(SS) Drewry v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 30, 2019
• Docket: 2:18-cv-02241
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK C. DREWRY, No. 2:18-cv-2241-EFB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying his application for a period of disability and Disability Insurance 20 Benefits (“DIB”) under Title II of the Social Security Act. The parties have filed cross-motions 21 for summary judgment. ECF Nos. 15 & 16. For the reasons discussed below, plaintiff’s motion 22 for summary judgment is granted, the Commissioner’s motion is denied, and the matter is 23 remanded for further proceedings. 24 I. Background 25 Plaintiff filed an application for a period of disability and DIB, alleging that he had been 26 disabled since January 31, 2014.1 Administrative Record (“AR”), ECF No. 11, at 212-17. 27

28 1 Plaintiff subsequently amended the disability onset date to November 1, 2014. AR 17. 1 Plaintiff’s application was denied initially and upon reconsideration. Id. at 133-37, 139-43. A 2 hearing was subsequently held before administrative law judge (“ALJ”) Daniel G. Heely. Id. at 3 37-63. 4 On September 12, 2017, the ALJ issued a decision finding that plaintiff was not disabled 5 under sections 216(i) and 223(d) of the Act.2 Id. at 15-32. The ALJ made the following specific 6 findings:

7 1. The claimant meets the insured status requirements of the Social Security Act through 8 December 31, 2019.

9 2. The claimant has not engaged in substantial gainful activity since November 1, 2014, the amended alleged onset date (20 CFR 404.1571 et seq.). 10

11 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation:

16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 * * * 2 3. The presumption of continuing nondisability created by Chavez v. Brown has been rebutted, and the prior ALJ decision is not accorded res judicata effect. 3 4 * * * 5 4. The claimant has the following severe impairments: closed non-union scaphoid fracture right wrist; primary osteoarthritis left wrist with chronic pain; chronic right ankle sprain, 6 deltoid ligament, with pain; chronic left ankle sprain, deltoid ligament, with pain; and post-traumatic stress disorder (20 CFR 404.1520(c)). 7 * * * 8

9 5. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart 10 P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

11 * * *

12 6. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) 13 except that he can, at most: occasionally balance, stoop, kneel, crouch, and climb ramps or stairs; but cannot ever crawl, or climb ladders, ropes or scaffolds. With the claimant’s 14 bilateral upper extremities, he can only engage in frequent, but not constant, handling and 15 finger activities, meaning gross- or fine- manipulation type activities. The claimant cannot ever work around hazards (such as moving, dangerous machinery, or unprotected 16 heights). He also cannot ever operate motor vehicles. The claimant is limited to work that is SVP one or two, or can be learned on the job in a month or less. The claimant 17 finally can occasionally have contact with the public, coworkers, and supervisors.

18 * * *

19 7. The claimant is unable to perform any past relevant work (20 CFR 404.1565). 20 * * * 21 8. The claimant was born [in] 1967 and was 46 years old, which is defined as a younger 22 individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). 23 9. The claimant has at least a high school education and is able to communicate in English 24 (20 CFR 404.1564). 25 10. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not 26 disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 27

