(SS) Gervacio De Martinez v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: September 15, 2020
• Docket: 1:19-cv-00528
• Status: Unknown

Opinion

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 MARIA DEL ROSARIO GERVACIO DE 11 MARTINEZ, Case No. 1:19-cv-00528-SKO 12 Plaintiff, ORDER ON PLAINTIFF’S SOCIAL 13 v. SECURITY COMPLAINT 14 ANDREW SAUL, Commissioner of Social Security,1 15 (Doc. 1) Defendant. 16 17 18 _____________________________________/ 19 20 I. INTRODUCTION 21 On April 22, 2019, Plaintiff Maria Del Rosario Gervacio De Martinez (“Plaintiff”) filed a 22 complaint under 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the 23 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his applications 24 for disability insurance benefits (“DIB”) and Supplemental Security Income (SSI) under the Social 25 Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, 26

27 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See https://www.ssa.gov/agency/commissioner.html. He is therefore substituted as the defendant in this action. See 42 28 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 1 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 2 Magistrate Judge.2 3 II. BACKGROUND 4 Plaintiff was born on October 7, 1963, has a sixth-grade education, can speak some English, 5 and previously worked as a farm laborer. (Administrative Record (“AR”) 60, 71, 86, 413, 431, 6 441, 589, 591, 597, 666, 697.) Plaintiff filed claims for DIB and SSI payments on July 17, 2015, 7 alleging she became disabled on May 21, 2014, due to degenerative disc disease, radiculopathy, 8 chronic neck pain, arm pain and weakness, high blood pressure, cholesterol, asthma, and 9 depression. (AR 403, 416, 573, 574, 590, 597, 634, 646, 666, 674, 678, 683, 690, 697.) 10 A. Relevant Medical Evidence3 11 1. Consultative Examiner Tomas Rios, M.D. 12 On October 27, 2015, Plaintiff presented to Dr. Rios for a comprehensive internal medicine 13 evaluation. (AR 807–11.) Plaintiff complained of chronic back problems, asthma, and pain in her 14 right arm. (AR 807.) She reported that her back pain has become more pronounced in the last year 15 and is accompanied by shooting pain to the shoulder joint and both arms. (AR 807.) Plaintiff also 16 describes a history of asthma for several years with chronic cough and episodic wheezing spells, 17 for which she uses an inhaler with good response. (AR 807.) Plaintiff also reported a history of 18 epicondylitis on the right side, which has improved with injection treatment and therapy but still 19 limits repetitive use of her right arm. (AR 807–08.) 20 Dr. Rios noted that although Plaintiff walked with a walker, its necessity was “doubtful” 21 because her overall motor strength and mobility “did not appear to be significantly compromised” 22 and her equilibrium and balance were normal. (AR 808.) Dr. Rios noted Plaintiff had normal 23 station, and normal heel, toe, and tandem gait. (AR 809.) Her Romberg test was normal. (AR 24 809.) Plaintiff’s straight leg raising test was negative to 80 degrees bilaterally from both seated 25 and supine positions. (AR 810.) 26 Examination of the neck revealed tenderness along Plaintiff’s suboccipital and upper 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 9, 10.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 trapezius region. (AR 810.) Her Spurlings test was negative. (AR 810.) Dr. Rios found Plaintiff’s 2 shoulders showed full range of motion without any impingement sign. (AR 810.) Her deep tendon 3 reflexes of the biceps and triceps was “2+.” (AR 810.) Plaintiff’s Mills test was negative on the 4 right. (AR 810.) Dr. Rios found slight tenderness in Plaintiff’s left lateral epicondyle, but no 5 guarding was observed. (AR 810.) Plaintiff’s grip strength remained normal with preserved fine 6 and gross finger manipulations. (AR 810.) 7 Dr. Rios noted tenderness of Plaintiff’s mid and lower lumbar spine without any spasms of 8 the para lumbar musculature. (AR 810.) “Provocative maneuvers” elicited no findings of nerve 9 root compromise. (AR 810.) Plaintiff’s chest and lungs were observed to be “[s]ymmetric with 10 normal excursions” and “[c]lear to auscultation throughout.” (AR 809.) Dr. Rios did not observe 11 any “adventitious sounds” or wheezing. (AR 810.) Plaintiff had no clubbing of her fingers or 12 cyanosis. (AR 810.) 13 Plaintiff’s motor strength was “5/5” throughout the upper and lower extremities, with 14 normal grip strength. (AR 810.) Dr. Rios noted Plaintiff’s muscle bulk and tone were normal 15 without any atrophy or spasms. (AR 810.) Plaintiff’s sensations were grossly intact and her deep 16 tendon reflexes were “2+” in the bilateral upper and lower extremities. (AR 810.) 17 Dr. Rios diagnosed Plaintiff with degenerative disc disease of the cervical and lumbar spine, 18 lateral epicondylitis on the right resolved, and asthma. (AR 811.) He concluded that Plaintiff 19 has residual tenderness of the lumbar spine and cervical spine without any evidence of nerve root compromise. There is slight tenderness along the lateral epicondyle 20 but grip strength is adequate at this point with negative Mills test. She also has 21 history of asthma but appears to be clinically stable. 