1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 G.S., Plaintiff, Case No. 3:19-cv-07543-JSC 8 v. 9 ORDER RE: CROSS MOTIONS FOR 10 ANDREW SAUL, SUMMARY JUDGMENT Defendant. Re: Dkt. Nos. 15 & 18 11
12 Plaintiff seeks social security benefits for physical and mental impairments including 13 cervical radiculopathy with chronic neck and shoulder pain, lumbar facet arthropathy with chronic 14 lumbar pain and radiculopathy, depression, anxiety, and complications arising from an 15 electrocution. (See Administrative Record (“AR”) 18.) Pursuant to 42 U.S.C. § 405(g), Plaintiff 16 filed this lawsuit for judicial review of the final decision by the Commissioner of Social Security 17 (“Commissioner” or “Defendant”) denying his benefits claim. (Dkt. No. 1.)1 Before the Court are 18 Plaintiff’s and Defendant’s motions for summary judgment.2 (Dkt. Nos. 15 & 18.) Because the 19 Administrative Law Judge’s (“ALJ’s”) weighing of Plaintiff’s subjective pain testimony, third- 20 party testimony, and medical opinions constitutes reversible error, the Court GRANTS Plaintiff’s 21 motion, DENIES Defendant’s cross-motion, and REMANDS for further proceedings. 22 BACKGROUND 23 Plaintiff filed an application for disability benefits under Title II of the Social Security Act 24 (the “Act”) on August 26, 2016, alleging a disability onset date of June 1, 2011, later amended to 25 26 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 27 ECF-generated page numbers at the top of the documents 1 March 11, 2011. (AR 201, 203.) His application was denied both initially and upon 2 reconsideration. (AR 122, 128.) Plaintiff then submitted a written request for a hearing before an 3 ALJ, and his hearing was held before ALJ Richard Laverdure on April 12, 2018. (AR 76.) An 4 additional hearing was scheduled so Plaintiff could gather evidence relevant to Plaintiff’s claims. 5 (AR 84-86.) On August 8, 2019, a second hearing was held before ALJ Cheryl Tompkin. (AR 6 32, 34.) The ALJ issued a decision on November 13, 2018 finding that Plaintiff was not disabled. 7 (AR 25.) The ALJ found that Plaintiff had the severe impairments of cervical radiculopathy with 8 chronic neck and shoulder pain, lumbar facet arthropathy with chronic lumbar pain and 9 radiculopathy, depression, and anxiety, but that he did not have an impairment or combination of 10 impairments that met or medically equaled one of the listed impairments in 20 C.F.R § 404, 11 Subpart P, Appendix 1. (AR 18.) The ALJ then determined that Plaintiff had the residual 12 functional capacity (“RFC”) to perform medium work with certain limitations. (AR 21.) The ALJ 13 concluded that Plaintiff was not disabled because, while he was unable to perform past relevant 14 work, considering his RFC jobs existed in significant numbers in the national economy that 15 Plaintiff could have performed. (AR 23.) 16 Plaintiff filed a request for review of the ALJ’s decision and the Appeals Council denied 17 review on September 25, 2019. (AR 1.) Plaintiff then sought review in this Court. (Dkt. No. 1.) 18 In accordance with Civil Local Rule 16-5, the parties filed cross motions for summary judgment 19 (Dkt. Nos. 15 & 18), which are now ready for decision without oral argument. 20 ISSUES FOR REVIEW 21 1. Did the ALJ err in his evaluation of Plaintiff’s subjective pain symptom 22 testimony? 23 2. Did the ALJ err in his evaluation of third-party testimony regarding Plaintiff’s 24 pain symptoms? 25 3. Did the ALJ err in weighing Plaintiff’s medical opinion evidence? 26 LEGAL STANDARD 27 A claimant is considered “disabled” under the Social Security Act if she meets two 1 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 2 reason of any medically determinable physical or mental impairment which can be expected to 3 result in death or which has lasted or can be expected to last for a continuous period of not less 4 than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be 5 severe enough that she is unable to do her previous work and cannot, based on age, education, and 6 work experience “engage in any other kind of substantial gainful work which exists in the national 7 economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is 8 required to employ a five-step sequential analysis, examining: (1) whether the claimant is 9 engaging in “substantial gainful activity”; (2) whether the claimant has a severe “medically 10 determinable physical or mental impairment” or combination of impairments that has lasted for 11 more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the 12 regulations; (4) whether, given the claimant’s RFC, the claimant can still do her “past relevant 13 work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 14 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.R.F. §§ 404.1520(a), 416.920(a). 