Patricia Campbell v. Carolyn W. Colvin

Filing 18

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. ITIS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PATRICIA CAMPBELL, Plaintiff, 12 v. 13 14 15 Case No. CV 14-8246 SS MEMORANDUM DECISION AND ORDER CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 22 Patricia Campbell (“Plaintiff”) seeks review of the final 23 decision 24 Administration (the “Commissioner” or the “Agency”) denying her 25 application for Title XVI Supplemental Security Income (“SSI”). 26 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 27 jurisdiction of the undersigned United States Magistrate Judge. 28 \\ of the Commissioner of the Social Security 1 For the reasons stated below, the decision of the Commissioner is 2 REVERSED 3 consistent with this decision. and REMANDED for further administrative proceedings 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 On February 3, 2011, Plaintiff filed an application for Supplemental Security Income, claiming that she became disabled 10 on April 11, 2005. 11 Plaintiff based her alleged disability on head, neck and back 12 injuries, bilateral carpal tunnel syndrome, seizures, loss of her 13 sense 14 “equilibrium balance is off.” 15 Plaintiff’s 16 reconsideration on November 22, 2011. of smell, (Administrative Record (“AR”) 125-131, 162). arthritis application on of the hip and (AR 162). April 15, 2011 tailbone, and The Agency denied (AR 83) and upon (AR 92). 17 18 Plaintiff requested a hearing, which was held before 19 Administrative Law Judge (“ALJ”) Dale A. Garwal on January 4, 20 2013 (the “ALJ Hearing”). 21 Gail Maron also testified. 22 2013, 23 Plaintiff sought review before the Appeals Council (AR 20-21), 24 which the Council denied on September 9, 2014. 25 ALJ’s 26 Commissioner. 27 November 5, 2014. 28 \\ the ALJ issued determination an thus (AR 1). (AR 58-80). Vocational expert (“VE”) (AR 58, 76-79). unfavorable became the On February 1, decision. final (AR 25-37). (AR 1-4). decision of The the Plaintiff filed the instant action on (Dkt. No. 3). 2 1 III. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate 6 impairment that prevents her from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d a medically 715, 721 determinable (9th Cir. 1998) physical or mental Reddick v. Chater, (citing 42 U.S.C. § 10 423(d)(1)(A)). 11 of performing the work she previously performed and incapable of 12 performing any other substantial gainful employment that exists 13 in the national economy. 14 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant incapable Tackett v. Apfel, 180 F.3d 1094, 1098 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 The steps are: 20 C.F.R. §§ 404.1520, 416.920. 19 20 (1) Is the claimant presently engaged in substantial 21 gainful activity? 22 not disabled. 23 (2) If so, the claimant is found If not, proceed to step two. Is the claimant’s impairment severe? 24 claimant is found not disabled. 25 If not, the to step three. 26 (3) If so, proceed Does the claimant’s impairment meet or equal one 27 of 28 C.F.R. Part 404, Subpart P, Appendix 1? the specific impairments 3 described in 20 If so, 1 the claimant is found disabled. 2 to step four. 3 (4) If not, proceed Is the claimant capable of performing his past 4 work? 5 If not, proceed to step five. 6 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? 7 not, the claimant is found disabled. 8 If claimant is found not disabled. If so, the 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 11 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 12 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 13 14 The claimant has the burden of proof at steps one through 15 four, and the Commissioner has the burden of proof at step five. 16 Bustamante, 262 F.3d at 953-54. 17 affirmative duty to assist the claimant in developing the record 18 at every step of the inquiry. 19 claimant meets her burden of establishing an inability to perform 20 past 21 perform some other work that exists in “significant numbers” in 22 the national economy, taking into account the claimant’s residual 23 functional capacity (“RFC”), age, education, and work experience. 