty. Specifically, the ALJ does not 15 mention the physician’s specialization or examine the consistency of Dr. Altschler’s 16 opinion with the record as a whole. Moreover, the ALJ does not explain how Dr. 17 Altschuler’s assessment was unsupported by other medical testimony. 18 “The failure to consider these regulatory factors “’alone constitutes reversible legal 19 error.’” See Trevizo v. Berryhill, 871 F.3d at 676. The fact that Dr. Altschuler did not 20 begin treating the Plaintiff until two years after the date last insured does not obviate the 21 need for the ALJ to assess the other relevant factors. See Russell v. Berryhill, 2017 WL 22 4472630 (N.D. Cal. Oct. 6, 2017) (where the court found that the ALJ was still required 23 to address factors for a treating physician who did not begin seeing the claimant until 24 several years after her date last insured). Moreover, medical evaluations made after the 25 expiration of a claimant’s insured status should not be disregarded solely on the basis that 26 they are rendered retrospectively. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). 27 And even if the ALJ believed that Dr. Altschuler’s conclusions were insufficient 28 evidence to form an opinion regarding the Plaintiff’s functional capacity on or before his 1 date last insured, that still does not mean that Dr. Altschuler’s opinion was inconsistent 2 with the evidence or contradicted by other medical opinions on the record. 3 In Russell, the court found that the retrospective nature of the treating physician’s 4 opinion alone was not enough to provide a proper basis for discounting that opinion. See 5 Russell v. Berryhill, 2017 WL 4472630 (N.D. Cal. Oct. 6, 2017). Although the treating 6 physician did not begin seeing the Plaintiff until several years after her date last insured, 7 the court noted that Plaintiff’s reports of pain and fibromyalgia were consistent with pain 8 reported during the adjudicative period. The court found, “where [ . . . ] the retrospective 9 opinion of the treating physician is uncontradicted, a higher standard applies: the ALJ 10 may disregard that opinion only if he provides clear and convincing reasons that are 11 supported as a whole.” Id. at *4. As such, the fact that the doctor did not begin treating 12 claimant until after her date last insured “does not, by itself, provide a legitimate basis for 13 discounting [the doctor’s] uncontradicted opinion.” Id. 14 Here, the Court concludes that the ALJ similarly committed a reversible error by 15 failing to address all of the regulatory factors required in discounting a treating 16 physician’s opinion. In addition, the Court finds that the retrospective nature of the 17 treating physician’s relationship with the Plaintiff – without additional and substantial 18 evidence of contradiction in the record – is not enough for the ALJ to disregard the 19 treating physician’s opinion. 20 Since the retrospective nature of Dr. Altschuler’s opinion is the only reason the 21 ALJ gives for discounting his opinion, the Court finds that the ALJ committed a 22 reversible error, which the Court finds constitutes grounds for remand. 23 b. The ALJ’s Error Was Not Harmless 24 i. Magistrate Judge’s Findings 25 Next, the Magistrate Judge found that the ALJ’s failure to undertake the required 26 regulatory-factor analysis when discounting Dr. Altschuler’s opinion constituted more 27 than harmless error. Specifically, the Magistrate Judge noted that during oral argument, 28 the Social Security Administration could not articulate any compelling reasons that the 1 error was harmless – even when given an additional minute of argument for that purpose. 2 Dkt. No. 26 at 4. The Magistrate Judge also found that the ALJ’s failure to incorporate a 3 sitting restriction into her line of questioning of the vocational expert was not an 4 inconsequential error when considering the record as a whole. Id. 5 ii. Analysis and Review 6 “[A]n ALJ’s error is harmless where it is inconsequential to the ultimate 7 nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), 4 8 18-cv-1398-GPC-AGS (internal quotation marks omitted). The Court must “look at the 9 record as a whole to determine whether the error alters the outcome of the case.” Id. 10 This Court likewise cannot find that the procedural error here was inconsequential. 