22 (AR 811.) From this, Dr. Rios opined that Plaintiff could stand and walk for up to six hours in an 23 eight-hour period, lift and carry 20 pounds occasionally and 10 pounds frequently, and could 24 perform occasional climbing, balancing, stooping, kneeling, crouching and crawling. (AR 811.) 25 According to Dr. Rios, Plaintiff should be precluded from working around chemicals, dust, fumes, 26 and gases “on account of her history of asthma.” (AR 811.) Dr. Rios found Plaintiff had no 27 limitations on sitting and manipulative activities and did not need an assistive device. (AR 811.) 28 /// 1 2. State Agency Physicians 2 On November 16, 2015, I. Ocrant, M.D., a Disability Determinations Service medical 3 consultant, assessed Plaintiff’s residual functional capacity (RFC)4 and found that she could lift 4 and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for about six 5 hours in an eight-hour workday; sit for more than six hours in an eight-hour workday; and perform 6 unlimited pushing/pulling with the upper and lower extremities, subject to the lift and carry 7 restrictions. (AR 411, 424.) Dr. Ocrant opined that Plaintiff had no postural, manipulative, visual, 8 or communicative limitations, but that she should avoid concentrated exposure to fumes, odors, 9 gases, and poor ventilation. (AR 411–12, 424–25.) Upon reconsideration on March 25, 2016, 10 another state agency physician, B. Vaghaiwalla, M.D., reviewed the record and affirmed Dr. 11 Ocrant’s findings. (AR 439–40, 452–53.) 12 B. Administrative Proceedings 13 The Commissioner denied Plaintiff’s applications for benefits initially on November 20, 14 2015, and again on reconsideration on April 8, 2016. (AR 459–63, 469–74.) Consequently, 15 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 475–90.) At the 16 hearing on March 8, 2018, Plaintiff appeared with counsel and testified before an ALJ as to her 17 alleged disabling conditions. (AR 69–85.) 18 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a farm 19 laborer, Dictionary of Operational Titles (DOT) code 421.687-010, which was heavy exertional 20 work, unskilled, with a specific vocational preparation (SVP)5 of 2, performed at the medium level; 21 and as an agricultural produce packer, DOT code 920.667-134, medium, unskilled, and SVP of 2. 22 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work 23 setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P 24 (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s 25 RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 26 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 (AR 86–89.) The ALJ asked the VE to consider a person of Plaintiff’s age, education, Spanish- 2 speaking language skills, and with her work background. (AR 89.) The VE was also to assume 3 this person is limited to lifting and carrying 50 pounds occasionally and 25 pounds frequently; 4 sitting, standing and/or walking for eight hours in a workday. (AR 89.) The VE testified that such 5 a person could perform Plaintiff’s past relevant work as performed. (AR 90.) The ALJ asked a 6 follow up question regarding a second hypothetical worker who was limited to lifting and carrying 7 20 pounds occasionally and 10 pounds frequently; sitting, standing and/or walking for eight hours 8 in a workday; and occasional stooping, crouching, crawling, climbing, kneeling, and overhead 9 reaching with right upper extremity. (AR 90.) The VE testified that such a person could not 10 perform Plaintiff’s past work, but could perform other light, unskilled positions under the DOT in 11 the national economy, such as hotel maid, 323.687-014, SVP 2; assembler, DOT code 706.684- 12 022, SVP 2; and housekeeper, 323.687-014, SVP 2. (AR 92–94.) 13 With the third hypothetical, the ALJ asked the VE to consider the limitations set forth in 14 the second hypothetical, with the additional limitation of avoiding concentrated exposure to dusts 15 gases and fumes. (AR 94.) The VE testified that the light unskilled positions he previously 16 identified would be available. (AR 94.) For the fourth hypothetical, the ALJ asked the VE to 17 consider the limitations set forth in the third hypothetical, with the additional limitation that the 18 person would need two to four additional 30-minute breaks per day. (AR 94.) The VE testified 19 there would be no work available in the national economy that such a person could perform. (AR 20 94.) 21 Finally, Plaintiff’s attorney inquired of the VE whether the maid and housecleaner jobs 22 required exposure of concentrated chemicals, and the VE testified that in his opinion he did not 23 “think they’re concentrated at the level that it would be harmful.” (AR 95–96.) 24 C. The ALJ’s Decision 25 In a decision dated April 18, 2018, the ALJ found that Plaintiff was not disabled, as defined 26 by the Act. (AR 49–61.