1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Margaret White, No. CV-23-00775-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14
15 Plaintiff Margaret White,1 on behalf of the decedent, Mariah Ruth White, seeks 16 review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social 17 Security (“the Commissioner”), which denied her child’s insurance benefits based on 18 disability and supplemental security income under 42 U.S.C §§ 416(i), 423(d), and 19 1382c(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 301-2113. Because the decision 20 of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence, the 21 Court remands the Commissioner’s decision to the ALJ for the calculation and award of 22 benefits. 23 I. BACKGROUND 24 Mariah White (“Claimant”) was born September 1995. (Doc. 8-3 at 40). She had 25 the following severe impairments: Arnold Chiari syndrome status post decompression, 26 degenerative disc disease, asthma, tachycardia, headaches, and small fiber neuropathy. 27
28 1 Mariah White is the Claimant for social security benefits, and Plaintiff Margaret White is Mariah White’s mother. 1 (Doc. 8-3 at 41). Claimant had a limited education. (Doc. 8-3 at 47). She had no past 2 relevant work experience. (Id.). 3 On November 30, 2015, Mariah Ruth White (“Claimant”) applied for child’s 4 insurance benefits (Title II benefits) based on disability. She also filed a Title XVI 5 application for supplemental security income on June 30, 2020. In both applications, 6 Claimant alleged disability beginning April 1, 2015. The Title II application was denied 7 initially on March 6, 2020, and upon reconsideration on June 30, 2020. Claimant filed a 8 written request for a hearing, received on July 7, 2020. The Title XVI application was 9 escalated to the hearing level. On November 10, 2021, Claimant appeared with her 10 attorney and testified at a video hearing before the ALJ. A vocational expert also testified. 11 (Doc. 8-3 at 38). On December 10, 2021, the ALJ issued a decision that, based on the 12 November 30, 2015 application for child’s insurance benefits, Claimant was not disabled 13 within the meaning of the Social Security Act prior to September 15, 2017, the date she 14 attained age 22. Pursuant to the application for supplemental security income protectively filed on June 30, 2020, the ALJ determined that the Claimant was not disabled. (Doc. 8-3 15 at 49). 16 Claimant requested review of the ALJ’s decision by the Appeals Council. On 17 November 7, 2022, the Appeals Council was notified of Claimant’s death that occurred on 18 October 28, 2022. Social Security Administration regulations 20 C.F.R. 404.971(b) and 19 416.1471(b) provide that the Appeals Council may dismiss a request for review where the 20 claimant dies and the dismissal will not adversely affect a survivor or other qualified 21 person. The Appeals Council dismissed the request for review on January 6, 2023. (Doc. 22 8-3 at 16-17). The Appeals Council received a Notice Regarding Substitution of Party 23 Upon Death of Claimant dated December 21, 2022. (Doc. 8-3 at 19). On March 6, 2023, 24 the Appeals Council issued a notice stating, “Under 20 CFR 404.503(b) and 416.542(b), 25 the claimant’s mother Margaret White [Plaintiff] is a qualified substitute party for the Title 26 II claim but not for the Title XVI claim. As a result, we are vacating the prior dismissal 27 for the Title II claim but the prior dismissal for the Title XVI claim will remain in effect.” 28 1 (Doc. 8-3 at 2).2 The January 6, 2023 decision was set aside, and the Appeals Council 2 considered additional information regarding the Title II claim. The Appeals Council then 3 denied Claimant’s request for review of the hearing decision, adopting the ALJ’s decision 4 as the Commissioner’s final decision. (Doc. 8-3 at 2). On May 5, 2023, Plaintiff sought 5 review by this Court. (Doc. 1). 6 II. STANDARD OF REVIEW 7 The district court reviews only those issues raised by the party challenging the ALJ’s 8 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Claims that are not 9 actually argued in an appellant’s opening brief are not considered on appeal. Indep. Towers 10 of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). “[O]nly issues [that] are argued 11 specifically and distinctly in a party’s opening brief” are reviewed. Id. (internal quotation 12 marks omitted). Moreover, “when claimants are represented by counsel, they must raise 13 all issues and evidence at their administrative hearings in order to preserve them on 14 appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). The court will excuse the failure to do so only when necessary to avoid a manifest injustice. Id. 15 A court may set aside the Commissioner’s disability determination only if the 16 determination is not supported by substantial evidence or contains legal error. Orn v. 17 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere 18 scintilla but less than a preponderance.” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 19 1214 n. 1 (9th Cir. 2005)). The court, taking as relevant all evidence that a “reasonable 20 person might accept as adequate to support a conclusion,” considers the record as a whole. 