Duarte-Lopez v. Colvin

Filing 20

ORDER: the final decision of the Commissioner of Social Security is vacated and this case is remanded for an award of benefits based on Lopez' application dated 11/14/11, with a finding of disability beginning 12/31/08. Signed by Judge David G Campbell on 7/8/16. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Galena Kaye Duarte Lopez,
Plaintiff,

10
11

ORDER

v.

12

No. CV-15-01541-PHX-DGC

Carolyn W. Colvin,

13

Defendant.

14
15
16

Plaintiff Galena Kaye Duarte Lopez seeks review under 42 U.S.C. § 405(g) of the

17

final decision of the Commissioner of Social Security which denied her disability

18

insurance benefits and supplemental security income under sections 216(i), 223(d), and

19

1614(a)(3)(A) of the Social Security Act. Because the ALJ’s decision contains reversible

20

error and there are no substantial grounds for doubting that Lopez is disabled, the Court

21

will remand for an award of benefits.

22

I.

23

Background.
Lopez is a 49-year-old female who previously worked as an office clerk, fast food

24

worker, hospital worker, and production line worker.

A.R. 38-39.

On

25

November 14, 2011, Lopez filed an application for disability insurance benefits and

26

supplemental security income, alleging disability beginning December 31, 2008.

27

A.R. 26. On August 14, 2013, an ALJ held a hearing on the application. A.R. 50-85.

28

Lopez appeared with her attorney and testified. A vocational expert also testified. Id.

1

On December 18, 2013, the ALJ issued a decision that Lopez was not disabled

2

within the meaning of the Social Security Act. A.R. 26-40. The decision proceeded

3

according to the five-step evaluation process set forth at 20 C.F.R. § 404.1520(a)(4). At

4

step one, the ALJ found that Lopez had not engaged in substantial gainful activity at any

5

time between the alleged onset date and the date of decision. A.R. 28. At step two, the

6

ALJ found that Lopez had the following severe impairments: lumbar degenerative disc

7

disease, bilateral carpal tunnel syndrome (status post-right release), cervical spine

8

degenerative disc disease and joint disease, thoracic spine spondylosis, and bilateral knee

9

osteoarthritis. A.R. 28. At step three, the ALJ determined that Lopez did not have an

10

impairment or combination of impairments that met or medically equaled an impairment

11

listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. A.R. 31. At step four, the ALJ

12

found that Lopez had the residual functional capacity (“RFC”) to:

13

lift and carry 20 pounds occasionally and 10 pounds frequently. She can
stand and/or walk for 4 hours in an 8-hour workday with normal breaks.
She can sit for 6 hours in an 8-hour workday with normal breaks. The
claimant has no limitations with pushing and pulling as long as within the
weight restrictions above. She can occasionally climb ramps and stairs,
stoop, kneel, and crouch. She should never climb ladders, ropes, or
scaffolds or crawl. She is limited to frequent fingering, handling, and
feeling bilaterally with the upper extremities. The claimant should avoid
even moderate exposure to unprotected heights. The claimant may need to
use a cane for balance when ambulating.

14
15
16
17
18
19

A.R. 33. The ALJ found Lopez unable to perform any of her past relevant work.

20

A.R. 38. At step five, the ALJ concluded, considering Lopez’s age, education, work

21

experience, transferrable skills, and RFC, that there were jobs existing in significant

22

numbers in the national economy that she could perform, including appointment clerk

23

and address clerk. A.R. 39. The Appeals Council denied Lopez’s request for review,

24

making the ALJ’s decision final. A.R. 1.

25

II.

Legal Standard.

26

The district court reviews only those issues raised by the party challenging the

27

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

28

may set aside the Commissioner’s disability determination only if the determination is

-2-

1

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

2

625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

3

preponderance, and relevant evidence that a reasonable person might accept as adequate

4

to support a conclusion considering the record as a whole. Id. In determining whether

5

substantial evidence supports a decision, the court must consider the record as a whole

6

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

7

(internal citations and quotation marks omitted). As a general rule, “[w]here the evidence

8

is susceptible to more than one rational interpretation, one of which supports the ALJ’s

9

decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954

10

(9th Cir. 2002) (citations omitted).

11

III.

Symptom Testimony.

