Toni R. Sanchez v. Michael J. Astrue

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING for further proceedings consistent with this Opinion. (twdb)

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1 2 3 4 O 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. CV 16-05136-KES TONI R. SANCHEZ, 12 Plaintiff, MEMORANDUM OPINION AND ORDER 13 v. 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 19 Plaintiff Toni R. Sanchez appeals the final decision of the Commissioner 20 denying her application for disability and Supplemental Social Security Income 21 benefits. See Administrative Record (“AR”) 14-32. For the reasons stated below, the 22 Commissioner’s decision is reversed and this action is remanded for further 23 administrative proceedings. 24 I. 25 BACKGROUND 26 27 A. Procedural History. Plaintiff filed applications for Social Security Disability Insurance Benefits 28 1 1 (“DIB”) and Supplemental Security Income (“SSI”) alleging a disability onset date 2 of December 5, 2010. AR 178-85. Plaintiff claims she is disabled due to chronic 3 back pain after failed back surgeries, fibromyalgia, obesity, and depression. (Dkt. 24 4 [Joint Stipulation or “JS”] at 2.) 5 Hearings were held before an Administrative Law Judge (“ALJ”) on March 4 6 and June 4, 2014. AR 39-76. After the hearings, the ALJ propounded interrogatories 7 (“rogs”) on a medical expert (“ME”) and a vocational expert (“VE”). AR 14-15; AR 8 901-21 (ME’s responses to rogs); AR 324-30 (VE’s responses to rogs). Plaintiff 9 responded to the ME’s new evidence by submitting additional evidence from one of 10 her treating physicians. 11 response to ME’s evidence); AR 922-23 (letter from Plaintiff’s treating physician for 12 pain management). AR 15; AR 303-04 (letter from Plaintiff’s counsel in 13 The ALJ issued a decision denying benefits on September 24, 2014. AR 32. 14 Plaintiff sought review by the Appeals Council, which denied review. AR 1-4, 10, 15 335-36. Plaintiff then filed the instant action in this Court. 16 B. Overview of Plaintiff’s Medical History. 17 Plaintiff alleges a disability onset date of December 5, 2010. AR 178-85. In 18 or around 2003, Plaintiff had spinal fusion surgery on her back. See AR 373-74, 480, 19 436 (treatment notes referring to prior surgery). 20 rheumatologist Dr. Darice Yang, who diagnosed Plaintiff with degenerative joint 21 disease of the back and fibromyalgia. AR 408, 410-12. Plaintiff began seeing 22 In the summer of 2011, Plaintiff underwent a second surgery, a spinal fusion 23 of the L4-L5 vertebrae, performed by Dr. Christopher Aho. AR 349, 676-78. 24 Plaintiff continued to see Drs. Yang and Aho and to complain of pain in her lower 25 back and legs. 26 fibromyalgia tenderpoints. AR 399, 401. See, e.g., AR 344-48, 377, 380, 398. Dr. Yang also noted 27 In December 2011, Dr. Aho referred Plaintiff to a pain management specialist, 28 Dr. Ostam Khoshar, whom Plaintiff began seeing about once a month. See AR 436, 2 1 712. 2 recommended physical therapy and psychiatric care. See AR 428-29, 433-35, 592- 3 608, 710-11 (treatment notes for January 2012 through January 2013); AR 476-77 4 (hardware bursa injection in February 2012); AR 426-27, 478 (epidural steroid 5 injections in March 2012); AR 576-77 (right stellate ganglion block in November 6 2012). Plaintiff also continued to see Dr. Yang approximately every six weeks. See 7 AR 65 (hearing testimony). Dr. Yang prescribed arthritis medication, advised 8 Plaintiff to exercise, and recommended psychiatric care. See AR 541-43, 546, 549- 9 50, 552 (treatment notes from May 2012 through November 2012). 10 11 Dr. Khoshar prescribed narcotic pain medications and injections, and Plaintiff did not seek treatment with a psychiatrist or psychologist.1 AR 57. Plaintiff did participate in physical therapy. AR 417. 12 In January 2013, Plaintiff had a third spinal fusion surgery performed by Dr. 13 Aho. AR 624-28, 674-75, 687-88. Plaintiff thereafter continued monthly pain 14 management treatment with Dr. Khoshar. See AR 698, 704, 708-10, 848-52, 857- 15 63, 871-73, 880-86, 891-900, 924-29 (treatment notes from January 2013 to August 16 2014). She also continued to see Dr. Yang. See AR 776-81, 785-88 (treatment notes 17 from March 2013 to May 2014). 18 In March 2013, on Dr. Khoshar’s recommendation, Plaintiff had a spinal cord 19 stimulator implanted as a trial. It was removed after a few days because Plaintiff 20 reported that it was not helpful. AR 700-04; see also AR 64 (hearing testimony). 