Jason Gregory County v. Carolyn W Colvin
Filing
25
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. (See document for further details). (mr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JASON GREGORY COUNTY,
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No. CV 16-3592 SS
Plaintiff,
13
v.
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MEMORANDUM DECISION AND ORDER
NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,
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Defendant.
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I.
21
INTRODUCTION
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23
Jason Gregory County (“Plaintiff”) seeks review of the final
24
decision of the Commissioner of the Social Security Administration
25
(the “Commissioner” or the “Agency”) denying his application for
26
social security benefits.
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28
The parties consented, pursuant to
Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
1
1
28 U.S.C. § 636(c), to the jurisdiction of the undersigned United
2
States
3
decision of the Commissioner is REVERSED and this case is REMANDED
4
for
5
decision.
Magistrate
further
Judge.
For
administrative
the
reasons
proceedings
stated
consistent
below,
the
with
this
claimant
must
6
7
II.
8
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
9
10
To
qualify
for
disability
benefits,
a
11
demonstrate a medically determinable physical or mental impairment
12
that prevents him from engaging in substantial gainful activity
13
and that is expected to result in death or to last for a continuous
14
period of at least twelve months.
15
721
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impairment must render the claimant incapable of performing the
17
work he previously performed and incapable of performing any other
18
substantial gainful employment that exists in the national economy.
19
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing
20
42 U.S.C. § 423(d)(2)(A)).
(9th
Cir.
1998)
(citing
42
Reddick v. Chater, 157 F.3d 715,
U.S.C.
§ 423(d)(1)(A)).
The
21
22
To decide if a claimant is entitled to benefits, an ALJ
23
conducts a five-step inquiry.
24
steps are:
20 C.F.R. §§ 404.1520, 416.920.
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26
(1)
Is the claimant presently engaged in substantial
27
gainful activity?
28
disabled.
If so, the claimant is found not
If not, proceed to step two.
2
The
1
(2)
Is the claimant’s impairment severe?
2
claimant is found not disabled.
3
If not, the
step three.
4
(3)
If so, proceed to
Does the claimant’s impairment meet or equal one of
5
the specific impairments described in 20 C.F.R.
6
Part 404, Subpart P, Appendix 1?
7
claimant is found disabled.
8
step four.
9
(4)
If so, the
If not, proceed to
Is the claimant capable of performing his past
10
work?
11
If not, proceed to step five.
12
(5)
If so, the claimant is found not disabled.
Is the claimant able to do any other work?
If not,
13
the claimant is found disabled. If so, the claimant
14
is found not disabled.
15
16
Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
17
262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R.
18
§§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).
19
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The claimant has the burden of proof at steps one through
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four, and the Commissioner has the burden of proof at step five.
22
Bustamante, 262 F.3d at 953-54.
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affirmative duty to assist the claimant in developing the record
24
at every step of the inquiry.
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claimant meets his burden of establishing an inability to perform
26
past work, the Commissioner must show that the claimant can perform
27
some
28
national economy, taking into account the claimant’s residual
other
work
that
exists
Additionally, the ALJ has an
Id. at 954.
in
3
If, at step four, the
“significant
numbers”
in
the
1
functional capacity (“RFC”), age, education, and work experience.
2
Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20
3
C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
4
so by the testimony of a vocational expert or by reference to the
5
Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,
6
Subpart P, Appendix 2 (commonly known as “the Grids”).
7
v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).
8
has
9
limitations, the Grids are inapplicable and the ALJ must take the
both
exertional
The Commissioner may do
(strength-related)
Osenbrock
When a claimant
and
non-exertional
10
testimony of a vocational expert.
11
869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340
12
(9th Cir. 1988)).
Moore v. Apfel, 216 F.3d 864,
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III.
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THE ALJ’S DECISION
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The ALJ employed the five-step sequential evaluation process
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in evaluating Plaintiff’s case.
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Plaintiff met the insured status requirements of the Act through
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December 31, 2015, and had not engaged in substantial gainful
21
activity since June 8, 2010, his alleged onset date.
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Administrative Record (“AR”) 30).
23
Plaintiff
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herpetic
meningoencephalitis;
25
disorder
due
26
associated with general medical condition.
27
that Plaintiff’s medically determinable impairment of “abdominal
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pain and problems” was nonsevere.
had
the
to
following
general
At step one, the ALJ found that
At step two, the ALJ found that
severe
impairments:
vascular
medical
4
(Certified
headache
condition;
(AR 31).
history
syndrome;
and
(AR 30).
pain
of
mood
disorder
The ALJ ruled
1
At step three, the ALJ found that Plaintiff did not have an
2
impairment or combination of impairments that met or medically
3
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart
4
P, Appendix 1. (AR 31-32).
