(SS) Gutierriez v. Commissioner of Social Security

Opinion

SHIRLEY A. GUTIERRIEZ, No. 2:19-cv-00359 CKD Plaintiff, v. ORDER ANDREW SAUL, Commissioner of Social Security, Defendant.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying an application for disability insurance benefits under Title II of the Social Security Act (“Act”). The parties have consented to Magistrate Judge jurisdiction to conduct all proceedings in the case, including the entry of final judgment. For the reasons discussed below, the court will grant plaintiff’s motion for summary judgment and deny the Commissioner’s cross-motion for summary judgment. On July 20, 2015, plaintiff, born in 1974, filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning February 12, 2014.1 1 The ALJ noted that “[a] prior unfavorable Administrative Law Judge decision was issued on February 11, 2014. The medical evidence shows that since that decision was issued, the claimant Administrative Transcript (“AT”) 15, 19. Plaintiff alleged she was unable to work due to multiple medical conditions, including ankylosing spondylitis and fibromyalgia. AT 19. Following a hearing on July 7, 2017, an ALJ issued a decision dated February 6, 2018 finding plaintiff not disabled. AT 15-23. The ALJ made the following findings (citations to 20 C.F.R. omitted): 1. The claimant last met the insured status requirements of the Social Security Act on June 30, 2017. 2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of February 12, 2014 through her date last insured of June 30, 2017. 3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar and lumbo-sacral spine, bilateral degenerative sacroiliitis, and seronegative aspondyloarthropathy, HLA-B27 positive. 4. Through the date last insured, the claimant did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work, except she can never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. She must be protected from hazards such as unprotected heights and dangerous moving mechanical parts. 6. Through the date last insured, the claimant was capable of performing past relevant work as a mail clerk. This work did not require the performance of work-related activities precluded by the claimant’s residual functional capacity. 7. The claimant was not under a disability, as defined in the Social Security Act, at any time from February 12, 2014, the alleged onset date, through June 30, 2017, the date last insured.

AT 17-23.

has had a change in her medical condition with newly diagnosed impairments and a change in her residual functional capacity. Therefore the presumption of continuing non-disability . . . no longer applies.” AT 16. The ALJ made the following alternative findings for step five: Although the claimant is capable of performing past relevant work, there are other jobs in the national economy that she is able to perform. . . . The claimant was born on XX/XX/1974 and was 42 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant has had at least a high school education and is able to communicate in English. 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 disabled,’ whether or not the claimant has transferable job skills. In the alternative, considering the claimant’s age, education, work experience, and residual functional capacity, there were other jobs that existed in significant numbers in the national economy that the claimant also could have performed. . . . To determine the extent to which [the limitations in plaintiff’s RFC] erode the unskilled light occupational base, through the dated last insured, the [ALJ] asked the vocational expert whether jobs existed in the national economy for an individual with the claimant’s age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would have been able to perform the requirements of representative occupations such as cashier (211.462-010, light, SVP 2, 1.2 million jobs nationally), office helper (239.567-020, light, SVP 2, 257,000 jobs nationally), and cleaner (323.687-014, light SVP 2, 974,000 jobs nationally. . . . Based on the testimony of the vocational expert, the undersigned concludes that, through the date last insured, considering the claimant’s age, education, work experience, and residual functional capacity, the claimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. A finding of ‘not disabled’ is therefore appropriate under the framework of the above-cited rule.

