Rose v. Commissioner of Social Security Administration

Filing 25

ORDER - IT IS ORDERED that the Commissioner's decision is VACATED and this matter is remanded for further proceedings consistent with this Order. (See document for further details). Signed by Magistrate Judge Bridget S Bade on 3/27/19. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Rose,

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No. CV-17-04759-PHX-BSB

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Plaintiff Richard Rose seeks judicial review of the final decision of the

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Commissioner of Social Security (the “Commissioner”) denying his application for

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benefits under the Social Security Act (the “Act”). The parties have consented to proceed

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before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed

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briefs in accordance with Rule 16.1 of the Local Rules of Civil Procedure. For the

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following reasons, the Court vacates the Commissioner’s decision and remands for further

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proceedings.

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I.

Procedural Background

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On April 2, 2014, Plaintiff filed an application for a period of disability and

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disability insurance benefits under Title II of the Act. (Tr. 65.)1 Plaintiff alleged disability

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beginning on April 2, 2014. (Id.) After denial on initial review and on reconsideration,

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Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 65.) After

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conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the

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Citations to “Tr.” refer to the administrative record filed at docket 17.

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Act. (Tr. 65-82.) The Social Security Administration Appeals Council denied Plaintiff’s

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request for review. (Tr. 1-6.) Plaintiff now seeks judicial review of this decision pursuant

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to 42 U.S.C. § 405(g).

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II.

Administrative Record

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The record before the Court establishes the following history of diagnoses and

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treatment related to Plaintiff’s impairments. The record also includes several medical

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opinions.

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A.

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On February 4, 2014, Plaintiff was injured at work and went to the emergency room.

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(Tr. 97-98, 314.) Plaintiff complained of a spasm in his lumbar spine that was worse with

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movement and better with rest. (Id.) On examination Physician Assistant (“PA”) Mary

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Matherly found tenderness to palpation in the bilateral lumbar paraspinal muscles and into

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the bilateral SI joints and significant decreased range of motion secondary to pain.

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(Tr. 315.) PA Matherly diagnosed Plaintiff with acute chronic lumbar pain. (Id.)

Medical Treatment

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On February 24, 2014, Plaintiff sought treatment at the Core Institute and

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complained of low back pain with spasms and right leg pain. (Tr. 320.) On examination

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of Plaintiff’s lumbar spine, Ali Araghi, D.O., found decreased range of motion due to pain,

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tenderness to palpation, and painful facet loading. (Tr. 322.) Dr. Araghi noted that a June

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2013 MRI of Plaintiff’s lumbar spine showed “central disc protrusion at L4-5 with pressure

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on the bilateral L5 nerve roots and moderate central canal stenosis at L4-L5.” (Id.)

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Dr. Araghi prescribed Naproxen and Flexeril and ordered a lumbar MRI. (Tr. 323.) The

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MRI, performed on March 7, 2014, showed “interval increase in central focal disc

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extrusion at L4-5,” “severe central canal stenosis at L4-L5 with impingement upon the

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transiting nerve roots,” “right paracentral focal disc protrusion at L5-S1 which . . . contacts

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the transiting right S1 nerve root,” and “right lateral disc protrusion at L2-L3 which may

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contact the exiting right nerve root.” (Tr. 344.)

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On March 5, 2014, Plaintiff saw Michael Winer, M.D., regarding his low back pain.

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(Tr. 417.) On examination, Dr. Winer found full range of motion in the cervical spine with

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“minimal tenderness.” (Tr. 418.) He also observed “lumbar tenderness with right sciatic

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notch tenderness,” decreased lumbar range of motion with pain, pain with extension and

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side bending, positive straight leg test positive bilaterally, and decreased sensory

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distribution at L5. (Tr. 419.)

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An x-ray of Plaintiffs lumbar spine, taken May 1, 2014, showed disc space

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narrowing at L4-5 and L5-S1 with anterior marginal osteophytes, decrease in disc space

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height at L4-5 and L5-S1 and degenerative retrolisthesis of L4 onto L5. (Tr. 44.) That

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same day, an MRI of Plaintiff’s lumbar spine showed increased herniation at L4-S1 level

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causing severe lateral recess stenosis and moderate central canal stenosis. (Tr. 46.)

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On May 6, 2014, Dr. Winer noted increased lumbar stenosis and objective findings

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of lumbar and right leg radicular pain. (Tr. 352.) He administered lumbar epidural steroid

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injections at L4-5 and L5-S1. (Tr. 353.) On May 22, 2014, Plaintiff saw Dr. Winer with

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complaints of low back pain and neck pain with tingling into his right hand. (Tr. 423.) On

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examination Dr. Winer found tenderness in the paracervical area, restriction in head

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turning, some tingling and dysesthesia in the right forearm toward the thumb, lumbar

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tenderness, decreased range of motion with pain, positive straight leg test on the right,

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decreased muscle bulk in the right calf, and weakness in flexors. (Tr. 424.) Plaintiff

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reported that the epidural injections provided “good relief” for two to four days before the

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pain returned. (Id.) Dr. Winer recommended repeating the epidurals in three to four weeks

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and recommend a cervical MRI and x-rays. (Tr. 424-25.) On June 6, 2014, an MRI of

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Plaintiff’s cervical spine showed “mild disc height loss at C5-C6 and C6-C7.” (Tr. 345.)