21 Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). In determining whether 22 substantial evidence supports a decision, the court must “consider the entire record as a 23 whole and may not affirm simply by isolating a specific quantum of supporting evidence.” 24 Id. (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006)). Generally, 25 when the evidence is susceptible to more than one rational interpretation, the court “must 26 uphold the ALJ’s findings if they are supported by inferences reasonably drawn from the 27 28 2 This is not disputed by the Claimant, so the only claim at issue here is the Title II claim. 1 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the standard of 2 review is ‘highly deferential.’” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 3 (9th Cir. 2015) (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 4 2009)). 5 Harmless error principles apply in the Social Security Act context. Molina, 674 6 F.3d at 1115. An error is harmless if substantial evidence remains to support the ALJ’s 7 decision, and the error does not affect the ALJ’s ultimate determination. Id. The claimant 8 usually bears the burden of proving that an error is harmful. Id. at 1111. 9 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 10 To determine whether a claimant is disabled for purposes of the Social Security Act, 11 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 12 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 13 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).3 14 At step one, the ALJ found that Claimant was born September 1995 and had not attained age 22 as of April 1, 2015, the alleged onset date per the requirements of the Social 15 Security Act. She had not engaged in substantial gainful activity since April 1, 2015, the 16 alleged onset date. At step two, the ALJ found that Claimant had the following severe 17 impairments: Arnold Chiari syndrome status post decompression, degenerative disc 18 disease, asthma, tachycardia, headaches, and small fiber neuropathy. At step three, the 19 ALJ determined that Claimant did not have an impairment or combination of impairments 20 21 3 At the first step, the ALJ determines whether the claimant is engaging in substantial 22 gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a severe 23 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether 24 the claimant’s impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 25 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. See id. At step four, the ALJ assesses the claimant’s residual functional capacity 26 and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, 27 the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work based on the claimant’s residual functional capacity, age, 28 education, and work experience. § 404.1520(a)(4)(v). If the plaintiff can perform any other work, the claimant is not disabled. Id. If not, the claimant is disabled. Id. 1 that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, 2 Appendix 1. At step four, the ALJ found, after careful consideration, that Claimant had 3 the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 4 404.1567(a) and 416.967(a), but Claimant could not climb ladders, ropes, or scaffolds; 5 could not balance as defined in the Dictionary of Occupational Titles (DOT); could 6 occasionally climb ramps or stairs; and could frequently stoop. Additionally, the ALJ 7 found that the claimant could withstand occasional exposure to excessive loud noise; 8 occasional concentrated exposure to pulmonary irritants (such as fumes, odors, dust, and 9 gases); occasional concentrated exposure to poorly ventilated areas; no exposure to 10 dangerous moving machinery or unprotected heights; and no occupational driving. The 11 ALJ noted that Claimant had no past relevant work. She was born in September 1995 and 12 was 19 years old, which is defined as a “younger individual age 18-44,” on the alleged 13 disability onset date. Claimant had a limited education. The ALJ did not consider the 14 transferability of job skills because Claimant did not have past relevant work. At step five, the ALJ concluded that, considering Claimant’s age, education, work experience, and 15 residual functional capacity, Claimant could have performed a significant number of jobs 16 in the national economy. (Doc. 8-3 at 40-48). 17 Thus, Claimant was neither entitled to child’s insurance benefits, as defined in 18 section 223(d) of the Social Security Act, nor was she entitled to supplemental security 19 income under section 1614(a)(3)(A) of the Act. On behalf of the deceased Claimant, 20 Plaintiff Margaret White seeks review of the ALJ’s decision. (Doc. 8-3 at 19). 21 IV. ANALYSIS 22 23 Plaintiff alleges that the ALJ committed a materially harmful error by rejecting the 24 assessments from Claimant’s treating physicians, Jose De Ocampo, M.D. (neurologist), 25 David Saperstein, M.D. (neurologist), Ryan Casper, M.D. (allergist), and Carlton Richie, 26 D.O. (primary care), without specific and legitimate reasons based on substantial evidence 27 in the record as a whole. (Doc. 12 at 1). 