5
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At step four, the ALJ determined that Plaintiff had the RFC
7
to perform light work with the following limitations: lift and
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carry 20 pounds occasionally and 10 pounds frequently; stand, walk,
9
and/or sit for six hours in an eight-hour workday; occasionally
10
climb ladders, ropes, and scaffolds; frequently climb ramps and
11
stairs; “should avoid” concentrated exposure to hazards; limited
12
to work involving simple repetitive tasks, no more than occasional
13
contact with coworkers, and no public contact.
(AR 32).
14
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In determining Plaintiff’s RFC, the ALJ partially rejected
16
the
17
Wendel, Ph.D. as inconsistent with Dr. Wendel’s own notes and with
18
other medical evidence.
19
written by Plaintiff’s treating neurologist, Dr. Pari Young, M.D.,
20
but the ALJ did not assign this letter any particular weight.
21
36).
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agency medical consultants, but he rejected a 2011 State agency
23
assessment on an earlier disability application as “overstat[ing]”
24
Plaintiff’s condition.
opinion
of
psychiatric
consultative
(AR 36).
examiner
Dr.
Isadore
The ALJ also discussed a letter
(AR
The ALJ assigned “great weight” to the opinions of State
(AR 37).
25
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At step four, the ALJ determined that Plaintiff could not
27
perform his past relevant work.
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considered Plaintiff’s age, education, work experience, and RFC
(AR 37).
5
At step five, the ALJ
1
and
2
significant numbers in the national economy, including small parts
3
assembler, garment folder, and textile assembler.
4
Accordingly, the ALJ concluded that Plaintiff was not disabled
5
under the Agency’s rules.
concluded
that
Plaintiff
could
perform
jobs
available
in
(AR 37-38).
(AR 39).
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IV.
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STANDARD OF REVIEW
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Under 42 U.S.C. § 405(g), a district court may review the
11
Commissioner’s decision to deny benefits.
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the Commissioner’s decision when the ALJ’s findings are based on
13
legal error or are not supported by “substantial evidence” in the
14
record as a whole.
15
(9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.
16
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,
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885 F.2d 597, 601 (9th Cir. 1989)).
The court may set aside
Aukland v. Massanari, 257 F.3d 1033, 1035
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“Substantial evidence is more than a scintilla, but less than
20
a preponderance.”
21
Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).
22
evidence which a reasonable person might accept as adequate to
23
support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066;
24
Smolen,
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evidence supports a finding, the court must “‘consider the record
26
as a whole, weighing both evidence that supports and evidence that
27
detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d
28
at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
80
F.3d
Reddick, 157 F.3d at 720 (citing Jamerson v.
at
1279).
To
6
determine
It is “relevant
whether
substantial
1
1993)).
2
or reversing that conclusion, the court may not substitute its
3
judgment for that of the Commissioner.
4
21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).
If the evidence can reasonably support either affirming
Reddick, 157 F.3d at 720-
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V.
7
DISCUSSION
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9
Plaintiff alleges that the ALJ erred in three ways.
First,
10
Plaintiff contends that the ALJ improperly rejected his subjective
11
complaints as not entirely credible.
12
Points and Authorities (“Plaintiff’s Memo”) at 3-6).
13
Plaintiff contends that the ALJ erred in assessing an RFC that did
14
not
15
irritable bowel syndrome (“IBS”).
16
contends that the ALJ improperly analyzed medical evidence from
17
Dr. Wendel and Dr. Young, as well as the findings of the State
18
agency consultants.
include
limitations
related
to
(Plaintiff’s Memorandum of
Plaintiff’s
(Id. at 6-8).
Second,
headaches
and
Third, Plaintiff
(Id. at 8-11).
19
20
For
the
reasons
discussed
below,
the
Court
agrees
with
21
Plaintiff that this case should be remanded to permit the ALJ to
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properly evaluate the medical evidence from Dr. Young and the State
23
agency consultants and assess an RFC that properly accounts for
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Plaintiff’s headaches and IBS.2
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Because the Court remands on these grounds, it is unnecessary to
address Plaintiff’s arguments regarding the ALJ’s rejection of
Plaintiff’s subjective complaints.
2
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1
The
2
Impairments Supported By The Record, And The ALJ Did Not
3
Properly Evaluate The Medical Evidence
ALJ’s
RFC
Failed
To
Include
Limitations
For
All
4
5
A.