15 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 16 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 17 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 18 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 19 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 20 interpretation, it is the ALJ’s conclusion that must be upheld.” Id. In other words, if the record 21 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 22 judgment for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th 23 Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported by 24 substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. A 25 court “must consider the entire record as a whole, weighing both the evidence that supports and 26 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by 27 isolating a specific quantum of supporting evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 1 DISCUSSION 2 Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for discrediting 3 Plaintiff’s subjective pain symptom testimony, that the ALJ failed to provide germane reasons for 4 not considering the testimony of certain third-parties, and that the ALJ erred in his evaluation of 5 certain medical opinions. (Dkt. No. 15 at 14.) The Court agrees. 6 I. Subjective Pain Symptom Testimony 7 The Ninth Circuit has “established a two-step analysis for determining the extent to which 8 a claimant’s symptom testimony must be credited.” Trevizo, 871 F.3d at 678. “First, the ALJ 9 must determine whether the claimant has presented objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation marks and citation 12 omitted). “Second, if the claimant meets the first test, and there is no evidence of malingering, the 13 ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 14 specific, clear and convincing reasons for doing so.” Id. (internal quotation marks and citation 15 omitted). If the ALJ’s assessment “is supported by substantial evidence in the record, [courts] 16 may not engage in second-guessing.” See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 17 Here, the ALJ determined that Plaintiff’s “medically determinable impairments could 18 reasonably be expected to cause the alleged symptoms[.]” (AR 22.) Because Plaintiff met the 19 first part of the test, the ALJ was required to provide “specific, clear and convincing reasons” for 20 rejecting Plaintiff’s testimony regarding the severity of his symptoms, or else find evidence of 21 malingering. Lingenfelter, 504 F.3d at 1036. The ALJ found no evidence of malingering, but 22 found that the evidence did not support Plaintiff’s statements “concerning the intensity, 23 persistence, and limiting effects” of his symptoms because these statements were inconsistent with 24 the medical evidence, and because there was an “absence of treatment” from Plaintiff’s alleged 25 disability onset date through October 2016. (AR 22.) 26 A. Medical Evidence 27 The ALJ’s finding regarding Plaintiff’s testimony being inconsistent with the medical 1 Plaintiff’s symptom testimony. “General findings are insufficient” to discredit a claimant’s 2 symptom testimony; rather, to satisfy the “clear and convincing” standard “the ALJ must identify 3 what testimony is not credible and what evidence undermines the claimant’s complaints.” Reddick 4 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (internal quotation marks and citations omitted); see 5 also Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (“[T]he ALJ must give specific, 6 clear, and convincing reasons for rejecting the testimony by identifying which testimony [the ALJ] 7 found not credible and explaining which evidence contradicted that testimony.”) (internal 8 quotation marks and citations omitted) (original emphasis and alterations removed). Moreover, it 9 is improper for an ALJ to develop the evidentiary basis for discrediting a claimant’s subjective 10 pain symptom testimony by “not fully accounting for the context of materials or all parts of the 11 testimony and [medical] reports.” Reddick, 157 F.3d at 722-23. Here, while the ALJ briefly 12 discussed Plaintiff’s chronic pain, his testimony that he “must spend a day in bed once every one 13 or two weeks,” and testimony regarding his severe depression and memory problems,3 the ALJ’s 14 discussion does not fully account for all of Plaintiff’s testimony. (AR 21-22.) See Reddick, 157 15 F.3d at 722-23. For instance, the ALJ ignored that Plaintiff specifically testified he suffered pain 16 “mostly in [his] lower lumbar, [his] left forearm down to [his] wrist, [his] waist all the way down 17 to his calves, [but] not necessarily to [his] feet,” and that “anytime [he] gripp[ed] anything, even 18 lightly, [it was] extremely painful”—and that this pain affected even his ability to sign his name. 19 (AR 43, 51.) Plaintiff testified that his lumbar pain required him to stand up and sit down every 20 15-20 minutes, and that having “something to lean on” made no difference at all in minimizing his 21 pain while sitting or standing. (AR 46.) Plaintiff also testified that his ability to carry up to 30 22 pounds was not unlimited, and that where he “overextend[ed] [him]self” he was required to 23 “literally lay[] down”—catatonically, in extreme cases—for up to 3 days. (AR 47.) At bottom, 24