12

In evaluating the claimant’s symptom testimony, ALJs must engage in a two-step

13

analysis. First, the ALJ must determine whether the claimant presented objective medical

14

evidence of an impairment that could reasonably be expected to produce the symptoms

15

alleged. 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ

16

proceeds to consider “all of the available evidence, including [the claimant’s] history, the

17

signs and laboratory findings, and statements from [the claimant],” her doctors, and other

18

persons to determine the persistence and intensity of these symptoms. § 404.1529(c)(1).

19

If there is no evidence of malingering, the ALJ may reject the claimant’s symptom

20

testimony only by giving specific, clear, and convincing reasons that are supported by

21

substantial evidence. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

22

Lopez testified that she was unable to work because of pain in her hands, knees,

23

and lower back. A.R. 57-58. She rated her pain as an 8 out of 10, and stated that she was

24

unable to obtain pain medication due to lack of insurance. A.R. 61. She testified that her

25

pain prevented her from lifting heavy objects, sitting for more than two hours at a time, or

26

standing or walking for more than 25 minutes at a time. A.R. 59-60, 64-65.

27

The ALJ determined that Lopez’s medically determinable impairments could

28

reasonably be expected to cause the alleged symptoms, but that her statements

-3-

1

concerning the intensity, persistence, and limiting effects of these symptoms were not

2

entirely credible. A.R. 33-34. The ALJ found Lopez’s testimony not entirely credible

3

because: (1) she failed to account for the benefit she previously received from

4

medication; (2) the alleged limitations were inconsistent with her “somewhat normal

5

level of daily activity and interaction”; (3) her complaints of debilitating pain were not

6

supported by clinical or laboratory findings; and (4) her testimony was marred by a

7

variety of inconsistencies. A.R. 33-36. Lopez challenges each of these findings.

8

A.

9

“Impairments that can be controlled effectively with medication are not disabling

10

for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r, 439 F.3d

11

1001, 1006 (9th Cir. 2006). Thus, the ALJ is entitled to discount a claimant’s symptom

12

testimony if the testimony relates to a period when the claimant was not using medication

13

or other treatment, and there is evidence that the symptoms in question could have been

14

effectively controlled with treatment.

15

evaluating symptom testimony, ALJ will consider “[t]he type, dosage, effectiveness, and

16

side effects of any medication you take or have taken to alleviate your pain or other

17

symptoms,” as well as treatments other than medication).

Benefit of Treatment.

See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (in

18

The ALJ found that Lopez had been prescribed and taken appropriate medications

19

for her impairments, and that the medications had been “relatively effective in controlling

20

[her] symptoms.” A.R. 34. The ALJ explained:

21
22
23
24
25
26
27
28

While the claimant has no medications due to lack of insurance coverage,
the treating and progress notes prior to her loss of insurance indicate she
received benefit from such medications and treatments in alleviating her
symptoms. In December 2009, January 2010, February 2010, March 2010,
and April 2010 the claimant reported the pain symptoms have been
somewhat controlled with the medication regimen. [citing A.R. 388, 392,
397, 404, 410, 414]. On January 19, 2010 and February 4, 2010, the
claimant reported that she noticed a “significant decrease” in the pain after
the [steroid] injections to her knees. [citing A.R. 397, 404]. Progress notes
from Valley Orthopedics in January 2013[] show[] the claimant reported a
70% improvement in her pain after undergoing caudal epidural steroid
injections. [citing A.R. 780]. The claimant’s allegations of severity and
intensity are not supported as she has been able to manage her condition
with medication when compliant and actively treating with providers.

-4-

1

Id. The Commissioner points to additional record support for the ALJ’s position. See

2

A.R. 495 (injections to Lopez’s knees provided “tremendous relief but unfortunately

3

wore off within approximately a month”), 601 (bilateral lumbar radiofrequency ablation

4

provided “excellent benefit”), 604 (“bilateral lumbar medial branch nerve blocks . . . gave

5

her 80% relief for one day”).1

6

The ALJ’s analysis demonstrates that Lopez pain was somewhat responsive to

7

medication and other treatment. But to reject a claimant’s testimony, it is not enough for

8

the ALJ to show that the pain was responsive to treatment; the ALJ must show that the

9

pain was “controlled,” Warre, 439 F.3d at 1006, i.e., no longer debilitating. The fact that

10

a claimant experienced a brief period of reprieve following treatment does not support a

11

finding that her pain was controlled. Rather, the ALJ must show that the treatment was

12

capable of providing lasting relief. Cf. Flaten v. Sec’y of Health & Human Servs., 44

13

F.3d 1453, 1462 (9th Cir. 1995) (“individuals whose disabilities include periods of

14

remission will lose their disabled status only if they are able to engage in substantial

15

gainful activity” during the period of remission).

