(SS) Raymond Richard Prine Jr. v. Commissioner of Social Security
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Opinion
8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RAYMOND RICHARD PRINE, JR., Case No. 1:18-cv-01721-SAB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL AND REMANDING 13 v. FOR FURTHER ADMINISTRATIVE PROCEEDINGS 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 13, 15) 15 Defendant. 16
17 I. 18 INTRODUCTION 19 Raymond Richard Prine, Jr. (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability benefits pursuant to the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley 23 A. Boone.1 24 Plaintiff suffers from depression, hyperlipidemia, lumbar degenerative disc disease; 25 cervical spine disease - cervical radiculitis; and headaches. For the reasons set forth below, 26 Plaintiff’s Social Security appeal shall be granted. 27
28 1 The parties have consented to the jurisdiction of the United States Magistrate Judge. (See ECF Nos. 6, 8.)
1 1 II.
2 FACTUAL AND PROCEDURAL BACKGROUND
3 Plaintiff protectively filed an application for a period of disability and disability insurance
4 benefits on April 21, 2015. (AR 90.) Plaintiff’s application was initially denied on September
5 16, 2015, and denied upon reconsideration on January 11, 2016. (AR 108-111, 115-119.)
6 Plaintiff requested and received a hearing before Administrative Law Judge Scot Septer (“the
7 ALJ”). Plaintiff appeared for a hearing on September 28, 2017. (AR 34-75.) On January 29,
8 2018, the ALJ found that Plaintiff was not disabled. (AR 11-28.) The Appeals Council denied
9 Plaintiff’s request for review on October 19, 2018. (AR 1-3.)
10 A. Hearing Testimony
11 Plaintiff appeared and testified at the September 28, 2017 hearing with the assistance of
12 counsel. (AR 40-64.) Plaintiff had been living with his sister for about six months. (AR 40.)
13 Prior to that he had been living with his wife. (AR 40.) His sister is currently working. (AR
14 40.) Plaintiff is right handed. (AR 41.)
15 During the prior fifteen years, Plaintiff was self-employed doing commercial construction
16 and remodeling jobs. (AR 41.) Plaintiff was a finish carpenter by trade, a skilled craftsman to
17 make furniture. (AR 41.) He is a licensed general contractor, licensed for concrete, and A
18 licensed plumber in California. (AR 42.) He would also do electrical work. (AR 42.) Plaintiff
19 would lift 120 pounds or so when he was working. (AR 43.) 20 Plaintiff stopped working in mid-2012 to 2013 because he started developing bad
21 headaches and nerve damage in his neck. (AR 43.) His headaches were debilitating. (AR 43-
22 44.) His nerve damage went into both his arms and his hands so that he is not able to do
23 anything with his hands or arms. (AR 44.) Prior to getting the headaches he started losing the
24 use of his left arm because it would go numb. (AR 44.) He went to physical therapy and that
25 worked to some extent but then the nerve damage took over and he went back for physical
26 therapy for his neck and right arm and could not finish physical therapy in 2014 or 2015. (AR 27 45.)
28 Plaintiff has had three sessions of physical therapy. (AR 45.) He also has had epidural
2 1 injections in his neck to treat the nerve damage in his arms and his neck pain. (AR 45.) The
2 epidurals are successful to some extent where it relieves the nerve pain in his hands and arms.
3 (AR 46.) The injections relieve the pain for three to four months and then he goes back for
4 another injection. (AR 46.) He gets significant relief for about three months and then injection
5 wears off. (AR 46.) After four months or a little more it will start to really bother him again if
6 he does not have another injection. (AR 46.) He has had four to five injections. (AR 46.) With
7 each injection he gets more relief. (AR 47.)
8 On a typical day, Plaintiff will lay on the couch and prop himself up. (AR 47.) He
9 watches television and will listen to the radio or something like that. (AR 47.) He will
10 occasionally do dishes, but he breaks things so he does not do them often. (AR 47.) He will not
11 be paying attention and he will turn around trying to put a glass in the cabinet and will drop it.
12 (AR 48.) Plaintiff does not go grocery shopping because he cannot walk that far. (AR 50.) His
13 sister does all the laundry. (AR 50.) Plaintiff has a car but he does not drive himself because if
14 he drives too far he will start getting headaches and the nerve pain comes back in his arms. (AR
15 51.) Plaintiff has not driven in two to three years. (AR 51.) He stopped driving because it
16 became physically difficult due to the effect on his body and the damage in his hands and arms.
17 (AR 51.) His sister brought him to the hearing. (AR 52.)
18 Plaintiff does not do any recreational activities or yard work. (AR 52, 53.) It has been
19 ten years since he did anything like hunting or fishing. (AR 52.) He had disc surgery in 2006 20 that stopped him from doing a few things. (AR 52.) After his surgery he was great. (AR 53.)
21 About five to six years later it started to wear off but the discs still seem to be okay. (AR 53.)
22 Plaintiff has only been recommended medication for pain relief. (AR 53.)
23 The ALJ asked about a note in the record that stated in April of 2016 that Plaintiff would
24 mow the back yard and did it without a neck brace. (AR 53.) Plaintiff stated that he would have
25 tried to mow the yard but that it would “have been really effective on my hands and neck.” (AR
26 53.) Plaintiff tried to walk to get himself back into shape. (AR 54.) Plaintiff does walk when he 27 can, but he cannot lift anything without straining his neck and then he gets headaches and pain in
28 his hands. (AR 54.) Plaintiff believes that when he is moving and doing things it is mostly his
3 1 neck that is radiating down into his arms and hands and causing the headaches. (AR 54.)
2 Plaintiff will be walking and all the sudden he will feel as if he is falling sideways. (AR
3 55.) He will lose his balance after walking so far. (AR 55.) His legs work fine, it is his upper
4 body that is the issue. (AR 55.) He will get a twitch or something like when you fall asleep
5 really quick and then wake up startled. (AR 55.) Plaintiff was feeling good after his last shot
6 and tried to do some woodworking. (AR 56.) He was making a frame and was using two sticks
7 to push a piece of wood through the saw and it slipped. (AR 56.) He cut the tip off his left index
8 finger and the nail bed of the front finger and a chuck out of the top knuckle. (AR 56.). He was
9 pushing the piece of wood through the saw blade with the sticks to keep his hands away from the
10 blade. (AR 57.) He was not pushing as hard as he thought he was and the board got bogged
11 down and he pushed just hard enough for the board to come loose and the stick came loose over
12 the top of the board. (AR 57-58.)
13 Plaintiff is able to lift a gallon of milk or a ten pound bag of cat food. (AR 58.) It is
14 difficult for him to lift or grab because he will strain his neck. (AR 58.) He cannot excessively
15 do something up and down or move his hands too much or it will bring on pain. (AR 58.) His
16 left hand has gotten worse since 2015. (AR 59.) He does not have the ability to feel as much as
17 he did before the therapy.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RAYMOND RICHARD PRINE, JR., Case No. 1:18-cv-01721-SAB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL AND REMANDING 13 v. FOR FURTHER ADMINISTRATIVE PROCEEDINGS 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 13, 15) 15 Defendant. 16
17 I. 18 INTRODUCTION 19 Raymond Richard Prine, Jr. (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability benefits pursuant to the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley 23 A. Boone.1 24 Plaintiff suffers from depression, hyperlipidemia, lumbar degenerative disc disease; 25 cervical spine disease - cervical radiculitis; and headaches. For the reasons set forth below, 26 Plaintiff’s Social Security appeal shall be granted. 27
28 1 The parties have consented to the jurisdiction of the United States Magistrate Judge. (See ECF Nos. 6, 8.)
1 1 II.
2 FACTUAL AND PROCEDURAL BACKGROUND
3 Plaintiff protectively filed an application for a period of disability and disability insurance
4 benefits on April 21, 2015. (AR 90.) Plaintiff’s application was initially denied on September
5 16, 2015, and denied upon reconsideration on January 11, 2016. (AR 108-111, 115-119.)
6 Plaintiff requested and received a hearing before Administrative Law Judge Scot Septer (“the
7 ALJ”). Plaintiff appeared for a hearing on September 28, 2017. (AR 34-75.) On January 29,
8 2018, the ALJ found that Plaintiff was not disabled. (AR 11-28.) The Appeals Council denied
9 Plaintiff’s request for review on October 19, 2018. (AR 1-3.)
10 A. Hearing Testimony
11 Plaintiff appeared and testified at the September 28, 2017 hearing with the assistance of
12 counsel. (AR 40-64.) Plaintiff had been living with his sister for about six months. (AR 40.)
13 Prior to that he had been living with his wife. (AR 40.) His sister is currently working. (AR
14 40.) Plaintiff is right handed. (AR 41.)
15 During the prior fifteen years, Plaintiff was self-employed doing commercial construction
16 and remodeling jobs. (AR 41.) Plaintiff was a finish carpenter by trade, a skilled craftsman to
17 make furniture. (AR 41.) He is a licensed general contractor, licensed for concrete, and A
18 licensed plumber in California. (AR 42.) He would also do electrical work. (AR 42.) Plaintiff
19 would lift 120 pounds or so when he was working. (AR 43.) 20 Plaintiff stopped working in mid-2012 to 2013 because he started developing bad
21 headaches and nerve damage in his neck. (AR 43.) His headaches were debilitating. (AR 43-
22 44.) His nerve damage went into both his arms and his hands so that he is not able to do
23 anything with his hands or arms. (AR 44.) Prior to getting the headaches he started losing the
24 use of his left arm because it would go numb. (AR 44.) He went to physical therapy and that
25 worked to some extent but then the nerve damage took over and he went back for physical
26 therapy for his neck and right arm and could not finish physical therapy in 2014 or 2015. (AR 27 45.)
28 Plaintiff has had three sessions of physical therapy. (AR 45.) He also has had epidural
2 1 injections in his neck to treat the nerve damage in his arms and his neck pain. (AR 45.) The
2 epidurals are successful to some extent where it relieves the nerve pain in his hands and arms.