25 3 The ALJ also discussed testimony in which Plaintiff testified that “political circumstances” led him to stop working in 2011, testimony regarding his needs when walking over half a mile or 26 sitting for 20 minutes, and his ability to lift 30 pounds. (AR 21-22.) The ALJ determined that there was no correlation between the “political circumstances” and Plaintiff’s alleged disability, 27 and that—while allegations regarding his limitations in walking and sitting were inconsistent with 1 the ALJ’s characterization of Plaintiff’s testimony was improperly generalized and neither “fully 2 account[ed]” for Plaintiff’s testimony, Reddick, 157 F.3d at 722-23, nor did she identify with the 3 adequate specificity “which testimony [the ALJ] found not credible[,]” Laborin v. Berryhill, 867 4 F.3d at 1155 (original emphasis). 5 Further, the objective medical evidence reflects that the ALJ improperly cherry-picked 6 evidence that supported her conclusion while ignoring medical evidence that contradicts her 7 conclusion. See Cotton v. Astrue, 374 Fed. App’x. 769, 773 (9th Cir. 2010) (holding that an ALJ's 8 “cherry-picking of [claimant’s] histrionic personality out of her host of other disorders is not a 9 convincing basis for the adverse credibility finding”); see also Williams v. Colvin, No. ED CV 14- 10 2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry-pick 11 evidence to support the conclusion that a claimant is not disabled, but must consider the evidence 12 as a whole in making a reasoned disability determination.”). In particular, in her discussion of Dr. 13 Rana’s “normal” examination the ALJ omits Dr. Rana’s note that Plaintiff “present[ed] with 14 chronic neck and back pain, most probably secondary to mild degenerative disc/degenerative joint 15 disease” with “chronic fatigue/weakness.” (AR 470.) The ALJ additionally found that Dr. 16 Martin’s mental status examination was “unremarkable.” (AR 22.) However, Dr. Martin opined 17 that Plaintiff showed “significant difficulty with sustained attention and/or mental tracking 18 [which] indicate[d] a likelihood of possible neurocognitive impairment,” and diagnosed Plaintiff 19 with unspecified anxiety and depressive disorders and a mild neurocognitive disorder. (AR 464.) 20 The ALJ’s selective reliance on excerpts of these records that support her ultimate conclusion— 21 while ignoring other excerpts regarding Plaintiff’s pain, degenerative joint disease, possible 22 neurocognitive impairment as well as depressive and anxiety disorders—did not “consider the 23 evidence as a whole,” Williams, 2015 WL 4507174, at *6, and was therefore in error. 24 Defendant argues that the ALJ properly “considered how consistent Plaintiff’s statements 25 were with the objective medical evidence[.]” (Dkt. No. 18 at 10.) According to Defendant, the 26 ALJ identified that there was a “lack of consistency” between Plaintiff’s subjective symptom 27 testimony and the objective medical evidence, and therefore it was appropriate to discredit 1 clear and convincing reasons for the specific testimony he found not credible, see Laborin, 867 2 F.3d at 1155, and ignores the ALJ’s “cherry-picking” of information from Dr. Rana’s and Dr. 3 Martin’s reports, see Cotton, 374 Fed. App’x at 773. 4 B. Absence of Treatment 5 The ALJ additionally discredited Plaintiff’s subjective symptom testimony on the grounds 6 that his allegations regarding the time he spent in bed per week, and his severe depression and 7 memory problems were “inconsistent with the absence of treatment” from the alleged onset date to 8 October 2016. (AR 22.) This too was erroneous. 9 While an ALJ “is permitted to consider lack of treatment in his credibility 10 determination[,]” Burch, 400 F.3d at 681, an ALJ must also “consider and address reasons for not 11 pursuing treatment that are pertinent to an individual’s case[,]” SSR 16-3P. Here, Plaintiff 12 testified that he was prescribed Cymbalta but stopped taking it due to its side effects; when asked 13 if he has sought any other treatment, Plaintiff stated “not from that [prescribing] doctor because 14 the insurance on that doctor ran out[.]” (AR 53.) Plaintiff also testified that he has “been trying to 15 get [a neurology referral] for a long time,” as well as that he has been “working on” requests for 16 psychiatric referrals through his insurance program but that they are moving slowly. (AR 53-54.) 17 In a Function Report completed for the Social Security Administration, Plaintiff additionally 18 stated that he did not seek medical care during the relevant period because he “just accepted” his 19 condition and “coped” through the years. (AR 252.) He also reported to Dr. Schweitzer that he 20 did not seek treatment because he assumed his condition was a “new normal.” (AR 477.) In sum, 21 the ALJ’s boilerplate conclusion that Plaintiff’s symptom testimony was inconsistent with a lack 22 of treatment did not address any reason Plaintiff provided for why he did not seek treatment for his 23 pain or mental health complications during the relevant adjudicatory period. Moreover, a 24 claimant’s “failure to receive medical treatment during the period that he had no medical insurance 25 cannot support an adverse credibility finding.