24 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 25 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 26 so by the testimony of a vocational expert (“VE”) or by reference 27 to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 28 404, work, the Subpart P, Commissioner Appendix 2 Additionally, the ALJ has an Id. at 954. must show (commonly 4 If, at step four, the that the claimant can The Commissioner may do known as “the Grids”). 1 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 2 claimant 3 exertional limitations, the Grids are inapplicable and the ALJ 4 must take VE testimony. 5 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th 6 Cir. 1988)). has both exertional (strength-related) When a and non- Moore v. Apfel, 216 F.3d 864, 869 (9th 7 8 IV. 9 THE ALJ’S DECISION 10 11 The 12 process. 13 engaged 14 application date of January 26, 2011.1 15 the ALJ found that Plaintiff had the severe physical impairments 16 of cervical disc bulges at two levels of the cervical spine and 17 one level of the lumbar spine, a stable bilateral old pars defect 18 at L5-S1, a history of bilateral carpal syndrome, and a history 19 of seizure disorder. 20 brain showed a lacunar infarct in the right basal ganglia and 21 mild periventricular small vessel ischemic changes, but concluded ALJ employed the five-step sequential evaluation At step one, the ALJ found that Plaintiff had not in substantial gainful (Id.). employment since (AR 30). her SSI At step two, The ALJ noted that a CT scan of the 22 1 23 24 25 26 27 28 Plaintiff’s alleged disability onset date is at issue in this case. (See Plaintiff’s Memorandum in Support of Relief Requested in Plaintiff’s Complaint (the “MSC”), Dkt. No. 13, at 6-7; Defendant’s Memorandum in Support of Answer (“Defendant’s Memo”), Dkt. No. 14, at 4). The ALJ did not refer to a disability onset date in his decision. The ALJ used Plaintiff’s SSI application date to establish the date that Plaintiff ceased substantial gainful activity and to determine which medical evidence was probative. (AR 30). In her SSI application, Plaintiff listed her last date of employment as April 2005, although she worked at a state fair for eleven days in 2008. (AR 163). 5 1 that there were no “acute intracranial abnormalities.” 2 The ALJ also noted that an examining psychologist and a non- 3 examining psychiatrist both diagnosed depressive disorder (id.), 4 but found any related mental impairment nonsevere. (AR 31). (AR 32). 5 6 At step three, the ALJ found that Plaintiff did not have an 7 impairment or combination of impairments that met or medically 8 equaled the severity of an impairment listed in 20 C.F.R. Part 9 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 10 416.926). 11 consulting physician concluded that any of [Plaintiff’s] alleged 12 impairments met or equaled listing level severity.” 13 ALJ 14 functional limitations on [Plaintiff],” and termed all of the 15 objective medical evidence of record “mild.” 16 then found that Plaintiff had the following RFC: also (AR found 33). that The ALJ “[n]o found physician that “[n]o imposed treating (Id.). multiple (Id.). or The marked The ALJ 17 18 [Plaintiff] has the residual functional capacity to 19 perform light work as defined in 20 CFR 416.967(b) 20 except [Plaintiff] is limited to occasional bending 21 and 22 occasionally and 10 pounds frequently. 23 stand, or walk up to 6 hours in an 8-hour workday. stooping. She can lift or carry 20 pounds She can sit, 24 25 (Id.). 