3 (AR 46.) The injections relieve the pain for three to four months and then he goes back for
4 another injection. (AR 46.) He gets significant relief for about three months and then injection
5 wears off. (AR 46.) After four months or a little more it will start to really bother him again if
6 he does not have another injection. (AR 46.) He has had four to five injections. (AR 46.) With
7 each injection he gets more relief. (AR 47.)
8 On a typical day, Plaintiff will lay on the couch and prop himself up. (AR 47.) He
9 watches television and will listen to the radio or something like that. (AR 47.) He will
10 occasionally do dishes, but he breaks things so he does not do them often. (AR 47.) He will not
11 be paying attention and he will turn around trying to put a glass in the cabinet and will drop it.
12 (AR 48.) Plaintiff does not go grocery shopping because he cannot walk that far. (AR 50.) His
13 sister does all the laundry. (AR 50.) Plaintiff has a car but he does not drive himself because if
14 he drives too far he will start getting headaches and the nerve pain comes back in his arms. (AR
15 51.) Plaintiff has not driven in two to three years. (AR 51.) He stopped driving because it
16 became physically difficult due to the effect on his body and the damage in his hands and arms.
17 (AR 51.) His sister brought him to the hearing. (AR 52.)
18 Plaintiff does not do any recreational activities or yard work. (AR 52, 53.) It has been
19 ten years since he did anything like hunting or fishing. (AR 52.) He had disc surgery in 2006 20 that stopped him from doing a few things. (AR 52.) After his surgery he was great. (AR 53.)
21 About five to six years later it started to wear off but the discs still seem to be okay. (AR 53.)
22 Plaintiff has only been recommended medication for pain relief. (AR 53.)
23 The ALJ asked about a note in the record that stated in April of 2016 that Plaintiff would
24 mow the back yard and did it without a neck brace. (AR 53.) Plaintiff stated that he would have
25 tried to mow the yard but that it would “have been really effective on my hands and neck.” (AR
26 53.) Plaintiff tried to walk to get himself back into shape. (AR 54.) Plaintiff does walk when he 27 can, but he cannot lift anything without straining his neck and then he gets headaches and pain in
28 his hands. (AR 54.) Plaintiff believes that when he is moving and doing things it is mostly his
3 1 neck that is radiating down into his arms and hands and causing the headaches. (AR 54.)
2 Plaintiff will be walking and all the sudden he will feel as if he is falling sideways. (AR
3 55.) He will lose his balance after walking so far. (AR 55.) His legs work fine, it is his upper
4 body that is the issue. (AR 55.) He will get a twitch or something like when you fall asleep
5 really quick and then wake up startled. (AR 55.) Plaintiff was feeling good after his last shot
6 and tried to do some woodworking. (AR 56.) He was making a frame and was using two sticks
7 to push a piece of wood through the saw and it slipped. (AR 56.) He cut the tip off his left index
8 finger and the nail bed of the front finger and a chuck out of the top knuckle. (AR 56.). He was
9 pushing the piece of wood through the saw blade with the sticks to keep his hands away from the
10 blade. (AR 57.) He was not pushing as hard as he thought he was and the board got bogged
11 down and he pushed just hard enough for the board to come loose and the stick came loose over
12 the top of the board. (AR 57-58.)
13 Plaintiff is able to lift a gallon of milk or a ten pound bag of cat food. (AR 58.) It is
14 difficult for him to lift or grab because he will strain his neck. (AR 58.) He cannot excessively
15 do something up and down or move his hands too much or it will bring on pain. (AR 58.) His
16 left hand has gotten worse since 2015. (AR 59.) He does not have the ability to feel as much as
17 he did before the therapy. (AR 59.) Both of his hands have gotten worse. (AR 59.) He has only
18 been treated with the epidural shots. (AR 59.)
19 Plaintiff cannot touch or feel things with his hand and when he grips he has no idea how
20 hard he is gripping. (AR 48.) When he is trying to pinch hard he may not be pinching at all and
21 at other times he may be gripping really tight. (AR 48.) His right hand is worse than his left.
22 (AR 48.) This has been happening for about two years. (AR 49.) He cut his wrist with a saw in
23 1987 and caused nerve damage to his fingers and thumb. (AR 49.) When Plaintiff saw the
24 consultative examiner in 2015 he had lost the use of his left arm because of his neck. (AR 49-
25 50.) He went to physical therapy for his left side and then the right hand and arm got worse than
26 the left. (AR 50.) 27 Plaintiff is unable to work because he does not have the ability to sit or stand in one
28 position for very long before getting the pain and sensations in his hands where he loses the
4 1 touch and the ability to lift or grab and get headaches. (AR 60.) He has a headache that is about
2 a four all the time and it progresses to a six if he gets too active. (AR 60.) The nerve damage
3 causes him to have sensations and pain in his fingers and stuff. (AR 60.) Sometimes he gets
4 pain so bad that he cannot even touch things if he strains too much or is too active. (AR 60.)
5 Plaintiff can sit for fifteen to twenty minutes because he has to rest his neck. (AR 61.)
6 After that much time he will have more pain, more pressure in his neck and more sensation in his
7 hands. (AR 61.) When he is at home he will lay down to take the pressure off his neck and
8 head. (AR 61.) Occasionally, he will wear a soft collar but does not have to very often. (AR
9 62.) Plaintiff has to continually take rest breaks to take the pressure off his head or neck. (AR
10 62.) Plaintiff will occasionally need to nap during the day. (AR 63.) He will get fatigue from
11 the pain daily. (AR 63-64.)
12 Plaintiff constantly has pain in his hands and it increases with overuse. (AR 63.)
13 Plaintiff’s hand pain was worse when it first came on but he has gotten relief with the epidurals.
14 (AR 63.)
15 A vocational expert also testified at the hearing. (AR 64-73.)
16 B. ALJ Findings
17 The ALJ made the following findings of fact and conclusions of law.
18 • Plaintiff meets the insured status requirements of the Social Security Act through June
19 30, 2018.
20 • Plaintiff has not engaged in substantial gainful activity since the alleged onset date of
21 May 1, 2014.
22 • Plaintiff has the following severe impairments: lumbar degenerative disc disease; cervical
23 spine disease - cervical radiculitis; and headaches.
24 • Plaintiff does not have an impairment or combination of impairments that meets or
25 medically equals the severity of one of the listed impairments.
26 • Plaintiff has the residual functional capacity to perform less than the full range of light
27 work as defined in 20 CFR § 404.1567(b). Specifically, Plaintiff can occasionally lift
28 and carry 20 pounds and frequently lift and carry 10 pounds. He can sit for six hours
5 1 total in an eight-hour workday and stand and walk for six hours total in an eight-hour
2 workday. Moreover, Plaintiff is able to frequently climb ramps and stairs. He is
3 occasionally able to climb ladders, ropes, and scaffolds. Further, Plaintiff is able to
4 frequently crouch and kneel. He is occasionally able to crawl and stoop. Additionally,
5 Plaintiff is able to reach overhead bilaterally on an occasional basis. Finally, Plaintiff is
6 able to handle and finger bilaterally on a frequent basis.
7 • Plaintiff is unable to perform any past relevant work.
8 • Plaintiff was born on July 30, 1965, and was 48 years old which is defined as a younger
9 individual age 18-49 on the alleged disability onset date.
10 • Plaintiff has at least a high school education and is able to communicate in English.
11 • Transferability of job skills is not material to the determination of disability because
12 using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is
13 not disabled whether or not he has transferable job skills.
14 • Considering Plaintiff’s age, education, work experience, and residual functional capacity,
15 there are jobs that exist in significant numbers in the national economy that he can
16 perform.
17 • Plaintiff has not been under a disability as defined in the Social Security Act from May 1,
18 2014, through the date of this decision.
19 (AR 16-27.) 20 III.
21 LEGAL STANDARD
22 To qualify for disability insurance benefits under the Social Security Act, the claimant
23 must show that he is unable “to engage in any substantial gainful activity by reason of any
24 medically determinable physical or mental impairment which can be expected to result in death
25 or which has lasted or can be expected to last for a continuous period of not less than 12
26 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step
27 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. §
28 404.1520; Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th
6 1 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is
2 disabled are:
3 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 4 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 5 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 6 Step three: Does the claimant’s impairment, or combination of impairments, meet 7 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 8 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 9 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 10 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 11 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 12 disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
14 Congress has provided that an individual may obtain judicial review of any final decision
15 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g).
16 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the
17 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be
18 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v.
19 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a
20 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)
21 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which,
22 considering the record as a whole, a reasonable person might accept as adequate to support a
23 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of
24 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).
25 “[A] reviewing court must consider the entire record as a whole and may not affirm
26 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 27 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not
28 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment
7 1 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is
2 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be
3 upheld.”).
4 IV.
5 DISCUSSION AND ANALYSIS
6 Plaintiff contends that the ALJ erred as a matter of law by failing to account for his
7 headache limitations in the residual functional capacity (“RFC”) assessment and in the weight
8 provided to his treating physicians’ opinions. Defendant counters that Plaintiff is arguing that
9 the ALJ failed to properly assess his RFC largely because the ALJ did not properly account for
10 Plaintiff’s subjective pain symptoms. Defendant argues that the ALJ properly considered the
11 objective medical evidence and found that his complaints of pain are inconsistent with the
12 objective medical evidence in the record. Further, Defendant contends that the ALJ properly
13 found that the limitations opined by Plaintiff’s treating physicians were unsupported by the
14 objective medical evidence and the ALJ properly evaluated Plaintiff’s RFC.
15 A. Physician Opinion
16 Plaintiff argues that his treating physicians opined that he had far greater limitations than
17 the ALJ found and that the ALJ erred by failing to consider the factors set forth in section
18 404.1527 before rejecting their opinions, giving greater weight to the opinions of non-treating
19 providers, and failing to provide specific and legitimate reasons to reject his treating physicians’ 20 opinions.
21 The weight to be given to medical opinions depends upon whether the opinion is
22 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d
23 821, 830-831 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded
24 more weight than those of non-examining physicians, and the opinions of examining non-
25 treating physicians are afforded less weight than those of treating physicians. Orn v. Astrue, 495
26 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)). “If a treating or
27 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject
28 it by providing specific and legitimate reasons that are supported by substantial evidence.”