Legal Standards
6
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During step four of the five-step process, the ALJ must make
8
a threshold determination as to the claimant’s residual function.
9
This determination is an administrative finding reached after
10
consideration
11
diagnoses,
12
Plaintiff’s own subjective symptoms. See generally Social Security
13
Ruling (“SSR”) 96-5p, 1996 WL 374183 (SSA 1996).
14
a claimant can still do despite existing limitations.
15
C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at
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*1-*2 (SSA 1996) (“RFC is an assessment of an individual’s ability
17
to do sustained work-related physical and mental activities in a
18
work setting on a regular and continuing basis. A ‘regular and
19
continuing basis’ means 8 hours a day, for 5 days a week, or an
20
equivalent work schedule.”); Cooper v. Sullivan, 880 F.2d 1152,
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1155 n.5 (9th Cir. 1989). In evaluating RFC, the ALJ must “consider
22
subjective symptoms such as fatigue and pain.”
23
1291.
of
all
treatment,
the
relevant
observations,
evidence,
medical
including
records,
and
the
the
The RFC is what
See 20
Smolen, 80 F.3d at
24
25
In evaluating a claimant’s RFC, an ALJ must properly analyze
26
the medical evidence.
27
(9th Cir. 2012).
28
social security cases:
See Hill v. Astrue, 698 F.3d 1153, 1159-60
There are three types of medical opinions in
the opinions of (1) treating physicians
8
1
who examine and treat, (2) examining physicians who examine but do
2
not treat, and (3) non-examining physicians who neither examine
3
nor treat.
4
Opinions of treating physicians are given the greatest weight
5
because treating physicians are “employed to cure and [have] a
6
greater
7
individual.”
8
1989); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
9
Accordingly, where a treating physician’s opinion is refuted by
Valentine v. Comm’r, 574 F.3d 685, 692 (9th Cir. 2009).
opportunity
to
know
and
observe
the
patient
as
an
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
10
another
11
providing specific and legitimate reasons supported by substantial
12
evidence in the record.
13
Cir. 1996) (ALJ must provide clear and convincing reasons for
14
rejecting an unrefuted treating physician’s opinions); see also
15
Ryan v. Comm’r, 528 F.3d 1194, 1198 (9th Cir. 2008).
doctor,
the
ALJ
may
not
reject
this
opinion
without
Lester v. Chater, 81 F.3d 821, 830-31 (9th
16
17
B.
Analysis
18
19
At step four, the ALJ determined that Plaintiff had the RFC
20
to perform light work with the following limitations: lift and
21
carry 20 pounds occasionally and 10 pounds frequently; stand, walk,
22
and/or sit for six hours in an eight-hour workday; occasionally
23
climb ladders, ropes, and scaffolds; frequently climb ramps and
24
stairs; “should avoid” concentrated exposure to hazards; limited
25
to work involving simple repetitive tasks, no more than occasional
26
contact with coworkers, and no public contact.
27
28
9
(AR 32).
1
The Court agrees with Plaintiff that the medical evidence is
2
not
3
acknowledged, the record documents extensively that Plaintiff “has
4
had chronic, severe headaches.” (AR 35). However, the RFC assessed
5
does not appear to account for this condition.
6
stated that he did not find the “persistent headaches problem”
7
itself to be “disabling,” (AR 35), and noted that the headaches
8
were “treated with medications,” (AR 35), he did not satisfactorily
9
explain why chronic, severe headaches would have no impact on
10
adequately
reflected
in
the
RFC.
First,
as
the
ALJ
Although the ALJ
Plaintiff’s ability to work.
11
12
This
is
particularly
troubling
given
the
ALJ’s
somewhat
13
selective characterization of the record.
14
stated
15
[Plaintiff] had a dramatic improvement of his migraine severity
16
and frequency, he had become dramatically less photophobic, and he
17
is [sic] continuing not to take any medications and no narcotics.”
18
(AR
19
“continued” and he was placed “back on medications in November
20
2012.”
21
Plaintiff had discontinued narcotics and “over-the-counter” and
22
“p.r.n.” medications, but he was taking Depakote twice daily.
23
538).
24
improvement” after starting Depakote, (AR 538), Plaintiff developed
25
a tremor and elevated liver function test results and had to be
26
“weaned off” Depakote as a result.
27
after being “weaned off” Depakote, Plaintiff reported that he was
28
suffering from “severe and unrelenting” daily headaches and was
that
35).
“[t]he
The
(AR 36).