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There was no spinal stenosis in the cervical spine. (Id.) That same day, an x-ray of

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Plaintiff’s lumbar spine showed “moderate discogenic degenerative changes” at L5-S1

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with “[s]light lower lumbar dextroscoliosis.” (Tr. 346-47.)

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At a July 22, 2014 appointment with Dr. Winer, Plaintiff complained of lower back

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pain and leg pain. (Tr. 348.) On examination Dr. Winer observed decreased lumbar range

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of motion, and decreased sensation in the right lower calf with atrophy. (Id.) Dr. Winer

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gave Plaintiff lumbar epidural steroid injections at L4-5 and L5-S1. (Tr. 349-50.)

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During an August 14, 2014 appointment with Dr. Winer, Plaintiff complained of

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continued neck pain. (Tr. 425.) On examination Dr. Winer found cervical tenderness,

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decreased range of motion, decreased right bicep reflex, significant right bicep weakness,

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one-half inch of atrophy of the right forearm, and decreased sensation with upper arm

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extension. (Tr. 425-26.) On referral from Dr. Winer, on September 17, 2014, Plaintiff saw

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John Jones, M.D., for an evaluation of neck pain with numbness and tingling into his right

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arm. (Tr. 356.) On examination Dr. Jones found cervical tenderness over the left lower

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cervical pillar, abnormal cervical range of motion limited on the left lateral rotation,

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cervical pain with motion, reduced strength, and abnormal Spurling’s maneuver. (Tr. 358.)

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Dr. Jones diagnosed cervical spondylosis, herniated nucleus pulposus, and right C6

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radiculopathy. (Tr. 359.) Dr. Jones prescribed physical therapy for the cervical spine. (Id.)

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On September 30, 2014, Dr. Winer performed lumbar decompression and lumbar

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fusion on Plaintiff. (Tr. 370-73.) In an October 24, 2014 note, Dr. Winer stated that an

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October 22, 2014 x-ray of Plaintiff’s lumbar spine x-ray “look[ed] good.” (Tr. 431.) In a

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November 2014 treatment note, Dr. Winer noted that Plaintiff was making progress but

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still complained of back pain. (Id.) On February 25, 2015, Dr. Winer noted that Plaintiff

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had made some progress but, at four months after surgery, Dr. Winer expected better range

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of motion and less lumbar pain. (Tr. 511.) Because of lack of progress noted on Plaintiff’s

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x-ray, Dr. Winer ordered a bone growth stimulator. (Id.) During an April 16, 2015

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appointment, Dr. Winer found limited mobility in Plaintiff’s lumbar spine, and negative

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straight leg raising, except some hamstring tightness. (Tr. 509.) On June 3, 2015,

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Dr. Winer found tenderness at L4-5 and L5-S1, decreased lumbar range of motion,

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“possible delayed union of the fusion,” and he noted that Plaintiff was making slow

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progress with a bone growth stimulator and physical therapy. (Tr. 510.) Dr. Winer

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recommended continued physical therapy. (Id.)

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During a February 10, 2016 appointment with Dr. Winer, Plaintiff complained of

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low back pain, right buttock pain, right leg pain, SI joint pain, and persistent stiffness with

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limited range of motion. (Tr. 434.) On examination Dr. Winer observed that Plaintiff

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“walk[ed] with apparent stiffness and mov[ed] in a protected fashion.” (Tr. 436.) Plaintiff

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had a limited cervical range of motion, thoracic and lumbar paraspinal tenderness, SI joint

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tenderness, “minimal” muscle spasm in the right paraspinal area, limited flexion, focal pain

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in the right SI joint area with focal tenderness, and positive thigh thrust on the right. (Id.)

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On February 24, 2016, an MRI of Plaintiff’s cervical spine showed degenerative

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disc disease at C5-6, broad-based disc height, moderate bilateral foraminal stenosis,

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minimal central stenosis, broad-based central disc bulge with moderate bilateral foraminal

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stenosis at C6-7, and “no central stenosis.” (Tr. 584.)

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On June 9, 2016, Plaintiff saw Edward Song, M.D., and complained of worsening

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neck pain. (Tr. 578.) Plaintiff reported that recent epidural injections provided relief for a

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few days. (Tr. 578, 595, 603.) On examination, Dr. Song found diminished sensation in

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the left arm, diminished left grip strength, and diminished left bicep strength. (Tr. 580.)

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Dr. Song recommended a cervical discectomy and fusion to address Plaintiff’s foraminal

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stenosis at C5-7. (Id.)

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B.

Examining Physicians’ Opinions
1.

Terry McLean, M.D.