8 1 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing 20 C.F.R. § 404.1527(d)(3)). The
2 contrary opinion of a non-examining expert is not sufficient by itself to constitute a specific,
3 legitimate reason for rejecting a treating or examining physician’s opinion, however, “it may
4 constitute substantial evidence when it is consistent with other independent evidence in the
5 record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ need not accept
6 the opinion of any physician that is brief, conclusory, and unsupported by clinical findings.
7 Thomas, 278 F.3d at 957.
8 1. Whether the ALJ Considered the Physician Opinions in Isolation 9 Plaintiff argues that the ALJ discussed the doctors’ opinions in isolation from each other
10 without acknowledging that they support each other and that the ALJ was required to consider
11 the consistency of the medical record as a whole. The regulations provide that “[g]enerally, the
12 more consistent a medical opinion is with the record as a whole, the more weight we will give to
13 that medical opinion.” 20 C.F.R. § 404.1527(c)(4). Here, the ALJ addressed the opinions of
14 Drs. Holvik and Tariq in the same paragraph and found that they were neither well supported by
15 the medical record nor consistent with the medical record as a whole. (AR 25.)
16 Prior to addressing the physician opinions, the ALJ considered that Plaintiff had been
17 receiving treatment for his headaches since May 2014, and at this time he had full range of
18 motion in this back and neck and a stable gait with adequate range of motion in all extremities,
19 normal strength and tone, and normal motor and cerebellar function. (AR 21, 360-361.) 20 Plaintiff was next seen in June of 2014 and was found to have no focal deficits on
21 neurological examination and his cranial nerves were grossly intact. (AR 21, 364.) He had a CT
22 scan of this head that was normal that same month. (AR 21, 384.) In July 2014, Plaintiff had an
23 MRI of the head that was normal and an MRI of the cervical spine that indicated status post
24 anterior fusion of C5-C6 moderate to severe bilateral neural foramen narrowing at C3-C4 and
25 mild bilateral neural foramen narrowing at C4-C5 but no signal abnormality of the central cord.
26 (AR 21, 393, 394, 396.) Plaintiff had a normal physical examination in July and August of 2014. 27 (AR 21, 365-366, 368-369.)
28 The ALJ considered that Plaintiff was seen in November of 2014 and again had a normal
9 1 physical examination and reported that he was feeling better and he was noted to be doing very
2 well on his current medications. (AR 21, 370.)
3 Plaintiff was seen for medication refills in January 2015, and reported that he was
4 working 2 to 4 hours a day performing odd jobs. (AR 21, 372.) Plaintiff had a normal physical
5 examination including a stable gait, painless range of motion in the neck, normal motor function,
6 normal tone, and normal strength with adequate range of motion in the extremities. (AR 21,
7 372-373.)
8 Plaintiff presented with complaints of neck and back pain in May 2015. (AR 21, 380.)
9 Although Plaintiff had diminished and painful range of motion of the neck and trigger point
10 tenderness of the left trap and scalene, his neck was still supple and symmetric. (AR 21, 380.)
11 His motor function and cerebellar function were intact. (AR 21, 380.) Plaintiff had left shoulder
12 pain with internal and external rotation, and tenderness to palpation of the long head of the
13 biceps, but normal tone and strength and an adequate gait. (AR 21, 380.) His cranial nerves
14 were intact. (AR 21, 380.)
15 Plaintiff was seen three months later and had a normal physical examination with full and
16 painless range of motion of the neck, a stable gait, normal strength and tone, adequate range of
17 motion of the extremities, and normal neurologic functioning. (AR 22, 437.)
18 The ALJ considered that Plaintiff underwent a consultative examination with Dr. Verma
19 in August 2015. (AR 22, 419-426.) Although Dr. Verma found diminished range of motion of 20 the bilateral wrists and cervical spine with muscle spasms and tenderness on the posterior neck
21 and bilateral upper back, Plaintiff also had negative straight leg raising bilaterally in both the
22 sitting and supine positions, no significant deformities of the hands, Plaintiff had the ability to
23 manipulate the use of a pen with ease and could approximate his fingers to make a fist without
24 any difficulty bilaterally and had adequate pinch positioning bilaterally. (AR 22, 422-423.) Dr.
25 Verma also found normal muscle tone and bulk, normal strength in both the upper and lower
26 extremities, normal coordination and normal gait. (AR 22, 424.) 27 Plaintiff was seen in March 2016 and was noted to be able to do a few chores around the
28 house. (AR 22, 539.) He had an MRI of the cervical spine in April 2016 that revealed status
10 1 post bony fusion and anterior plate and screw fusion of the C5-C6 vertebrae; chronic
2 degenerative disc changes, with loss of disc height at C3-4; and mild disc bulging at C3-4 and
3 C4-5, but no significant central canal stenosis at this level or at other levels of the cervical spine,
4 no subluxations, no fractures, a normal cervical spinal cord, and no other significant cervical
5 spine abnormalities. (AR 22, 464-465.) This same month it was noted that Plaintiff was
6 demonstrating good improvement of his shoulder mobility and strength. (AR 22, 529, 533.)
7 Plaintiff was seen in June 2016 where it was noted that he was undergoing physical
8 therapy. (AR 22, 624.) Plaintiff was seen for a neurological consultative examination in August
9 2016. (AR 22, 462-463.) Examination found that he had tenderness to palpation posteriorly to
10 the neck, with diminished range of motion. (AR 22, 462.) He also had full motor strength in
11 both the upper and lower extremities, intact sensory examination, normal cerebellar function, and
12 grossly intact cranial nerves. (AR 22, 463.) Plaintiff was found not to be a candidate for
13 surgery. (AR 463.) Plaintiff was seen on August 26, 2016 by Dr. Tariq. (AR 586.) Plaintiff
14 reported that he was generally able to perform usual activities. (AR 22, 586.) He was found to
15 have limited range of motion due to pain and trigger points in the shoulder that reproduced pain
16 and headache with pressure. (AR 22, 587.) It was noted that Plaintiff had been found not to be a
17 candidate for surgery by two physicians and that his symptoms could not be explained by the
18 MRIs that had been done. (AR 22, 587.)
19 In September 2016, Plaintiff had physical therapy and reported that he had headaches
20 every day and that he has a TENS unit at home but does not use it. (AR 23, 482.) In October
21 physical therapy notes that he had a cervical fusion planned for November 2016. (AR 23, 470.)
22 Plaintiff was seen again in October 2016 and reported that he had increased pain after driving.
23 (AR 23, 613.) He had a physical examination that showed diminished range of motion of the
24 cervical spine, positive facet loading, and tenderness overlying the paravertebral muscles, left
25 greater than right, bilaterally, but full muscle strength bilaterally, and symmetrically in the upper
26 and lower extremities, negative Phalens and Tinel’s tests, negative Hoffman sign, and intact 27 peripheral pulses with no edema or cyanosis. (AR 23, 613.) Plaintiff also had a normal gait,
28 symmetrical deep tendon reflexes bilaterally, and intact cranial nerves. (AR 23, 613.)
11 1 In December 2016, Plaintiff stated that his lower back pain was gone and his neck pain
2 had improved. (AR 23, 610.)
3 In January 2017, Plaintiff was seen complaining of neck pain that radiated to his upper
4 extremities, but reported that his headaches had improved. (AR 23, 608.) Other than elevated
5 blood pressure, he had a completely normal physical examination. (AR 23, 608.)
6 Plaintiff reported for a follow up in April 2017 and reported that his headaches had
7 decreased. (AR 23.) He was found to be alert and oriented, and it was noted that he
8 demonstrated no pain behavior throughout the examination. (AR 23, 603.) His gait was not
9 antalgic and he did not use an assistive device. (AR 23, 603.)
10 Plaintiff was seen in June 2017, and was alert and oriented and in no acute distress. (AR
11 23, 658.) Plaintiff had a normal gait and posture and did not use an assistive device. (AR 23,
12 658.) Neurologically he had normal muscle tone to the intrinsic and extrinsic muscles in the
13 upper extremities, normal deep tendon reflexes to both upper extremities and no resting tremor
14 or intention tremor. (AR 23, 658.)
15 The Court finds no merit to Plaintiff’s argument that the ALJ considered the doctor
16 opinions in isolation.
17 To the extent that Plaintiff is arguing that Drs. Holvik and Tariq both opined greater
18 limitations than found by the ALJ, the record contains opinions by multiple physicians that
19 assessed Plaintiff’s physical limitations and expressed differing opinions. It is for the ALJ to 20 resolve these inconsistencies in the medical record. Morgan v. Comm’r of Soc. Sec. Admin.,
21 169 F.3d 595, 603 (9th Cir. 1999); Batson, 359 F.3d at 1195. Questions on the credibility of the
22 physicians and resolving the conflicts in the testimony of the physicians are functions solely for
23 the Secretary, Morgan, 169 F.3d at 601, and the issue before the Court is whether the ALJ
24 provided specific and legitimate reasons to reject the opinions of the treating physicians that are
25 supported by substantial evidence in the record, Thomas, 278 F.3d at 957. The ALJ can meet
26 this burden by setting out a detailed and thorough summary of the facts and conflicting evidence 27 and stating his interpretation of the evidence and making findings. Id. at 957; Magallanes v.
28 Bowen, 881 F.2d 747, 753 (9th Cir. 1989). Plaintiff argues for a different result based on his
12 1 interpretation of the evidence, but “[w]here evidence is susceptible to more than one rational
2 interpretation, it is the ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at 679.
3 2. Whether the ALJ Erred by Failing to Consider the Factors Listed in Section 404.1527 4
5 Plaintiff contends that the ALJ did not comment on the factors listed in 404.1527 and that
6 that failure alone requires remand. However, the regulations do not state that the ALJ must
7 discuss the factors in the opinion, but that the ALJ must consider the factors.