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). 26 As such, Plaintiff’s inability to secure an alternative treatment to his Cymbalta because his 27 insurance “ran out” cannot serve as a basis for discounting Plaintiff’s subjective pain symptom 1 Defendant argues that the ALJ properly evaluated Plaintiff’s testimony in light of this 2 absence; however, this does not account for the ALJ’s failure to “consider and address [Plaintiff’s] 3 reasons for not pursuing treatment.” SSR 16-3P. Defendant’s contention that the ALJ 4 appropriately discounted Plaintiff’s testimony because the ALJ determined that he is not currently 5 taking any medications for his alleged mental impairments ignores the reasons Plaintiff provided 6 for this circumstance, and moreover Plaintiff’s failure to secure medication “during the period that 7 he had no medical insurance cannot support an adverse credibility finding.” Orn, 495 F.3d at 635. 8 * * * 9 For the reasons set forth above, the ALJ failed to provide specific, clear and convincing 10 reasons supported by substantial evidence for discounting Plaintiff's subjective pain symptom 11 testimony. 12 II. Third-Party Testimony 13 “[L]ay witness testimony as to a claimant’s symptoms or how an impairment affects ability 14 to work is competent evidence, and therefore cannot be disregarded without comment.” Nguyen v. 15 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (emphasis and citations omitted). An ALJ must 16 provide “germane reasons for discrediting the testimony of lay witnesses.” Bayliss v. Barnhart, 17 427 F.3d 1211, 1218 (9th Cir. 2005); see also Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) 18 (“If the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are 19 germane to each witness.”) (emphasis added). “Inconsistency with medical evidence is one such 20 reason.” Bayliss, 427 F.3d at 1218. 21 Plaintiff challenges the ALJ’s decision to discount the statements and testimony of Sharon 22 Davis Bardy,4 William Hendricks, and Social Security Claims Representative Wong. 23 A. Ms. Bardy 24 The ALJ discredited Ms. Bardy’s statements because they were “largely a repetition of 25 [Plaintiff’s] allegations and similarly inconsistent with the medical evidence of record.” (AR 22.) 26 This is not a germane reason for rejecting Ms. Bardy’s statements. First, Ms. Bardy’s statements 27 1 were not entirely repetitive of Plaintiff’s allegations—for instance, she observed that Plaintiff 2 could “no longer physically help with tasks” around their social club and that Plaintiff “gets sad 3 about that.” (AR 320.) She stated that it takes 2 hours for Plaintiff to write a “coherent 4 paragraph” and that, in her own home, Plaintiff had twice “emotionally broken-down” and slept 5 for 42 hours straight, as well as that his disability negatively affected his hygiene in specific ways 6 she personally observed. (AR 319-321.) These observations were competent evidence the ALJ 7 was required to consider in evaluating Plaintiff’s symptoms. See, e.g., Sprague v. Bowen, 812 8 F.2d 1226, 1232 (9th Cir. 1987) (“Descriptions by friends and family members in a position to 9 observe a claimant’s symptoms and daily activities have routinely been treated as competent 10 evidence.”) (citation omitted); 20 C.F.R. § 404.1529(a) (“We will consider all of your statements 11 about your symptoms, such as pain, and any description your medical sources or nonmedical 12 sources may provide about how the symptoms affect your activities of daily living and your ability 13 to work.”) Second, the ALJ’s boilerplate reasoning to dismiss Ms. Bardy’s statements “solely 14 because [s]he found that [Plaintiff] was not credible suggests [s]he may have been under the 15 mistaken impression that lay witnesses can never make independent observations of the claimant’s 16 pain and other symptoms.” Dodrill, 12 F.3d at 919. At bottom, “the reasons germane to each 17 witness must be specific[.]” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (internal 18 quotation marks and citation omitted) (emphasis added). The ALJ’s only reason for discounting 19 Ms. Bardy’s statements is that they were repetitive of Plaintiff’s testimony and inconsistent with 20 the medical evidence. This “general statement[,]” however, fails to provide specific reasons for 21 discounting Ms. Bardy’s statements and “is not a valid ground to reject [them].” Thomas v. 22 Colvin, No. ED CV 12-1241-PLA, 2013 WL 3935906, at *8 (C.D. Cal. July 29, 2013) 23 B. Mr. Hendricks 24 The ALJ discredited Mr. Hendricks’s testimony for the same reasons she discredited Ms. 25 Bardy’s statements: it was repetitive of Plaintiff’s allegations and “inconsistent with the medical 26 evidence of record.” (AR 22.) At Plaintiff’s hearing, Mr. Hendricks testified that he had seen 27 Plaintiff “physically breakdown” after an hour of “relatively easy tasks,” and that in one instance 1 vacuum. (AR 57.) Mr. Hendricks also testified that Plaintiff cannot rake leaves, that Plaintiff has 2 “an inability to sit through a [social] meeting[,]” and that these physical limitations were 3 negatively affecting Plaintiff’s mental health. (AR 58-59.) 