28 1 A. The ALJ Erred in Weighing Medical Source Opinion Evidence. 2 1. Legal Standard 3 Under the pre-2017 regulations that apply to Plaintiff’s claim4, “more weight should 4 be given to the opinion of a treating [physician] than to the opinion[s of physicians] who 5 do not treat the claimant.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The 6 weight afforded to a non-examining physician’s opinion depends on the extent to which he 7 provides supporting explanations for his opinions. Id. Where a treating physician’s 8 opinion is not contradicted by another physician, it may be rejected only for “clear and 9 convincing reasons supported by substantial evidence in the record.” Orn v. Astrue, 495 10 F.3d 625, 632 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 11 1998)). Where a treating physician’s opinion is contradicted by another physician, it may 12 be rejected only for “specific and legitimate reasons supported by substantial evidence in 13 the record.” Id. 14 2. Discussion 15 The record shows the ALJ failed to provide specific and legitimate reasons, 16 supported by substantial evidence, for giving little weight to the medical opinions of 17 Claimant’s treating physicians, Drs. De Ocampo, Saperstein, Richie5, and Casper. The 18 ALJ relied on similar justifications for all four doctors. The Court will address those 19 justifications below. While not all of the ALJ’s justifications were unsupported by specific 20 and legitimate evidence, the ALJ’s overall conclusions to afford the doctors’ opinions little 21 weight was prejudicial error. 22 a. ALJ Erred in Determining Doctors Overly Relied on 23 Claimant’s Subjective Complaints. 24 The ALJ may discount a physician’s opinion that is based only on the claimant’s 25 subjective complaints and lacks objective evidence. Batson v. Comm’r of Soc. Sec. Admin., 26
27 4 Because Plaintiff filed her Title II application prior to March 27, 2017, the prior medical opinion regulations apply. 20 C.F.R. §404.1527. 28 5 The Commissioner in his briefing and the ALJ in her decision often erroneously refer to Dr. Ritchie as Dr. Carlton. Dr. Ritchie’s full name is Dr. Cartlon Ritchie. 1 359 F.3d 1190, 1195 (9th Cir. 2004). The opinion of any physician, including that of a 2 treating physician, need not be accepted “if that opinion is brief, conclusory, and 3 inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 4 F.3d 1219, 1228 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 5 2002)). An ALJ may consider, when evaluating any medical opinion, “the amount of 6 relevant evidence that supports the opinion and the quality of the explanation provided; the 7 consistency of the medical opinion with the record as a whole; [and] the specialty of the 8 physician providing the opinion.” Orn, 495 F.3d at 631. 9 Here, the ALJ erred in determining that all four, treating physicians—Drs. De 10 Ocampo, Saperstein, Richie, and Casper—overly relied on Claimant’s subjective 11 complaints, because the ALJ did not adequately consider the consistency of the doctors’ 12 considerations with Claimant’s medical record as a whole. 13 For example, the ALJ gave little weight to Dr. Richie’s opinions, in part, because 14 the ALJ found Dr. Richie’s reliance on a postural orthostatic tachycardia syndrome (POTS) diagnosis of Claimant to be unsupported by the evidence. (Doc. 8-3 at 46). This same 15 justification was provided as a reason to discount Dr. De Campo’s opinions. (Id.). 16 However, neither Dr. Richie’s nor Dr. De Campo’s reliance on a POTS diagnosis was 17 unfounded. Plaintiff, in her brief, points to several instances in Claimant’s complex 18 medical history that support the Doctors’ reliance on a POTS diagnosis in their evaluations 19 of Claimant’s physical abilities. E.g., (Doc. 9-3 at 32) (Dr. Goodman, M.D., neurologist 20 at Mayo, noted symptoms “compatible with [POTS]”); (Doc. 9-5 at 20-24) (Jamie Potter, 21 FNP-C, neurology at Mayo, noted Claimant’s past medical history as significant for POTS 22 and included POTS in her assessment and plan of treatment); (Doc. 9-2 at 19) (Claimant 23 referred to Dr. Goodman, M.D., with a diagnoses of [POTS]). Further, the ALJ made only 24 one evidentiary finding from Claimant’s entire medical record to support her assertion that 25 the POTS diagnosis was not a “medically determinable impairment.” (Doc. 8-3 at 46). 26 This finding resulted from a tilt table test—a test used to diagnose POTS—which the 27 evaluating doctor stated was “suggestive of [POTS], but can be seen in other conditions or 28 states that have the potential to reduce orthostatic tolerance.” (Doc. 9-3 at 56-57). Given 1 this evidence, the ALJ’s finding that a POTS diagnosis was only based on “claimant’s 2 subjective report” was unfounded. (Doc. 8-3 at 46). 