8 A treating physician’s opinion is entitled to controlling weight on the issue of the nature
9 and severity of the claimant’s impairment where it is well-supported by medically acceptable
10 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
11 evidence in the record. 20 C.F.R. § 404.1527(c)(2). “If there is ‘substantial evidence’ in the
12 record contradicting the opinion of the treating physician, the opinion of the treating physician is
13 no longer entitled to ‘controlling weight.’ ” Orn, 495 F.3d at 632 (citing 20 C.F.R. §
14 404.1527(d)(2). “In that event, the ALJ is instructed by § 404.1527(d)(2) to consider the factors
15 listed in § 404.1527(d)(2)-(6) in determining what weight to accord the opinion of the treating
16 physician.” Orn, 495 F.3d at 632. The factors to be considered include the “ ‘[l]ength of the
17 treatment relationship and the frequency of examination’ by the treating physician, the ‘[n]ature
18 and extent of the treatment relationship’ between the patient and the treating physician, the
19 ‘[s]upportability’ of the physician’s opinion with medical evidence, and the consistency of the 20 physician’s opinion with the record as a whole.’ ” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th
21 Cir. 2014) (quoting 20 C.F.R. § 404.1527(c)(2)-(6)). “In many cases, a treating source’s medical
22 opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the
23 test for controlling weight.” Ghanim, 763 F.3d at 1161 (quoting Orn, 495 F.3d at 631).
24 Here, the ALJ set forth a detailed description of the medical record describing the
25 treatment Plaintiff received from his physicians (AR 21-23), and found that the opinions of Drs.
26 Holvik and Tariq were inconsistent with the other medical opinions in the record and the 27 evidence of record as a whole. (AR 25.) Further, the ALJ found that the upper extremity
28 restrictions were excessive in light of the objective evidence. (AR 25.) The Court finds that the
13 1 ALJ properly considered the factors identified in section 404.1527 and the question is whether
2 the reasons provided by the ALJ to reject the limitations opined are specific and legitimate and
3 supported by substantial evidence in the record.
4 3. Whether the ALJ Provided Specific and Legitimate Reasons for the Weight Provided to the Treating Physicians’ Opinions that are Supported by Substantial 5 Evidence 6 Plaintiff contends that the five reasons provided by the ALJ to reject the treating
7 physicians’ opinions are legally insufficient. Plaintiff argues that the majority of the reasons
8 assert that the opinions are unsupported or inconsistent with the medical evidence and that the
9 ALJ adopted a selective reading of the medical evidence. Defendant counters that the ALJ
10 properly considered that the opinions of Plaintiff’s treating physicians were unsupported by the
11 overall record and conflicted with the other opinion and medical evidence in the record.
12 The ALJ gave little weight to the opinions of Drs. Holvik and Tariq finding that the
13 opinions greatly limited Plaintiff’s use of his lower extremities which is inconsistent with his
14 reports that his upper extremities were his major impairment. (AR 25.) The ALJ also found that
15 the opinions were not well supported, were inconsistent with the opinions of Drs. Verma and
16 Resnik which were found to be consistent with the medical evidence as a whole, were
17 inconsistent with the medical record as a whole, and the upper extremity restrictions were
18 excessive in light of the objective evidence. (AR 25.) The ALJ also found that Dr. Tariq’s
19 opinion that Plaintiff was unable to work was an opinion reserved for the commissioner. (AR 20 25-26.)
21 a. Dr. Holvik’s Opinion
22 The ALJ considered Dr. Holvik’s November 9, 2015 opinion. (AR 25.) Dr. Holvik
23 completed a physical medical source statement. (AR 446-449.) Dr. Holvik stated that Plaintiff’s
24 symptoms are pain, headaches, dizziness and weakness in left arm. (AR 446.) Plaintiff had a
25 daily headache and intermittent severe pounding headaches with shooting pain in the left arm
26 aggravated by activity. (AR 446.) The objective signs supporting his limitations were “trigger 27 point occipital L. Trap with reduced left grip strength and limited range of motion in the neck.”
28 (AR 446.) Plaintiff had limited response to medication (AR 446.)
14 1 The ALJ considered that Dr. Holvik opined that Plaintiff could sit and stand/walk for
2 about 2 hours in an 8 hour work day with normal breaks. (AR 25, 447.)2 He could rarely twist,
3 stoop, crouch, squat, climb stairs and never climb ladders. (AR 25, 447.) Plaintiff could do no
4 overhead reaching bilaterally, can use his hands and arms 12.5 percent of an eight hour workday
5 and his fingers 25 percent of a workday. (AR 25, 448.) Plaintiff would be absent from work
6 more than four days per month. (AR 25, 449.)
7 b. Dr. Tariq’s Opinion
8 The ALJ also considered Dr. Tariq’s August 11, 2016 opinion. (AR 25.) Dr. Tariq
9 completed a physical medical source statement. (AR 458-461.) Dr. Tariq diagnosed Plaintiff
10 with severe neck pain, degenerative disc disease of the cervical spine, and anxiety. (AR 458.)
11 Plaintiff’s symptoms were noted to be severe neck pain with occipital headaches and neck pain
12 that radiates down both hands and with paresthesias. (AR 458.) Dr. Tariq stated that any minor
13 neck movement triggers severe headaches. (AR 458.) Plaintiff had severe throbbing headaches
14 and neck pain (8-10) precipitated by minor neck movements even with medication. (AR 458.)
15 Plaintiff had severe restriction of neck range of motion due to pain. (AR 458.) Dr. Tariq
16 reported that Plaintiff has had injections in the neck with no relief and is on morphine for pain
17 control. (AR 458.)
18 The ALJ considered that Dr. Tariq opined that Plaintiff could sit for less than 2 hours in
19 an 8 hour workday and stand/walk for less than 2 hours in an 8 hour workday; and can never lift 20 or carry anything.3 (AR 25, 459-460.) Plaintiff could never twist, bend, stoop, squat, or climb
21 ladders and rarely climb stairs. (AR 25, 460.) He could use his hands, fingers and arms only one
22 2 23 Dr. Holvik also opined that Plaintiff could walk 2 blocks without rest or severe pain; could sit or stand for 30 minutes at one time; must shift positions and needs unscheduled breaks of 30 minutes to one hour before returning to work due to pain and dizziness; and could occasionally lift less than 10 pounds and rarely lift 10 pounds. (AR 24 447.) 25 3 Dr. Tariq also opined that Plaintiff can walk less than one block; must shift positions and needs unscheduled breaks of thirty minutes to one hour before returning to work due to pain and dizziness; can sit for 5 minutes at one 26 time before needing to recline; and can stand for 5 minutes. (AR 447.) Plaintiff needed a job that allows shifting of positions and must walk for 5 minutes every 10 minutes; requires 8 to 10 unscheduled breaks during an 8 hour 27 workday and must rest for 20 to 30 minutes before returning to work due to pain/paresthesias, numbness and adverse effects of medication; and requires use of cane or other hand-held assistive device due to pain and dizziness. (AR 28 459-460.)
15 1 percent of an eight hour workday as any minor neck movement causes severe symptoms. (AR
2 25, 460.) Dr. Tariq opined that Plaintiff would be absent from work more than four times per
3 month. (AR 25, 461.)
4 The ALJ also considered that on August 9, 2016, Dr. Tariq opined in treatment notes that
5 Plaintiff cannot work. (AR 25, 591.)
6 c. ALJ did not err in rejecting Dr. Tariq’s opinion that Plaintiff is unable to work 7 The ALJ rejected Dr. Tariq’s opinion that Plaintiff was unable to work because the issue 8 of employability is reserved for the Commissioner. (AR 25.) While the ALJ must consider all 9 medical evidence, “[t]he treating physician’s opinion is not” “necessarily conclusive as to either 10 physical condition or the ultimate issue of disability.” Magallanes, 881 F.2d at 751. But the ALJ 11 may not simply reject the treating physician’s opinion on the ultimate issue of disability. 12 Ghanim, 763 F.3d at 1161. To reject the contradicted opinion of the treating physician, the ALJ 13 must provide specific and legitimate reasons that are supported by substantial evidence. Id. 14 Here, the ALJ considered the opinion of Dr. Tariq, but did not accept his ultimate 15 conclusion that Plaintiff was not employable. Under the regulations, a medical opinion is a 16 statement from an acceptable medical source that reflects judgment about the nature and severity 17 of the claimant’s impairments. 20 C.F.R. § 404.1527(a)(1). Opinions on some issues are not 18 medical opinions, but are opinions on issues reserved for the Commissioner. 20 C.F.R. § 19 404.1527(a)(1). One such issue is that the claimant is “disabled” or “unable to work.” 20 C.F.R. 20 § 404.1527(d)(1). The ALJ does not give any special significance to opinions on issues that are 21 reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(3). As this issue is reserved for the 22 Commissioner, the Court finds that the ALJ did not err in rejecting Dr. Tariq’s opinion that 23 Plaintiff was not employable. 24 d. ALJ provided specific and legitimate reasons for the weight provided to the 25 treating physician opinions 26 i. Medical record
27 The medical record from May 29, 2014 until May 4, 2015 demonstrates that Plaintiff
28 generally had normal musculoskeletal examinations with normal muscle strength, adequate range
16 1 of motion of the extremities, normal muscle strength and tone, and a stable gait; and generally
2 his neck was supple and symmetric with full range of motion without pain. (AR 361, 364, 369,
3 373, 375, 376, 379, 380.) There are occasional findings of limited range of motion in the neck
4 with pain. (AR 370, 381.) There are also a few findings regarding trigger points in the right or
5 left “trap” or long heads of the biceps.) (AR 375 (right), 377 (bilateral), 380 (biceps).)4
6 In June 2015, examination of Plaintiff’s neck showed slight flexion with limited range of
7 motion due to pain and left scalene trigger point with radiation of pain into the face. (AR 443.)
8 Plaintiff had adequate range of motion of all the extremities with no gross abnormalities. (AR
9 443.) His gait was stable and motor strength and tone were normal. (AR 444.)
10 On July 6, 2015, Plaintiff’s neck was supple and symmetric and there was “trigger point
11 TTP along B traps.” (AR 441.) Musculoskeletal examination was the same as the prior visit.
12 (AR 442.) Plaintiff reported that his current medication regimen was controlling his symptoms
13 at this time and his current medical state was noted to be stable. (AR 441, 442.)