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On May 9, 2014, Dr. McLean conduced an independent medical examination of

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Plaintiff for the First Medical Advisory Group. (Tr. 34.) On examination Dr. McLean

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found that Plaintiff could heel and toe walk and perform a tandem gait. (Tr. 39.) Plaintiff

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had no tenderness in the cervical or thoracic spine. (Id.) Dr. McLean observed a “trace

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limp on the right side,” a shallow knee bend, tenderness in the lower right foraminal area,

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bilateral lumbosacral tenderness, right sciatic notch tenderness, decreased lumbosacral

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range of motion, and positive slump test. (Tr. at 39-40.) Dr. McLean stated that Plaintiff

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had “progression in the size of herniation at the L4-5 level [that had] created more stenosis

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at the L4-5 level . . . and further injury to the disc.” (Tr. 41.) Dr. McLean opined that

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Plaintiff was limited to lifting ten pounds but could “more frequently” lift five pounds.

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(Tr. 42.) Dr. McLean opined that Plaintiff should change positions at least every hour and

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could “walk upwards of a half hour.” (Id.)

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Dr. McLean examined Plaintiff again on December 1, 2015.

(Tr. 25.)

On

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examination Dr. McLean found decreased cervical range of motion, decreased lumbar

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range of motion, and decreased sensation in the nondermatomal distribution in his entire

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right leg. (Tr. 29-30.) Dr. McLean noted that Plaintiff’s fusion was “solid” and there was

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“no further compression.” (Tr. 32.) Straight leg raising test was negative and Plaintiff had

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full strength in all extremities. (Tr. 30-31.) Dr. McLean stated that there were “very little”

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objective findings. (Tr 32.) Dr. McLean opined that Plaintiff could lift up to forty pounds

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infrequently and “upwards of 15-20 pounds” “more frequently.” (Id.) Plaintiff must

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change position “at least every hour with sitting and every 30 minutes with standing and

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walking.” (Id.)

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2.

Michael Powers, M.D.

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On June 12, 2015, Dr. Powers examined Plaintiff for a “disability evaluation” for

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the Corrections Officers Retirement Plan. (Tr. 439-42.) Plaintiff reported that after lumbar

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surgery in September 2014, his pain had decreased about 50% but the restrictions in his

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mobility were about the same. (Tr. 440.) On examination, Plaintiff was slow standing,

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turning, and walking. (Tr. 441.) Plaintiff had increased pain with bending, very limited

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back extension, pain with cervical rotation, decreased sensation in the right calf, and

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positive straight leg test on the right. (Id.)

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3.

Michael Winer, M.D.

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On December 24, 2014, Dr. Winer completed a medical source statement. (Tr. 48-

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51.) He noted that Plaintiff was recovering from back surgery, and that he had some

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physical limitations due to low back pain and some leg pain. (Tr. 48.) Dr. Winer opined

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that Plaintiff could sit and stand for thirty minutes at a time up to two hours a day. (Tr. 49.)

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Plaintiff needed unscheduled breaks due to pain and numbness. (Id.) Plaintiff could rarely

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lift less than ten pounds. (Tr. 49-50.) Dr. Winer opined that Plaintiff’s symptoms would

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interfere with his attention and concentration and cause him to be off task 25% or more

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during a workday. (Tr. 50.)

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On February 10, 2016, Dr. Winer completed a “statement of work status.” (Tr. 437.)

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He opined that Plaintiff could lift fifteen to twenty pounds occasionally and could lift forty

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pounds rarely. (Tr. 437.) He stated that Plaintiff should avoid repetitive lifting, bending,

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and stooping. (Id.) He also stated that Plaintiff needed to change position frequently and

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could not perform work overhead or below the knee. (Id.)

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On February 23, 2016, Dr. Winer completed an “attending physician’s statement.”

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(Tr. 457-48.) He opined that, due to back pain and right SI joint pain, Plaintiff could not

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bend, kneel, or climb. (Tr. 458.) Plaintiff could lift fifteen pounds occasionally. (Id.)

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Plaintiff could not perform overhead reaching or below the knee work. (Id.)

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On October 11, 2016, Dr. Winer completed a medical source statement. (Tr. 52-

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55.) Dr. Winer stated that due to neck pain, right arm pain, low back pain, right leg pain,

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buttock pain, and cervical radiculopathy, Plaintiff could sit for fifteen minutes at one time

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for a total of two hours in an eight-hour day, stand for fifteen minutes at one time, and walk

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for about fifteen minutes at a time for total of two hours in an eight-hour day. (Tr. 53.)

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Dr. Winer opined that Plaintiff needed to take unscheduled breaks due to pain, muscle

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weakness, and fatigue. (Id.) He found that Plaintiff could lift ten pounds occasionally.

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(Tr. 54.)

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4.

Edward Song, M.D.

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On March 17, 2016, Dr. Song completed an “attending physician statement.”

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(Tr. 461-62.) Dr. Song stated that based on neck pain, arm pain, limited left arm strength,

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and limited cervical range of motion, Plaintiff could never perform gross or fine

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manipulation with his left hand and could not reach on the left side. (Tr. 461-62.)