4 As with Ms. Bardy, Mr. Hendricks’s testimony was competent evidence the ALJ was 5 required to consider, Sprague, 812 F.2d 1226, 1232, and the ALJ failed to provide germane 6 reasons for specifically discounting Mr. Hendricks’s testimony, Bruce, 557 F.3d at 1116. See also 7 Thomas, 2013 WL 3935906, at *8 ( “[T]he ALJ did not identify which of the [third-party’s] 8 statements [were] unsupported by the medical evidence, or what medical evidence contradicts her 9 statements. As such, this reason is not sufficiently specific to constitute a germane reason for 10 rejecting her statements.”). Defendant’s argument that, because Mr. Hendricks’s testimony 11 “tracks” Plaintiff’s allegations “very closely,” the ALJ “was not required to provide independent 12 reasons for discounting it” is unavailing. (Dkt. No. 18 at 12.) An ALJ may discount repetitious 13 lay witness testimony only where “the ALJ’s well-supported reasons for rejecting the claimant’s 14 testimony apply equally well to the lay witness testimony.” Molina, 674 F.3d at 1117. The ALJ’s 15 reasons for rejecting Plaintiff’s testimony were not well-supported. Furthermore, Mr. Hendricks’s 16 testimony was not repetitious. Because “lay witnesses can”—as Mr. Hendricks did—“make 17 independent observations of the claimant’s pain and other symptoms,” Dodrill, 12 F.3d at 919, 18 and the ALJ must treat their testimony as competent evidence, Nguyen, 100 F.3d at 1467, the 19 ALJ’s evaluation of Mr. Hendrick’s testimony was in error. 20 C. Representative Wong 21 The ALJ discredited statements from Representative Wong’s functional report for the same 22 reasons she discredited Ms. Bardy’s statements: they were repetitive of Plaintiff’s allegations and 23 “inconsistent with the medical evidence of record.” (AR 22.) In the report, Representative Wong 24 described Plaintiff as “on edge and mentally unstable[,]” and noted that “[Plaintiff] had difficulty 25 using his hands when signing the [Form] SSA 827.” (AR 233.) The ALJ’s analysis of these 26 observations—and the reason provided for discounting them—was in error because “[an ALJ] will 27 consider any statements in the record noted by agency personnel who previously interviewed the 1 that the ALJ was not required to discuss Representative Wong’s notes, and that Representative 2 Wong’s notes are “not subject to the rules on the treatment of medical opinions.” (Dkt. No. 18 at 3 12 n.4.) Representative Wong is not a medical doctor; however, the ALJ was nonetheless required 4 to consider the observations recorded in his report. See 20 C.F.R. § 404.1529(c)(3) (“We will 5 consider all of the evidence presented, including . . . observations by our employees[.]”); SSR 16- 6 3P. Therefore, while the ALJ was not required to adopt Representative Wong’s observations or 7 findings, she was required to at least consider them in her analysis. As such, the ALJ’s conclusory 8 disregard for Representative Wong’s functional report was in error, even if Defendant contends 9 the report’s observations are at odds with the consultative physician’s findings. 10 * * * 11 In sum, the Court finds that the ALJ committed legal error in discounting the testimony 12 and statements of Ms. Bardy, Mr. Hendricks, and Representative Wong. 13 III. Medical Opinions 14 In assessing an ALJ’s consideration of the medical opinion evidence, courts “distinguish 15 among the opinions of three types of physicians: (1) those who treat the claimant (treating 16 physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) 17 those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 18 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded 19 more weight than those of non-examining physicians, and the opinions of examining non-treating 20 physicians are afforded less weight than those of treating physicians.” Orn, 495 F.3d at 631. 21 An ALJ may reject the “uncontradicted opinion of a treating or examining doctor” only by 22 stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 23 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation 24 omitted). And “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the 25 Commissioner may not reject this opinion without providing ‘specific and legitimate reasons’ 26 supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (citation 27 omitted). That said, “[w]here the opinion of the claimant’s treating physician is contradicted, and 1 of the treating physician, the opinion of the nontreating source may itself be substantial evidence; 2 it is then solely the province of the ALJ to resolve the conflict.” Andrews v. Shalala, 53 F.3d 3 1035, 1041 (9th Cir. 1995); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 4 (“[T]o the extent that [the nontreating physician’s] opinion rests on objective clinical tests, it must 5 be viewed as substantial evidence.”) (alterations in original). Likewise, the opinions of 6 nonexamining physicians may “serve as substantial evidence when the opinions are consistent 7 with independent clinical findings or other evidence in the record.” Thomas, 278 F.3d at 957. 