14 On August 3, 2015, Plaintiff reported that his symptoms had been worsening over the
15 past two weeks but he was having no problems with his right arm. (AR 439.) His neck was
16 supple and symmetric but with limited range of motion due to pain. (AR 439.) His
17 musculoskeletal examination remained the same. (AR 439.)
18 Plaintiff was seen by Dr. Verma for a consultative examination on August 27, 2015. (AR
19 419-426.) Neck examination was unremarkable. (AR 422.) Plaintiff had normal range of 20 motion in the forearms and wrists bilaterally, except for some decreased dorsiflexion and palmar
21 flexon range of motion in the left wrist. (AR 422-423.) It was noted that there was no swelling
22 or tenderness in the left wrist. (AR 423.) Lower extremity examination was unremarkable with
23 all range of motion within normal limits. (AR 423.) Examination of the cervical spine revealed
24 muscle spasm and tenderness on the posterior neck and bilateral upper back with decreased
25 cervical spine range of motion. (AR 423.) Plaintiff had a normal examination of the
26 4 Dr. Holvik completed a physical medical source statement on June 1, 2015, that was somewhat less restrictive than the 2016 opinion. (AR 413-414.) Plaintiff does not argue that the ALJ erred by failing to address this opinion and 27 any such error would be harmless as the standing/walking during an 8 hour day and lifting carrying limitations opined by Dr. Holvik and addressed by the ALJ in the opinion are the same and the reasons asserted to reject the 28 August 2015 opinion would equally apply to the June 2015 opinion.
17 1 thoracolumbar spine. (AR 423.) Straight leg raising was negative in both the sitting and supine
2 positions bilaterally. (AR 423.) Plaintiff had no deformities of the hands and was able to
3 manipulate the use of a pen with ease. (AR 423.) He had no restrictions of the use of his hands
4 during the examination. (AR 423.) He was able to approximate fingers and make a fist without
5 difficulty bilaterally and pinch positioning was achieved adequately bilaterally. (AR 423.)
6 Cranial nerves II -XII were grossly normal. (AR 424.) Plaintiff’s motor examination revealed
7 normal muscle tone and bulk with essentially normal strength by manual muscle testing in all
8 major muscle groups of the upper and lower extremities graded at 5/5. (AR 424.) His grip
9 strength was not commensurate with motor strength and effort was noted to be variable. (AR
10 424.) The left hand was weaker than the right. (AR 424.) Plaintiff’s gait was normal. (AR
11 424.)
12 On August 31, 2015, Plaintiff was seen and stated that he only had dizziness when he
13 bent over to stand up and he was no longer working. (AR 437.) His neck was supple and
14 symmetric with full range of motion without pain. (AR 437.) Plaintiff had adequate range of
15 motion of the extremities with no gross abnormalities. (AR 437.) His gait was normal and he
16 had normal muscle strength and tone. (AR 437.)
17 On September 30, 2015, Plaintiff reported that he was doing well and that the change in
18 his medication had good reduction in his headaches. (AR 436.) His headaches were a 1/10 when
19 he woke up and would get up to a 3 or 4 if he did too much during the day. (AR 436.) He 20 complained that he was having neck pain. (AR 436.) Neck examination is noted as supple and
21 symmetrical with range of motion limited due to pain. (AR 436.) There is “trigger point TTP R
22 Trap and paravertebral muscles.” (AR 436.) Musculoskeletal examination remained the same.
23 (AR 436.)
24 On October 29, 2015, Plaintiff reported that he tried pruning his trees and doing a few
25 things and it aggravated things. (AR 434.) He complained of pounding headaches for two
26 weeks and left arm pain that was shooting down into his hand. (AR 434.) Neck examination 27 revealed fair range of motion. (AR 434.) Plaintiff had “trigger point TTP at L Medial scapular
28 border superior trap and base of the occiput.” (AR 434.) Musculoskeletal examination remained
18 1 the same. (AR 434.)
2 On November 9, 2015, Dr. Holvik completed the medical source statement. (AR 446-
3 449.)
4 Plaintiff was next seen by Dr. Nasr on March 16, 2016. (AR 635.) Plaintiff’s gait was
5 noted to be not antalgic and he used no assistive devices. (AR 635.) He had positive tenderness
6 overlying the cervical paravertebral muscles left greater than right bilateral; positive tenderness
7 overlying the occipital groove right/left; and positive tenderness overlying the cervical facets
8 right/left. (AR 635.) His muscle strength was 5/5 bilateral and symmetrical in the upper
9 extremities. (AR 635.) Range of motion of the cervical spine showed cervical flexion: 60
10 degrees, extension: 20 degrees, lateral bending: 20 degrees. (AR 635.) Plaintiff had negative
11 Phalan and Tinels tests. (AR 635.) Neurological examination showed intact light touch and
12 pinprick bilateral upper extremity with the exception of left C6. (AR 634.) Cranial nerves II
13 through XII were intact. (AR 634.) Hoffman sign was negative. (AR 634.) Spurling test was
14 positive on the right and negative on the left. (AR 634.) The extremities had no edema, no
15 cyanosis, and intact peripheral pulse. (AR 635. Plaintiff had positive facet loading. (AR 635.)
16 It is noted that Plaintiff demonstrated no pain behavior throughout the examination. (AR 635.)
17 Plaintiff attended physical therapy from March 16, 2016 through April 28, 2016 for his
18 shoulder and it is noted on April 28, 2016, that his shoulder was doing fine. (AR 521, 523, 525,
19 527, 529, 531, 533, 537, 539, 541, 543.) 20 Plaintiff saw Dr. Nasr on May 10, 2016, and May 27, 2016, and his examination results
21 remained the same and it is again noted that Plaintiff demonstrated no pain behavior during
22 examination. (AR 630, 632.)
23 Plaintiff received a cervical facet joint injection on May 31, 2016. (AR 628.) He
24 attended physical therapy during June 2016 and is noted to present with impaired cognition and
25 to give inconsistent responses. (AR 499, 501, 503.)
26 On June 22, 2016, Plaintiff was seen by Dr. Nasr and reported greater than fifty percent
27 improvement from the injection. (AR 626.) Examination results remain the same. (AR 626.)
28 Plaintiff went to physical therapy on June 28, 2016, and stated that he slipped and fell the prior
19 1 day and jerked his neck, but it feels fine. (AR 495.) Plaintiff stated that he woke up Sunday
2 morning feeling great and had been feeling good since. (AR 495.) He was complaining of
3 phantom pain in his hands and arms and stated that his pain medication slows it down for about
4 an hour and a half. (AR 495.) Plaintiff said he was feeling better in his neck than he had in a
5 long time. (AR 495.) Again it is noted that is appeared to be heavily under the influence of
6 various substances and gave very inconsistent responses. (AR 495.)
7 On June 29, 2016, Plaintiff saw Dr. Nasr and complained of a new whiplash injury. (AR
8 624.) Examination results remained the same. (AR 624.)
9 Plaintiff was seen by Dr. Nasr on July 14, 2016, complaining of neck and shoulder pain
10 after he drove to Porterville. (AR 622.) Examination results remained the same. (AR 622.)
11 Plaintiff saw Dr. Tariq on July 18, 2016, and reported that his neck pain was shooting
12 down his arm into his hand after he had driven to Porterville looking for work as a carpenter on
13 the prior Wednesday. (AR 596.) Plaintiff had limited range of motion in his neck due to pain
14 and it is noted that his exam is worse than the last visit when he was able to flex and extend
15 comfortably. (AR 597.)
16 Plaintiff saw Dr. Tariq on July 26, 2016, complaining of severe neck pain and headaches
17 caused by any little movement of his neck. (AR 594.) Plaintiff had restricted range of motion in
18 his neck and he was noted to be in mild distress due to pain. (AR 594.)
19 On July 27, 2016, Plaintiff was seen by Dr. Nasr complaining of worsening pain. (AR
20 620.) Plaintiff reported that the injections had helped for two months. Examination results
21 remained the same as the June 29, 2016 examination and it is noted that he displays no pain
22 behavior during the examination. (AR 620.)
23 On August 9, 2016, Plaintiff was seen by Dr. Tariq for follow up of his neck pain. (AR
24 589.) He was noted to be in mild distress due to pain. (AR 590.) Plaintiff’s range of motion in
25 his neck was restricted due to pain and he was wearing an Aspen collar. (AR 591.)
26 On August 11, 2016, Dr. Tariq completed the physical medical source statement. (AR
27 458-461.)
28 Plaintiff had a neurological consultation with Dr. Abumari on August 16, 2016. (AR
20 1 462-463.) Plaintiff’s cranial nerves II through XII were grossly intact. (AR 463.) Finger to nose
2 maneuver and alternating rapid movement of upper extremities were within normal limits; and
3 Plaintiff’s motor strength in the upper and lower extremities was 5/5. (AR 463.) Deep tendon
4 reflexes were 2+ throughout the upper and lower extremities. (AR 463.) Cutaneous-lantar
5 reflexes were downgoing. (AR 463.) There was no clonus and sensory examination was grossly
6 intact. (AR 463.) On examination of the extremities, Plaintiff was able to stand on his tiptoes
7 with difficulty. (AR 463.) He was found not to be a surgical candidate. (AR 463.)
8 On August 25, 2016, Plaintiff was seen and stated that he was feeling better but his
9 fingertips were numb and tingling. (AR 618.) He reported that he was having fewer headaches
10 and he was doing okay although he had pain at night. (AR 681.) Examination findings were the
11 same as the July 14, 2016 visit and it was noted that he exhibited no pain behavior throughout
12 the examination. (AR 618.)
13 On August 26, 2016, Plaintiff was seen by Dr. Tariq for a follow up and reported that he
14 continued to have symptoms brought on by the smallest movement. (AR 587.) On examination,
15 neck range of motion was restricted due to pain and he had trigger points in the left and right
16 sternocleidomastoid, left scalene and upper part of left trapezius and pressure on these
17 reproduced his pain/paresthesias and headache. (AR 587.) The record notes that Plaintiff has
18 not been deemed a surgical candidate by two neurosurgeons yet he continues to have severe
19 debilitating neck pain headaches that are precipitated by the slightest neck movement and 20 paresthesia in his hands and fingers that cannot be explained by MRI. (AR 587.) Dr. Tariq
21 noted that he does have multiple trigger points pressure which reproduces his symptoms. (AR
22 587.) Plaintiff was to continue pain management as per Dr. Nasr but also to be sent to PT
23 targeted specifically at treatment of trigger points. (AR 587.)