16

None of the evidence relied upon by the ALJ or the Commissioner supports a

17

finding that Lopez’s pain was controlled. Even when Lopez’s doctors reported that

18

treatment had improved Lopez’s symptoms, they consistently found that she remained in

19

significant pain.

20

controlled” by medication, she continued to report pain between 5/10 and 10/10), 397

21

(despite “significant decrease in the pain after the injection,” Lopez reported pain level

22

between 3/10 and 4/10), 780 (although caudal lumbar epidural steroid injections reduced

23

Lopez’s pain by 70%, she continued to report pain between 5/10 and 8/10). Moreover,

24

the relief she experienced was short-lived. Compare A.R. 397 (reporting pain level

See, e.g., A.R. 388 (although Lopez’s pain had been “somewhat

25
26
27
28

1

Although the Court may not affirm the ALJ’s decision based on grounds not set
forth in the ALJ’s opinion, the Court can consider evidence not specifically mentioned in
the opinion if it was available to the ALJ and supports the ALJ’s stated grounds for
decision. Warre, 439 F.3d at 1005 n.3.

-5-

1

between 3/10 and 4/10, one week after knee injection administered January 12, 2010)

2

with A.R. 404 (reporting pain levels between 5/10 and 10/10 less than a month later, on

3

February 4, 2010); see also A.R. 495 (injections to Lopez’s knees provided “tremendous

4

relief but unfortunately wore off within approximately a month”). In short, there is no

5

evidence that Lopez was able to keep her pain at a manageable level for an extended

6

period of time, even with aggressive treatment. Because substantial evidence does not

7

support the ALJ’s finding that Lopez could control her pain with medications or other

8

treatments, it was error to reject Lopez’s symptom testimony on this basis.

9

B.

Clinical and Laboratory Findings.

10

“Although lack of medical evidence cannot form the sole basis for discounting

11

pain testimony, it is a factor that the ALJ can consider in [her] credibility analysis.”

12

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). It was not a factor the ALJ could

13

consider here, however, because the objective medical evidence amply supports Lopez’s

14

allegations of chronic, debilitating pain. For example, Lopez’s treating physician, Dr.

15

Edward Sayegh, included “obvious pain and discomfort” among the objective findings of

16

his physical examinations on 24 occasions.2 Lopez’s pain specialist found that she “does

17

have a legitimate pain generator and is in significant pain.” A.R. 612. Lopez’s doctors

18

prescribed very aggressive treatment for her pain, including carpal tunnel surgery for

19

both hands, A.R. 569-70, lumbar radio frequency ablation, A.R. 601, steroid injection in

20

the knees, A.R. 396, steroid injections for the back, A.R. 714, physical therapy, wrist

21

braces, A.R. 739, and multiple narcotics, A.R. 519. Doctors have recommended “total

22

knee replacement” to address “significant arthritic change of the knee joints” including

23

“bone on bone changes.” A.R. 496, 739, 721. Doctors have suggested that back surgery

24

may be required if steroid injections are not successful in providing lasting relief. A.R.

25

890, 714. The ALJ herself recognized that “[t]he claimant has been prescribed and has

26

taken appropriate medications” to control her pain. A.R. 34. In sum, the medical

27
28

2

See A.R. 670, 676, 678, 680, 682, 686, 688, 690, 692, 694, 696, 698, 700, 702,
703, 706, 708, 710, 919, 923, 928, 931, 933, 936.

-6-

1

evidence strongly corroborates Lopez’s complaints of debilitating pain.

2

C.

3

An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the

4

claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

5

But “ALJs must be especially cautious in concluding that daily activities are inconsistent

6

with testimony about pain, because impairments that would unquestionably preclude

7

work and all the pressures of a workplace environment will often be consistent with

8

doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016

9

(9th Cir. 2014). Thus, an ALJ may use a claimant’s daily activities to discredit symptom

10

testimony only if the claimant “spend[s] a substantial part of [her] day engaged in

11

pursuits involving the performance of physical functions that are transferable to a work

12

setting.” Orn, 495 F.3d at 639 (emphasis added).

Daily Activities.

