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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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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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.

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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

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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

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1

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24
25
26
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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

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28

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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

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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,
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682578.html (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, http://www.nlm.nih.gov/medlineplus/druginformation.html
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,
http://www.ninds.nih.gov/
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,
http://www.ninds.nih.gov/disorders/stroke/detail_stroke.htm (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

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27

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28

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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.

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