21 In July 2013, Plaintiff had an intrathecal morphine pump implanted; she 22 initially reported improvement in her back pain and she stopped taking other narcotic 23 pain medication. AR 57-58, 871, 875-79, 885. Dr. Khoshar performed a procedure 24 to reposition the pump in October 2013. AR 861-63. In December 2013, Plaintiff 25 continued to report that the pump decreased her lower back pain. AR 851-52. 26 27 28 1 Plaintiff did have a one-time psychological evaluation as a prerequisite to getting the morphine pump discussed below. See AR 57. 3 1 However, Plaintiff also continued to report high levels of overall pain, at a level of 2 8, 9 or 10 out of 10. At the hearing before the AL, Plaintiff testified that the pump 3 “took some of the edge off, like the buttock area. But the lower back, it hasn’t taken 4 the pain away at all.” AR 58. 5 Several times after her third surgery, Dr. Yang noted Plaintiff’s “narcotic 6 dependence” and advised Plaintiff that being on narcotic pain medications could 7 amplify her fibromyalgia pain. See AR 779, 781, 785-86. Dr. Yang suggested, “One 8 of the newer treatments for fibromyalgia … could be naloxone; however, she would 9 have to be off of narcotic for that and especially we need to formulate a low does that 10 is used for fibromyalgia pain.” AR 779. 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 14 decision to deny benefits. The ALJ’s findings and decision should be upheld if they 15 are free from legal error and are supported by substantial evidence based on the 16 record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 17 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 18 means such relevant evidence as a reasonable person might accept as adequate to 19 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 20 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. 21 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 22 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, 23 the reviewing court “must review the administrative record as a whole, weighing both 24 the evidence that supports and the evidence that detracts from the Commissioner’s 25 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence 26 can reasonably support either affirming or reversing,” the reviewing court “may not 27 substitute its judgment” for that of the Commissioner. Id. at 720-21. 28 “A decision of the ALJ will not be reversed for errors that are harmless.” Burch 4 1 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is harmless if it 2 either “occurred during a procedure or step the ALJ was not required to perform,” or 3 if it “was inconsequential to the ultimate nondisability determination.” Stout v. 4 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 5 A. The Evaluation of Disability. 6 A person is “disabled” for purposes of receiving Social Security benefits if he 7 is unable to engage in any substantial gainful activity owing to a physical or mental 8 impairment that is expected to result in death or which has lasted, or is expected to 9 last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 10 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A claimant for disability benefits 11 bears the burden of producing evidence to demonstrate that he was disabled within 12 the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 13 B. The Five-Step Evaluation Process. 14 The ALJ follows a five-step sequential evaluation process in assessing whether 15 a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 16 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the first step, the Commissioner must 17 determine whether the claimant is currently engaged in substantial gainful activity; 18 if so, the claimant is not disabled and the claim must be denied. 19 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 20 C.F.R. 20 If the claimant is not engaged in substantial gainful activity, the second step 21 requires the Commissioner to determine whether the claimant has a “severe” 22 impairment or combination of impairments significantly limiting his ability to do 23 basic work activities; if not, a finding of not disabled is made and the claim must be 24 denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 25 If the claimant has a “severe” impairment or combination of impairments, the 26 third step requires the Commissioner to determine whether the impairment or 27 combination of impairments meets or equals an impairment in the Listing of 28 Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if 5 1 so, disability is conclusively presumed and benefits are awarded. 