3 Similar to the ALJ’s justification for giving little weight to the opinions of Drs. 4 Ritchie and De Campo, the ALJ wrote that Dr. Caspar’s opinion “appears to rely heavily 5 on the claimant’s subjective complaints that have not been established by the objective 6 evidence, including a diagnosis of POTS.” (Id.). Yet, for the reasons stated above, there 7 is sufficient objective evidence to support a diagnosis of POTS that is not sufficiently 8 rebutted and, in fact, is to some degree supported by the tilt table test which “was suggestive 9 of POTS,” but which the ALJ nevertheless offered as the basis for rejecting the treating 10 doctor’s opinion. The ALJ further argues that Dr. Caspar “relied on a speculative 11 diagnosis,” which offers more reason to discount his opinion. (Id.). However, the ALJ 12 misrepresented Dr. Caspar’s analysis. In fact, Dr. Casper listed the following as patient’s 13 medically determinable impairments: POTS, food sensitivities, asthma, allergic rhinitis, 14 and “possible hereditary alpha trypasemia.” (Doc. 9-9 at 167). Including one “possible” impairment in a long list of other certain impairments does not undermine Dr. Casper’s 15 conclusions, as the ALJ suggests. 16 Finally, the ALJ stated that Dr. Saperstein’s opinions should be given little weight, 17 in part, because Dr. Saperstein, “in making his conclusions . . . relied, in large part, on 18 alleged conditions that have not been established as medically determinable impairments 19 (Ehlers-Danlos, CSF leak, mast cell activation syndrome).” (Doc 8-3 at 46). The ALJ did 20 not provide substantial evidence to support this finding. For example, the only evidence 21 the ALJ provided to support her assertion that Dr. Saperstein should not have relied on 22 Claimant having Ehlers-Danlos (EDS) is a citation to a note in Dr. Saperstein’s intake form 23 for Claimant’s initial appointment in which he wrote, “[d]iagnosed with EDS at age 19 by 24 rheumatology.” (Doc. 8-3 at 42; Doc. 8-10 at 4). The ALJ stated that, because no diagnosis 25 by the rheumatologist existed in the record, no objective evidence supports the condition. 26 (Doc. 8-3 at 42). Yet, Dr. Saperstein wrote in his assessment of Claimant that her history 27 and examination suggested EDS. (Doc. 8-10 at 18). He even noted that Claimant “misses 28 formal criteria for hypermobile EDS by only 1 point” and that “some features have not 1 been detected via telemedicine assessment.” (Doc 8-10 at 18). In Dr. Saperstein’s follow 2 up assessment of Claimant, over a year later, Dr. Saperstein wrote that “MRIs show 3 craniovervical [sic] instability (CCI) and these can be cause for all of these issues. CCI 4 often develops after Chiari decompression in patients with EDS.” (Doc. 9-10 at 14). This 5 evidence demonstrates that Dr. Saperstein did not rely primarily on Claimant’s subjective 6 complaints, nor her intake narrative that she was previously diagnosed by rheumatology, 7 when making his determination about White’s abilities. Instead, he relied on objective 8 evidence in making his diagnosis. In its Response, the Commissioner unconvincingly 9 argues that, rather than a rejection of the EDS diagnosis, the ALJ’s determination was that 10 EDS was not a medically determinable impairment. That is not, however, what the ALJ 11 said. “Although the claimant alleges Ehlers-Danlos syndrome, there is no objective 12 evidence to support this condition.” (Doc. 8-3 at 42). Even if it was, there is no 13 distinguishable difference between a diagnosis and a medically determinable impairment 14 when the treating physician determined that the claimant had EDS and the ALJ rejected that opinion without a sufficient basis for doing so. It is further worth noting that the ALJ 15 did not include EDS as even causing a non-severe impairment in her decision. (Id. at 40). 16 Thus, considering the record as a whole, this finding by the ALJ lacked substantial 17 evidence. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent a medical 18 opinion is with the record as a whole, the more weight we will give to that medical 19 opinion.”). All other things being equal, because Dr. Saperstein works for the Center for 20 Complex Neurology, EDS & POTS, the ALJ should have given more, not less, weight to 21 his opinion. (Doc. 12 at 9); see id. at § 404.1527(c)(5) (“We generally give more weight 22 to the medical opinion of a specialist about medical issues related to his or her area of 23 specialty.”). 24 The ALJ is not a physician, and she cannot substitute her opinion for a medical 25 professional. Brennan-Kenyon v. Barnhart, 252 F.Supp.2d 681, 691 (N.D. Ill. 2003) 26 (holding that “[i]t is established in Social Security law that an ALJ may not play doctor 27 and substitute h[er] own opinion for that of a physician, or make judgments that are not 28 sustained by objective medical evidence.”) The reasons the ALJ provided for rejecting the 1 opinions of Claimant’s treating physicians are insufficient—neither “clear and 2 convincing,” nor supported by “substantial evidence in the record.” See Orn, 495 F.3d at 3 632. In fact, the record as a whole contradicts the ALJ’s assertion that the Doctors relied 4 only on claimant’s subjective reports of underlying conditions, or speculative diagnoses, 5 unsupported by objective evidence or medical determinations. The ALJ thus erred in 6 rejecting the opinions of Drs. De Ocampo, Saperstein, Richie, and Casper on these grounds. 