13

In this case, the ALJ determined that Lopez’s reported daily activities “are not

14

quite as limited as one would expect, given the allegations of disabling pain and

15

symptoms.” A.R. 32. Specifically, she relied on daily activity reports indicating that

16

Lopez was able to use public transportation, do housework with rest breaks, assist with

17

grocery shopping, manage money, prepare simple foods, visit with friends frequently,

18

and visit her 11-year old daughter. Id. (citing A.R. 531-40, 642-48). But the ALJ did not

19

find that Lopez spent a substantial part of her day engaged in these activities. Moreover,

20

the daily activity reports on which the ALJ relied also document significant limitations

21

that are consistent with Lopez’s symptom testimony. See A.R. 534 (Lopez can’t bathe,

22

do dishes, or stand for long periods of time), 537 (Lopez has difficulty bathing because

23

“[h]er hands and legs make this very hard”), 643 (“Ms. Lopez’s boyfriend is mostly

24

responsible for the cooking, cleaning, laundry, and grocery shopping. She assists, when

25

she feels well enough to help.”). The Court accordingly finds that the ALJ was not

26

entitled to discount Lopez’s symptom testimony based on her daily activities.

27

D.

28

In evaluating a claimant’s symptom testimony, the ALJ may consider evidence

Inconsistencies in Testimony.

-7-

1

that a claimant “lack[s] . . . candor,” for example, because she has misrepresented her

2

history of drug and alcohol consumption. Thomas, 278 F.3d at 959; see also Verduzco v.

3

Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). In this case, the ALJ pointed to evidence

4

suggesting that Lopez failed to exhibit candor in discussing various issues unrelated to

5

her symptoms.

6

fibromyalgia, but the record did not confirm the diagnosis. A.R. 34. Lopez claimed a

7

history of sleep apnea, but she never obtained a sleep study or C-PAP machine despite

8

doctor recommendations that she do so. A.R. 32. Lopez testified that she does not do

9

anything during the day and has no friends, but then testified that she spends her day at

10

home, with someone always with her, either her friend or father, and is never alone. Id.

11

The ALJ also found inconsistencies in Lopez’s statements regarding drug use:

12
13
14
15
16
17
18

The ALJ noted that Lopez claimed to have been diagnosed with

The claimant reported at the July 2012 mental consultative examination that
she had used marijuana, methamphetamine, cocaine, [and] heroin in the
past, but stopped around 2006. However, the records confirm [that] in
November and December 2011, the claimant had urine drug screens that
tested positive for methamphetamines. Her pain management specialist
subsequently discharged the claimant in February 2012 due to
noncompliance and violation of the opioid agreement with use of illicit
drugs. The record also shows a positive urine drug screen in October 2009
for amphetamines and positive urine drug screen for cocaine, amphetamine,
and opiates in June 2010, though she denied use of any illicit drugs . . . .
A.R. 35.

19

These certainly are specific reasons for discounting Lopez’s claim of debilitating

20

conditions, but are they clear and convincing? Vasquez, 572 F.3d at 591. On one hand,

21

they constitute inconsistencies that could be viewed as undermining Lopez’s truthfulness.

22

On the other hand, as Lopez notes, “numerous medical sources, including the Agency’s

23

own psychologists, found [her] to be a credible reporter of her impairment related

24

symptoms.” Doc. 19 at 11, citing A.R. 532 (Lopez “seems to be a reliable reporter” of

25

her symptoms), 645 (“there were no notable discrepancies” in the information provided

26

by Lopez). Moreover, as discussed above, Lopez’s doctors repeatedly observed her in

27

significant pain and prescribed aggressive treatment for her pain, including surgeries.

28

-8-

1

Although a close question, the Court concludes that it should defer to the ALJ on

2

this issue. As noted above, “[w]here the evidence is susceptible to more than one rational

3

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

4

upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

5

IV.

Medical Source Evidence.

6

Lopez argues that the ALJ committed harmful error by improperly discounting the

7

opinions of Edward Sayegh, M.D., her treating physician, and John Peachey, M.D., an

8

examining physician.

9

A.

Legal Standard.

10

The Commissioner is responsible for determining whether a claimant meets the

11

statutory definition of disability, and need not credit a physician’s conclusion that the

12

claimant is “disabled” or “unable to work.”

13

Commissioner generally must defer to a physician’s medical opinion, such as statements

14

concerning the nature or severity of the claimant’s impairments, what the claimant can

15

do, and the claimant’s physical or mental restrictions. § 404.1527(a)(2), (c).