28 1 11. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the 2 claimant can perform (20 CFR 404.1569 and 404.1569(a)). 3 * * * 4 12. The claimant was not under a disability, as defined in the Social Security Act, from 5 January 31, 2014, through the date of this decision (20 CFR 404.1520(g)). 6 Id. at 17-32. 7 Plaintiff’s request for Appeals Council review was denied on June 26, 2018, leaving the 8 ALJ’s decision as the final decision of the Commissioner. Id. at 1-7. 9 II. Legal Standards 10 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 11 of fact are supported by substantial evidence in the record and the proper legal standards were 12 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 13 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 14 180 F.3d 1094, 1097 (9th Cir. 1999). 15 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 16 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 17 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 18 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 19 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 20 N.L.R.B., 305 U.S. 197, 229 (1938)). 21 “The ALJ is responsible for determining credibility, resolving conflicts in medical 22 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 23 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 24 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 25 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 26 III. Analysis 27 Plaintiff argues that the ALJ erred in assessing his residual functional capacity (“RFC”) by 28 (1) failing to properly weigh the medical opinion evidence and (2) considering the limiting effects 1 of his carpel tunnel syndrome and the residual effects of his heart attack. ECF No. 15 at 16-25. 2 As explained below, plaintiff’s first argument warrants remand for further proceedings. The court 3 therefore declines to address plaintiff’s remaining argument. 4 A. Relevant Legal Standards 5 The weight given to medical opinions depends in part on whether they are proffered by 6 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 7 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 8 greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 9 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical 10 opinion, in addition to considering its source, the court considers whether (1) contradictory 11 opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an 12 uncontradicted opinion of a treating or examining medical professional only for “clear and 13 convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or 14 examining medical professional may be rejected for “specific and legitimate” reasons that are 15 supported by substantial evidence. Id. at 830. While a treating professional’s opinion generally 16 is accorded superior weight, if it is contradicted by a supported examining professional’s opinion 17 (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. 18 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 19 747, 751 (9th Cir. 1989)). However, “[w]hen an examining physician relies on the same clinical 20 findings as a treating physician, but differs only in his or her conclusions, the conclusions of the 21 examining physician are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 22 2007). 23 B. Background 24 At the request of the state agency, plaintiff was evaluated by examining physician Dr. 25 Satish Sharma in September 2015. AR 503-06. Plaintiff’s primary complaints were bilateral 26 ankle pain and right wrist pain. Id. at 503. He reported that he had three surgeries on his right 27 wrist, with the last one a fusion that did not resolve his pain. Id. Plaintiff also noted that his wrist 28 pain made it difficult to lift with his right hand, and his ankle pain made standing and walking for 1 long periods of time difficult. Id. at 504. On exam, plaintiff’s right wrist was tender to palpation 2 and dorsiflexion and palmar flexion were zero degrees. Id. Swelling and tenderness in both 3 ankles were noted, as well as pain on dorsiflexion. Id. at 504-05. Dr. Sharma observed that 4 plaintiff walked with a limp on the right lower extremity and was unable to perform toe walking 5 and heel walking. Id. at 505. 