26 27 28 In making this finding, the ALJ indicated that he had considered all of Plaintiff’s symptoms and their consistency with 6 1 the 2 C.F.R. § 416.929 and Social Security Rulings (“SSRs”) 96-4p and 3 96-7p. 4 required by 20 C.F.R. 416.927 and SSRs 96-2p, 96-5p, 96-6p and 5 06-3p. 6 impairments could reasonably be expected to produce her pain and 7 other symptoms, he concluded that Plaintiff’s testimony was not 8 credible to the extent that she alleged an inability to work. 9 (Id.). objective medical (Id.). and other evidence, as required by 20 The ALJ also considered opinion evidence as (Id.). Although the ALJ found that Plaintiff’s 10 11 At step four, the ALJ found that Plaintiff was capable of 12 performing her past relevant work as a clerk/cashier, which the 13 ALJ found “light, semiskilled work.” 14 the alternative” the ALJ provided a step-five analysis, and found 15 that 16 experience and RFC, she could perform a number of other jobs 17 available in significant numbers in the national economy. 18 The ALJ opined that Plaintiff’s limitations did not permit her to 19 perform the full range of “light,” unskilled jobs. 20 However, 21 concluded 22 “representative” occupations requiring 23 marker or an office helper. (AR 34). 24 that Plaintiff could perform one sedentary job, as a cashier in a 25 check cashing agency. 26 that Plaintiff was not disabled. 27 \\ 28 \\ based on based that Plaintiff’s on the age, educational vocational Plaintiff could (AR 35). expert’s perform (AR 34, 78). background, the work (Id.). (AR 36). testimony, light the ALJ requirements work, such as of a The ALJ also concluded Accordingly, the ALJ found (AR 36). 7 However, “[i]n 1 V. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. 6 decision aside when the ALJ’s findings are based on legal error 7 or are not supported by substantial evidence in the record as a 8 whole. 9 (citing Tackett, 180 F.3d at 1097). The court may set the Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) “Substantial evidence is 10 more than a scintilla, but less than a preponderance.” 11 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 12 (9th Cir. 1997)). 13 person might accept as adequate to support a conclusion.” Id. 14 (citing Jamerson, 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 15 1273, 1279 (9th Cir. 1997)). Reddick, It is “relevant evidence which a reasonable 16 17 To determine whether substantial evidence supports a 18 finding, 19 weighing both evidence that supports and evidence that detracts 20 from the [Commissioner’s] conclusion.’” 21 1035 22 1993)). 23 or reversing that conclusion, the court may not substitute its 24 judgment for the Commissioner’s. 25 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 26 \\ 27 \\ 28 \\ the (quoting court Penny must v. “‘consider Sullivan, 2 the F.3d record as a whole, Aukland, 257 F.3d at 953, 956 (9th Cir. If the evidence can reasonably support either affirming 8 Reddick, 157 F.3d at 720-21 1 VI. 2 DISCUSSION 3 4 Plaintiff asserts that the ALJ “derogated his duties to 5 [Plaintiff] by failing to review all pertinent evidence and by 6 not procuring clarification” from Plaintiff’s treating physician. 7 (Plaintiff’s 8 Plaintiff’s Complaint (the “MSC”), Dkt. No. 13, at 6). 9 claims that “[i]t is unclear whether [Plaintiff] actually amended 10 her alleged onset date” during the ALJ Hearing, from April 11, 11 2005, as listed on her SSI application, to January 26, 2011, the 12 date 13 application. 14 however, Plaintiff asserts that the ALJ was obligated to consider 15 medical 16 consultative 17 application date. 18 capacity adopted by the ALJ failed to account for limitations 19 assessed by these physicians, Plaintiff contends that the RFC did 20 not properly reflect Plaintiff’s true capabilities. that Memorandum an Agency (Id.). evidence in Support interviewer of began Relief Requested preparing in Plaintiff Plaintiff’s Regardless of which onset date applies, from Plaintiff’s examining physician (MSC at 6-7). treating that physician predated and a Plaintiff’s Because the residual functional (MSC 7-8). 21 22 Plaintiff also asserts that the ALJ failed to provide “clear 23 and 24 Plaintiff’s testimony about the severity of her symptoms. 25 the 26 contentions. 27 this action remanded for further proceedings. 