8 “As is the case with the opinion of a treating physician, the Commissioner must provide 9 ‘clear and convincing’ reasons for rejecting the uncontradicted opinion of an examining 10 physician.” Lester, 81 F.3d at 830 (citation omitted). Even if an examining physician’s opinion is 11 contradicted, an ALJ may only reject it for “specific and legitimate reasons that are supported by 12 substantial evidence in the record.” Id. (citation omitted). However, “[t]he ALJ need not accept 13 the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, 14 and inadequately supported by clinical findings.” Id. Ultimately, “[t]he ALJ must do more than 15 offer his conclusions” when rejecting a medical opinion; instead, she “must set forth h[er] own 16 interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 17 F.2d 418, 421-22 (9th Cir. 1988). Thus, “an ALJ errs when [s]he rejects a medical opinion or 18 assigns it little weight while doing nothing more than ignoring it, asserting without explanation 19 that another medical opinion is more persuasive, or criticizing it with boilerplate language that 20 fails to offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 21 (9th Cir. 2014). 22 Plaintiff asserts the ALJ erred in evaluating the medical opinions of Dr. Martin, Dr. Rana, 23 Dr. DuMouchel, Dr. Johnson and Dr. Schweitzer. 24 A. Dr. Martin 25 Dr. Martin examined Plaintiff on September 19, 2016, at the Department of Social 26 Services’ request. (AR 460.) The ALJ gave little weight to the opinion of Dr. Martin, because she 27 found that Dr. Martin’s conclusion regarding Plaintiff’s “moderate to marked limitation[s]” were 1 and memory test results.” (AR 19-20.) Plaintiff contends that the ALJ erred in doing so because 2 the entire examination was not “normal,” and Dr. Martin’s findings regarding Plaintiff’s moderate 3 to marked limitations in certain areas of functioning were supported by his evaluation. (Dkt. No. 4 15 at 25, AR 465.) The Court agrees. 5 Dr. Martin stated in his report that Plaintiff presented with an “anxious” affect. (AR 462.) 6 While Dr. Martin determined that Plaintiff held “average” or “high average” WAIS-IV scores, 7 indicating “intact cognitive abilities,” Plaintiff’s WMS-IV scores were consistent with his 8 “memory difficulties” and reflected a “likely” decline in Plaintiff’s premorbid abilities, reinforcing 9 “discomfort and frustration due to [Plaintiff’s] subjective struggles with memory problems[.]” 10 (AR 463-64.) Dr. Martin’s Trail Making Test—a “measure of general brain function”—showed 11 that Plaintiff had “significant difficulty with sustained attention and/or mental tracking[.]” (AR 12 464.) Ultimately, Dr. Martin’s diagnostic impression included diagnoses of unspecified anxiety 13 disorder, unspecified depressive disorder, and mild neurocognitive disorder due to “multiple 14 etiologies[.]” (AR 464.) His prognosis: Plaintiff’s “psychiatric symptoms may diminish with 15 mental health treatment, although no significant changes are likely to occur within the next 12 16 months.” (AR 465.) From these assessments Dr. Martin determined that Plaintiff had “moderate” 17 limitations in his ability to perform work activities on a consistent basis and deal with the usual 18 stresses of a competitive work environment, as well as “marked” limitations in his ability to 19 complete a normal workday or work week without interruptions. (AR 465.) 20 Defendant argues that the ALJ was correct to discredit Dr. Martin’s opinion because Dr. 21 Martin’s examination recorded “normal mental status examination results”—however, Defendant 22 fails to address Dr. Martin’s diagnostic impressions or the results of Plaintiff’s Trail Making Test. 23 (Dkt. No. 18 at 14.) Dr. Martin’s assessments regarding Plaintiff’s work-related limitations are 24 consistent with the results of his analyses. Because they are the results of “objective clinical 25 tests,” Dr. Martin’s medical opinion constitutes substantial evidence. Magallanes, 881 F.2d at 26 751; see also Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984). Given the consistency of Dr. 27 Martin’s medical opinion with his assessments’ results, the ALJ failed to provide an adequate 1 2 B. Dr. Rana 3 The ALJ gave great weight to Dr. Rana’s opinion and functional capacity assessment, and 4 largely adopted her opinion in determining that Plaintiff was limited to “medium work with no 5 additional limitations.” (AR 