6 Dr. Sharma diagnosed plaintiff with right wrist pain, bilateral ankle pain secondary to 7 ankle sprain and ligamentous, and hypertension.3 Id. He determined that plaintiff could walk 8 and/stand for six hours in and eight-hour workday, sit without limitation, and was not limited in 9 lifting and carrying. Id. Dr. Sharma further opined that plaintiff was not limited in holding, 10 feeling, and fingering objects, but he could only occasionally push and pull with his right hand. 11 Id. 12 Less than two weeks later, a state agency non-examining physician Dr. R. Dwyer 13 reviewed plaintiff’s medical records, including Dr. Sharma’s report, and concluded that plaintiff 14 was physically able to perform the full range of medium work. Id. at 99-100. 15 In November 2015, plaintiff sought treatment at the VA Medical Center’s podiatry clinic 16 for sudden left ankle pain after he felt a pop in his ankle. Id. at 544-46. Examination showed 17 diffuse pain on palpation over left ankle with edema and underlying ankle instability. Id. at 545. 18 Plaintiff was diagnosed with traumatic arthritis and ankle instability. Id. at 546. He was fitted for 19 a CAM boot, an Arizona brace consult was ordered4, and he was instructed to avoid extended 20 walking to minimize pain and swelling. Id. 21 The following month, plaintiff was seen at the podiatry clinic by treating physician Dr. 22 Lateef Lawal for complaints of chronic ankle pain. AR 533-35. Plaintiff reported that he was 23 unable to stand for more than 45 minutes and that his ankles felt like they would “roll out on 24 3 Dr. Sharma also diagnosed plaintiff with post-traumatic stress disorder. AR 505. 25 Because plaintiff does not challenge the ALJ’s finding with respect to his mental limitations, 26 evidence regarding mental impairments is addressed only to the extent necessary to resolve the parties’ arguments. 27 4 The treatment records also noted that plaintiff was currently wearing an Arizona brace 28 on his right ankle. AR 546. 1 him.” Id. at 533. He was diagnosed with severe ligamentous laxity and chronic ankle and 2 subtalar joint arthritis. Id. at 534. He was given a given a Marcaine and Kenalog injection in the 3 right ankle and instructed to continue wearing an Arizona brace on his right leg and CAM boot on 4 his left foot. Based on his examination, Dr. Lawal opined that plaintiff’s pain prohibited him 5 from ambulating for long periods of time and that he should not work.5 Id. 6 In January 2016, plaintiff was seen for a hand surgery consultation. Id. at 529-31. 7 Examination showed positive Tinel’s and Durkan’s signs in both wrists, and decreased sensation 8 over radial aspects of plaintiff’s left thumb was noted. Id. at 531. It was determined that plaintiff 9 appeared to have a partial Scapholunate ligament tear. Id. Surgical options were discussed, and 10 plaintiff was referred to occupational therapy for a splint. Id. Electromyography (“EMG”) 11 testing was also ordered to assess whether plaintiff had carpel tunnel syndrome. Id. 12 In February 2016, state agency non-examining physician Dr. E. Wong concluded, after a 13 review of plaintiff’s medical records; that plaintiff could lift 20 pounds occasionally and 10 14 pounds frequently, stand and/or walk for about six hours in an eight-hour workday; sit for about 15 six hours in an eight-hour workday; occasionally kneel, crouch, and climb ramps and stairs, but 16 never crawl or climb ladders, ropes, or scaffolds. Id. at 113-14. Dr. Wong further opined that 17 plaintiff was limited to frequent handling and fingering bilaterally and pushing and/or pulling 18 with the right upper extremity due to right wrist fusion and left wrist pain. Id. 19 That same month, plaintiff underwent the previously-ordered EMG nerve conduction 20 study, which was normal. Id. at 751-53. Shortly thereafter, treating physician Dr. Paul Caviale 21 observed that plaintiff’s recent nerve conduction study was negative, but he determined that 22 plaintiff has “electrically negative carpal tunnel syndrome, as Phalen’s sign is present bilaterally.” 23 Id. at 595. Dr. Caviale also noted that plaintiff’s impairments included a fused right wrist, 24 arthritis in his left wrist, paresthesias in both hands, severe ankle arthritis, and low back pain 25