28 \\ convincing following reasons” reasons, for the rejecting Court the agrees credibility with of For Plaintiff’s Therefore, the ALJ’s decision must be reversed and 9 1 A. The ALJ Failed To Consider And Properly Credit Objective 2 Medical Evidence From Treating And Examining Physicians When 3 Assessing Plaintiff’s Residual Functional Capacity 4 5 Social Security regulations require the ALJ to consider all 6 relevant medical evidence when determining whether a claimant is 7 disabled. 8 physicians 9 opportunity to know and observe the patient as an individual, 10 their opinions are given greater weight than the opinions of 11 other physicians.” 12 may 13 findings setting forth specific, legitimate reasons for doing so 14 that are based on substantial evidence in the record.” 15 (internal quotation marks and citation omitted). 16 treating 17 examining 18 carries more weight than a reviewing physician’s.” 19 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). 20 the opinion of a treating doctor, the opinion of an examining 21 doctor, 22 rejected for specific and legitimate reasons that are supported 23 by substantial evidence in the record.” 24 F.3d 821, 830-31 (9th Cir. 1995), as amended (Apr. 9, 1996) 25 (citation omitted). not 20 C.F.R. §§ 404.1520b, 416.927(c). are reject employed treating physician’s, if cure and thus Smolen, 80 F.3d at 1285. physician’s even to physicians’ opinion and contradicted by have more examining another a greater “Therefore, an ALJ opinions carries an “Because treating unless he makes Id. “Generally, a weight than physician’s an opinion Holohan v. However, “like doctor, can only be Lester v. Chater, 81 26 27 As a threshold matter, the Commissioner contends that during 28 the ALJ Hearing, Plaintiff, acting through counsel, amended her 10 1 alleged disability onset date to January 26, 2011, the same date 2 that she filed her SSI application. 3 Support 4 Therefore, the Commissioner asserts, the July 14, 2007 assessment 5 of 6 Plaintiff to sedentary work, is “simply irrelevant.” 7 also AR 284-88). of Answer examining (“Defendant’s orthopedist (Defendant’s Memorandum in Memo”), Robyn Sato, Dkt. No. D.O., 14, at which 4). limited (Id.; see The Court disagrees. 8 9 Although Plaintiff’s counsel proposed to amend the alleged 10 disability 11 affirmatively granted this request. 12 the ALJ did not identify any alleged disability onset date in his 13 decision. 14 medical 15 probative 16 medical condition since January 26, 2011, her application date.” 17 (AR 30 (emphasis added)). 18 matter 19 Hearing and did not address this question at all in his decision, 20 the 21 considered to be “at issue.” onset Court during the ALJ Hearing, the ALJ (See AR 60-61). never Moreover, To the contrary, the ALJ specified that “[m]any of the records of date weight predate because Plaintiff’s cannot the period they do not issue and concern are of no [Plaintiff’s] Because the ALJ did not resolve the disability determine at the onset precise date during period that the the ALJ ALJ 22 23 Moreover, even assuming, arguendo, that Plaintiff amended 24 her alleged onset date to January 26, 2011, medical evidence of 25 record predating that period is not automatically irrelevant in 26 determining 27 § 416.927(c) (“Regardless of its source, we will evaluate every 28 medical opinion we receive.”); Carmickle v. Comm’r, Soc. Sec. whether Plaintiff was 11 disabled. See 20 C.F.R. 1 Admin., 2 omitted)(medical 3 relevant); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) 4 (evidence predating alleged onset date relevant for showing that 5 condition worsened over time). 6 of clarity regarding the alleged onset date also resulted in an 7 ambiguous medical record, the ALJ was obligated to supplement the 8 record with additional evidence. 9 683, 533 687 10 available 11 F.3d (9th 1155, 1165 opinions Cir. (9th that 2005). Cir. predate 2008) onset (citation date may be Further, to the extent the lack See Webb v. Barnhart, 433 F.3d Here, such evidence was readily records that the declined inter alia, consider. among treatment ALJ to 12 13 Plaintiff has alleged, head, neck, and back 14 injuries, seizures, difficulties maintaining balance and carpal 15 tunnel syndrome. 16 diagnosed 17 syndrome. (AR 287). 