18-19, 470.) The ALJ found that Dr. Rana’s opinion was supported 6 by her “thorough” physical examination of Plaintiff and the absence of medical treatment from the 7 alleged onset date to the date of Dr. Rana’s examination. (AR 18.) Plaintiff contends that the ALJ 8 should have afforded Dr. Rana’s opinion no weight because she only met Plaintiff once for a 10- 9 minute appointment that did not rely on the review of any medical records or objective imagining 10 reports. (Dkt. No. 15 at 25.) However, there is no requirement that an examining physician 11 review medical records prior to rendering an opinion or that the opinion cannot be based on the 12 physical examination. To the contrary, the examining physician’s opinion can alone constitute 13 substantial evidence, where it rests on that physician’s own independent examination of the 14 Plaintiff. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Accordingly, the ALJ 15 provided a specific and legitimate reason supported by substantial evidence for giving great 16 weight to Dr. Rana’s opinion. 17 C. Dr. DuMouchel 18 Regarding Dr. DuMouchel’s medical evaluation (AR 498), the ALJ was only required to 19 give “germane reasons” for rejecting his opinion because “a chiropractor is not an acceptable 20 medical source,” but is instead an “other” source entitled to less deference. Sanfilippo v. Astrue, 21 274 F. App’x 551, 553 (9th Cir. 2008) (quoting 20 C.F.R. § 404.1513(a)); see also 20 C.F.R. § 22 404.1513(d). “The ALJ may discount testimony from these other sources if the ALJ gives reasons 23 germane to each witness for doing so.” Molina, 674 F.3d at 1111 (9th Cir. 2012) (internal 24 quotation marks and citation omitted). The ALJ rejected Dr. DuMouchel’s opinions because (1) 25 he was not an acceptable medical source and (2) “his examination [was] too remote from the 26 relevant period[.]” (AR 19.) However, “the ALJ is not permitted to reject [a chiropractor’s] 27 opinion solely on the basis that, as a chiropractor, he is not a medical source.” Rose v. Colvin, No. 1 also SSR 06-03P. Additionally, “reports containing observations made after the period for 2 disability are relevant to assess the claimant’s disability.” Smith v. Bowen, 849 F.2d 1222, 1225 3 (9th Cir. 1988) (citation omitted). Accordingly, the ALJ failed to provide germane reasons for 4 discounting Dr. DuMouchel’s opinions. See, e.g., Bruce, 557 F.3d at 1116. 5 D. Dr. Johnson 6 On February 12, 2018, Dr. Johnson performed a SPECT scan evaluation on Plaintiff. (AR 7 524.) Dr. Johnson determined that the evaluation “revealed extensive brain pathology,” and 8 diagnosed Plaintiff with: “Electrocution, Concussion with loss of consciousness, major depression 9 and Posttraumatic Stress Disorder.” (AR 524.) The ALJ gave no weight to the opinions of Dr. 10 Johnson because Dr. Johnson’s opinions regarding the evaluation’s results were “reliant upon 11 [Plaintiff’s] subjective complaints,” and because the examination was “too remote from the 12 relevant period[.]” (AR 20.) Plaintiff contends that the ALJ erred in assigning Dr. Johnson’s 13 medical opinions no weight because the opinions relied on “brain scan images,” and that the ALJ 14 failed to indicate that Plaintiff’s condition had deteriorated to a degree that Dr. Johnson’s February 15 2018 SPECT scan evaluation would not be relevant to Plaintiff’s disability determination. (Dkt. 16 No. 15 at 28.) 17 First, the ALJ erred in determining that Dr. Johnson’s opinions were “reliant” on Plaintiff’s 18 subjective complaints. His report makes direct references to the SPECT scan’s results and 19 provides copies of its images; for instance, Dr. Johnson’s clinical findings include the 20 determinations that Plaintiff had a “diamond plus pattern (increased anterior cingulate, basal 21 ganglia, limbic)” and “generalized atrophy along the frontal surface[.]” (AR 525-26, 539, 541.) 22 Therefore, Dr. Johnson’s opinion constitutes substantial evidence “because it rests on his own 23 independent examination of [Plaintiff].” Tonapetyan, 242 F.3d at 1149; see also Magallanes, 881 24 F.2d at 751. Second, “reports containing observations made after the period for disability are 25 relevant to assess the claimant’s disability.” Smith, 849 F.2d at 1225 (citation omitted); see also 26 Lester, 81 F.3d at 832 (“[M]edical evaluations made after the expiration of a claimant’s insured 27 status are relevant to an evaluation of the preexpiration condition.”) (internal quotation marks and 1 should not be disregarded solely on that basis.” Tonapetyan, 242 F.3d at 1149 (citation omitted).5 2 Accordingly, the ALJ failed to provide specific and legitimate reasons supported by 3 substantial evidence for discounting Dr. Johnson’s opinions. 