ALJ
progress
later
notes
noted
in
that
For example, the ALJ
July
2012
showed
Plaintiff’s
that
headaches
The July 2012 progress note actually states that
(AR
More significantly, although Plaintiff reported “dramatic
10
(AR 539).
By November 2012,
1
“extremely photophobic.”
(AR 541).
2
the
omits
3
Plaintiff’s improvement was greater and more sustained, and his
4
headaches less severe on an ongoing basis, than the underlying
5
evidence demonstrates.
6
improperly ignored or discounted significant and probative evidence
7
in the record favorable to Hill’s position . . . and thereby
8
provided an incomplete [RFC] determination.”); Attmore v. Colvin,
9
827 F.3d 872, 877 (9th Cir. 2016) (ALJ may not focus on isolated
evidence
improperly
The ALJ’s characterization of
this
context
and
suggests
that
See Hill, 698 F.3d at 1161 (“[T]he ALJ
10
periods
11
claimant’s condition); Garrison v. Colvin, 759 F.3d 995, 1018 (9th
12
Cir. 2014) (ALJ was not permitted to “cherry-pick” from mixed
13
results to support a denial of benefits).
of
improvement
without
examining
broader
context
of
14
15
Plaintiff’s history of headaches was substantiated in part by
16
a letter and treatment records from Dr. Pari Young, M.D.
17
February 2012 note, Dr. Young stated that, in 2010, Plaintiff had
18
been diagnosed with and treated for herpes simplex encephalitis
19
and had suffered from “severe migraines and headaches” following
20
that diagnosis. (AR 531). At that time, Plaintiff reported chronic
21
daily headaches with severe headaches occurring six or seven times
22
every month.
23
and began to treat his headaches regularly after that with a variety
24
of prescription medications.
(See AR 535-37 (March 2012 progress
25
note
and
26
progress note (“weaning off” Depakote due to high liver function
27
test and development of tremor)), 541-43 (November 2012 progress
28
note (prescribing Topamax)), 544-46 (December 2012 progress note
(AR 531).
(prescribing
In a
Dr. Young reviewed Plaintiff’s records
Depakote
11
Imitrex)),
538-40
(July
2012
1
(Plaintiff
2
Topamax)), 559-61 (May 2013 progress note (Plaintiff reporting
3
“much worsening” of bad headache days since March 2013 bout of
4
pneumonia; increasing Topamax to “seizure doses”)), 567-69 (August
5
2013 progress note (Plaintiff discontinued Topamax after developing
6
kidney
7
(December 2013 progress note (prescribing propranolol))).
reported
stones;
“somewhat
prescribing
manageable
pain”
amitriptyline
and
since
starting
Keppra)),
570-72
8
9
In a January 29, 2014 letter, Dr. Young stated that she had
10
treated Plaintiff since February 2012.
11
reported that Plaintiff had “severe, daily headaches that are
12
refractory to medical treatment,” which caused “severe headache
13
pain on a daily basis.”
14
Plaintiff
15
medications and others had been ineffective, but she was “pursuing
16
a referral to the Headache and Facial Pain center at UCLA.”
17
583).
had
had
(AR 583).
“severe
side
(AR 583).
Dr. Young
Dr. Young further reported that
effects”
from
some
headache
(AR
18
19
The ALJ did not assign the letter any particular weight, but
20
the ALJ appeared to conclude that the letter and Dr. Young’s
21
treatment records were either irrelevant to Plaintiff’s allegations
22
of disability or not credible because Dr. Young never explicitly
23
recommended any restrictions on Plaintiff’s ability to work.
24
36).
25
restrictions, it is error to conclude that severe, daily headaches
26
would have no impact on Plaintiff’s ability to work, as would be
27
required to properly exclude them from consideration for an RFC.
28
At most, Dr. Young’s records were ambiguous on this issue, and it
Although
Dr.
Young
never
12
explicitly
assigned
any
(AR
work
1
was the ALJ’s duty to develop the record further, Tonapetyan v.
2
Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (ambiguous evidence
3
relevant to a finding of disability triggers the ALJ’s duty to
4
develop the record), particularly considering that Plaintiff was
5
unrepresented by counsel during the hearing before the ALJ.
6
AR 47-49); see also Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir.
7
1992) (where claimant is not represented, ALJ must “scrupulously
8
and conscientiously probe into, inquire of, and explore for all
9
the relevant facts” and “be especially diligent in ensuring that
(See
10
favorable
11
elicited”).