AT 22-23 (record citations omitted). Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) the ALJ improperly rejected the opinions of plaintiff’s treating doctors; (2) the ALJ improperly rejected plaintiff’s testimony; and (3) the ALJ’s step four and step five findings are not supported by substantial evidence. LEGAL STANDARDS The court reviews the Commissioner’s decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). ANALYSIS A. Medical Opinions Plaintiff asserts that the ALJ improperly discounted the opinions of her treating doctors, Dr. Phan and Dr. Hashimoto. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for Aclear and convincing@ reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for Aspecific and legitimate@ reasons. Lester, 81 F.3d at 830. While a treating professional=s opinion generally is accorded superior weight, if it is contradicted by a supported examining professional=s opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician=s conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831. 1. Dr. Phan Dr. Alex Phan began treating plaintiff for back pain in 2013. AT 277. On September 6, 2013, he saw plaintiff for follow-up on pain, noting in part: The last injection improved her pain by about 50%. She is reasonably satisfied with the relief but her functional status is still limiting in terms of picking up her 15-lb dog and cannot sit throughout an entire movie. She acquired an attorney and is in the process of applying for SSI. The average pain level is 5-6 over 10. Worsening factors include prolonged sitting, standing, and walking. Improving factors include resting. The pain medication improves the pain 50% but causes sleepiness. . . . Lifting < 10 1bs, sitting < 4 hours with frequent break and standing less than 2 hours would be her limitation. AT 268, 271. Dr. Phan repeated these limitations on lifting, sitting, and standing in January 14, 2014 notes. AT 274. The alleged disability onset date was February 12, 2014. In March 2014, Dr. Phan noted that plaintiff was “reasonably happy with current relief, especially with right side” and recommended jobs that did not require lifting more than 20 pounds. AT 292. At a July 2014 exam, Dr. Pham noted that plaintiff had “left>right sided back pain with radiation to the left posterior leg. Onset during pregnancy, first time 15 years ago.” AT 384. He noted that plaintiff was obese but had lost about 20 pounds over the past year. AT 384. He further noted that she had an attorney and was “exploring SSI.” AT 384. Under “Plan,” Dr. Phan wrote in part: Continue to recommend jobs that require lifting less than 20 lbs Continue walking dog daily Continue current pain medications with PCP Continue weight loss effort – doing very well AT 384. At a September 2014 appointment with Dr. Phan, plaintiff reported that she was “doing pretty well until I walked all over campus with my son,” which had resulted in a flare-up of pain. AT 280. “Pain is described aching stabbing with pain ranked at 6 out of 10. Worsening factors include prolonged sitting and standing alleviating factors include rest. Pain medication improves the pain 50% with occasional drowsiness,” Dr. Phan noted. AT 280. Dr. Phan continued to recommend jobs that required lifting less than 20 pounds. AT 283. The ALJ did not treat Dr. Phan’s examination notes as medical opinions to be adopted or rejected. Instead, her decision noted Dr. Phan’s July 2014 assessment that “the claimant was responding well to injections and treatment, and that she should be limited to lifting less than 20 pounds.” AT 20, citing AT 384. The ALJ also cited Dr. Phan’s July 2014 opinion that treatment was effective, in order to discount another doctor’s opinion, discussed below. AT 20. Plaintiff asserts that the ALJ erred by rejecting certain of Dr. Phan’s opinions without providing reasons. However, Dr. Phan’s most limiting assessment – i.e., that plaintiff could lift less than 10 pounds and sit less than four hours – took place before the alleged disability onset date. In contrast, his assessments during the relevant period consistently indicated that plaintiff could do work that required lifting less than 20 pounds and that the treatments for her pain were fairly effective. On examination in July 2014, plaintiff’s musculoskletal system was normal with “no generalized joint pain, stiffness, weakness or muscle pain,” and she was encouraged to keep losing weight and walking the dog daily. AT 382, 384. Dr. Phan’s 2014 treatment notes are not inconsistent with an RFC for light work, which “involves lifting no more than 20 pounds at a time,” among other restrictions. 20 C.F.R. § 404.1527(b). Because Dr. Phan’s 2014 medical assessments, even if credited as the opinions of a treating physician, appear to support the determined RFC, plaintiff has not shown harmful error on this basis. 2. Dr. Hashimoto Plaintiff next asserts that the ALJ improperly discounted two opinions of Dr. Harvey Hashimoto, another treating doctor. In August 2015, Dr. Hashimoto filled out an Impairment Questionnaire in which he diagnosed plaintiff with ankylosing spondylitis.2 AT 295. He listed her primary symptoms as “pain in low back over sacroiliac joints” and noted that she was being treated with sacroiliac injections and physical therapy with “no long lasting relief from either.” AT 295. Dr. Hashimoto opined that plaintiff could sit for 2 hours total and stand or walk for 2 hours total in an 8-hour workday. She could occasionally lift up to 20 pounds and frequently use her hands for reaching, handling, and fingering. She would be expected to be absent from work more than 3 times a month as a result of her impairments. AT 296. Dr. Hashimoto opined that these symptoms and limitations dated 2 Ankylosing spondylitis is an inflammatory disease that, over time, can cause some of the small bones in the spine (vertebrae) to fuse. Symptoms might include pain and stiffness in the lower back and hips, neck pain and fatigue. See https://www.mayoclinic.org/diseases- conditions/ankylosing-spondylitis/symptoms-causes/syc-20354808 (last visited August 12, 2020). back to February 12, 2014, the alleged disability onset date. AT 296. In May 2017, Dr. Hashimoto completed another Disability Impairment Questionnaire, diagnosing plaintiff with ankylosing spondylitis, hypertension, sacroiliitis3, chronic insomnia, and “fibromyalgia (per Rheumatology).” AT 508. Dr. Hashimoto listed her primary symptoms as “pain and stiffness in back, hips, neck, pain and numbness in feet, hands, toes, and fingers, trouble sleeping, and fatigue.” AT 508-509. He noted that she “has moderate to severe pain on a daily basis,” precipitated or aggravated by sitting, standing, and walking. AT 509. She could sit for 2 hours and stand or walk for less than one hour in an 8-hour workday, and needed breaks every hour to change positions. She could occasionally lift up to 10 pounds. AT 510. Her symptoms would frequently interfere with her ability to pay attention and concentrate, and she would need five unscheduled breaks throughout the workday. AT 511. She would be expected to be absent more than three times a month as a result of her impairments. AT 512. As before, Dr. Hashimoto opined that these symptoms and limitations related back to February 12, 2014. AT 512. The ALJ gave both of Dr. Hashimoto’s opinions “little weight” for the following reasons: There is no medical evidence of a diagnosis of fibromyalgia consistent with SSR 12-2p. There are no nerve conduction studies or other objective tests to support the manipulative limitations suggested in the first opinion, and the treatment record does not show clinical findings to support the limitations suggested. Further, the opinion forms have typed in the date that the limitations started as of February 11, 2014, suggesting that the forms were partially completed by the claimant’s representative rather than the date being provided by the claimant’s doctor. It is also noted that the doctor gave very similar opinions as to limitations in the prior decision, suggesting that regardless of the severity of the claimant’s restrictions, they had not significantly changed in the prior four years. AT 21. While rejecting Dr. Hashimoto’s opinions, the ALJ partially credited the opinions of two State agency medical consultants who reviewed plaintiff’s records in 2015 and 2016 and opined 3 Sacroiliitis is an inflammation of one or both of the sacroiliac joints, situated where the lower spine and pelvis connect. Sacroiliitis can cause pain in the buttocks or lower back, and can extend down one or both legs. See https://www.mayoclinic.org/diseases- conditions/sacroiliitis/symptoms-causes/syc-20350747 (last visited August 12, 2020). that plaintiff had “severe impairments of spine disorder and obesity.” AT 21, citing AT 77-86, 88-97. Both concluded that the claimant could perform medium work with certain limitations. Discussing these non-examining physicians’ opinions, the ALJ wrote: The undersigned gives partial weight to these opinions. They are substantially similar to the DDE opinions in the prior unfavorable decision, but the medical evidence does show that the claimant’s condition has progressed slightly since then, supporting a light exertional capability with non-exertional limitations as described in the above residual functional capacity finding. It is significant that since the prior decision the claimant has been treated with Humira, which both she and her rheumatologist agree is helping with her condition. AT 21 (emphasis added). The ALJ was required to provide specific and legitimate reasons, supported by substantial evidence, for rejecting the 2015 and 2017 opinions of treating physician Dr. Hashimoto, both of which concerned the alleged period of disability in plaintiff’s current case. The ALJ addressed two aspects of Dr. Hashimoto’s opinions with record evidence, stating there was no medical evidence that plaintiff had been diagnosed with “fibromyalgia consistent with SSR 12-2p”4 and that no objective tests supported the manipulative limitations in the 2015 opinion. (Emphasis added.) However, Dr. Hashimoto opined in 2015 that, due to ankylosing spondylitis alone, plaintiff would not be able to sit, stand, or walk for a combined total of 8 hours in a workday and would be absent more than three times a month. In 2017, Dr. Hashimoto similarly opined that plaintiff could not sit, stand, or walk for a combined total of 8 hours, would require five unscheduled breaks a day, and would be absent more than three times a month. These limitations were based on primary symptoms including “pain and stiffness in back, hips, neck, pain and numbness in feet.” The ALJ did not provide specific and legitimate reasons, supported by substantial evidence, for rejecting several of Dr. Hashimoto’s opined limitations in 2015 and 2017. Rather, the ALJ partially credited the opinions of the two non-examining physicians, revising their opined