20 C.F.R. § 404.1527(d)(1).

But the

16

In determining how much deference to give a physician’s medical opinion, the

17

Ninth Circuit distinguishes between the opinions of treating physicians, examining

18

physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th

19

Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s

20

opinion and more weight to the opinion of an examining physician than to one of a non-

21

examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995);

22

see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating

23

opinion evidence, including length of examining or treating relationship, frequency of

24

examination, consistency with the record, and support from objective evidence).

25

If a treating or examining physician’s medical opinion is not contradicted by

26

another doctor, the opinion can be rejected only for clear and convincing reasons. Lester,

27

81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or

28

examining physician’s opinion if it is “conclusory, brief, and unsupported by the record

-9-

1

as a whole[ ] or by objective medical findings,” Batson v. Commissioner, 359 F.3d 1190,

2

1195 (9th Cir. 2004), or if there are significant discrepancies between the physician’s

3

opinion and her clinical records. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

4

2005).

5

When a treating or examining physician’s opinion is contradicted by another

6

doctor, it can be rejected “for specific and legitimate reasons that are supported by

7

substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To

8

satisfy this requirement, the ALJ must set out “a detailed and thorough summary of the

9

facts and conflicting clinical evidence, stating his interpretation thereof, and making

10

findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under either standard,

11

“[t]he ALJ must do more than offer his conclusions.

12

interpretations and explain why they, rather than the doctors’, are correct.” Embrey v.

13

Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

He must set forth his own

14

B.

15

Dr. Sayegh has been Lopez’s treating physician since at least 2010.

16

November 1, 2011, Dr. Sayegh provided a medical opinion that, during an eight-hour

17

work day, Lopez would be limited to sitting for less than two hours, standing less than

18

two hours, lifting less than ten pounds, and carrying less than ten pounds. A.R. 766. He

19

further opined that she could never use her hands or feet, or bend, crawl, climb, crouch,

20

or kneel.

21

moderately severe pain and fatigue. A.R. 767. He concluded that Lopez would be

22

unable to work on a regular and consistent basis. A.R. 766.

Dr. Sayegh.

Id.

On

He stated that Lopez’s ability to work would be further limited by

23

On July 26, 2013, Dr. Sayegh provided another opinion. He reported that Lopez

24

suffered from morbid obesity, degenerative disc disease, chronic pain syndrome, and

25

carpel tunnel syndrome. A.R. 917. He stated that it was medically necessary for Lopez

26

to alternate between sitting, standing, and walking, that she should alternate position

27

every 21-45 minutes, and that she should rest for between 10-15 minutes upon changing

28

position. Id. He opined that Lopez could occasionally use her right hand and right foot

- 10 -

1

but should never use her left hand or left foot, and should never bend, reach, or stoop. Id.

2

He further opined that Lopez suffered severe pain, and that she would have to miss work

3

six or more days per month due to her condition. A.R. 918. He reaffirmed his prior

4

conclusion that Lopez would be unable to work on a regular basis. A.R. 917.

5

The ALJ assigned “no weight” to Dr. Sayegh’s opinions, finding them (1) “totally

6

inconsistent and extreme in light of the objective evidence of record”; (2) “inconsistent

7

with the doctor’s own clinical and exam findings”; and (3) unduly reliant on Lopez’s

8

subjective complaints.

9

inconsistent with those assessed by the state agency physicians. A.R. 111, 129-31, 150-

10

51. Therefore, the Court must determine whether the ALJ’s reasons for rejecting Dr.

11

Sayegh’s opinions are specific and legitimate reasons supported by substantial evidence.

12

Cotton, 799 F.2d at 1408.

13

1.

A.R. 37-38.

The limitations assessed by Dr. Sayegh are

The ALJ’s First Reason.

14

The ALJ found that Dr. Sayegh’s opinion was extreme and inconsistent with the

15

greater evidence of record. That is not a specific reason for rejecting his opinion. The

16

ALJ does not explain what evidence in the record contradicted Dr. Sayegh’s opinion.

17

Moreover, characterizing a medical opinion as “extreme” provides little information

18

about perceived defects in the opinion.

19

disabled individuals assess extreme limitations.

20
21
22
23
24
25
26
27
28

2.

Presumably, most medical evaluations of

The ALJ’s Second Reason.