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 27 §§ 404.1520, 416.920. (AR 51–61.) The ALJ decided that Plaintiff met the insured status 28 requirements of the Act through March 31, 2018, and had not engaged in substantial gainful activity 1 since May 21, 2014, the alleged onset date (step one). (AR 51–52.) At step two, the ALJ found 2 Plaintiff’s impairments of morbid obesity; cervical thoracic and lumbar degenerative disc disease; 3 and right shoulder degenerative joint disease to be severe. (AR 52–54.) The ALJ further found 4 that Plaintiff did not have an impairment or combination of impairments that met or medically 5 equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) 6 (step three). (AR 54–55.) 7 The ALJ then assessed Plaintiff’s RFC and applied that assessment at steps four and five. 8 See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, we 9 assess your residual functional capacity . . . . We use this residual functional capacity assessment 10 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 11 that Plaintiff had the RFC: 12 to perform medium work as defined in 20 C.F.R. [§§] 404.1567(c) and 416.967(c) where [Plaintiff] can lift/carry 50 pounds occasionally and 25 pounds frequently; 13 and sit stand or walk 8 hours in an 8-hour workday. 14 (AR 55–60.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably 15 be expected to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not 16 entirely consistent with the medical evidence and other evidence in the record.” (AR 56.) 17 Based on this RFC assessment, the ALJ found that Plaintiff was able to perform her past 18 relevant work of the composite job of farm worker and packer (step four). (AR 60.) The ALJ also 19 made the alternative finding that even if Plaintiff’s past relevant work were characterized as a 20 sorter, DOT code 920.667-134, light, SVP of 2, performed at the medium level, Plaintiff retained 21 the RFC to perform that work. (AR 60.) Ultimately, the ALJ concluded that Plaintiff was not 22 disabled at any time through the date of her decision. (AR 61.) 23 Plaintiff sought review of this decision before the Appeals Council, which denied review 24 on March 8, 2019. (AR 1–9.) Therefore, the ALJ’s decision became the final decision of the 25 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 26 III. LEGAL STANDARD 27 A. Applicable Law 28 An individual is considered “disabled” for purposes of disability benefits if he or she is 1 unable “to engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which has lasted or can 3 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 4 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 5 mental impairment or impairments are of such severity that he is not only unable to do his previous 6 work but cannot, considering his age, education, and work experience, engage in any other kind of 7 substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 8 “The Social Security Regulations set out a five-step sequential process for determining 9 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 10 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 11 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 12 In step one, the ALJ determines whether a claimant is currently engaged in 13 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 14 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 15 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 16 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 17 performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 18 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 19 20 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 21 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 22 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 23 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 24 “The claimant carries the initial burden of proving a disability in steps one through four of 25 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 26 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts 27 to the Commissioner in step five to show that the claimant can perform other substantial gainful 28 work.” Id. (citing Swenson, 876 F.2d at 687). 1 B. Scope of Review 2 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 3 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 4 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is 5 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 6 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, 7 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 8 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 9 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 10 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 11 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 12 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 13 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 14 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 15 not substitute its judgment for that of the Commissioner.” (citations omitted)). 