2 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Id. 3 If the claimant’s impairment or combination of impairments does not meet or 4 equal an impairment in the Listing, the fourth step requires the Commissioner to 5 determine whether the claimant has sufficient residual functional capacity (“RFC”) 6 to perform his past work; if so, the claimant is not disabled and the claim must be 7 denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden 8 of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If 9 the claimant meets that burden, a prima facie case of disability is established. Id. 10 If that happens or if the claimant has no past relevant work, the Commissioner 11 then bears the burden of establishing that the claimant is not disabled because he can 12 perform other substantial gainful work available in the national economy. 20 C.F.R. 13 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and 14 final step in the sequential analysis. Id. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 15 n. 5; Drouin, 966 F.2d at 1257. 16 C. ALJ’s Application of the Five-Step Process in this Case. 17 The ALJ determined that Plaintiff had not engaged in substantial gainful 18 activity since December 5, 2010 (her alleged onset date) and was insured through 19 December 31, 2015. AR 18. He found that Plaintiff had the following medically 20 determinable impairments: (1) fibromyalgia; (2) lumbar degenerative disc disease, 21 status post surgeries in 2003, 2011, and 2013; (3) mild L5 denervation; (4) anemia; 22 (5) obesity; and (6) a vitamin D deficiency.2 AR 18. However, the ALJ determined 23 that Plaintiff did not have an impairment or combination of impairments that meets 24 or medically equals the severity of one of the impairments in the Listing. AR 20-21. 25 26 27 28 2 The ALJ found that Plaintiff had failed to establish that the following conditions were medically determinable: a thyroid condition, an irregular heartbeat, gastrointestinal problems, and psychiatric issues. AR 19-20. 6 1 The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 2 to perform a limited range of sedentary work. AR 22. Specifically, he found 3 Plaintiff: (1) can lift and carry up to 20 pounds occasionally and 10 pounds 4 frequently; (2) can stand up to 2 hours, walk up to 2 hours, and sit up to 6 hours 5 cumulatively in an 8-hour workday; (3) can alternate from sitting to standing and 6 from standing to sitting up to 5 minutes every 2 hours; (4) can occasionally climb, 7 balance, bend, kneel, and stoop, but can never crawl; (5) can frequently reach above 8 shoulder level, handle, and finger with the left and right upper extremities; (6) must 9 avoid frequent exposure to dust, fumes, smoke, excessive heat, possible electrical 10 shock, and aerosolized chemicals; and (7) cannot work at dangerous heights or 11 around dangerous moving machinery. AR 22. 12 Based on the rog responses from the VE, the ALJ determined that Plaintiff 13 could perform her past relevant work as a legal assistant. AR 28-30. Alternatively, 14 the ALJ determined Plaintiff could perform sedentary, unskilled occupations such as 15 document preparer, charge-account clerk, and cashier II. AR 30-31. 16 III. 17 ISSUES PRESENTED 18 19 Plaintiff’s appeal from the Commissioner’s unfavorable decision presents the following three issues: 20 Issue One: Whether the ALJ failed to give proper weight to treating physicians 21 and failed to support his reliance on the opinion of the non-treating, non-examining 22 medical expert and state Agency consultants.3 23 24 25 26 27 28 Issue Two: Whether the ALJ’s adverse credibility finding is legally and factually inadequate. 3 As framed by the parties, Issue One also asks whether the ALJ failed to give proper weight to Plaintiff’s subjective pain testimony. (JS at 3.) This opinion discusses Plaintiff’s pain testimony under Issue Two, which considers the ALJ’s adverse credibility finding. 7 1 Issue Three: Whether the ALJ failed to support his finding that Plaintiff could 2 perform her past relevant work as a legal assistant, or any other full-time work. 3 (Dkt. 24 [Joint Stipulation or “JS”] at 3-4.) 4 IV. 5 DISCUSSION 6 A. Issue One: Whether the ALJ Failed to Give Proper Weight to Plaintiff’s 7 Treating Physicians and Failed to Support His Reliance on the Opinion of 8 the Non-Treating, Non-Examining Medical Expert and State Agency 9 Consultants. 10 1. 