The ALJ found that Dr. Sayegh’s opinion was inconsistent with his own clinical
and exam findings. She explained:
The doctor’s treating notes generally document a normal musculoskeletal
exam, except for bilateral knee pain, general myalgia, and decreased range
of motion of the lumbar and cervical spine. . . . There are no reports of
decreased strength in the upper extremities in his records, though the doctor
opinioned no use of the hands, without explanation or basis for such
limitation, and [such a limitation is] completely inconsistent with her
activities of daily living.
A.R. 37-38 (citing A.R. 667-718, 919-37).
It is true that Dr. Sayegh’s notes consistently report a normal musculoskeletal

- 11 -

1

exam, except for bilateral knee pain, general myalgia, and decreased range of motion of

2

the lumbar and cervical spine. But the ALJ does not explain why bilateral knee pain,

3

general myalgia, and decreased range of motion of the lumbar and cervical spine are

4

insufficient to support the limitations assessed in Dr. Sayegh’s opinions. Dr. Sayegh’s

5

notes document a variety of debilitating symptoms related to these conditions.3 These

6

symptoms are consistent with the limitations Dr. Sayegh assessed related to sitting,

7

lifting, standing, walking, carrying, and chronic pain.

8

It is also true that Dr. Sayegh’s notes do not report decreased strength in the upper

9

extremities, but Dr. Sayegh stated that he reviewed Lopez’s other medical records and

10

took them into account in assessing limitations. A.R. 767, 918. Lopez’s other medical

11

records indicate that she did have significant limitations related to her hands. A.R. 570

12

(notes from Lopez’s right carpal tunnel release surgery), 906 (diagnosing bilateral carpal

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

See A.R. 667-68 (noting Lopez’s complaint that knee pain was “chronic problem
. . . that makes it debilitating for her to walk;” reporting unsteady gait, weakness with
weight bearing or walking, sensation of giving way, and locking or blocking (inability to
fully bend or extend the knee)), 669-70 (noting Lopez’s complaint of difficulty with
ambulation), 683-84 (noting complaint of radiating pain, decreased range of motion, pain
in joint area causing difficulty with ambulation, decreased ability to accomplish daily
tasks), 686 (“obvious pain and discomfort and discomfort/difficulty with ambulation”),
687 (reporting “general myalgia . . . weakness/p[ain] in lower ext[remities] especially
joints of knee causing difficulty with ambulation), 689 (noting Lopez’s complaint that the
pain/stiffness in the back and legs was disrupting daily life), 691 (noting Lopez’s
complaint of pain and daily anxiety/depression causing disruption to daily activities and
tasks), 693 (noting Lopez’s complaint that her difficulty with ambulation was causing
interruptions in her daily life), 695 (noting Lopez’s complaint that “pain, anxiety and
sleeplessness are disruptive to daily life, activities and ability to rest”), 697 (noting
Lopez’s complaint of difficulty ambulating, “anxiety and depression with daily
limitations due to condition of pain”), 699 (noting Lopez’s complaint of fatigue and other
limitations from pain), 701 (assessing pain and stiffness imposing work limitations), 705
(same), 707 (same), 709 (same), 922 (reporting weakness with weight bearing and
walking, sensation of giving way, and locking or blocking of knee), 925 (same, noting
Lopez’s complaint of daily myalgias, back pain, and stiffness with decreased range of
motion), 927 (assessing pain, stiffness, and weakness in lower back, with associated work
limitations), 930 (noting Lopez’s complaint of pain and discomfort with ambulation), 935
(assessing pain, stiffness, and weakness in lower back, with associated work limitations).

- 12 -

1

tunnel syndrome, prescribing bilateral wrist braces to be worn at night and during work);

2

see also A.R. 35 (noting that Lopez required right carpal tunnel release in December

3

2011 and intended to undergo same procedure on left hand; limiting her to frequent

4

manipulative activity). Thus, Dr. Sayegh may have been able to provide a medically

5

sound opinion regarding Lopez’s hand limitations even though his own records did not

6

document these limitations. Cf. A.R. 36 (earlier portion of the ALJ’s decision, crediting

7

opinions of state agency doctors who never examined Lopez but conducted a review of

8

her records).

9

The ALJ concluded that the limitations assessed by Dr. Sayegh were “completely

10

inconsistent with [Lopez’s] activities of daily living.” A.R. 38. As proof that Lopez has

11

no difficulty using her hands, the ALJ cites a daily activities report that states that Lopez

12

uses a cane and walker, prepares simple meals, and plays games on her computer. A.R.