4 As Dr. Hashimoto’s 2017 opinion noted, a rheumatologist diagnosed plaintiff with fibromyalgia. See AT 33-34 (hearing testimony). Plaintiff notes that the records of this diagnosis are not part of the case transcript. ECF No. 9 at 10. limitations based on her own assessment of the medical evidence. See Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute his own judgment for competent medical opinion . . . and must not succumb to the temptation to play doctor and make . . . independent medical findings.”). As to the disability onset date typed on the forms filled out by Dr. Hashimoto, this has little bearing on the validity of his medical opinions as plaintiff’s treating doctor. Similarly, the fact that Dr. Hashimoto “gave very similar opinions as to limitations” in plaintiff’s previously adjudicated disability claim is not a specific and legitimate reason to discount his medical opinions in the instant case. Because the ALJ did not supply adequate reasons to discount the opinions of plaintiff’s treating doctor, the resulting RFC is not based on substantial evidence, and plaintiff is entitled to summary judgment.5 With error established, the court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the “credit-as-true” rule for an award of benefits where: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.

5 Accordingly, the undersigned does not reach the remaining claim. MASS 2 LDU VMI NE MMU OPI VO ee AY tt I st

2014) (“Where ...an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.”). Here, the record as a whole creates serious doubt as to whether plaintiff was disabled during the relevant period. On remand, the ALJ is free to develop the record as needed, including asking a vocational expert hypothetical questions about available jobs based on a revised RFC. The court expresses no opinion regarding how the evidence should ultimately be weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not instruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find plaintiff disabled during the entirety of the relevant period; may find plaintiff eligible for some type of closed period of disability benefits; or may find that plaintiff was never disabled during the relevant period, provided that the ALJ’s determination complies with applicable legal standards and is supported by the record as a whole. Thus, the undersigned recommends that this matter be remanded under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff's motion for summary judgment (ECF No. 9) is granted; 2. The Commissioner’s cross-motion for summary judgment (ECF No. 13) is denied; and 3. This matter is remanded for further proceedings consistent with this order. Al... ye TF Dated: August 12, 2020 bh rdf / Lz CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 2/gutierriez0359.ssi.ckd 11