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On September 15, 2016, Dr. Song completed a medical source statement. (Tr. 58-

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61.) Dr. Song opined that due to neck pain, left arm pain, left hand weakness, decreased

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left grip strength, and decreased bicep strength, Plaintiff needed to take unscheduled breaks

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every thirty minutes to an hour. (Tr.58-59.) Dr. Song opined that Plaintiff’s symptoms

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would interfere with his attention and concentration and would cause him to be off task

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more than 25% of the day. (Tr. 61.) He also opined that Plaintiff would miss at least three

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days of work per month due to his impairments or treatment. (Id.)

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III.

The Administrative Hearing

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Plaintiff was fifty years old as of the disability onset date. (Tr. 83.) He had a high

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school education and past relevant work as a loan officer, car sales person, and corrections

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officer. (Tr. 80, 91.) At the September 14, 2016 administrative hearing, Plaintiff testified

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that he left his job as a corrections officer in 2014 after he was injured on the job. (Tr. 93-

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94.) Plaintiff testified that he could not work because of problems and pain in his low back,

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neck, and right arm. (Tr. 95.) Plaintiff was scheduled for a cervical fusion in October

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2016, after the administrative hearing. (Id.) Plaintiff testified that he had difficulty

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bending. (Tr. 95, 100.) Plaintiff testified that he had pain when sitting for more than thirty

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minutes, pain with standing, numbness down his right leg, and constant numbness in his

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right arm. (Id.) Plaintiff could walk “under a half mile.” (Tr. 100.) Plaintiff’s wife did

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the housework. (Id.) Plaintiff stated that every night pain woke him up at 1:00 a.m. and

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then he napped in a recliner to nap until spasms in his right side woke him up. (Tr. 96.)

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Plaintiff testified that he napped “constantly.” (Tr. 100.)

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At the administrative hearing, a vocational expert testified that an individual who

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could lift and carry twenty pounds occasionally, ten pounds frequently, required a sit/stand

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option, was allowed to change positions after one hour of sitting or thirty minutes of

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walking or standing, who could occasionally claim stairs, ramps, stoop, kneel, crouch and

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crawl, who could never climb ladders, ropes, and scaffolds, and who should avoid

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concentrated exposure to extreme cold, unprotected heights, and moving and dangerous

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machinery could not perform Plaintiff’s past relevant work. (Tr. 102.) However, a person

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with those restrictions could perform other work. (Id.) The vocational expert testified that

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an individual who was limited to sitting two hours and standing or walking two hours in

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an eight-hour day would be unable to do any work. (Tr. 102-03.)

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IV.

The ALJ’s Decision

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A claimant is considered disabled under the Social Security Act if he is unable “to

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engage in any substantial gainful activity by reason of any medically determinable physical

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or mental impairment which can be expected to result in death or which has lasted or can

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be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

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§ 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for

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supplemental security income disability insurance benefits). To determine whether a

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claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20 C.F.R.

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§§ 404.1520, 416.920.

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A.

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In the first two steps, a claimant seeking disability benefits must initially

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demonstrate (1) that he is not presently engaged in a substantial gainful activity, and

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(2) that his medically determinable impairment or combinations of impairments is severe.

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20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and

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two, there are two ways in which he may be found disabled at steps three through five. At

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step three, he may prove that his impairment or combination of impairments meets or

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equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of

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20 C.F.R. Part 404. 20 C.F.R. §§ 404.1520(a)(4)(iii) and (d), 416.920(d). If so, the

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claimant is presumptively disabled. If not, the ALJ determines the claimant’s residual

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functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). At step four, the ALJ

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determines whether a claimant’s RFC precludes him from performing his past relevant

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work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes this prima facie

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case, the burden shifts to the government at step five to establish that the claimant can

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perform other jobs that exist in significant number in the national economy, considering

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the claimant’s RFC, age, work experience, and education. 20 C.F.R. §§ 404.1520(g),

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416.920(g). If the government does not meet this burden, then the claimant is considered

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disabled within the meaning of the Act.

The Five-Step Sequential Evaluation Process

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B.

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Applying the five-step sequential evaluation process, the ALJ found that Plaintiff

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had not engaged in substantial gainful activity since the alleged disability onset date.

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(Tr. 67.) At step two, the ALJ found that Plaintiff had “the following severe impairments:

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residuals of lumbar surgery, cervicalgia, and obesity. (20 CFR 404.1520(c)).” (Id.) At

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step three, the ALJ found that Plaintiff did not have an impairment or combination of

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impairments that met or equaled the severity of a listed impairment. (Tr. 68.)

The ALJ’s Application of the Five-Step Evaluation Process

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The ALJ found that Plaintiff had the RFC “to perform light work (lifting and

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carrying 20 pounds occasionally and ten pounds frequently).” (Id.) The ALJ added that

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Plaintiff needed a “‘sit/stand option,’ in which [Plaintiff could] sit, stand and/or walk for a

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total of eight hours in an eight hour day, exclusive of normal breaks, and with the option

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to be able to change positions after one hour of sitting or 30 minutes of working or standing,

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while remaining at the work station.” (Id.) The ALJ found that Plaintiff could occasionally

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climb stairs and ramps, but could never climb ladders, ropes, or scaffolds. (Id.) Plaintiff

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could “occasionally stoop, kneel, crouch, and crawl.”