11 In deciding how to resolve conflicts between medical opinions, the ALJ must 12 consider that there are three types of physicians who may offer opinions in Social 13 Security cases: (1) those who directly treated the plaintiff, (2) those who examined 14 but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. 15 See 20 C.F.R. § 404.1527(c); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as 16 amended on April 9, 1996). A treating physician’s opinion is generally entitled to 17 more weight than that of an examining physician, which is generally entitled to more 18 weight than that of a non-examining physician. Lester, 81 F.3d at 830. Thus, the 19 ALJ must give specific and legitimate reasons for rejecting a treating physician’s 20 opinion in favor of a non-treating physician’s contradictory opinion or an examining 21 physician’s opinion in favor of a non-examining physician’s opinion. Orn v. Astrue, 22 495 F.3d 625, 632 (9th Cir. 2007); Lester, 81 F.3d at 830-31. 23 Legal Standard. If the treating physician’s opinion is uncontroverted by another doctor, it may 24 be rejected only for “clear and convincing” reasons. 25 However, “[t]he ALJ need not accept the opinion of any physician, including a 26 treating physician, if that opinion is brief, conclusory, and inadequately supported by 27 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord 28 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be 8 Lester, 81 F.3d at 830. 1 considered by the adjudicator in determining the weight to give a medical opinion 2 include: “[l]ength of the treatment relationship and the frequency of examination” by 3 the treating physician; and the “nature and extent of the treatment relationship” 4 between the patient and the treating physician. Orn, 495 F.3d at 631 (quoting 20 5 C.F.R. § 404.1527(d)(2)(i)-(ii)). 6 7 2. Medical Opinions in the Record. a. Treating Sources. 8 On June 7, 2012, Plaintiff’s rheumatologist Dr. Yang wrote a letter in support 9 of Plaintiff’s disability benefits application stating: “[Plaintiff] has been under my 10 care for her medical condition and has been disabled since at least August 2011. She 11 was last seen May 23, 2012 and at this time due to her medical conditions, qualifies 12 for disability for up to one year until May 31, 2013.” AR 713. 13 On January 28, 2013, approximately two weeks after Plaintiff’s third spinal 14 fusion surgery, her pain management specialist Dr. Khoshar completed a form in 15 support of Plaintiff’s application to discharge federal student loans and/or a teaching 16 service obligation for a federal grant on the basis of disability. AR 617. He stated 17 that Plaintiff “has chronic severe disabling pain all over her body, especially the 18 back” and that “prolonged sitting, standing, walking, or lifting can cause severe 19 pain.” Id. He stated that Plaintiff “can perform activities of daily living but has 20 constant pain.” Id. He also stated that she had “limited residual functionality with 21 lifting, standing, walking, pushing, pulling, and carrying.” Id. 22 On March 20, 2013, Dr. Khoshar wrote a letter in support of Plaintiff’s 23 disability benefits application stating: “She has been a patient of mine since Dec 8, 24 2011 and suffers from chronic severe neck and back pain. Her diagnosis includes 25 fibromyalgia syndrome, degenerative disc disease of the lumbar spine and failed back 26 surgery syndrome. As a result of these conditions, she is unable to work and should 27 be considered disabled.” AR 661; AR 712 (duplicate). 28 9 1 b. Non-Examining ME. 2 Dr. Winkler, an internal medicine doctor and rheumatologist, answered 33 3 rogs from the ALJ on June 14, 2014. AR 909-21. Her answers were based on 4 reviewing the case file. AR 902, 909. 5 When asked whether any of the treating sources’ opinions were supported by 6 signs and findings and consistent with the evidence in the record as a whole, Dr. 7 Winkler opined, “[L]umbar MRI showed minimal findings after surgery yet very 8 aggressive pain techniques used. Pain pumps/stimulators/narcotics are not 9 recommended for treatment of fibromyalgia. ... [I]n general would normally not use 10 narcotics/ stimulator/injections/pain pump for mild lumbar disease or fibromyalgia.” 11 AR 903, 911 (Rog 13); AR 913 (Rog 26). Dr. Winkler nevertheless opined that 12 Plaintiff had been appropriately diagnosed with fibromyalgia, AR 903, 911 (Rogs 13 14-15), and that “more attention to treatment might improve” Plaintiff’s 14 fibromyalgia. AR 913 (Rog 25). 