18 based” gait, swayed while walking, had difficulty walking on her 19 heals 20 examination table. 21 account of sustaining a head injury when a heavy object fell on 22 her at the thrift store where she previously worked. 23 Plaintiff also had a “somewhat limited” range of motion in her 24 cervical region, some diffuse hyperreflexias, and a questionable 25 Hoffman’s reflex on the right side. and head, toes, (AR 162). neck, and and In her 2007 examination, Dr. Sato low back pain and carpal tunnel She observed that Plaintiff had a “wide- had difficulty (AR 285-86). getting on and off the Dr. Sato noted Plaintiff’s (AR 285). (AR 287). 26 27 Dr. Sato concluded that Plaintiff could stand or walk for 28 less than two hours in an eight-hour work day and could sit for 12 1 less than six hours, with a need for frequent position changes. 2 (AR 287). 3 but could lift and carry no more than ten pounds frequently or 4 occasionally. 5 stooping 6 limited 7 “sedentary.” 8 “involves 9 Although 10 sitting, 11 necessary 12 walking 13 sedentary criteria are met.”). Plaintiff did not need an assistive device to walk, or (AR 288). crouching. Plaintiff to See lifting Plaintiff (Id.). work 20 more a sedentary job a certain amount in carrying and standing Dr. that C.F.R. no out than limited Sato’s the § is was Agency pounds as of walking and job duties. Jobs are required thus classifies as (sedentary work a . at defined bending, assessment 404.967(a) 10 in one time. which standing are . involves is often sedentary occasionally . and if other 14 15 Dr. Sato’s assessment of Plaintiff’s functional limitations 16 contradicts the residual functional capacity adopted by the ALJ, 17 who 18 sitting, standing and walking for up to six hours of an eight- 19 hour day and capable of carrying twenty pounds occasionally. 20 33; see also 20 C.F.R. § 404.967(b)). 21 no mention of Dr. Sato’s report and, accordingly, the ALJ did not 22 provide 23 opinions in favor of contradictory reports from other physicians. 24 Therefore, 25 functional limitations assessed by this physician. found Plaintiff specific remand and is capable of legitimate necessary “light” that requires (AR The ALJ’s decision makes reasons in work for order rejecting to consider these the 26 27 The ALJ’s selective citation of medical records predating 28 Plaintiff’s SSI application date also weakens his assertion that 13 1 such records should be discounted. 2 here, the ALJ noted the existence of several treatment records 3 from Plaintiff’s primary care physician, Carlos O’Bryan, M.D.,2 4 dated from July 1, 2010 to October 21, 2010. 5 324-25, 6 physicians made “few medical findings” during this period (AR 7 31), Dr. O’Bryan made a number of findings that are directly 8 relevant to Plaintiff’s allegations. 328-32). Although the (See AR 30-31). ALJ opined Of relevance (AR 31, 317-22, that Plaintiff’s 9 10 For example, On July 1, 2010, Dr. O’Bryan diagnosed chronic 11 low back pain and prescribed Soma.3 12 Dr. O’Bryan added prescriptions for Neurontin, an anti-seizure 13 medication, and chlorthalidone.4 14 diagnosed 15 neurological consultation.5 16 2 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff with (AR 321). On July 22, 2010, On August 10, 2010, Dr. O’Bryan ataxia and (AR 332). ordered an MRI and a On August 19, 2010, Dr. The ALJ attributed these records to Ventura County Medical Center without naming Dr. O’Bryan, a physician in that facility’s Family Care Center. Elsewhere in his decision, the ALJ identified Dr. O’Bryan as “Dr. Bryan,” as did Plaintiff’s MSC and Reply (Dkt. No. 15). 3 Soma, a brand-name version of carisoprodol, is a muscle relaxant prescribed to relieve pain and discomfort from sprains, strains and other muscle injuries. See MEDLINEPLUS, (last visited June 26, 2015). 4 Neurontin, a brand-name version of gabapentin, is in a class of medications called anticonvulsants. Chlorthalidone is a “water pill” used to treat high blood pressure and fluid retention. See MEDLINEPLUS, and enter drug name (last visited June 26, 2015). 