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concentrated exposure to . . . cold, unprotected heights, and moving or dangerous

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machinery.” (Id.)

(Id.)

Plaintiff should avoid

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At step four, the ALJ concluded that Plaintiff could not perform his past relevant

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work. (Tr. 79.) At step five, the ALJ concluded that, considering Plaintiff’s age, education,

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work experience, and RFC, he could perform other work that existed in significant numbers

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in the national economy. (Tr. 80.) Therefore, the ALJ concluded that Plaintiff had not

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been under a disability, as defined in the Act, from the alleged onset date through the date

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of his decision. (Tr. 81.) The ALJ denied Plaintiff’s application for a period of disability

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and disability insurance benefits. (Tr. 82.)

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V.

Standard of Review

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The district court has the “power to enter, upon the pleadings and transcript of

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record, a judgment affirming, modifying, or reversing the decision of the Commissioner,

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with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district

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court reviews the Commissioner’s final decision under the substantial evidence standard

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and must affirm the Commissioner’s decision if it is supported by substantial evidence and

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it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Ryan v.

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Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the ALJ erred,

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however, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch

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v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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Substantial evidence means more than a mere scintilla, but less than a

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preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate

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to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations

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omitted); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In determining

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whether substantial evidence supports a decision, the court considers the record as a whole

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

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v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal quotation and citation omitted). The

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ALJ is responsible for resolving conflicts in testimony, determining credibility, and

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resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When

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the evidence before the ALJ is subject to more than one rational interpretation [the court]

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must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1198 (9th Cir. 2004) (citing Andrews, 53 F.3d at 1041).

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VI.

Plaintiff’s Claims

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Plaintiff raises the following claims: (1) the ALJ erred by failing to accurately

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consider Listing 1.04 at step three of the sequential evaluation process; (2) the ALJ erred

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by rejecting the opinions of Dr. Winer, Plaintiff’s treating physician; and (3) the ALJ erred

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by failing to provide clear and convincing reasons for rejecting Plaintiff’s symptom

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testimony. (Doc. 18 at 1.) The Commissioner asserts that the ALJ’s decision is free from

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harmful error and is supported by substantial evidence. (Doc. 23.) As set forth below, the

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Court finds that any error in the ALJ’s listing analysis was harmless, but the ALJ erred in

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rejecting Dr. Winer’s February 2016 opinions and that error requires remand. Thus, the

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Court does not consider whether the ALJ erred in his assessment of Dr. Winer’s other

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opinions or whether he erred in assessing Plaintiff’s testimony.

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A.

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Plaintiff asserts that the ALJ erred at step three of the sequential evaluation process

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by failing to adequately consider whether Plaintiff’s impairment met or equaled Listing

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1.04. (Doc. 18 at 10-11.) The Commissioner argues that even if the ALJ erred at step

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three, Plaintiff has not shown that a remand for further proceedings is appropriate.

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(Doc. 23 at 3-5.)

The ALJ’s Step Three Analysis

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At step three of the sequential evaluation process, the ALJ determines if a claimant

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has an impairment or combination of impairments that meets or equals an impairment

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contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d). If a claimant shows

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that his impairment or combination of impairments meets or equals a listed impairment, he

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will be found presumptively disabled. See 20 C.F.R. §§ 416.925-416.926. An impairment

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meets a listed impairment if it satisfies all the criteria of that listed impairment. See

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Sullivan Zebley, 493 U.S. 521, 530 (1990); Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th

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Cir. 2013); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To “equal” a listed

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impairment, the claimant “must establish symptoms, signs, and laboratory findings” at least

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equal in severity and duration to each element of the listed impairment. Tackett, 180 F.3d

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at 1099 (quoting 20 C.F.R. § 404.1526).

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“Although a claimant bears the burden of proving that [he] has an impairment or

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combination of impairments that meets or equals the criteria of a listed impairment, an ALJ

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must still adequately discuss and evaluate the evidence before concluding that a claimant’s

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impairments fail to meet or equal a listing.” Cunningham v. Astrue, 2011 WL 5103760, at

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*3 (C.D. Cal. Oct. 27, 2011) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)

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(“[I]n determining whether a claimant equals a listing under step three . . . the ALJ must

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explain adequately his evaluation of alternative tests and the combined effects of the

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impairments.”)). Remand for further proceedings is appropriate when “an ALJ fails

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adequately to consider a listing that plausibly applies to a plaintiff’s case.” Cunningham,

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2011 WL 5103760, at *3 (citing Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (stating

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that a plaintiff must present a plausible theory as to how an impairment or combination of

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impairments equals a listed impairment)).