7 b. The ALJ Erred in Determining the Physical Limitations Cited by Doctors were Extreme and Inconsistent with the 8 Medical Record. 9 All four treating physicians, in their medical assessments of Claimant’s ability to do 10 work-related physical activities, concluded that Claimant had “impairments that preclude 11 an 8-hour workday,” based on “objective, clinical, or diagnostic findings . . . documented, 12 either by [the treating doctor], or elsewhere in the patient’s medical records.” (Doc. 9-8 at 13 113-16; Doc. 9-4 at 67-68; Doc. 8-10 at 36-37; Doc. 8-9 at 80-81; Doc. 9-9 at 167-68). 14 While the assessments were all check-the-box forms, medical records demonstrate that all 15 four physicians were aware of White’s medical history and were involved in treating her 16 symptoms. Yet, the ALJ discredited the opinions of Drs. Carlton, Caspar, and De Campo 17 regarding White’s physical limitations because the findings were “extreme and inconsistent 18 with the medical record.” (Doc. 8-3 at 46). The ALJ erred. 19 Under the pre-2017 regulations that apply to the present claim, the Ninth Circuit 20 distinguishes among three types of physicians when weighing medical source opinions in 21 Social Security cases: (1) treating physicians, who actually treat the claimant; 22 (2) examining physicians, who examine but do not treat the claimant; and 23 (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995), superseded on other grounds by regulation, 20 25 C.F.R. parts 404 & 416. The Commissioner must give weight to the treating physician’s 26 subjective judgments, in addition to his clinical findings and interpretation of test results. 27 Id. at 832-33. As stated above, where a treating physician’s opinion is not contradicted by 28 another physician, it may be rejected only for “clear and convincing” reasons, and where 1 it is contradicted, it may not be rejected without “specific and legitimate reasons,” 2 supported by substantial evidence in the record. Id. at 830; Orn, 495 F.3d at 633 3 (explaining where there is a conflict between the opinion of a treating physician and an 4 examining physician, the ALJ may not reject the opinion of the treating physician without 5 setting forth specific, legitimate reasons supported by substantial evidence in the record). 6 This Court will address the ALJ’s weighing of treating physician medical opinions, 7 in turn, below. 8 (i) Dr. Richie’s Medical Assessment Was Not Extreme and Inconsistent with the Record and Should Not 9 Have Been Rejected by the ALJ. 10 The ALJ provided only one explanation to support her finding that Dr. Richie’s 11 evaluation of Claimant’s physical limitations was “extreme and inconsistent with the 12 medical record.” (Doc. 8-3 at 46). She wrote, “the evidence suggests the doctor overly 13 relied on the [C]laimant’s subjective complaints, including her contention that she could 14 not work,” and she provided the Doctor’s reliance on a POTS diagnosis as an example of 15 one of Claimant’s subjective complaints. (Id.). However, as discussed above, the ALJ did 16 not provide substantial evidence to support a finding that Claimant’s POTS diagnosis was 17 unfounded. Further, while the Court agrees with the ALJ that Dr. Richie considered 18 Claimant’s contention that she could not work, (Doc. 9-9 at 2), the ALJ provides no 19 specific, legitimate reasons, supported by substantial evidence, to justify her claim that Dr. 20 Richie overly relied on this contention. See Orn, 495 F.3d at 632. Dr. Richie’s notes 21 consider Claimant’s contention that she could not work given her other underlying 22 diagnoses. (Doc. 8-3 at 46). For these reasons, the ALJ erred in not giving weight to 23 treating physician, Dr. Richie’s, subjective judgements, as the ALJ neither provided 24 contradictory opinions nor “clear and convincing” reasons to reject. See Lester v. Chater, 25 81 F.3d at 830. 26 27 28 1 (ii) Dr. Caspar’s Medical Assessment Was Not Extreme and Inconsistent with Objective Evidence and 2 Should Not Have Been Rejected by the ALJ. 3 The ALJ did not provide doctor-specific reasoning for discounting the opinion of 4 Dr. Casper. (Doc. 8-3 at 46). Instead, the ALJ simply wrote that Dr. Casper’s medical 5 assessments were “inconsistent with the objective evidence noted above,” referring to her 6 own evaluation of Claimant’s medical record, detailed earlier in the ALJ Decision. (Doc. 7 8-3 at 46). 8 The ALJ did, however, conduct a thorough evaluation of Claimant’s medical record, 9 specifically related to physically disabling symptoms. At the start, the ALJ noted that “the 10 evidence supports a finding that the [C]laimant [was] limited to sedentary exertion,” based 11 on her Chiari decompression and laminectomy, degenerative disc disease, and small fiber 12 neuropathy. (Doc. 8-3 at 44). However, the ALJ’s further evaluation of the medical record 13 does not provide “clear and convincing” reasons to reject the opinion of Dr. Caspar. The 14 ALJ focused her analysis on two categories of evidence: (1) neurological findings and (2) 15 orthopedic examinations and observations of White’s gait. (Doc. 8-3 at 44). 