16 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 17 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 18 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 19 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 20 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 21 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 22 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 23 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 24 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 25 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 27 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 28 /// 1 2 Plaintiff contends that the ALJ erred in her treatment of the opinion of consultative 3 examiner Dr. Rios. (See Doc. 14 at 5–11.) Defendant counters that that the ALJ properly 4 discounted Dr. Rios’s opinion because it was not supported by the medical evidence. (See Doc. 15 5 at 16–20.) The Court agrees with Plaintiff. 6 A. The ALJ Committed Harmful Error in Her Evaluation of Dr. Rios’s Opinion 7 1. Legal Standard 8 The medical opinions of three types of medical sources are recognized in Social Security 9 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 10 treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant 11 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more 12 weight is given to the opinion of a treating professional, who has a greater opportunity to know and 13 observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 14 “To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its 15 source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical 16 findings support the opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729, 17 at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an uncontradicted opinion of an examining 18 medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830. In contrast, 19 a contradicted opinion of an examining professional may be rejected for “specific and legitimate 20 reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 21 Cir. 2017) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)); see also 22 Lester, 81 F.3d at 830. “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out 23 a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] 24 interpretation thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 25 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “The ALJ must do more 26 than state conclusions. [She] must set forth [her] own interpretations and explain why they, rather 27 than the doctors’, are correct.” Id. (citation omitted). 28 “[E]ven when contradicted, an examining physician’s opinion is still owed deference and 1 will often be ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 2 weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007)). 3 The regulations require the ALJ to weigh the contradicted physician opinion, Edlund, 253 F.3d at 4 11576, except that the ALJ in any event need not give it any weight if it is conclusory and supported 5 by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating 6 physician’s conclusory, minimally supported opinion rejected); see also Magallanes v. Bowen, 881 7 F.2d 747, 751 (9th Cir. 1989). The opinion of a non-examining professional, by itself, is 8 insufficient to reject the opinion of an examining professional. Lester, 81 F.3d at 831. 9 2. Analysis 10 Following an examination on October 27, 2015, consultative orthopedist Dr. Rios opined 11 that Plaintiff was limited to standing and walking for up to six hours in an eight-hour period, lifting 12 and carrying 20 pounds occasionally and 10 pounds frequently, and could perform occasional 13 climbing, balancing, stooping, kneeling, crouching and crawling. (AR 811.) Dr. Rios also opined 14 Plaintiff should be precluded from working around chemicals, dust, fumes, and gases due to her 15 history of asthma. (AR 811.) Although not specifically identified by the ALJ as a basis for its 16 rejection, Dr. Rios’s opinion is contradicted by the medical opinion evidence of Disability 17 Determinations Service non-examining medical consultants Drs. Ocrant and Vaghaiwall. Drs. 18 Ocrant and Vaghaiwall opined that Plaintiff could lift and/or carry 50 pounds occasionally and 25 19 pounds frequently; stand and/or walk for about six hours in an eight-hour workday; sit for more 20 than six hours in an eight-hour workday; and perform unlimited pushing/pulling with the upper and 21 lower extremities, subject to the lift and carry restrictions. (AR 411–12, 424–25, 439–40, 452–53.) 22 Thus, the ALJ was required to set forth “specific and legitimate reasons,” supported by substantial 23 evidence, for rejecting Dr. Rios’s opinion. 24 In reviewing the medical evidence and giving “little weight” to the opinion, the ALJ stated 25 that Dr. Rios “was only able to evaluate [Plaintiff] once, was not able to review the medical 26 evidence available at the hearing level, and appears to have relied heavily on [Plaintiff’s] reported 27 6 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 28 the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. §§ 1 symptoms.” (AR 59.) This explanation cannot withstand scrutiny. 