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At step three, the ALJ stated that “[t]he medical evidence does not include evidence

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of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis as required under

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listing 1.04.” (Tr. 68.) Plaintiff argues that the ALJ erred at step three because he

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inaccurately stated that the record did not include evidence of nerve root compression or

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lumbar spinal stenosis. (Doc. 18 at 10-11.) The Commissioner agrees that ALJ did not

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fully describe Plaintiff’s lumbar impairment at step three of the sequential evaluation

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process. (Doc. 23 at 4.) However, the Commissioner argues that the error is harmless

11

because other portions of the ALJ’s decision accurately characterize Plaintiff’s lumbar

12

impairment. (Id.) The Commissioner further argues that remand is not appropriate because

13

Plaintiff does not argue his lumbar impairment meets or equals Listing 1.04. (Id. at 3.)

14

The Court agrees with the Commissioner. Plaintiff asserts that the ALJ did not

15

accurately consider Listing 1.04 but does not present a plausible theory as to how his

16

impairment or combination of impairments meets or equals Listing 1.04. (Doc. 18 at 10-

17

11.) Plaintiff does not identify the criteria of Listing 1.04 and, other than referring to

18

evidence of stenosis and nerve impingement, does not explain how his impairment or

19

combination of impairments meets or equals that listing. (Id. at 11 (citing Tr. 344).)

20

Because Plaintiff has not offered a plausible theory as to how his combined impairments

21

meet or are medically equivalent to the criteria for a listed impairment, the Court finds the

22

ALJ’s listing analysis was not an error that requires remand for further proceedings. See

23

Lewis, 236 F.3d at 514; see also Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013).

24

B.

25

Plaintiff asserts that the ALJ erred in rejecting the opinions of Dr. Winer, his treating

26

physician. In weighing medical source opinion evidence, the Ninth Circuit distinguishes

27

between three types of physicians: (1) treating physicians, who treat the claimant;

28

(2) examining physicians, who examine but do not treat the claimant; and (3) non-

Medical Source Opinion Evidence

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1

examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81

2

F.3d 821, 830 (9th Cir. 1995). Generally, more weight is given to a treating physician’s

3

opinion. Id. The ALJ must provide clear and convincing reasons supported by substantial

4

evidence for rejecting a treating or an examining physician’s uncontradicted opinion. Id.;

5

see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may reject the

6

controverted opinion of a treating or an examining physician by providing specific and

7

legitimate reasons that are supported by substantial evidence in the record. Bayliss v.

8

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Reddick, 157 F.3d at 725.

9

Opinions from non-examining medical sources are entitled to less weight than

10

opinions from treating or examining physicians. Lester, 81 F.3d at 831. Although an ALJ

11

generally gives more weight to an examining physician’s opinion than to a non-examining

12

physician’s opinion, a non-examining physician’s opinion may nonetheless constitute

13

substantial evidence if it is consistent with other independent evidence in the record.

14

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). When evaluating medical opinion

15

evidence, the ALJ may consider “the amount of relevant evidence that supports the opinion

16

and the quality of the explanation provided; the consistency of the medical opinion with

17

the record as a whole; [and] the specialty of the physician providing the opinion. . . .” Orn,

18

495 F.3d at 631.

19

1.

Dr. Winer’s Opinions

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Dr. Winer issued multiple assessments of Plaintiff’s physical limitations. (Tr. 48-

21

51, 52-55, 437, 457-58, 460, 462, 569, 640-43.) However, Plaintiff only challenges the

22

ALJ’s assessment of Dr. Winer’s opinions in December 2014 and February 2016. (Doc. 18

23

at 12-15.) As set forth below, the Court concludes that the ALJ erred in his assessment of

24

Dr. Winer’s February 2016 opinions and that remand is required on that basis.

25

On February 10, 2016, Dr. Winer described Plaintiff’s work status as “light duty.”

26

(Tr. 437.) Dr Winer stated Plaintiff could lift “15 to 20 pounds” occasionally, but could

27

perform no repetitive lifting, bending, or stooping. (Id.) Dr. Winer stated that Plaintiff

28

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1

must change position frequently and could not perform any work overhead or below the

2

knees. (Id.) Dr. Winer stated that Plaintiff’s work restrictions were “permanent.” (Id.)

3

On February 23, 2016, Dr. Winer opined that Plaintiff could sit for one to two hours,

4

for a total of four to six hours, stand for one to two hours, for a total of two to three hours,

5

and walk for one hour for a total of one to two hours. (Tr. 458.) He also opined that

6

Plaintiff could not bend, kneel, crouch, or climb. (Id.) Plaintiff could occasionally (defined

7

as up to 2.5 hours) lift fifteen pounds but could not lift any amount of weight frequently or

8

continually. (Id.) Plaintiff could reach above the shoulder occasionally, could perform

9

gross and fine manipulation constantly, and could reach below the shoulder constantly.

10

(Id.) However, Plaintiff could not perform “overhead” or “below the knee” work. (Id.)