16 First, the ALJ cites to the diagnostic results and medical assessment of Banner 17 neurosurgeon, Dr. Peter Nakaji. (Doc. 8-3 at 44; Doc. 9-8 at 132-133). As the ALJ correctly wrote, the neurosurgeon, in reference to Claimant’s MRI brain/C-spine results, 18 stated that there was “[n]othing particularly abnormal appreciated to explain her 19 symptoms.” (Doc. 9-8 at 132). The ALJ also highlighted the results of the neurological 20 examination, writing that muscle tone and bulk in Claimant’s upper extremities were 21 normal and that, aside from some reduced strength in her lower extremities, the “physical 22 examination was normal” and there was “nothing particularly abnormal appreciated to 23 explain her purported symptoms.” (Doc. 8-3 at 44; Doc. 9-8 at 132-33). The ALJ 24 concluded that, “despite the [C]laimant’s allegation of manipulative symptoms, an EMG 25 of the bilateral upper extremities was unremarkable,” citing to Dr. De Ocampo’s 26 impression of an EMG but excluding his note that “[a] normal study does not rule out a 27 cervical radiculopathy.” (Doc. 8-3 at 44; Doc. 8-10 at 75). 28 1 This evidence neither conflicts with Dr. Caspar’s opinions nor provides “clear and 2 convincing” reasons to undermine Dr. Caspar’s findings. Orn, 495 F.3d at 632. 3 Importantly, Dr. Nakaji examined Claimant from “a neurosurgical structural standpoint.” 4 (Doc. 9-8 at 134). Dr. Nakaji did not find that Claimant’s symptoms, from which Dr. 5 Caspar based his opinions, were unreliable, but he instead “encouraged [White] to 6 investigate other possible causes of her symptoms.” (Doc. 9-8 at 134). Similarly, the fact 7 that Dr. De Ocampo found an EMG to be unremarkable only rules out one possible 8 explanation of Claimant’s extensive symptoms. Thus, the assessments of Dr. Nakaji and 9 Dr. De Ocampo are not conflicting with Dr. Caspar’s medical assessment, which clearly 10 states his assessment was based on medically determinable impairments, such as POTS, 11 food sensitivities, asthma, allergic rhinitis, possible hereditary alpha trypasemia, as well as 12 symptoms including, “headaches; seizures, irritable bowel with constipation/diarrhea, 13 fatigue, dizziness, heart palpitations, tachycardia,” and more. (Doc. 9-9 at 167). 14 Second, the ALJ cites to findings from an MRI, an orthopedic physical examination, and observations of Claimant’s gait to suggest Claimant’s “statements concerning the 15 intensity, persistence and limiting effects of [Claimant’s] symptoms are not entirely 16 consistent with the medical evidence” and to contrast Dr. Caspar’s assessment of 17 Claimant’s physical limitations. (Doc. 8-3 at 44). The ALJ correctly noted an orthopedist’s 18 conclusion from a lumber spine MRI and physical examination that Claimant had no spinal 19 pathology that would explain her symptoms. (Doc. 9-9 at 96). However, the ALJ 20 concluded from the orthopedist’s recommendation of “aggressive physical therapy” that “a 21 wheelchair [was] not medically necessary,” but the ALJ provided no further explanation 22 for this inference. (Doc. 8-3 at 44). Finally, the ALJ cited three separate observations by 23 Claimant’s physicians to support her contention that Claimant’s statements concerning her 24 physical limitations were unreliable. (Doc. 8-3 at 44). In November 2020, Dr. Saperstein 25 observed Claimant as able to have normal casual, toe and tandem walking. (Doc. 8-10 at 26 16). On another occasion, August 2021, Dr. Richie observed Claimant had normal upper 27 and lower extremity strength and a shaky gate but was able to get out of her wheelchair in 28 good speed. (Doc. 9-9 at 13). Finally, one month later, in September 2021, Dr. Richie, 1 observed again that Claimant had “5/5 upper and lower extremity strength,” although in 2 the same medical note, Dr. Richie wrote that Claimant had a “wheelchair requiring gait.” 3 (Doc. 9-9 at 5). The ALJ left this fact out of her decision. (Doc. 8-3 at 44). 4 As was the case with the neurosurgical evidence, the evidence the ALJ points to, 5 with regard to Claimant’s physical ability, neither conflicts with nor provides “clear and 6 convincing” reasons to undermine Dr. Caspar’s medical opinions. Orn, 495 F.3d at 632. 7 Dr. Caspar did not rely on any orthopedic impairments or other physical observations in 8 assessing Claimant’s ability to engage in work-related physical activities. (Doc. 9-9 at 9 167). Thus, the evidence the ALJ draws upon to undermine Claimant’s allegations of 10 disabling symptoms fails to demonstrate how Dr. Caspar’s assessment is “inconsistent with 11 the medical record.” (Doc. 8-3 at 46). 