12
or sought clarification from Dr. Young on this issue, but the ALJ
13
did not do so. Therefore, the ALJ’s analysis of Dr. Young’s opinion
14
was
15
including in the RFC limitations related to Plaintiff’s severe,
16
chronic headaches.
as
well
as
unfavorable
facts
and
circumstances
are
The ALJ could have called a medical expert to testify
inadequate,
and
he
provided
insufficient
reasons
for
not
17
18
The ALJ also did not provide adequate reasons for excluding
19
from the RFC a restriction that Plaintiff required access to a
20
restroom due to IBS.
21
disability application, State agency medical consultant Dr. L.
22
Bobba, M.D., reported that, “considering pain due to headaches,” a
23
sedentary RFC “w hazardous precautions [was] appropriate,” and Dr.
24
Bobba further noted that Plaintiff needed “easy access to rest room
25
facilities due to diarrhea due to IBS.”
26
agency
27
Plaintiff’s RFC was “LIGHT . . . with some limits,” then similarly
28
noted that Plaintiff would require “[b]ath room access for IBS.”
medical
In 2011, in the course of evaluating a prior
consultant
Keith
13
(AR 91).
Quint,
M.D.,
In 2012, State
stated
that
1
(AR 109-10, 128, 133).
2
also documented throughout the medical evidence by a variety of
3
doctors.
4
03).
Plaintiff’s chronic diarrhea and IBS were
(AR 418, 447-50, 453, 456, 481-85, 491-92, 496-97, 502-
5
6
The RFC omits without meaningful explanation any limitations
7
related to Plaintiff’s IBS.
8
impairments, the ALJ found that Plaintiff’s “abdominal pain and
9
problems” were medically determinable but nonsevere because his
10
conditions were being “managed medically,” with no “aggressive
11
treatment” recommended, and the condition would be “amenable to
12
proper control by adherence to recommended medical management and
13
medication compliance.”
14
rejected
15
previously recommended a base RFC of “sedentary” as “overstat[ing]”
16
Plaintiff’s condition.
17
recent assessment is consistent with the current evidence.”
18
37).
the
opinions
In evaluating Plaintiff’s severe
(AR 31).
of
the
(AR 37).
Additionally, the ALJ later
State
agency
consultants
who
The ALJ ruled that “the more
(AR
19
20
Preliminarily, it is unclear whether the ALJ’s finding that
21
Plaintiff’s “abdominal pain and problems” can be managed medically
22
with no aggressive treatment obviates a finding that Plaintiff may
23
require frequent access to a bathroom during work hours.
24
event, the failure to find “abdominal pain and problems” severe at
25
step
26
limitations at step four, as an ALJ formulating an RFC “must
27
consider
28
individual’s impairments, even those that are ‘not severe.’” SSR
two
does
not
limitations
prevent
and
the
ALJ
restrictions
14
from
considering
imposed
by
all
In any
these
of
an
1
96–8p, 1996 WL 374184, at *5 (“While a ‘not severe’ impairment[]
2
standing alone may not significantly limit an individual’s ability
3
to do basic work activities, it may
4
limitations or restrictions due to other impairments -- be critical
5
to the outcome of a claim.”).
6
the earlier opinions of State agency medical consultants because
7
more recent opinions were “consistent with the current evidence,”
8
this finding is vague.
9
Cir. 1988) (“To say that medical opinions [of treating physicians]
10
are not supported by sufficient objective findings or are contrary
11
to the preponderant conclusions mandated by the objective findings
12
does not achieve the level of specificity our prior cases have
13
required.”).
14
earlier
15
recommendation regarding Plaintiff’s ability to access a bathroom.
16
Therefore, the ALJ’s analysis of the State agency consultants’
17
opinions was inadequate, and he provided insufficient reasons for
18
not including in the RFC limitations related to Plaintiff’s IBS.
-- when considered with
To the extent that the ALJ rejected
Cf. Embrey v. Bowen, 849 F.2d 418, 421 (9th
Moreover, even if the ALJ had properly rejected the
assessment
by
Dr.
Bobba,
Dr.
Quint
made
the
same
19
20
For the foregoing reasons, the matter is remanded for further
21
proceedings.
22
and the medical evidence consistent with this Order.
On remand, the ALJ should reassess Plaintiff’s RFC
23
24
25
26
27
28
15
1
VI.
2
CONCLUSION
3
4
Accordingly, IT IS ORDERED that Judgment be entered REVERSING
5
the decision of the Commissioner and REMANDING this matter for
6
further proceedings consistent with this decision.
7
ORDERED that the Clerk of the Court serve copies of this Order and
8
the Judgment on counsel for both parties.
IT IS FURTHER
9
10
DATED:
June 9, 2017
11
12
13
/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.
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