24 Plaintiff received a cervical steroid injection on September 8, 2016. (AR 617.)
25 On September 22, 2016, Plaintiff went to physical therapy and reported that he has a
26 TENS unit at home but does not use it because he is afraid it will somehow make his pain worse. 27 (AR 480.) He has tried all kinds of creams and more than 30 pain medications to get to the place
28 he is now with headaches controlled at a lower intensity. (AR 480.) Plaintiff has seen
21 1 neurologists and had a nerve conduction study and was told the tingling in his arms was
2 unrelated to his neck. (AR 480.)
3 On September 29, 2016, Plaintiff was seen in Dr. Tariq’s office and reported that he had
4 an epidural injection that had worked well and he was taking Morphine. (AR 580.) Plaintiff had
5 restricted range of motion in his neck due to pain and the same trigger points as the August 26,
6 2016 visit. (AR 581.)
7 Plaintiff was seen in Dr. Nasr’s office on October 6, 2016 and reported that his headaches
8 were better with a ninety percent improvement. (AR 615.) He reported the numbness in his
9 hands has decreased and he was able to stand a little longer. (AR 615.) Plaintiff exhibited no
10 pain behavior throughout the examination and examination results remain the same as the July
11 27, 2016 visit.
12 Plaintiff had two physical therapy appointments in October and was discharged because
13 he was unable to tolerate treatment. (AR 470, 471, 474.) On October 18, 2016, Plaintiff was
14 seen by Dr. Nasr and examination results remained the same as the prior visit. (AR 613.)
15 On November 29, 2016, Plaintiff was seen and was noted to be in mild distress due to
16 pain. (AR 578.) Plaintiff reported that he had left his wife because he thought she was
17 poisoning him. (AR 578.) On this same date, he was seen in Dr. Nasr’s office and reported that
18 since he left his wife his pain level had gone from a 7/10 to 1/10. (AR 611.) Plaintiff was noted
19 to display no pain behavior throughout the examination. (AR 611.) His gait was not antalgic 20 and he did not use an assistive device. (AR 611.)
21 On December 13, 2016, Plaintiff reported that he had weaned himself off morphine and
22 was doing well with no complaints. (AR 572.) Plaintiff was noted to be in mild distress due to
23 pain. (AR 573.)
24 On December 14, 2016, Plaintiff reported that his lower back pain was gone and his neck
25 pain was improved. (AR 610.) He had weaned himself off his medication and cancelled his
26 neck surgery. (AR 610.) He is noted to exhibit no pain behavior throughout the examination. 27 (AR 610.) His gait was not antalgic and he did not use an assistive device. (AR 610.)
28 Plaintiff was seen on January 12, 2017, complaining of neck pain that was radiating to
22 1 the upper extremities and numbness and tingling. He reported that his headaches had improved
2 and that he received very good relief with the injection in September. (AR 608.) He is noted to
3 exhibit no pain behavior throughout the examination. (AR 608.) His gait was not antalgic and
4 he did not use an assistive device. (AR 608.)
5 On February 9, 2017, Plaintiff received another cervical steroid injection. (AR 606.)
6 On February 15, 2017, Plaintiff reported the numbness and tingling to both hands had
7 improved. (AR 605.) He is noted to exhibit no pain behavior throughout the examination. (AR
8 605.) His gait was not antalgic and he did not use an assistive device. (AR 605.)
9 On February 28, 2019, Plaintiff was noted to be in mild distress due to pain. (AR 570.)
10 On March 9, 2017, Plaintiff complained of neck pain that was out of control. (AR 604.)
11 He stated that his headaches were not as frequent and the numbness and tingling had improved to
12 both hands. (AR 604.) He is noted to exhibit no pain behavior throughout the examination.
13 (AR 604.) His gait was not antalgic and he did not use an assistive device. (AR 604.)
14 On March 21, 2017, Plaintiff was seen by Dr. Tariq and reported that he was able to
15 function better now that his pain was controlled and that he had better range of motion of his
16 hands and neck. (AR 568.) Plaintiff had an unremarkable examination. (AR 568-569.)
17 On April 6, 2019, Plaintiff reported that he still has neck pain but the the patches help
18 control it. (AR 603.) He has adequate analgesia and activity of daily living. (AR 603.) He is
19 noted to exhibit no pain behavior throughout the examination. (AR 603.) His gait was not 20 antalgic and he did not use an assistive device. (AR 603.)
21 On April 18, 2017, Plaintiff saw Dr. Tariq and reported that his pain was well controlled.
22 (AR 650.) His examination was unremarkable. (AR 650.)
23 On May 23, 2019, Plaintiff had an annual examination and his examination results were
24 unremarkable. (AR 648.)
25 On June 16, 2017, Plaintiff was seen for lacerations on his left hand after he was injured
26 while using a table saw at home. (AR 656.) He had normal muscle tone to the extrinsic and 27 intrinsic muscles in the upper extremities. (AR 658.) There was no evidence of a resting tremor
28 or an intention tremor. (AR 658.) Plaintiff demonstrated normal deep tendon reflex to both
23 1 upper extremities. (AR 658.) Plaintiff ambulated with a normal gait without assistive device
2 and demonstrated normal posture without any protective posturing. (AR 658.) Examination of
3 the left hand revealed a transverse laceration through the germinal matrix of the nailbed and
4 another 2 cm laceration of the volar distal phalanx. (AR 659.) Plaintiff was able to fully extend.
5 (AR 659.) He was able to flex at the proximal interphalangeal joint and distal interphalangeal
6 joint but range of motion was limited due to pain. (AR 659.) Plaintiff had reconstructive
7 surgery and appeared for post-operative examinations where he was found to be healing well.
8 (AR 661-668.)
9 On August 17, 2017, Plaintiff was seen by Dr. Tariq complaining of 6/10 pain down both
10 arms spreading distally toward his digits. (AR 646.) Plaintiff had an unremarkable examination.
11 (AR 646.)
12 ii. Inconsistency with medical record
13 The ALJ rejected the opinions of Drs. Holvik and Tariq to the extent that they greatly
14 limited his use of his lower extremities finding that it was inconsistent with Plaintiff’s complaint
15 that the major impairment was his upper extremities. (AR 25.) Plaintiff argues that the record
16 demonstrates that his neck and cervical spine symptoms also limit his use of his lower
17 extremities. However, the ALJ pointed to the generally normal examinations, including his back
18 and lower extremity examinations, which are inconsistent with the physician opinions that
19 Plaintiff is severely limited in the use of his lower extremities. 20 As to Dr. Holvik, the ALJ noted that the generally normal findings in the record are
21 inconsistent with the lower extremity limitations opined. (AR 24.) Dr. Holvik opined on
22 November 9, 2015, that Plaintiff was unable to walk more than two blocks, sit or stand more than
23 thirty minutes, and could sit or stand/walk for about 2 hours in an 8 hour workday. (AR 447.)
24 Dr. Holvik opined that Plaintiff’s objective signs were trigger point occipital left trap with
25 reduced grip strength and limited range of motion in the neck. (AR 446.)
26 Although Plaintiff argues that the lower extremity limitations are related to his neck and
27 cervical spine symptoms, the record demonstrates that Plaintiff generally had normal neck and
28 spinal examinations with some limited range of motion and trigger points in his neck and
24 1 shoulder area. As demonstrated by the medical record, there are only occasional findings prior
2 to June 2015 and Plaintiff generally had normal physical examination of his neck. (AR 361, 364,
3 369, 373, 375, 376, 379, 380.)
4 In June 2015, examination of Plaintiff’s neck shows slight flexion with limited range of
5 motion due to pain and left scalene trigger point with radiation of pain into the face. (AR 443.)
6 In July 2015, Plaintiff’s neck was supple and symmetrical but there was some trigger point TTP
7 along the bilateral traps. (AR 441.) But Plaintiff reported that his current medication regimen
8 was controlling his symptoms and he was noted to be stable. (AR 441, 442.) Although Plaintiff
9 reported that his symptoms had worsened in November 2016, on examination his neck was
10 supple and symmetric with limited range of motion due to pain and musculoskeletal examination
11 remained the same. (AR 439.)
12 The ALJ also considered that during the period of time prior to Dr. Holvik completing the
13 form, Plaintiff was working two to four hours a day in construction. (AR 21, 372.) Plaintiff told
14 Dr. Holvik on February 5, 2015, that he was unable to look up or use his nail gun for very long
15 and that he has been working. (AR 374.) In March 5, 2015, Plaintiff reported that he was
16 functioning well and had a good three hours a day that he was able to do things. (AR 377.) It is
17 not until August 2015 that Plaintiff reports that he is not working any longer. (AR 438.) But in
18 October 2015, Plaintiff reported that he was doing well and only got headaches if he did too
19 much during the day. (AR 436.) In October 2015, Plaintiff reported that he was pruning his 20 trees and doing a few things which aggravated his pain. (AR 434.)
21 Further, in March 2016, Plaintiff reported that he was doing household chores over the
22 weekend.5 (AR 22, 539.) On April 14, 2016, it was noted in physical therapy that Plaintiff was
23 able to perform his exercises with a neck brace. (AR 529.) On April 21, 2016, Plaintiff reported
24 that he was able to mow the lawn the day before without his neck brace. (AR 525.)
25 As to Dr. Tariq, on August 11, 2016, he also opined that Plaintiff was only able to sit for
26 5 There are no medical records from the date of Dr. Holvik’s November 15, 2016 opinion until March 9, 2016 where 27 Dr. Nasr found that Plaintiff demonstrated no pain behavior during examination despite the positive findings. (AR 635. There are some physical therapy records and the next visit is May 10, 2016 with Dr. Nasr where it again noted 28 that there is no pain behavior during examination. (AR 632.)