2 First, the ALJ’s rejection of Dr. Rios’s opinion because it was based on a one-time 3 examination of Plaintiff is improper. If a limited treating relationship constituted a legitimate 4 reason for rejecting an opinion from an examining source, such opinion would always be rejected, 5 because the relationship between a claimant and an examining physician is generally limited to a 6 single examination, rendering that opinion worthless. See Grayson v. Astrue, No. 2:11–cv–1656– 7 EFB, 2012 WL 4468406, at *5 (E.D. Cal. Sept. 25, 2012) (citing Chapo v. Astrue, 682 F.3d 1285, 8 1291 (10th Cir. 2012) (holding that while a limited treating relationship may be a valid reason for 9 not according a treating physician’s “findings the conclusive weight of a treating medical-source 10 opinion, . . . it is not by itself a basis for rejecting them—otherwise the opinions of consultative 11 examiners would essentially be worthless . . . .”)). 12 The criticism that Dr. Rios “was not able to review the medical evidence at the hearing 13 level” is equally unjustified. While it is correct that Dr. Rios’s examination and opinion were 14 rendered two years prior to the March 2018 hearing, without the benefit of the evidence available 15 at that time (see AR 69), the same is true for the opinions of non-examining physicians Drs. Ocrant 16 and Vaghaiwall. (See AR 404–407, 411–12, 417–420, 424–25, 432–36, 439–40, 445–49, 452–53.) 17 Yet, the ALJ accorded “great weight” to those opinions, and, instead of being critical that their 18 review was limited to the medical record available at the time of their opinions, the ALJ touted that 19 fact. (See AR 58.) This disparate treatment of the examining physicians over that of the non- 20 examining physicians, without any further explanation, suggests an attempt by the ALJ to justify a 21 conclusion of non-disability by ignoring competent evidence in the record that supports an 22 opposition result. Such approach is contrary to Ninth Circuit precedent. See Gallant v. Heckler, 23 753 F.2d 1450, 1456 (9th Cir. 1984). 24 Finally, the ALJ’s finding that Dr. Rios “appears to have relied heavily on [Plaintiff’s] 25 reported symptoms” is not supported by substantial evidence. (AR 59.) The only example cited 26 by the ALJ is that Dr. Rios “provided limitations on pulmonary irritants and noted [Plaintiff’s] 27 history of asthma but also noted her asthma appeared clinically stable.” (Id.) There is nothing in 28 Dr. Rios’s report, however, indicating or suggesting he relied on Plaintiff’s reported history of 1 asthma for this limitation. Support for such a limitation is also found in the medical records 2 considered by Dr. Rios, which were provided to him by the Disability Determinations Service.7 3 (See AR 807.) Other than this lone example, which is of dubious merit, the ALJ does not point to 4 anything else in Dr. Rios’s report to suggest or indicate he relied on anything for his opined 5 limitations other than his own examination and observation of Plaintiff, along with the medical 6 records he reviewed. See, e.g., Maldonado v. Colvin, No. 2:13-CV-385-EFB, 2014 WL 4925188, 7 at *4 (E.D. Cal. Sept. 30, 2014) (“[T]he ALJ provides no explanation for this conclusion and does 8 not cite to any evidence in the record showing that Dr. Tily’s opinion relied heavily on plaintiff’s 9 subjective complaints without objective support.”); Wright v. Astrue, No. ED CV 12-726 MRW, 10 2013 WL 440593, at *3 (C.D. Cal. Feb. 4, 2013) (finding ALJ erred by not addressing medical 11 records that underlaid treating physician’s opinion and instead “incorrectly impl[ying] that the 12 [opinion] was based on Plaintiff’s subjective pain complaints.”). 13 The Commissioner’s opposition brief presents a discussion of how Dr. Rios’s opinion was 14 not consistent with his clinical examination; it identifies some of Plaintiff’s purportedly normal 15 physical findings and alleged management of her symptoms, and from this it concludes that Dr. 16 Rios’s opinion is unsupported. (Doc. 15 at 14–19.). Yet, the frequency and severity of Plaintiff’s 17 symptoms, her improvement with treatment and the inconsistency of the opinion with the medical 18 evidence were not articulated in the ALJ’s decision as reasons to discount Dr. Rios’s opinion. 19 While the Court can draw reasonable inferences from the ALJ’s decision, Magallanes, 881 F.2d at 20 755, the Court cannot consider the Commissioner’s post hoc rationalizations. The Ninth Circuit 21 has repeatedly emphasized that the “bedrock principle of administrative law” is that a “reviewing 22 court can evaluate an agency’s decision only on the grounds articulated by the agency.” Ceguerra 23 v. Sec’y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991); see also Bray v. Comm’r 24 Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative 25 law require us to review the ALJ’s decision based on the reasoning and factual findings offered by 26 the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been 27 7 Incidentally, it is these same records on which the non-examining physician based his opinion, like that of Dr. Rios, 28 that Plaintiff should avoid concentrated exposure to fumes, odors, gases, and poor ventilation. (AR 404–407, 411–12, 1 thinking.