5 “Ataxia often occurs when parts of the nervous system that control movement are damaged. People with ataxia experience a failure of muscle control in their arms and legs, resulting in a lack of balance and coordination or a disturbance of gait.” See Ataxia Information Page, National Institute of Neurological Disorders and Stroke website, disorders/ataxia/ataxia.htm (last visited June 24, 2015). 14 1 O’Bryan ordered further tests for Plaintiff’s ataxia and ordered 2 a brain MRI and additional tests to try to establish a basis for 3 it. 4 “wide-based” and antalgic gait. 5 prescriptions provide relevant evidence of Plaintiff’s alleged 6 back pain, seizures, and balance problems. (AR 319). Dr. O’Bryan also observed Plaintiff’s “stiff,” (Id.). These diagnoses and (See AR 162). 7 8 9 The ALJ could not discount this physician’s opinions without providing specific and legitimate reasons for doing so. Smolen, 10 80 F.3d at 1285. 11 treatment records from Dr. Bryan [sic] in the record,” and that 12 this 13 questionnaire 14 discuss clinical findings.” 15 are contradicted by the record. 16 dated June 29, 2011, limited Plaintiff to sedentary work. 17 AR 18 questionnaire was “unsupported medical [sic] and conflicted with 19 the other functional capacity assessments in the record.” 20 35). However, the ALJ stated that “[t]here are no physician’s 383). findings which “on The were checked ALJ he limited (AR 35). a few to a single boxes and form did not These statements, however, Furthermore, the questionnaire, discredited this assessment (See because the (AR 21 22 This finding was inaccurate both because Dr. O’Bryan’s 23 treatment reports appear in the record and because his functional 24 capacity 25 walking for no more than two hours in an eight-hour day, was 26 largely identical to Dr. Sato’s assessment.6 assessment, which limited Plaintiff to standing or (Compare AR 287-88 27 6 28 In fact, Dr. O’Bryan’s assessment was more restrictive than Dr. Sato’s in that it limited Plaintiff to no more than two hours of 15 1 with AR 383). 2 medical 3 Plaintiff’s allegations. 4 assessments and, to the extent they were contradicted by other 5 evidence of record, to provide specific and legitimate reasons 6 for rejecting them. 7 allegations may be evaluated on the basis of the complete range 8 of medical evidence in this case, and in order to resolve the 9 discrepancies 10 Dr. O’Bryan’s treatment records therefore contain evidence relevant to establishing the bases for The ALJ was required to evaluate these Remand is necessary so that Plaintiff’s between the adopted RFC and the functional assessments of Drs. Sato and O’Bryan. 11 12 The ALJ also cited an April 11, 2010, consultative 13 examination by Shahrzad Sodagar-Marvasti, M.D. 14 ALJ, Plaintiff told Dr. Sodagar-Marvasti that she suffered from a 15 seizure disorder but “had experienced only one seizure and that 16 the seizure had occurred a year prior to the evaluation.” 17 31, 312). 18 treatment record, which noted that Plaintiff “had a seizure a 19 year ago,” but did not state that Plaintiff claimed to have According to the (AR This statement overlooks Dr. Sodagar-Marvasti’s entire 20 21 22 23 24 25 26 27 28 sitting at a time and found that Plaintiff would be likely to miss more than four days of work per month due to her impairments. (Id.). The VE identified only one sedentary job Plaintiff could allegedly perform given the residual functional capacity that the ALJ adopted. (AR 78). However, this job, as a cashier in a check cashing agency, also required sitting for six out of eight hours, a capability beyond the functional capacity Dr. O’Bryan assessed. (Compare AR 78 with AR 383). In addition, the VE opined that only 500 such positions exist in California and 10,000 nationwide. (AR 78). On remand, the ALJ must assess the availability of alternative work consistent with a revised RFC and also determine whether such jobs exist in “significant” numbers in the national economy. See Tackett, 180 F.3d at 1101. 