25 1 less than 2 hours in an 8 hour workday and stand/walk for less than two hours in an 8 hour
2 workday. (AR 459-460.) Dr. Tariq stated this was due to severe neck pain with occipital
3 headaches and pain that radiates down both hands with paresthesias. (AR 458.) Dr. Tariq also
4 stated that Plaintiff has been treated with neck injections with no relief and is on morphine. (AR
5 458.)
6 However, the medical record demonstrates that Plaintiff reported significant relief from
7 the epidural injections and that his pain was well controlled with the injections and morphine.
8 (AR 569, 580, 618, 620, 626.) On July 18, 2016, Dr. Tariq noted that at the prior visit Plaintiff
9 had been able to flex and extend his neck comfortably, and that he had aggravated his neck when
10 he drove to Porterville looking for work. (AR 596, 597.)
11 The ALJ could reasonable conclude that Drs. Holvik and Tariq’s opined lower extremity
12 limitations were inconsistent with the evidence in the record.
13 Further, the ALJ found that the upper extremity limitations were excessive in light of the
14 objective medical evidence. (AR 25.) Dr. Holvik opined that Plaintiff can rarely lift less than
15 ten pounds and never lift more than ten pounds; can only use his bilateral hands for grasping and
16 turning 12.5 percent of the day; could only use his bilateral fingers for fine manipulation twenty
17 five percent of the day and could not use his bilateral arms for reaching overhead. (AR 448.)
18 On August 16, 2016, Dr. Tariq opined that Plaintiff can never lift less than 10 pounds;
19 and can use his hands, fingers and arms only 1 percent of an 8 hour workday because any minor 20 neck movement causes severe symptoms. (AR 460.) The only evidence in the record to support
21 such a contentions is that Plaintiff complains that any minor neck movement causes severe
22 symptoms. However, an ALJ can reject a physician’s opinion that is premised on a claimant’s
23 subjective complaints that have been properly discounted. Fair v. Bowen, 885 F.2d 597, 605
24 (1989).
25 Although there are some findings that pressure on the trigger points reproduced his
26 pain/paresthsias and headaches (AR 587), there are no findings that on examination minor 27 movement of Plaintiff’s head or neck caused him to have severe symptoms.
28 The ALJ noted that Plaintiff reported improvement of his symptoms and that despite the
26 1 fact that Plaintiff complained of headaches, he had normal examinations and was noted to
2 display no pain behavior during examination. (AR 22-23.) In fact, the record consistently
3 reports that Plaintiff exhibited no pain during examination. (AR 361, 364, 366, 369, 373, 375,
4 379, 422, 437, 603, 604, 605, 608, 610, 611, 613, 615, 618, 620, 622, 624, 626, 630, 632, 635.)
5 Even where Plaintiff’s range of motion in his neck is limited, trigger points are found, or
6 pressure on the trigger points reproduces his symptoms, there are no findings that movement
7 exacerbated Plaintiff’s symptoms. (AR 370, 377, 380, 433, 435, 439, 442, 444, 581, 584, 586,
8 591, 594, 597.) Physical therapy notes that Plaintiff’s neck pain increased with movement of his
9 arms over shoulder height and that chin tucks caused a slight headache. (AR 474, 482.) There is
10 a single notation in the record on October 17, 2016, that all neck movements seemed to cause
11 some aggravation of either headache, neck pain or pain shooting to his hands. (AR 474.)
12 However, records subsequent to this indicate that Plaintiff is doing well and his pain is controlled
13 by the injections and medication to the extent that Plaintiff cancelled a scheduled neck surgery
14 and weaned himself off of medication. (AR 572, 604, 608, 610, 611.) The ALJ considered that
15 Plaintiff’s subsequent medical records showed that his symptoms had improved and he exhibited
16 no pain behavior during examination. (AR 23.)
17 Inconsistency with the objective findings in the medical record are specific and legitimate
18 reasons to reject a physician opinion. See Thomas, 278 F.3d at 957 (9th Cir. 2002) (clinical
19 findings); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (inconsistency with 20 medical record). The ALJ provided specific and legitimate reasons to reject the limitations
21 opined by Drs. Holvik and Tariq that are supported by substantial evidence in the record.
22 Plaintiff also argues that the ALJ should have contacted Drs. Holvik and Tariq to clear up
23 any questions regarding Plaintiff’s impairments or limitations. The ALJ has a duty to further
24 develop the record where the evidence is ambiguous or the ALJ finds that the record is
25 inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453,
26 459-60 (9th Cir. 2001); Tonapetyan, 242 F.3d at 1150. 27 Here, the ALJ did not find the opinions of either doctor to be ambiguous but found that
28 they were inconsistent with the medical record and the objective medical findings. A specific
27 1 finding of ambiguity or inadequacy in the record is not required to trigger the necessity to further
2 develop the record where the record itself establishes the ambiguity or inadequacy. McLeod v.
3 Astrue, 640 F.3d 881, 885 (9th Cir. 2011). The facts in this case are not similar to other
4 instances in which the ALJ was found to have a duty to further develop the record. See
5 Tonapetyan, 242 F.3d at 1150-51 (ALJ erred by relying on testimony of physician who indicated
6 more information was needed to make diagnosis); McLeod, 640 F.3d at 887 (ALJ erred by
7 failing to obtain disability determination from the Veteran’s Administration); Bonner v. Astrue,
8 725 F.Supp.2d 898, 901-902 (C.D. Cal. 2010) (ALJ erred where failed to determine if claimant’s
9 benefits were property terminated or should have been resumed after his release from prison);
10 Hilliard v. Barnhart, 442 F.Supp.2d 813, 818-19 (N.D. Cal. 2006) (ALJ erred by failing to
11 develop record where he relied on the opinion of a physician who recognized he did not have
12 sufficient information to make a diagnosis). The Court finds no error by the ALJ due to failing
13 to develop the record.
14 Finally, Plaintiff argues that the ALJ erred by giving greater weight to the opinion of the
15 consultative examiner who only saw Plaintiff on a single occasion. However, opinions of
16 doctors other than a claimant’s treating physician, such as a consultative examiner can be
17 substantial evidence. Magallanes, 881 F.2d at 752. Where the treating physician’s opinion is
18 contradicted by the opinion of an examining physician who based the opinion upon independent
19 clinical findings that differ from those of the treating physician, the nontreating source itself may 20 be substantial evidence, and the ALJ is to resolve the conflict. Andrews, 53 F.3d at 1041. Here,
21 Dr. Verma examined Plaintiff on August 27, 2015 and his notes detail the findings of
22 musculoskeletal and neurological examination. (AR 422-424.) Although the ALJ found that Dr.
23 Resnick’s opinion regarding Plaintiff’s manipulative limitations was more consistent with the
24 record as a whole, he gave significant weight to the rest of Dr. Verma’s opinion finding that it
25 was well supported, consistent with the limitations noted in the record, consistent with his own
26 examination of Plaintiff, and consistent with the medical evidence of record as a whole. (AR 27 24.) Further, the ALJ gave significant weigh to the opinion of Dr. Verma because he was an
28 expert in the field. (AR 24.)
28 1 The ALJ did not err in the weight provided to Dr. Verma’s opinion based upon the fact
2 that he only examined Plaintiff on one occasion.
3 B. Residual Functional Capacity
4 Plaintiff contends that the ALJ erred because the RFC did not account for any limitations
5 due to his headaches which were found to be severe. Plaintiff argues that the residual functional
6 capacity did not account for the fact that he has headaches daily, his headaches are aggravated by
7 movement of his neck, during a headache he would be off task, and that limitations should be
8 included during the pendency of a headache.
9 Defendant counters that Plaintiff is arguing that the ALJ failed to account for his subject
10 accounts of pain due to his headaches. Defendant contends that the ALJ properly rejected
11 Plaintiff’s subjective pain testimony and evaluated the objective medical evidence concluding
12 that his allegations of headaches were inconsistent with the objective medical evidence in the
13 record.
14 A claimant’s RFC is “the most [the claimant] can still do despite [his] limitations.” 20
15 C.F.R. § 416.945(a)(1). The RFC is “based on all the relevant evidence in [the] case record.” 20
16 C.F.R. § 416.945(a)(1). “The ALJ must consider a claimant’s physical and mental abilities, §
17 416.920(b) and (c), as well as the total limiting effects caused by medically determinable
18 impairments and the claimant’s subjective experiences of pain, § 416.920(e).” Garrison, 759
19 F.3d at 1011. At step four the RFC is used to determine if a claimant can do past relevant work 20 and at step five to determine if a claimant can adjust to other work. Id. “In order for the
21 testimony of a VE to be considered reliable, the hypothetical posed must include ‘all of the
22 claimant’s functional limitations, both physical and mental’ supported by the record.” Thomas,
23 278 F.3d at 956.
24 Here, Plaintiff’s challenge to the RFC is that it did not account for his subjective
25 complaints of pain due to his headaches.6 Initially, the Court notes that Plaintiff vaguely
26 challenges the ALJ’s finding regarding Plaintiff’s credibility due to his daily activities in a 27 6 As discussed above, there are no objective findings in the record that support Plaintiff’s complaints of headache 28 and therefore, the evidence to be considered would be his subjective complaints.
29 1 footnote. (Pl.’s Brief in Support of Remand, p. 24 n.6.) “A footnote is the wrong place for
2 substantive arguments on the merits of a motion, particularly where such arguments provide
3 independent bases for dismissing a claim not otherwise addressed in the motion.” First
4 Advantage Background Servs. Corp. v. Private Eyes, Inc., 569 F.Supp. 2d 929, 935 n.1 (N.D.
5 Cal. 2008); see also United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003) (an argument
6 that is mentioned only in a footnote is not adequately raised). Plaintiff is advised courts are not
7 mind readers and a “party has a duty ‘to spell out its arguments squarely and distinctly.... [rather
8 than being] allowed to defeat the system by seeding the record with mysterious references ...
9 hoping to set the stage for an ambush should the ensuing ruling fail to suit.’ ” McCoy v.
10 Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (quoting Paterson–Leitch Co. v.
11 Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988). Substantive
12 arguments should be raised within the brief itself.