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (noting that a reviewing court 2 is “constrained to review the reasons the ALJ asserts.”). An agency’s decision cannot be affirmed 3 on the ground that the agency did not invoke in making its decision. Pinto v. Massanari, 249 F.3d 4 840, 847–48 (9th Cir. 2001). 5 In sum, the Court finds that the ALJ did not offer specific and legitimate reasons, supported 6 by substantial evidence, for discrediting Dr. Rios’s opinion. Moreover, the Court cannot conclude 7 that the error below was harmless. Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054). If 8 the ALJ were to have accepted Dr. Rios’s analysis, the ALJ likely would have reached an RFC 9 determination with the greater limitations that Dr. Rios recommended. As Plaintiff points out, that, 10 together with a finding that Plaintiff is illiterate or unable to communicate in English, would have 11 warranted a finding of disability under the Medical-Vocational Guidelines, 20 CFR, Part 404, 12 Subpart P, Appendix 2 § 202.09 (“Grid Rule 202.09”). Thus, Plaintiff may well have been 13 prejudiced by the improper rejection of Dr. Rios’s opinion. 14 B. The ALJ’s Error Warrants Remand for Further Proceedings 15 In her briefing, Plaintiff argues that the Court should credit the opinion of Dr. Rios as true 16 and order the payment of benefits under Grid Rule 202.09, or alternatively remand the matter for 17 further administrative proceedings. (See Doc. 14 at 11.) The Court finds that an order for payment 18 of benefits is not warranted in this case, and instead that remand for further proceedings is 19 appropriate. 20 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is 21 “to remand to the agency for additional investigation or explanation.” Treichler v. Comm’r of Soc. 22 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (citations omitted). The Ninth Circuit recognized 23 a limited exception to this typical course where courts “remand[] for an award of benefits instead 24 of further proceedings.” Id. at 1100–01 (citations omitted); see also id. at 1100 (noting that this 25 exception is “sometimes referred to as the ‘credit-as-true’ rule”). In determining whether to apply 26 this exception to the “ordinary remand rule,” the court must determine, in part, whether (1) “the 27 record has been fully developed;” (2) “there are outstanding issues that must be resolved before a 28 determination of disability can be made;” and (3) “further administrative proceedings would be 1 useful.” Id. at 1101 (citations omitted). As to the last inquiry, additional “[a]dministrative 2 proceedings are generally useful where the record has not been fully developed, there is a need to 3 resolve conflicts and ambiguities, or the presentation of further evidence . . . may well prove 4 enlightening in light of the passage of time.” Id. (citations omitted). Ultimately, “[t]he decision 5 whether to remand a case for additional evidence or simply to award benefits is in [the court’s] 6 discretion.” Swenson, 876 F.2d at 689 (citation omitted). 7 Having found that the ALJ failed to articulate specific and legitimate reasons, supported by 8 substantial evidence, for rejecting the opinion of Plaintiff’s examining physician, the Court finds 9 that the “credit-as-true” exception to the “ordinary remand rule” is inapplicable because additional 10 administrative proceedings will be useful. In particular, the ALJ’s RFC determination conflicted 11 with the opinion evidence of Dr. Rios―as well as other evidence in the record. This error can be 12 remedied with further proceedings to accord an opportunity to the ALJ to resolve this conflict.8 Cf. 13 Dominguez v. Colvin, 808 F.3d 403, 408–09 (9th Cir. 2016); Lule v. Berryhill, Case No.: 1:15-cv- 14 01631-JLT, 2017 WL 541096, at *6 (E.D. Cal. Feb. 10, 2017) (“When there is conflicting medical 15 evidence, ‘it is the ALJ’s role to determine credibility and to resolve the conflict.’”) (quoting Allen 16 v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)). On remand, the ALJ should address the error by 17 properly considering the medical opinion evidence, including Dr. Rios’s opinion, and then either 18 provide specific and legitimate reasons to reject the opinion or incorporate its limitations into the 19 RFC determination. 20 V. CONCLUSION AND ORDER 21 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 22 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 23 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 24 in favor of Plaintiff Maria Del Rosario Gervacio De Martinez and against Defendant Andrew Saul, 25 Commissioner of Social Security. 26

27 8 Moreover, even if Dr. Rios’s opinion were credited, a finding of disability would not necessarily be dictated under Grid Rule 202.09, as it is not clear on this record that the Commissioner could not meet its burden of establishing that 28 Plaintiff is is literate or able to communicate in English. See, e.g, Jeffrey v. Berryhill, Case No. 17-cv-01444-WQH 1 IT IS SO ORDERED. 2

Sheila K. Oberto 3 Dated: September 14, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 4

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28