13

32 (citing to A.R. 537). But the same report indicates that Lopez has difficulty bathing

14

because “[h]er hands and legs make this very hard.” A.R. 537. The report is, at the very

15

least, ambiguous, and might reasonably be read to support the limitations assessed by Dr.

16

Sayegh.

17

limitations assed by Dr. Sayegh were inconsistent with the record as a whole.

18

Substantial evidence does not support the ALJ’s conclusion that the hand

3.

The ALJ’s Third Reason.

19

The ALJ found that Dr. Sayegh’s opinion was unduly reliant on Lopez’s

20

subjective complaints. Substantial evidence does not support this finding. Dr. Sayegh’s

21

clinical records include many objective findings that support his opinion. See supra n. 3.

22

C.

23

Dr. Peachey examined Lopez in June 2012 and diagnosed pain in the knee,

24

fibromyalgia, carpal tunnel syndrome of the left hand, asthma, and anxiety. A.R. 634-39.

25

He opined that Lopez: (1) could occasionally lift items weighing less than ten pounds;

26

(2) should stand or walk for no more than two hours in an eight-hour day; (3) should

27

never climb, stoop, kneel, crouch, or crawl; and (4) could occasionally reach, handle,

28

finger, and feel. A.R. 637-38.

Dr. Peachey.

- 13 -

1

The ALJ explained that she assigned “little weight” to Dr. Peachey’s opinion

2

because she found it “extreme and inconsistent with the greater evidence of record.”

3

A.R. 37. She suggested that the opinion might be “based on the claimant’s reporting to

4

the doctor, rather than objective exam findings.” Id. She found Dr. Peachey’s opinion to

5

be in tension with treatment notes from Dr. Minesh Zaveri, Lopez’s pain specialist. Id.

6

(citing A.R. 499, 508). She noted that Lopez was on pain medication at the time of Dr.

7

Peachey’s exam, “which may have had an impact on her functioning at the exam.” Id.

8

Finally, she noted that Dr. Peachey’s opinion was based on a single examination. Id.

9

The limitations assessed by Dr. Peachey are inconsistent with those assessed by

10

the state agency physicians. A.R. 111, 129-31, 150-51. Therefore, the Court must

11

determine whether the ALJ offered specific and legitimate reasons for discounting Dr.

12

Peachey’s opinion. Cotton, 799 F.2d at 1408.

13

The Court concludes that the ALJ’s first reason for rejecting Dr. Peachey’s

14

opinion – that it is extreme and inconsistent with the record – is not specific because it

15

does not cite to specific inconsistent portions of the record other than Dr. Zaveri’s

16

findings, discussed below.

17

The ALJ’s second reason for rejecting Dr. Peachey’s opinion – that it was based

18

on Lopez’s statements rather than independent evaluation – is equally unsatisfactory. To

19

begin, the ALJ did not make an affirmative finding that Dr. Peachey’s opinion was based

20

solely on Lopez’s statements; she stated only that the extreme nature of Dr. Peachey’s

21

opinion “suggest[ed]” such reliance. A.R. 37. Such speculation is no substitute for the

22

“detailed and thorough” analysis required when an ALJ rejects an examining physician’s

23

testimony. Cotton, 799 F.2d at 1408. If the ALJ had engaged in such analysis, she surely

24

would have found Dr. Peachey’s opinion supported by the clinical findings he made

25

during the course of his physical examination. A.R. 634-36. Dr. Peachey noted that

26

Lopez used a walker, could walk without it but with a marked limp, could not toe or heel

27

walk, and could not hop or squat. A.R. 635. He noted that Lopez’s grip strength was

28

decreased about 50%, and that her muscle strength in the arms and legs was reduced.

- 14 -

1

A.R. 635-36. He also reported that Lopez had to hurry through the range-of-motion test

2

because she was afraid her legs were going to collapse. A.R. 635. These clinical

3

observations support Dr. Peachey’s medical opinion, belying the ALJ’s suggestion that

4

his opinion was based solely on Lopez’s statements.