16 1 suffered only one seizure.7 2 that Plaintiff “admitted” that her cane had not been prescribed 3 by a doctor. 4 is 5 neurologist Kofi Kessey, M.D., who noted that Plaintiff “requires 6 an assistive device” and used a walker. 7 that the ALJ relied on Dr. Sodagar-Marvasti’s examination records 8 to 9 problem or a seizure disorder, on remand the ALJ should consider (AR 31).8 contradicted show 10 Dr. 11 that by an (See AR 312). (See AR 313). October Plaintiff did 15, not The ALJ also stated However, this statement 2010 treatment (AR 327). have a record of To the extent disabling ambulation issue. Kessey’s records and all other medical evidence on this 12 13 Finally, the ALJ notes non-examining medical consultant Lucy 14 Sauer, M.D.’s conclusion that Plaintiff’s medical records do not 15 including treatment for a seizure disorder. 16 Sauer’s conclusion is, however, contradicted by the evidence of 17 record. 18 Santa Paula Hospital. 19 O’Bryan prescribed Neurontin, an anti-seizure medication. 20 320). 21 basal ganglia and small vessel ischemic changes.9 (AR 31, 349). Dr. On April 16, 2009, Plaintiff was treated for seizure at (AR 298-301). On July 22, 2010, Dr. (AR Plaintiff also suffered a lacunar infarct of the right (AR 353). All 22 23 24 25 26 27 28 7 At the ALJ Hearing, Plaintiff testified that she had had three seizures, beginning approximately three years earlier. (AR 68). 8 At the ALJ Hearing, Plaintiff testified that her cane was prescribed but she could not afford to purchase one. (AR 69). Therefore, “one was given to me.” (Id.). 9 A lacunar infarct is an area of dead brain tissue caused by the occlusion of small blood vessels and indicative of stroke. See National Institute of Neurological Disorders and Stroke website, (last visited June 26, 2015). 17 1 of 2 seizure disorder or of a potential cause for such a disorder. 3 “When a nontreating physician’s opinion contradicts that of the 4 treating physician -- but is not based on independent clinical 5 findings, or rests on clinical findings also considered by the 6 treating physician -- the opinion of the treating physician may 7 be rejected only if the ALJ gives ‘specific, legitimate reasons 8 for 9 record.’” these doing objective so that findings are are based on evidence of substantial treatment evidence for in a the Morgan v. Comm’r, 169 F.3d 595, 600 (9th Cir. 1999) 10 (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 11 Accordingly, 12 contradicted by substantial medical evidence of record, remand is 13 necessary for further consideration of this evidence. to the extent that Dr. Sauer’s assessment is 14 15 B. 16 The ALJ Did Not Provide Clear And Convincing Reasons To Reject Plaintiff’s Subjective Testimony And Credibility 17 18 Plaintiff contends that the ALJ did not provide any specific 19 reason for finding Plaintiff less than fully credible. 20 2). 21 Court cannot conclude that the ALJ provided clear and convincing 22 evidence for discounting Plaintiff’s subjective evidence. (MSC at Although the ALJ arguably provided two such reasons, the 23 24 When assessing a claimant’s credibility, the ALJ must engage 25 in a two-step analysis. 26 (9th Cir. 2012). 27 medical evidence of an impairment that could reasonably produce 28 the symptoms Molina v. Astrue, 674 F.3d 1104, 1112 First, the ALJ must determine if there is alleged. (Id.). 18 If the claimant meets this 1 threshold and there is no affirmative evidence of malingering, 2 “the ALJ can reject the claimant's testimony about the severity 3 of her symptoms only by offering specific, clear and convincing 4 reasons for doing so.” 5 (9th 6 credibility evaluation” during this inquiry. 7 1284. 8 claimant’s conduct and any inadequately explained or unexplained 9 failure to pursue or follow treatment. Cir. 2008). Tommasetti v. Astrue, 533 F.3d 1035, 1039 The ALJ may use “ordinary techniques of Smolen, 80 F.3d at The ALJ may also consider any inconsistencies in the Tommasetti, 533 F.3d at 10 1039. 