26 5 The record reflects that Dr. Lawal is a resident podiatrist. However, the treatment record states that the examination was discussed in detail with the attending physician, Dr. Jeffrey 27 Spank, who agreed in the assessment and treatment plan and cosigned the treatment note. AR 535. For ease of reference, the court will refer only to Dr. Lawal in address the findings and 28 opinions in this treatment note. 1 resulting from wearing ankle braces. Id. at 595. He opined that due to these impairments, 2 plaintiff was “severely limited in his prospects for employment” and that it “would be extremely 3 difficult for him to find any employment at all in the future.” Id. 4 In March 2016, treating physician Dr. Jagdish Patel prepared a disability evaluation 5 report. Id. at 599-601. Dr. Patel diagnosed plaintiff with a closed non-union scaphoid fracture of 6 the right wrist, osteoarthritis in the left wrist with chronic pain, chronic deltoid ligament sprain 7 with pain in both ankles, and post-traumatic stress syndrome. AR 599-600. It was Dr. Patel’s 8 opinion that plaintiff was not able to lift more than 10-20 pounds occasionally with both hands, 9 and that he was also limited to occasionally grasping, pushing and pulling. Id. at 600. He further 10 opined that plaintiff was not able to stand or walk for more than 15 minutes due to his chronically 11 sprained ankles. Id. He also concluded that plaintiff could climb up to two flights of stairs but 12 that walking back down would be very painful. Id. With respect to plaintiff’s mental 13 impairment, Dr. Patel concluded that it would be difficult for plaintiff to concentrate and follow 14 instructions. Id. He also noted that plaintiff’s post-traumatic stress syndrome caused nightmares, 15 difficultly sleeping, constraint crying, and binge drinking. Id. at 601. He also noted plaintiff 16 could no longer watch the news without having bad dreams. Id. Based on the assessed 17 limitations, Dr. Patel concluded that plaintiff was permanently disabled. Id. at 600. 18 In June 2016, plaintiff went to the emergency room after having intermittent chest pain, 19 dizziness, and shortness of breath. Id. at 647-80. After being admitted to the hospital, it was 20 determined plaintiff had a heart attack. He underwent a cardiac catheterization and stent to the 21 right carotid artery and was discharged within two days. Id. at 647-49. 22 In a January 2017 treatment note, Dr. Patel stated that plaintiff had extensive osteoarthritis 23 in his left wrist that was quite limiting and painful. Id. at 608. He also opined that plaintiff’s 24 wrist impairment interfered with daily activities, including the ability to grip, grasp, push, pull, 25 and lift more than five pounds. Id. 26 In assessing plaintiff’s RFC, the ALJ gave great weight to Dr. Sharma and the non- 27 examining state agency physicians’ opinions, while affording little weight to all other medical 28 opinions. Id. at 26-28. 1 C. Discussion 2 Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons for 3 rejecting the treating opinions of Dr. Patel, Dr. Lawal, and Dr. Caviale.6 ECF No. 15 at 16-23. 4 Turning first to Dr. Patel, the ALJ afforded little weight both the March 2016 and January 5 2017 opinions. As to the earlier opinion, the ALJ first concluded that “Dr. Patel’s statements are 6 in many ways nonspecific (‘difficult’).” AR 28. The only functional limitation Dr. Patel 7 described as “difficult” was plaintiff’s ability to concentrate and follow instructions. Id. at 600- 8 01. Plaintiff, however, does not challenge the ALJ’s assessment of his mental limitation. 9 Consequently, the sufficiency of this reason is immaterial. 10 The ALJ also afforded little weight to Dr. Patel’s opinion based on a finding that he relied 11 heavily on plaintiff’s subjective reports. Id. at 28. In reaching this finding, the ALJ explained 12 that “the record does not suggest that Dr. Patel himself ever observed the claimant watching 13 news, or experiencing nightmares.” Id. at 28. This reason, like the first, specifically concerns Dr. 14 Patel’s opinion regarding plaintiff’s mental limitations, which are not in dispute.7 15 The ALJ also concluded that Dr. Patel’s opinion was inconsistent with the medical 16 evidence of record, including observations that plaintiff had intact whole-body strength and intact 17 coordination. Id. This justification completely ignores the basis for Dr. Patel’s opinion. See Orn 18 v. Astrue, 495 F. 3d 625, 635 (9th Cir. 2007) (“[A]n ALJ must evaluate the physician’s 19 assessment using the grounds on which it is based.”). Dr. Patel’s assessed limitations were not 20 based on diminished strength or a lack of coordination. Instead, Dr. Patel specifically stated that 21 6 Plaintiff’s argument heading also contends that the ALJ erred in rejecting Dr. 22 Kaufman’s opinion “regarding the functional impact of [plaintiff’s] physical impairments.” ECF 23 No. 15 at 16. But in the body of his argument section, plaintiff conceded that Dr. Kaufman did not provide an opinion as to his functional limitation. Id. at 16. Nevertheless, he argues that Dr. 24 Kaufman’s findings support Dr. Patel’s opinion. Id. There is no need to address whether the ALJ provided sufficient reasons for rejecting Dr. Kaufman’s opinion about his functional limitations, 25 as plaintiff concedes she did not provide one. 26 7 Nevertheless, if mental limitations were in dispute this reason would not be legally 27 sufficient as it ignores that treating and assessing mental health often requires medical practitioners to rely on the patient’s reports of symptoms. See Ferrando v. Comm. of Soc. Sec. 28 Admin., 449 F. App’x 610, 612, n. 2 (9th Cir. 2011). 