15 Dr. Winkler opined that Plaintiff’s statements about the intensity and 16 persistence of her pain and other symptoms were inconsistent with objective medical 17 treatment history because “no lumbar MRI mild changes [sic]” and Plaintiff 18 “reported swimming and walking 4x a week [for] 45 minutes at a time.” AR 904, 19 912 (Rog 19). She opined that none of Plaintiff’s impairments, taken individually or 20 in combination, equaled any of the listed impairments. AR 904, 912 (Rog 22). 21 She gave a detailed opinion as to Plaintiff’s RFC. AR 913 (rog 27). The ALJ 22 adopted this RFC in large part, but he added more restrictions regarding alternating 23 between sitting and standing, and avoiding exposure to dust, fumes, etc. AR 22. 24 3. 25 The ALJ determined that Plaintiff had the RFC to perform a limited range of 26 sedentary work. AR 22. In so determining, the ALJ gave greatest weight to the 27 opinion of Dr. Winkler, the non-examining ME on whom the ALJ propounded rogs. 28 AR 25. The ALJ noted, “I am mindful that Dr. Winkler is neither a treating provider 10 The ALJ’s Findings Regarding the Medical Opinions. 1 nor an examining source, and I have carefully considered the arguments advanced by 2 [Plaintiff’s] representative urging me to give this source’s opinion less weight than 3 those of [Plaintiff’s] treating sources.” AR 25. 4 The ALJ gave the following reasons for giving Dr. Winkler’s opinion more 5 weight than Plaintiff’s treating physicians: (1) Dr. Winkler “had access to more 6 evidence than any other source”; (2) her opinion “is much more detailed and well 7 explained than those of [Plaintiff’s] treating sources,” none of whom “gave any 8 indication of what [Plaintiff] ‘can still do’”; (3) the treating sources opinions’ were 9 “not well supported by the clinical data and treatment notes”; (4) the opinions of Drs. 10 Khoshar and Yang were “tainted by [Plaintiff’s] objective to obtain a report that 11 states that she is disabled in order to receive benefits” and “seem[ed] to be actively 12 assisting and advocating [Plaintiff’s] efforts to obtain benefits, rather than simply 13 treating her or offering an objective opinion”; (5) the treating sources’ determination 14 that Plaintiff was disabled were contradicted by their treatment notes “comment[ing] 15 on, and commend[ing] the benefits of, [Plaintiff’s] ability to engage in exercise.” 16 AR 24-25. Additionally, the ALJ noted that Dr. Khoshar’s opinion was not “clearly 17 inconsistent with the narrow range of work activities” in the ALJ’s RFC 18 determination. AR 25. 19 Plaintiff argues the ALJ should have given controlling weight to the opinions 20 of her rheumatologist Dr. Yang and her pain management specialist, Dr. Khoshar. 21 (JS at 4, 14.) Plaintiff argues that the ALJ “failed to provide … ‘specific legitimate 22 reasons’” for relying on Dr. Winkler’s contrary opinion. (JS at 8.) As discussed in 23 more detail below, the Court finds that the reasons given by the ALJ are specific and 24 legitimate reasons for giving Dr. Winkler’s opinion more weight than the opinions 25 of Plaintiff’s treating physicians. 26 27 28 11 1 2 4. Analysis. a. 3 The ALJ did not err in declining to rely on conclusory opinions from Plaintiff’s treating physicians stating that she is disabled. 4 The June 2012 opinion from Dr. Yang and the March 2013 opinion from Dr. 5 Khoshar are conclusory, stating only that Plaintiff is “disabled.” See AR 398, 712. 6 These opinions do not attempt to explain Plaintiff’s functional limitations or give an 7 explanation as to why Drs. Yang and Khoshar believed Plaintiff to be disabled. Dr. 8 Winkler, in contrast, determined the specific RFC that she believed Plaintiff retained 9 in light of Plaintiff’s medical history. See AR 913 (Rog 27). The ALJ was therefore 10 justified in declining to rely on these opinions from Plaintiff’s treating physicians. 11 See Batson v. Comm’r of SSA, 359 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may 12 discredit treating physicians’ opinions that are conclusory, brief, and unsupported by 13 the record as a whole … or by objective medical findings[.]”); 20 C.F.R. 14 § 404.1527(d)(1) (“We are responsible for making the determination or decision 15 about whether you meet the statutory definition of disability. … A statement by a 16 medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will 17 determine that you are disabled.”); see also 20 C.F.R. 416.927(d)(1) (same). 18 19 b. The other opinions to which Plaintiff cites are actually consistent with the ALJ’s ultimate RFC determination. 