11 It is clear from the record that Dr. Altschuler recommended a strict restriction on Schuh’s 12 sitting. This sitting restriction had more than a modicum of support in the record from 13 testing, medical observations, medical opinions from the adjudicative time period, and 14 Schuh’s own testimony. See, e.g., AR 54, 56, 278, 287, 301, 310. Because the ALJ gave 15 little weight to Dr. Altschuler’s opinion, the ALJ did not incorporate such a limitation 16 into her questioning of the vocational expert or her residual functional capacity analysis. 17 As a result, the vocational expert did not consider the need for such a restriction in 18 testifying about alternative vocations. AR 21, 59. And finally, it is notable that in the 19 moving papers and during ten minutes of oral argument before the Magistrate Judge, the 20 Social Security Administration articulated no grounds for harmless error. Even after the 21 SSA received an additional minute of oral argument specifically for that purpose, the 22 Magistrate Judge found that it was still unable to do so. 23 A sitting restriction may well have rendered Schuh unable to find work – including 24 in one of the suggested alternative occupations (i.e. ticket seller, cashier, information 25 clerk) – and consequently eligible for disability benefits. See SSR 83-10, 1983 WL 26 31251, at *5 (1983) (even a “sedentary” worker generally must sit for “approximately 6 27 hours of an 8-hour workday”); 20 C.F.R. Pt. 404, Subpt. P, App. 2, at 201.12 (a 28 1 “Sedentary” claimant with Schuh’s age and education is presumptively “Disabled”). At a 2 minimum, this Court finds that the ALJ should consider the need for such a restriction in 3 accordance with the mandatory regulatory factors. 4 In addition, the Court’s decision to remand this case for further proceedings is 5 bolstered by other factual errors sprinkled in the ALJ’s report. For example, the ALJ 6 repeatedly misidentifies physical therapist Tony Sanchez and physical therapist assistant 7 Celia Bartman as “William Buc[h]ner, M.D.,” the referring physician. Compare AR 23 8 with AR 300, 311. Similarly, the ALJ claims that the opinions of “other providers” are 9 “not consistent with the opinions expressed” by the treating physicians (AR 22-23), but 10 the record is devoid of such contrary opinions from other providers. And finally, the 11 Court notes that it is perplexing that the ALJ’s discounted Dr. Buchner’s opinion in part 12 because “Dr. Buchner saw the claimant only once” when the record demonstrates that 13 Plaintiff visited Dr. Buchner at least twice during the operative time period prior to the 14 date last insured and was subsequently sent for follow-up at a spine clinic. See AR 220, 15 226. 16 In deciding whether to remand for either further proceedings or an award of 17 benefits, the Court is guided by the three-step “credit-as-true” rule. See Treichler v. 18 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100-02 (9th Cir. 2014). The Court must 19 first ask whether the ALJ failed to offer “legally sufficient reasons for rejecting 20 evidence.” Id. at 1100. If she failed to do so, the Court would next determine whether 21 there are outstanding issues that must be resolved before a determinability of disability 22 can be made and if further administrative proceedings would be useful. Id. at 1101. And 23 lastly, the Court must analyze if the relevant testimony is credible as a matter of law – 24 and award benefits, so long as the record of the whole “leaves not the slightest 25 uncertainty as to the outcome of the proceeding.” Id. 26 Here, the Court agrees with the Magistrate Judge’s Recommendation that further 27 administrative proceedings would be useful. Although the ALJ made reversible errors, 28 1 || the Court also finds that there are unresolved conflicts and ambiguities in Dr. Altschuler’s 2 ||testimony. Since Dr. Altschuler’s opinion is “not a model of clarity either,” the Court 3 || cannot find that the record leaves not the slightest uncertainty as to the outcome. ECF 4 || No. 26 at 5; see AR 315. The Court finds that the ALJ is in the best position to undertake 5 weight that must be accorded to Dr. Altschuler’s opinion. This is a potentially 6 || outcome determinative analysis would be best conducted through further administrative 7 || proceedings. 8 CONCLUSION 9 Based on the above, the Court ADOPTS the Report and Recommendation of the 10 || Magistrate Judge and GRANTS Plaintiff's motion for summary judgment and DENIES 11 || Defendant’s cross-motion for summary judgment. The case shall be remanded to the 12 || Social Security Administrator for further proceedings. 13 IT IS SO ORDERED. 14 || Dated: September 26, 2019 72 I5 Hon. athe Coke 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28