12 However, even if this Court were to find the observations about examinations of 13 Claimant’s physical ability to be contradictory to Dr. Caspar’s medical opinions, a treating 14 physician’s opinion may not be rejected without “specific and legitimate reasons” supported by substantial evidence in the record. Orn, 495 F.3d at 632. To satisfy this 15 “substantial evidence” requirement, the ALJ must “set[] out a detailed and thorough 16 summary of the facts and conflicting clinical evidence, stat[e] his interpretation thereof, 17 and mak[e] findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (quoting Reddick, 157 F.3d 18 at 725). Here, while the ALJ did set out a detailed summary of the conflicting clinical 19 evidence, she provided no interpretation of the evidence. The ALJ referred repeatedly to 20 Claimant’s “strength,” but she drew no conclusions from this evidence with regard to 21 Claimant’s physical ability to work an 8-hour workday or to specifically contradict any of 22 Dr. Caspar’s medical opinions. (Doc. 8-3 at 44). “Where an ALJ does not explicitly reject 23 a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion 24 over another, he errs.” Garrison, 759 F.3d at 1012. 25 Finally, as discussed above, the ALJ erred in determining doctors overly relied on 26 Claimant’s subjective complaints, specifically regarding a diagnosis of POTS. Given that 27 Dr. Caspar cited POTS as the first “medically determinable impairment” he considered in 28 assessing Claimant’s ability to do work-related physical activities, (Doc. 9-9 at 167), and 1 given the fact that the ALJ was not able to substantiate claims that this diagnosis was 2 unsupported by medical evidence, the ALJ failed to provide evidence to find Dr. Caspar’s 3 assessment was “inconsistent with the medical record,” as she suggested. (Doc. 8-3 at 46). 4 For all the reasons above, the ALJ erred in giving only “little weight” to Dr. Richie’s 5 medical assessment of Claimant. (Id.). 6 (iii) Dr. De Campo’s Medical Assessment Was Not Extreme and Inconsistent with the Record and 7 Should Not Have Been Rejected by the ALJ. 8 The ALJ provided almost the same, boilerplate rationale for rejecting the medical 9 assessment opinions of Dr. De Campo as she did for the other treating physicians. As was 10 the case for Dr. Caspar, the ALJ wrote about Dr. De Campo that “the doctor found extreme 11 limitations which are not consistent with the record.” (Doc. 8-3 at 46). The only specific 12 inconsistency the ALJ provided was that Dr. De Campo concluded Claimant could only 13 use her left hand less than occasionally; yet, “the record shows a normal EMG of the upper 14 extremities and an examination conducted near the time of the assessment noted full 15 strength in the upper extremities.” (Doc. 8-3 at 46). This Court need not dispute this 16 evidence to find that the ALJ has failed to provide specific, legitimate reasons for 17 discrediting Dr. De Campo’s assessment. See Orn, 495 F.3d at 632. Like Dr. Caspar, Dr. 18 De Campo did not base his medical assessment of Claimant’s ability to do work-related, 19 physical activities on neuromuscular abnormalities diagnosed with an EMG scan. (Doc. 20 8-9 at 80). Instead, Dr. De Campo identified POTS, Arnold Chiari, malformation surgery, 21 and small fiber neuropathy as the impairments and diagnosis affecting Claimant’s ability 22 to function. (Doc. 8-9 at 80). Both Arnold Chiari syndrome and small fiber neuropathy 23 are impairments the ALJ recognized, in her opinion, that Claimant had and that are “severe 24 . . . impairments [that] significantly limit the ability to perform basic work activities.” 25 (Doc. 8-3 at 41). Thus, the evidence the ALJ pointed to as sufficient to find Dr. De 26 Campo’s assessments inconsistent with Claimant’s medical record is not so specific and 27 legitimate such that the ALJ may “accord little weight to the opinion of [Dr.] De Campo.” 28 (Doc. 8-3 at 46). 1 B. The ALJ Erred in Determining Claimant’s Residual Functional Capacity. 2 A residual functional capacity (RFC) finding involves a detailed assessment of how 3 a claimant’s medical impairments affect her ability to work. 20 C.F.R. § 404.1545(a)(1). 4 In determining a claimant’s RFC, the ALJ “must consider all relevant evidence in the 5 record, including, inter alia, medical records, lay evidence, and the effects of symptoms, 6 including pain, that are reasonably attributed to a medically determinable impairment.” 7 Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006) (emphasis in original) (internal 8 quotations omitted). The ALJ must consider the combined effect of multiple conditions, 9 including those that are not severe. 20 C.F.R. § 404.1545(a)(2). A plaintiff's illnesses 10 “must be considered in combination and must not be fragmentized in evaluating their 11 effects.” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 12 756 F.2d 693, 694-95 (9th Cir. 1985)). 13 The ALJ erred in determining Claimant’s RFC by failing to properly weight, and 14 thus incorporate into the RFC, the opinions of Drs. De Ocampo, Saperstein, Casper, and 15 Carlton. All four treating physicians concluded claimant had impairments that precluded 16 her from working an 8-hour workday. (Doc. 9-8 at 115; Doc. 9-8 at 113; Doc. 8-9 at 80; 17 Doc. 9-9 at 167). The ALJ determined, after failing to properly weigh the opinions of these 18 treating physicians, that claimant had the RFC to perform the requirements of sedentary 19 occupations such as document preparer, fundraiser II (“sedentary per the vocational 20 expert”), and parimutuel-ticket checker. (Doc. 8-3 at 48). This determination is neither 21 supported by the evidence nor accurate. See Robbins, 466 F.3d at 883. Accordingly, the 22 ALJ erred in determining claimant's RSF. 23 24 C. Scope of Remand 25 If an ALJ’s decision is not supported by substantial evidence or suffers from legal 26 error, the district court has discretion to reverse and remand either for an award of benefits 27 or for further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 28 1996). Generally, after a finding that the administrative record does not support the 1 agency's action, the proper course of action is to remand to the ALJ to further develop the 2 record. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-100 (9th Cir. 2014). 3 “Remand for further administrative proceedings is appropriate if enhancement of the record 4 would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (emphasis 5 omitted). “Conversely, where the record has been developed fully and further 6 administrative proceedings would serve no useful purpose, the district court should remand 7 for an immediate award of benefits.” Id. 8 In rare circumstances, courts may remand for an award of benefits. Treichler, 775 9 F.3d at 1099. To remand for immediate award of benefits, the Court must find: 10 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 11 reasons for rejecting evidence, whether claimant testimony or medical opinion; and 12 (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 13 14 Garrison, 759 F.3d at 1020 (9th Cir. 2014). Plaintiff satisfies all three conditions of the credit-as-true rule. First, the record is 15 fully developed. Courts have the “flexibility to remand for further proceedings when the 16 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 17 within the meaning of the Social Security Act.” Id. at 1021. However, “precedent and the 18 objectives of the credit-as-true rule foreclose the argument that a remand for the purpose 19 of allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful purpose’ under 20 the first part of the credit-as-true test.” Id. Here, Defendant argues that the “record raises 21 serious doubt that Claimant was disabled” but points only to Defendant’s assertion that 22 claimant’s “symptoms and statements . . . are without foundation,” “contradicted by 23 examination findings,” and “relied on impairments that were not medically determinable” 24 as evidence. (Doc. 14 at 13). These arguments do not show the record is undeveloped. 25 Rather, it appears Defendant wants another opportunity to demonstrate that Claimant’s 26 treating physicians were wrong in their evaluations of Claimant. See Garrison, 759 F.3d 27 at 1021-22 (“Allowing the Commissioner to decide the issue again would create an unfair 28 1 ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.” (quoting 2 Benecke, 379 F.3d at 595)). For this reason, there is no need to develop the record further. 3 Second, as explained at length above, the ALJ failed to provide a legally sufficient 4 reason for rejecting the medical opinion evidence of four of Claimant’s treating physicians. 5 Since the analysis supporting the same conclusion above applies here, this Court will not 6 repeat that analysis. 7 Third, if the Court accepted as true the improperly discredited evidence, the ALJ 8 would be required to find Claimant disabled on remand. All four of Claimant’s treating 9 physicians were of the opinion that claimant would be off task more than 15 percent of an 10 8-hour workday due to her limitations. Dr. De Ocampo reported that Claimant’s limitations 11 would cause her to be off task 16 to 20 percent of an 8-hour workday. (Doc. 8-9 at 81). 12 Drs. Saperstein and Carlton reported Claimant’s limitations would cause her to be off task 13 greater than 21 percent of a workday. (Doc. 9-8 at 114; Doc. 9-8 at 116). Dr. Casper 14 reported that, in addition to Claimant’s impairment-related symptoms causing her to be off task greater than 21 percent of an 8-hour workday, her “pain or fatigue” would equally 15 limit her work function. (Doc. 9-9 at 168). Vocational expert Gayle Tichauer testified in 16 this matter at the November 10, 2021 administrative hearing. (Doc. 8-3 at 57). When the 17 ALJ asked her whether there would be full-time work for a “hypothetical individual, [who], 18 due to her significant medical issues–if just due to fatigue, due to allergic reactions, due to 19 pain– . . . would [] be off-task at least 15 percent of every eight-hour workday,” the 20 vocational expert testified that, in her opinion, “that much off-task would lead to 21 termination in any job.” (Doc. 8-3 at 75-76). Thus, Plaintiff satisfies all three conditions 22
25 / / / 26 / / / 27 / / / 28 || of the credit-as-true rule. The Court, therefore, remands the Commissioner’s decision for 2|| the award and calculation of benefits. 3 IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is VACATED and this case is REMANDED for a calculation of benefits. 5 || The Clerk shall enter judgment accordingly and shall terminate this case. 6 Dated this 16th day of September, 2024. A Whacrsay Fotos Wurray Sor) 8 . Murray Bnow 9 Chief United States’ District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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