13 1. Whether ALJ Erred in Finding Plaintiff’s Allegations of Pain Not Credible
14 “An ALJ is not required to believe every allegation of disabling pain or other non-
15 exertional impairment.” Orn, 495 F.3d at 635 (internal punctuation and citations omitted).
16 Determining whether a claimant’s testimony regarding subjective pain or symptoms is credible,
17 requires the ALJ to engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th
18 Cir. 2012). The ALJ must first determine if “the claimant has presented objective medical
19 evidence of an underlying impairment which could reasonably be expected to produce the pain 20 or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
21 (internal punctuation and citations omitted). This does not require the claimant to show that his
22 impairment could be expected to cause the severity of the symptoms that are alleged, but only
23 that it reasonably could have caused some degree of symptoms. Smolen, 80 F.3d at 1282.
24 Then “the ALJ may reject the claimant’s testimony about the severity of those symptoms
25 only by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter v.
26 Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). “The ALJ must specifically make findings that 27 support this conclusion and the findings must be sufficiently specific to allow a reviewing court
28 to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not
30 1 arbitrarily discredit the claimant’s testimony.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.
2 2004) (internal punctuation and citations omitted). Factors that may be considered in assessing a
3 claimant’s subjective pain and symptom testimony include the claimant’s daily activities; the
4 location, duration, intensity and frequency of the pain or symptoms; factors that cause or
5 aggravate the symptoms; the type, dosage, effectiveness or side effects of any medication; other
6 measures or treatment used for relief; functional restrictions; and other relevant factors.
7 Lingenfelter, 504 F.3d at 1040; Thomas, 278 F.3d at 958. In assessing the claimant’s credibility,
8 the ALJ may also consider “(1) ordinary techniques of credibility evaluation, such as the
9 claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other
10 testimony by the claimant that appears less than candid; [and] (2) unexplained or inadequately
11 explained failure to seek treatment or to follow a prescribed course of treatment. . ..”
12 Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at 1284). The district court is
13 constrained to review those reasons that the ALJ provided in finding the claimant’s testimony not
14 credible. Brown-Hunter, 806 F.3d at 492.
15 . Defendant argues evidence within the record that the ALJ did not rely on in making the
16 credibility determination, such as Plaintiff’s statement that he had not driven within the past two
17 to three years and the evidence that Plaintiff does do so including that in July 2016 Plaintiff
18 drove to Visalia, he was continuing to look for work as a carpenter, and he was non-compliant
19 with treatment. (Def.’s Answering Brief 18-19, 22, ECF No. 15.) While the Court may draw 20 reasonable inferences from the ALJ’s opinion, Magallanes, 881 F.2d at 755, it cannot consider
21 Defendant’s post hac rationalizations. “A reviewing court can evaluate an agency’s decision
22 only on the grounds articulated by the agency.” Ceguerra v. Sec’y of Health & Human Servs.,
23 933 F.2d 735, 738 (9th Cir. 1991). The Court is constrained to review the reasons asserted by
24 the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It was error for the district
25 court to affirm the ALJ’s credibility decision based on evidence that the ALJ did not discuss.”)
26 The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
27 expected to cause the alleged symptoms, but his statements concerning the intensity, persistence
28 and limiting effects of his symptoms was not consistent with the medical evidence and the other
31 1 evidence in the record. (AR 19.) The ALJ stated that he considered the factors identified in 20
2 C.F.R. § 404.1529(c)(3):
3 1. The claimant’s daily activities; 2. The location, duration, frequency, and intensity of the claimant’s pain or 4 other symptoms; 3. Factors that precipitate and aggravate the symptoms; 5 4. The type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; 6 5. Treatment other than medication the claimant receives or has received for relief of pain or other symptoms 7 6. Any measures other than treatment the claimant uses or has used to relieve pain or other symptoms (e.g. lying flat on his or her back, standing for 15 8 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the claimant’s functional limitations and 9 restrictions due to pain or other symptoms (SSR 16-3p). 10 (AR 18-19.)
11 There are two grounds to use daily activities for an adverse credibility finding. Orn, 495
12 F.3d at 639. First, daily activities can form the basis of an adverse credibility determination if
13 the claimant’s activity contradicts his testimony. Id. Secondly, “daily activities may be grounds
14 for an adverse credibility finding ‘if a claimant is able to spend a substantial part of his day
15 engaged in pursuits involving the performance of physical functions that are transferable to a
16 work setting.’ ” Id. (quoting Fair, 885 F.2d at 603). The ALJ must make specific findings as to
17 the daily activities and their transferability to conclude that the claimant’s daily activities warrant
18 an adverse credibility determination. Orn, 495 F.3d at 639. Here, the ALJ found that Plaintiff’s
19 daily activities were not consistent with his symptom testimony. (AR 20.) 20 In making the credibility determination, the ALJ considered Plaintiff’s reported activities:
21 “he prepares easy meals, counts change, goes grocery shopping, uses a checkbook, does not need
22 any special reminders to take care of his personal needs and grooming, goes outside one to two
23 hours a week, does not need to be reminded to go places, follows written and spoken instructions
24 fine, gets along with authority figures fines [sic], has never been fired or laid off from a job due
25 to problems getting along with others, watches television, and has no problems getting along
26 with family, friends, neighbors, or others.” (AR 20.) The ALJ found these activities to be 27 inconsistent with Plaintiff’s statements that he has difficulty lifting, squatting, bending, standing,
28 reaching, walking, kneeling, climbing stairs, completing tasks, concentrating, and using his
32 1 hands. . . . he cannot lift anything without straining his neck, getting headaches, and experiencing
2 bilateral hand pain. He indicated he also has balance issues, as well as difficulty lifting and
3 grabbing. Regarding sitting, the claimant stated he can only sit for 15 to 20 minutes at a time
4 before he has stress, pain, and pressure in his neck, as well as more sensations throughout his
5 hands. Concerning lifting, he mentioned he can lift a gallon of milk or a bag of cat food that
6 weighs 10 pounds. (AR 20.)
7 The limited activities that the ALJ relied on to discount Plaintiff’s credibility are not
8 inconsistent with his asserted abilities. Therefore, this is not a clear and convincing reason to
9 reject Plaintiff’s credibility.
10 Additionally, the ALJ found that the objective medical evidence did not support his
11 allegations of disabling symptoms and limitations. (AR 20.) The determination that a claimant’s
12 complaints are inconsistent with clinical evaluations can satisfy the requirement of stating a clear
13 and convincing reason for discrediting the claimant’s testimony. Regennitter v. Commissioner
14 of Social Sec. Admin., 166 F.3d 1294, 1297 9th Cir. 1999). But, “subjective pain testimony
15 cannot be rejected on the sole ground that it is not fully corroborated by objective medical
16 evidence. . . .” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. §
17 404.1529(c)(2)).
18 The ALJ erred by failing to provide a clear and convincing reason to find Plaintiff’s pain
19 testimony credible. 20 C. This Matter Shall be Remanded for Further Administrative Proceedings
21 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which
22 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and
23 award benefits: (1) the record has been fully developed and further administrative proceedings
24 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for
25 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly
26 discredited evidence were credited as true, the ALJ would be required to find the claimant 27 disabled on remand.” Garrison, 759 F.3d at 1020. The credit as true doctrine allows “flexibility”
28 which “is properly understood as requiring courts to remand for further proceedings when, even
33 1 though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a
2 whole creates serious doubt that a claimant is, in fact, disabled. Id. at 1021. “A claimant is not
3 entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how
4 egregious the ALJ’s errors may be.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d
5 1135, 1138 (9th Cir. 2011).
6 Here, as discussed above, the Court has found that the ALJ properly rejected the opinions
7 of Drs. Holvik and Tariq and Plaintiff has not challenged the other medical opinions which the
8 ALJ relied in finding that Plaintiff is capable of light work.
9 “[A] reviewing court is not required to credit claimants’ allegations regarding the extent
10 of their impairments as true merely because the ALJ made a legal error in discrediting their
11 testimony.” Brown-Hunter, 806 F.3d at 495 (quoting Treichler v. Comm'r of Soc. Sec. Admin.,
12 775 F.3d 1090, 1106 (9th Cir.2014)). Further, upon review of the record and as discussed above,
13 there is substantial evidence that Plaintiff’s symptom complaints are not as severe as he has
14 alleged. There is evidence in the record that he has responded well to treatment such that he
15 cancelled a neck surgery and weaned himself off his pain medication. (AR 568, 573, 575, 580,
16 603, 608, 610, 611, 615, 650.) Additionally, as pointed out by Defendant in the opposition brief,
17 the record demonstrates that Plaintiff was not credible in testifying that he had not driven in two
18 years as he drove to doctor’s appointments and to Porterville looking for work during that time
19 period. (AR 541, 596, 622.) Finally, the record contains evidence that Plaintiff was continuing 20 to engage in activities such as doing carpentry work and doing yard work which often were the
21 cause of the aggravation of his symptoms and activities inconsistent with his testimony as to his
22 limitations. (AR 372, 375, 376, 434, 596.)
23 The Court finds that the record as a whole creates a serious doubt that Plaintiff is in fact
24 disabled and for this reason, the matter is remanded to the ALJ for further proceedings. Upon
25 remand, the ALJ shall reconsider Plaintiff’s symptom testimony.
26 V.
27 CONCLUSION AND ORDER
28 Based on the foregoing, the Court finds that the ALJ erred by failing to provide clear and
34 1 convincing reasons to reject Plaintiff’s symptom testimony. Accordingly, IT IS HEREBY
2 ORDERED that Plaintiff’s appeal from the decision of the Commissioner of Social Security is
3 GRANTED and this matter is remanded back to the Commissioner of Social Security for further
4 proceedings consistent with this order. It is FURTHER ORDERED that judgment be entered in
5 favor of Plaintiff Raymond Richard Prine, Jr. and against Defendant Commissioner of Social
6 Security. The Clerk of the Court is directed to CLOSE this action.
7 IT IS SO ORDERED. 8
9 Dated: October 2, 2019 UNITED STATES MAGISTRATE JUDGE 10
19 20
26 27
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