5

Nor is the ALJ’s third reason specific and legitimate. It is true that Dr. Peachey’s

6

findings in June 2012 regarding Lopez’s gait, heel walking, toe walking, and strength in

7

the extremities differ from the findings made by Dr. Zaveri in January and February

8

2011. Compare A.R. 499, 508 with A.R. 635. But Dr. Zaveri’s notes predate Dr.

9

Peachey’s opinion by more than a year. The ALJ did not exclude the possibility that

10

Lopez’s condition may have worsened between February 2011 and June 2012. Nor did

11

the ALJ explain why Dr. Zaveri’s notes should be considered more reliable than Dr.

12

Peachey’s opinion. If anything, Dr. Peachey’s opinion would seem to be more reliable:

13

unlike Dr. Zaveri, who was primarily concerned with alleviating Lopez’s pain and had no

14

particular reason to focus on her ability to ability to walk, lift, carry, handle, and finger,

15

Dr. Peachey was conducting a physical examination for the express purpose of opining

16

on Lopez’s ability to perform these functions. Cf. Widmark v. Barnhart, 454 F.3d 1063,

17

1068 (9th Cir. 2006) (“It is reasonable . . . to expect that Widmark’s examining

18

physicians focused their attention on the subject of his complaint.

19

reasonable person would expect a podiatrist seeing a patient who complains of foot

20

problems to thoroughly examine the full range of that patient’s hearing, it is unreasonable

21

to expect Widmark’s examining physicians undertook a thorough range of motion

22

evaluation of Widmark’s right thumb” when focused on other health issues.). Because

23

the ALJ failed to provide a detailed and thorough analysis of the alleged conflict between

24

Dr. Peachey’s opinion and Dr. Zaveri’s notes, the conflict does not provide a specific and

25

legitimate reason for discounting Dr. Peachey’s opinion.

But just as no

26

The ALJ’s fourth reason also misses the mark. The fact that Lopez was on pain

27

medication at the time of Dr. Peachey’s exam would not seem to render the findings

28

unreliably favorable toward Lopez’s disability. If anything, such mediations would likely

- 15 -

1

mask some of her disability. Compare A.R. 34 (finding Lopez’s testimony unreliable

2

because it failed to account for beneficial effects of medications and treatments).

3

Finally, the fact that Dr. Peachey’s opinion was based on a single examination is

4

relevant, but is not, standing alone, a legitimate reason for rejecting his opinion. It

5

simply cannot be said that every one-time examination is inaccurate. Lester, 81 F.3d at

6

831 (an ALJ must give specific and legitimate reasons for rejecting the testimony of an

7

examining, but non-treating physician).

8

V.

Other Issues.

9

Lopez argues that the ALJ committed harmful error by improperly discounting the

10

medical opinion of Renee Behinfar, Psy.D, an examining psychologist, failing to consider

11

evidence that she suffered from fibromyalgia, failing to consider her obesity, and giving

12

too little weight to her boyfriend’s testimony. Because the Court has already identified

13

grounds for reversal, it need not address these additional arguments.

14

VI.

Remedy.

15

Where an ALJ fails to provide adequate reasons for rejecting evidence of a

16

claimant’s disability, the Court must credit that evidence as true. Lester, 81 F.3d at 834.

17

An action should be remanded for an immediate award of benefits when the following

18

factors are satisfied: (1) the record has been fully developed and further administrative

19

proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally

20

sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;

21

and (3) the ALJ would be required to find the claimant disabled if the improperly

22

discredited evidence were credited as true. Garrison, 759 F.3d at 1020 (internal citations

23

omitted). Courts may “remand for further proceedings when, even though all conditions

24

of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates

25

serious doubt that a claimant is, in fact, disabled.” Id. at 1020.

26

The relevant factors require the Court to remand for an award of benefits. The

27

record has been fully developed. The ALJ failed to provide a legally sufficient reason for

28

rejecting the medical opinions of Drs. Sayegh and Peachey, and these opinions, if

- 16 -

1

credited as true, would require the ALJ to enter an award of benefits. See A.R. 83

2

(testimony of vocational expert, stating that a person with the limitations assessed by Dr.

3

Peachey would be disabled). The Court’s independent evaluation of the record fails to

4

reveal any substantial grounds for doubting that Lopez is disabled. Therefore, remand for

5

an award of benefits is the appropriate remedy in this case.

6

IT IS ORDERED the final decision of the Commissioner of Social Security is

7

vacated and this case is remanded for an award of benefits based on Lopez’s application

8

dated November 14, 2011, with a finding of disability beginning December 31, 2008.

9

Dated this 8th day of July, 2016.

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

- 17 -