11

Dr. Winer stated that Plaintiff’s limitations or restrictions were permanent. (Id.) In June

12

2016, Dr. Winer stated that Plaintiff’s status was unchanged and that he continued to have

13

“permanent light duty restrictions.” (Tr. 569.)

14

The ALJ gave “some weight” to Dr. Winer’s February 2016 opinions and his June

15

2016 statement. (Tr. 74.) The ALJ explained that he found Dr. Winer’s opinion that

16

Plaintiff could perform “a limited range of light work” was consistent with Dr. McLean’s

17

assessment in which Dr. Winer had concurred. (Tr. 74 (citing Admin. Hrg. Ex. 11F at 1-

18

13).) The ALJ also found that Dr. Winer’s opinion that Plaintiff could perform “light duty”

19

was consistent with multiple examination findings. (Tr. 74.) The ALJ did not specifically

20

reject any physical limitation that Dr. Winer assessed. (Id.) The ALJ assessed an RFC for

21

“light work,” which required “lifting and carrying 20 pounds occasionally and ten pounds

22

frequently.”2 (Tr. 68 (citing 20 C.F.R. § 404.1567(b)).) Plaintiff argues that because “light

23

work” as defined in the regulations requires the ability to frequently lift ten pounds, by

24

adopting an RFC for light work, the ALJ implicitly rejected Dr. Winer’s February 2016

25
26
27
2

28

Title 20 C.F.R. § 1567(b) provides that “[l]ight work involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”

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1

opinions that Plaintiff could not perform any repetitive lifting.3 (Doc. 18 at 13 (citing 20

2

C.F.R. § 404.1567(b).)

3

Because Dr. Winer opined that Plaintiff could not lift any amount of weight

4

repetitively, frequently, or continually (Tr. 437, 458), and light work requires frequent

5

lifting or carrying of objects weighing up to ten pounds, see 20 C.F.R. § 404.1567(b), the

6

ALJ mischaracterized Dr. Winer’s February 2016 opinions as supporting an RFC for light

7

work.

8

§ 404.1567(b), the ALJ implicitly rejected Dr. Winer’s February 2016 opinion that Plaintiff

9

could not perform repetitive or frequent lifting. (Tr. 68.) The ALJ’s decision cites

10

examination notes as support for his finding that Plaintiff could perform light work.

11

(Tr. 74.) However, the ALJ did not explain how any of those examination notes supported

12

his rejection of Dr. Winer’s conclusion that Plaintiff could not perform repetitive or

13

frequent lifting.

14

2.

Additionally, by adopting an RFC for light work as defined in 20 C.F.R.

The ALJ Erred by Rejecting Dr. Winer’s Opinions

15

As noted above, the ALJ assessed an RFC for “light work” that required “lifting and

16

carrying 20 pounds occasionally and ten pounds frequently.” (Tr. 68.) This RFC was

17

inconsistent with, and amounted to an implicit rejection of, Dr. Winer’s February 2016

18

opinion that Plaintiff could not lift any amount of weight repetitively, frequently, or

19

continually. (Tr. 437, 458.) The ALJ erred by failing to explain his implicit rejection of

20

the lifting restrictions Dr. Winer assessed in his February 2016 opinions.

21

Dr. Winer was a treating physician, the ALJ owed his opinion special deference. The

Because

22
3

23
24
25
26
27
28

Plaintiff states that the ALJ “fail[ed] to address significant limitations in the June 8, 2016
assessment.” (Doc. 18 at 13 (citing Tr. 74, 437).) Relying on this assertion, the
Commissioner states that Plaintiff challenges Dr. Winer’s June 2016 statement. (Doc. 23
at 11 (citing Doc. 18 at 13).) The Court finds that Plaintiff meant to refer to Dr. Winer’s
February 2016 assessment, not his June 2016 statement. Plaintiff cites to Tr. 437 to support
his statement that the ALJ disregarded limitations in the June 8, 2016 assessment. (Doc. 18
at 13.) Page 437 of the administrative transcript is Dr. Winer’s February 10, 2016 statement
of work status. (Tr. 437.) The February 10, 2016 statement indicates that Plaintiff’s next
appointment was on June 8, 2016. (Id.) On June 8, 2016, Dr. Winer stated that Plaintiff’s
“work status remain[ed] unchanged with permanent light-duty restriction.” (Tr. 569.)
Dr. Winer did not assess any additional limitations in the June 8, 2016 statement. Thus,
the Court concludes that on page 13 of his brief, Plaintiff meant to refer to “significant
limitations” identified in the February 10, 2016 assessment.
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1

ALJ’s failure to set forth specific and legitimate reasons rejecting Dr. Winer’s opinions

2

was legal error. See Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) (finding that ALJ

3

implicitly rejected treating physician’s opinion by concluding that claimant could perform

4

light work, and that ALJ’s failure to evaluate the treating physician’s findings or

5

conclusions was legal error). The Court cannot conclude that this error was harmless

6

because, as discussed in Section VII, the vocational expert’s testimony suggests that an

7

individual with the lifting restriction that Dr. Winer assessed would be unable to perform

8

the jobs upon which the ALJ relied to find Plaintiff not disabled.