4 E. Dr. Schweitzer 5 The ALJ gave little weight to the opinion of Dr. Schweitzer, Plaintiff’s treating physician, 6 because she found that Dr. Schweitzer’s “Medical Source Statement” was “inconsistent with the 7 medical evidence of record.” (AR 19, 542.) Plaintiff contends that the ALJ erred in doing so 8 because Dr. Schweitzer relied on objective medical findings in forming her opinions, and that her 9 opinions regarding Plaintiff’s inability to “sustain[] sedentary work” were consistent with other 10 medical evidence. (AR 19, Dkt. No. 15 at 29.) The Court agrees. 11 The ALJ erred in determining that Dr. Schweitzer’s opinions in the June 12, 2018 12 assessment were inconsistent with the medical evidence of record. Dr. Schweitzer’s determination 13 that Plaintiff suffered chronic pain in his neck, back, and extremities finds support in Dr. Rana’s 14 opinion that Plaintiff “present[ed] with chronic neck and back pain, most probably secondary to 15 mild degenerative disc/degenerative joint disease” with “chronic fatigue/weakness.” (AR 470, 16 542.) Dr. Schweitzer stated that Plaintiff suffered “poor energy, poor memory, anhedonia, [and] 17 anxiety.” (AR 542.) Dr. Johnson similarly opined that Plaintiff’s SPECT scan results indicated 18 brain damage that “would greatly impair concentration, organization, impulse control, advance 19 planning and mood stability.” (AR 524.) The ALJ points to treatment notes from an October 10, 20 2016 exam of Plaintiff by Dr. Schweitzer as an illustration of this inconsistency, stating that Dr. 21 Schweitzer’s examination was “normal.” (AR 19.) However, Dr. Schweitzer’s October 10, 2016 22
23 5 Defendant argues the ALJ additionally reasoned that Plaintiff’s “actual test results showed performance in the normal range,” and that this was another basis for discounting Dr. Johnson’s 24 medical opinion. (Dkt. No. 18 at 15 (emphasis removed).) However, the only reasons the ALJ provided for discounting Dr. Johnson’s opinion were (1) his reliance on Plaintiff’s subjective 25 complaints, and (2) the remoteness of the SPECT scan to the “relevant period in this case.” (AR 20.) The Court, therefore, does not address Defendant’s additional argument. Bray v. Comm’r of 26 Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s decision based on the reasoning and factual 27 findings offered by the ALJ[.]”) (citation omitted). 1 examination assessed Plaintiff with “chronic neck pain,” “chronic lumbrosacral pain,” “chronic 2 pain of both upper extremities,” and “depression[.]” (AR 477-78.) Dr. Schweitzer also ordered x- 3 rays of Plaintiff’s lower spine and neck spine. (AR 481.) In sum, Dr. Schweitzer’s October 10, 4 2016 treatment notes are not inconsistent with her June 12, 2018 assessment. (AR 477-78, 542- 5 48.) 6 Dr. Schweitzer is Plaintiff's treating physician. Therefore, the ALJ was required to provide 7 specific and legitimate reasons supported by substantial evidence for rejecting her medical 8 opinions on the basis of inconsistencies in the medical evidence of record. See Barney v. Berryhill, 9 769 F. App’x 465, 465-66 (9th Cir. 2019); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 10 2008). Given that Dr. Schweitzer’s June 12, 2018 assessment is consistent with other medical 11 evidence, the ALJ’s conclusory statement that her opinion is “inconsistent with the medical 12 evidence of record” does not constitute specific and legitimate reasons supported by substantial 13 evidence for discounting her opinion. 14 * * * 15 For the reasons set forth above, the Court finds that the ALJ committed legal error in 16 discounting the medical opinions of Dr. Martin, Dr. DuMouchel, Dr. Johnson, and Dr. Schweitzer, 17 but that the ALJ did not err in her weighing of Dr. Rana’s medical opinion. 18 IV. Remand 19 Plaintiff asks the Court to remand the case for the payment of benefits or, alternatively, for 20 further proceedings. When reversing an ALJ’s decision, “the proper course, except in rare 21 circumstances, is to remand to the agency for additional investigation or explanation.” Benecke, 22 379 F.3d at 595. Remand for an award of benefits is proper, however, “where (1) the record has 23 been fully developed and further administrative proceedings would serve no useful purpose; (2) 24 the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant 25 testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, 26 the ALJ would be required to find the claimant disabled on remand.” Revels, 874 F.3d at 668 27 (internal quotation marks and citation omitted). 1 determine the proper weight to assign Dr. DuMouchel’s chiropractic opinions, and what possible 2 || reasons, if any, explain Plaintiff's absence of treatment during the relevant adjudicatory period. 3 Accordingly, the record must be more fully developed, and further proceedings would serve a 4 || useful purpose. 5 CONCLUSION 6 For the reasons set forth above, the Court GRANTS Plaintiff's motion, DENIES 7 Defendant's cross-motion, and REMANDS for further proceedings consistent with this Order. 8 This Order disposes of Dkt. Nos. 15 & 18. 9 IT IS SO ORDERED. 10 || Dated: January 29, 2021 11 g nm JAQQUELINE SCOTT CORL 13 United States Magistrate Judge
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