1 plaintiff was limited to occasionally lifting 10-20 pounds and occasionally gripping, grasping, 2 pushing, and pulling due to chronic hand pain and numbness. AR 600. As for his opinion that 3 plaintiff could only stand or walk for 15 minutes, Dr. Patel attributed that limitation to plaintiff’s 4 chronic ankle sprains, not diminished strength or coordination. Id. 5 Lastly, the ALJ observed that Dr. Patel’s statement that plaintiff is “disabled” goes to the 6 ultimate issue of disability, which is a conclusion reserved for the Commissioner. AR 28. This 7 reason alone is not a permissible basis for rejecting Dr. Patel’s opinion that plaintiff is disabled, 8 much less the specific functional limitations he assessed and relied upon as the basis for his 9 opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“[A]n ALJ may not simply 10 reject a treating physician’s opinions on the ultimate issue of disability,” but instead must provide 11 specific and legitimate reasons supported by substantial evidence). 12 The ALJ’s reasons for rejecting Dr. Patel’s January 2017 opinion that plaintiff’s left wrist 13 arthritis limits his ability to perform gross manipulation and lift more than five pounds are equally 14 unavailing. The ALJ first observed that “Dr. Patel’s treatment note does not indicate that Dr. 15 Patel actually observed the claimant trying to lift on that occasion.” AR 28. The proffered reason 16 not only ignores that expertise possessed by doctors and the role they play in Social Security 17 cases, it is also puzzling in light of the ALJ’s decision. A cursory review of the decision reflects 18 that the ALJ relied heavily on Dr. Sharm’s examining report in assessing nearly all aspects of 19 plaintiff’s physical limitations. But like Dr. Patel’s January 2017 treatment note, Dr. Sharma’s 20 report does not reflect that he personally observed plaintiff performing each of the limitations he 21 assessed. For instance, his report does not suggest (for obvious reasons) that he observed plaintiff 22 for more than sixteen hours to determine how long he sit in an eight-hour day and stand/walk in 23 an eight-hour day. 24 The ALJ’s remaining reasons also fall short of the specific and legitimate standard. The 25 ALJ discounted the weight to be given to the opinion for the additional reason that he considered 26 it inconsistent with objective medical evidence showing that plaintiff had intact coordination, 27 intact sensation, and intact reflexes. He further observed that Dr. Patel’s January 2017 treatment 28 notes did not indicate plaintiff’s strength or sensation was evaluated at that time. Id. at 28. In 1 reaching these findings, the ALJ once again ignores the basis for the opinion. Dr. Patel 2 specifically stated that plaintiff had extensive osteoarthritis that was quite painful and limited 3 plaintiff’s ability to perform gross manipulation and lift more than five pounds. As previously 4 stated, the ALJ was required to assess Dr. Patel’s opinion based on ground on which it is based. 5 Orn, 495 F. 3d at 635. 6 The ALJ’s rejection of Dr. Lawal is also not supported by specific and legitimate reasons. 7 In according little weight to Dr. Lawal’s opinion, the ALJ observed that the physician’s statement 8 that plaintiff should not work goes to the ultimate issue of disability. AR 29. As already 9 explained, this reason alone is not legally sufficient. Ghanim v. Colvin, 763 F.3d at 1161. 10 The sole remaining reason for rejecting Dr. Lawal’s opinion was that it was inconsistent 11 with the objective medical evidence, including records showing that plaintiff ambulated normally. 12 AR 29. To support this finding, the ALJ cited two records. The first is a report from a 13 comprehensive psychiatric consultative evaluation that noted plaintiff’s posture and gait were 14 normal. AR 499. The second is a treatment note from April 2017, in which plaintiff was 15 evaluated for complaints of increased heart palpations less than a year after his heart attack. Id. at 16 715-19. Neither of these medical records concerned complaints or treatment related to plaintiff’s 17 ankles. Further, the ALJ’s finding ignores extensive treatment records showing significant ankle 18 impairments, as detailed above. See, e.g., id. at 504 (noting ankle swelling and tenderness in 19 ankles and observing that plaintiff walked with a limp); 545 (noting diffuse ankle pain, instability, 20 arthritis in ankles, prescription for CAM boot and Arizona brace, and recommendation to limit 21 walking); 534 (directing plaintiff to continue wearing CAM boot and Arizona brace); 595 22 (documenting severe ankle arthritis). 23 Finally, the ALJ erred in failing to address Dr. Caviale’s opinion that plaintiff’s 24 impairments made it extremely difficult for him to be employed. AR 595. While such an opinion 25 is directly related to the ultimate issue of disability, it could not be ignored nor rejected absent 26 specific and legitimate reasons. Ghanim. 763 F.3d at 1161; see also Tommasetti v. Astrue, 533 27 F.3d 1035, 1041 (9th Cir. 2008) (“The ALJ must consider all medical opinion evidence.”). 28 ///// 1 Based on the foregoing, the court finds that the ALJ failed to properly weigh the medical 2 || evidence of record. Accordingly, the matter must be remanded for further consideration. 3 | Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (‘A district court may reverse the 4 | decision of the Commissioner of Social Security, with or without remanding the case for a 5 || rehearing, but the proper course, except in rare circumstances, is to remand to the agency for 6 || additional investigation or explanation.”) (internal quotes and citations omitted). 7 | IV. Conclusion 8 Based on the foregoing, it is hereby ORDERED that: 9 1. Plaintiff’s motion for summary judgment is granted; 10 2. The Commissioner’s cross-motion for summary judgment is denied; 11 3. The matter is remanded for further proceedings consistent with this order; and 12 4. The Clerk of Court is directed to enter judgment in plaintiff’ s favor. 13 | DATED: September 30, 2019. 14 tid, PDEA EDMUND F. BRENNAN 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 12