9

VII.

Remand for an Award of Benefits or Further Proceedings

10

Based on the ALJ’s error, the Court vacates the Commissioner’s decision and may

11

remand this case “either for additional evidence and findings or to award benefits.”

12

Smolen, 80 F.3d at 1292. Generally, when the court reverses an ALJ’s decision, the court

13

remands “to the agency for additional investigation or explanation.” Benecke v. Barnhart,

14

379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, when “it is clear from the

15

record that the claimant is unable to perform gainful employment in the national economy,”

16

“remand for an immediate award of benefits is appropriate.” Id.

17

Under the Ninth Circuit’s credit-as-true standard, courts may credit as true

18

improperly rejected medical opinions or claimant testimony and remand for an award of

19

benefits if each of the following conditions is satisfied: “(1) the record has been fully

20

developed and further administrative proceedings would serve no useful purpose; (2) the

21

ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether

22

claimant testimony or medical opinion; and (3) if the improperly discredited evidence were

23

credited as true, the ALJ would be required to find the claimant disabled on remand.”

24

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citing Ryan, 528 F.3d at 1202). If

25

the “credit-as-true rule” is satisfied, the court may remand for further proceedings, instead

26

of for an award of benefits, “when the record as a whole creates serious doubt as to whether

27

the claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison,

28

759 F.3d at 1021.

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1

The ALJ did not provide any reasons for his implicit rejection of Dr. Winer’s

2

opinions that Plaintiff could not perform any repetitive or frequent lifting. Plaintiff argues

3

that if that opinion is credited as true, and combined with the “sit/stand option” included in

4

the RFC, Plaintiff is limited to a sedentary RFC and that work is eliminated. (Doc. 18 at

5

18.) The Court disagrees and finds that it is not clear from the record that Plaintiff is

6

entitled to benefits if Dr. Winer’s February 2016 opinions are credited as true. See

7

Garrison, 759 F.3d at 1019. The Court finds that “additional proceedings [could] remedy

8

defects in the original administrative proceeding.” Garrison, 759 F.3d at 1019 (quoting

9

Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)).

10

At the administrative hearing, the vocational expert testified that a person with the

11

RFC that the ALJ assessed could perform work as a ticket taker, an order caller, or a silver

12

wrapper.4 (Tr. 101-02.) The ALJ relied on those three jobs to conclude that Plaintiff was

13

not disabled under the Act. (Tr. 80-81.) The vocational expert characterized ticket taker,

14

order caller, and silver wrapper as jobs that involved “light exertion.” (Tr. 102.) The

15

vocational expert testified that an individual who was limited to lifting nine pounds

16

frequently could still perform those three jobs. (Tr. 102-03.) However, the vocational

17

expert did not provide any testimony regarding whether an individual who was unable to

18

lift any amount of weight frequently or repetitively could perform those jobs.

19

The Commissioner states that the none of jobs the ALJ relied on at step five indicate

20

that Plaintiff would be required to lift repetitively. (Doc. 23 at 12.) However, the

21

Commissioner only refers to two of the three jobs the ALJ cited, order caller and ticket

22

taker. (Id.) Additionally, the Commissioner does not address the vocational expert’s

23

testimony that the three jobs—order caller, ticket taker, and silver wrapper—are “light

24
4

25
26
27
28

The ALJ found that Plaintiff had the RFC “to perform light work (lifting and carrying 20
pounds occasionally and ten pounds frequently).” (Tr. 68.) The ALJ added that Plaintiff
needed a “‘sit/stand option,’ in which [Plaintiff could] sit, stand and/or walk for a total of
eight hours in an eight hour day, exclusive of normal breaks, and with the option to be able
to change positions after one hour of sitting or 30 minutes of working or standing, while
remaining at the work station.” (Id.) The ALJ found that Plaintiff could occasionally climb
stairs and ramps, but never climb ladders, ropes, or scaffolds. (Id.) Plaintiff could
“occasionally stoop, kneel, crouch, and crawl.” (Id.) Plaintiff should avoid concentrate
exposure to . . . cold, unprotected heights, and moving or dangerous machinery.” (Id.)
- 18 -

1

exertion” and thus, may require frequent lifting of up to ten pounds, as the vocational

2

expert’s testimony suggests. (See Tr. 102-03 (stating an individual who was limited to

3

lifting nine pounds frequently could still perform work as an order caller, ticket taker, and

4

silver wrapper).)

5

The Court concludes that further proceedings would be useful to reconsider

6

Plaintiff’s RFC in light to Dr. Winer’s February 2016 opinion that Plaintiff could not

7

perform repetitive or frequent lifting and to obtain vocational expert testimony regarding

8

whether Plaintiff can perform other work that exists in the significant numbers in the

9

national economy.

10

Accordingly,

11

IT IS ORDERED that the Commissioner’s decision is VACATED and this matter

12
13

is remanded for further proceedings consistent with this Order.
Dated this 27th day of March, 2019.

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