11 ability to perform daily activities that are transferrable to the 12 workplace to discredit her testimony about an inability to work. 13 Morgan, 169 F.3d at 600. Additionally, the ALJ may use evidence of the claimant’s 14 15 Here, because the ALJ failed to consider substantial medical 16 evidence 17 satisfied the first step of this two-step analysis. 18 even 19 regarding Plaintiff’s medically determinable impairments on all 20 of the available medical evidence, the ALJ failed to provide 21 clear and convincing reasons for his conclusion that Plaintiff’s 22 testimony “was generally credible, but not to the extent she 23 alleged an inability to perform any work.” of record, assuming, the arguendo, Court that cannot the ALJ conclude based that his the ALJ Moreover, conclusions (AR 33). 24 25 The ALJ noted that Plaintiff was no longer taking any pain 26 medication, 27 medical evidence of record, which included a series of alleged 28 disabilities that were unrelated to excessive pain. but did not describe 19 how this contradicted the (See AR 34). 1 The ALJ also observed that Plaintiff “has not had surgery and no 2 surgery has been advised,” but did not discuss what kind of 3 surgery 4 impairments. 5 Plaintiff’s subjective 6 credibility. (Id.). 7 she needed assistance to get dressed, performed few household 8 chores, ceased driving, went nowhere alone, used a cane daily, 9 fell frequently and could lift “less than a gallon of milk in might have (See been relevant id.). The to ALJ claims Plaintiff’s then listed without alleged several assessing of their These included Plaintiff’s contentions that 10 weight.” 11 tend 12 rather than calling them into question. 13 ALJ 14 discounting Plaintiff’s claims. to (Id.). These claims, which the ALJ did not challenge, substantiate did not Plaintiff’s provide “clear alleged and physical (See id.). convincing impairments In sum, the evidence” for 15 16 In a disability benefits case, “[r]emand for further 17 administrative proceedings is appropriate if enhancement of the 18 record would be useful.” 19 (9th Cir. 2004). 20 benefits 21 legally sufficient reasons for rejecting the evidence; (2) there 22 are 23 determination of disability can be made; and (3) it is clear from 24 the record that the ALJ would be required to find the claimant 25 disabled were such evidence credited.” 26 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). 27 \\ 28 \\ no [is Benecke v. Barnhart, 379 F.3d 587, 593 In contrast, “remand for an immediate award of appropriate] outstanding issues if (1) that 20 the must ALJ be failed resolved to provide before a Id. (citing Harman v. 1 Here, the record does not establish that all issues in this 2 action have been resolved or that the ALJ would be required to 3 find Plaintiff disabled if the treating and examining physicians’ 4 opinions were credited. 5 for further proceedings. 6 record further to determine whether the treating and examining 7 physicians’ opinions, if credited, would establish a disability. 8 If 9 physicians, he must provide specific and legitimate reasons for 10 doing so, supported by substantial evidence in the record as a 11 whole. 12 asserts 13 severity of her symptoms lacks credibility, he must also provide 14 clear 15 limitations. the ALJ discounts Therefore, this action must be remanded On remand, the ALJ must develop the the opinions of Aukland, 257 F.3d at 1037. that and Plaintiff’s convincing and examining To the extent that the ALJ subjective evidence treating testimony for regarding rejecting the her stated be entered Tommasetti, 533 F.3d at 1039. 16 17 VII. 18 CONCLUSION 19 20 Accordingly, IT IS ORDERED that judgment 21 REVERSING the decision of the Commissioner and REMANDING this 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 21 1 matter for further proceedings consistent with this decision. IT 2 IS FURTHER ORDERED that the Clerk of the Court serve copies of 3 this Order and the Judgment on counsel for both parties. 4 5 DATED: July 1, 2015 6 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 7 8 9 10 NOTICE 11 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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