20 First, Plaintiff points to a March 28, 2017 treatment note that she says is from 21 Dr. Khoshar. (JS at 5, citing AR 417-18.) These notes are not from Dr. Khoshar, 22 however; they are addressed to Dr. Khoshar and Dr. Yang from a physical therapist 23 who treated Plaintiff after her back surgery. AR 417-18. 24 Under Social Security regulations, a physical therapist is not an acceptable 25 medical source. See 20 CFR § 404.1513(d). Only acceptable medical sources can 26 give “medical opinions” within the meaning of the Social Security regulations and 27 “can be considered treating sources … whose medical opinions may be entitled to 28 controlling weight.” SSR No. 06-03p, 2006 SSR LEXIS 5, *3-4. “Nevertheless, 12 1 evidence from ‘other medical’ sources, that is lay evidence, can demonstrate the 2 ‘severity of the individual’s impairments and how it affects the individual’s ability to 3 function.’” Gooden v. Colvin, No. 15-9202-PLA, 2016 WL 6407367 (C.D. Cal. Oc. 4 28, 2016) (quoting SSR No. 06-03p). 5 In a March 28, 2012 treatment note, the physical therapist filled out a chart 6 called “The Patient-Specific Functional Scale.” AR 417-18. This scale ranked 7 Plaintiff’s ability to stand for 10 minutes, walk for 10 minutes, and sit for 5 minutes 8 in the car. AR 418. The ranking uses a scale of 0 to 10, with 0 meaning “unable to 9 perform activity” and 10 meaning “able to perform activity at the same level as before 10 injury or problem.” Id. The chart indicates significant improvement in these abilities 11 between February 2, 2012 and March 28, 2012. For example, the chart ranked 12 Plaintiff’s standing abilities at 1 in February and at 6 in March. It ranked her walking 13 abilities at 5 in February and at 8 in March. The combined average score for all of 14 the categories doubled during this time, from 3.33 to 6.66. 15 Second, Plaintiff points to a form Dr. Khoshar completed on January 28, 2013 16 in support of Plaintiff’s application to discharge student loans and/or a teaching 17 service obligation due to disability. AR 617. Dr. Khoshar stated that Plaintiff had 18 been diagnosed with post laminectomy syndrome of the lumbar spine and 19 fibromyalgia. Id. He stated Plaintiff had “chronic severe disabling pain all over [her] 20 body, especially the back”; that she had “failed back surgery”; that “prolonged 21 sitting, standing, walking or lifting can cause [her] severe pain”; that she “can 22 perform activities of daily living but has constant pain”; and that she had “limited 23 residual functionality with lifting, standing, walking, pushing, pulling, and carrying.” 24 Id. (emphasis added). 25 As noted above, the ALJ determined that Plaintiff could perform a limited 26 range of sedentary work, and found that Dr. Khoshar’s opinion was not “clearly 27 inconsistent with the narrow range of work activities” in this finding. AR 22, 25. 28 The ALJ agreed with Dr. Khoshar that Plaintiff could not sit, stand, or walk on a 13 1 “prolonged” basis, finding that she could stand for 2 hours, walk for 2 hours, and sit 2 for 6 hours in an 8-hour day. AR 22. The ALJ likewise agreed that Plaintiff had a 3 “limited” RFC regarding lifting, finding she could lift and carry only 20 pounds 4 occasionally and 10 pounds frequently. AR 22. Additionally, the functional scale 5 completed by the physical therapist showed Plaintiff’s abilities in these areas were 6 improving. AR 417-18. Plaintiff has failed to demonstrate that giving more weight 7 to Dr. Khoshar’s January 2013 opinion or the physical therapist’s observations would 8 have resulted in a different RFC finding and therefore a different ultimate finding of 9 disability. 10 5. 11 The Court finds no error in the ALJ’s reliance on the opinion of the non- 12 treating and non-examining ME, Dr. Winkler, rather than on the opinions of 13 Plaintiff’s treating physicians, Drs. Yang and Khoshar. The treating physicians’ 14 opinions are either conclusory or do not indicate further work limitations than those 15 imposed by the ALJ. 16 B. Conclusion. Issue Two: Whether the ALJ’s Adverse Credibility Finding is Legally and 17 Factually Adequate. 18 1. 19 An ALJ’s assessment of symptom severity and claimant credibility is entitled 20 to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 21 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). “[T]he ALJ is not required to believe 22 every allegation of disabling pain, or else disability benefits would be available for 23 the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 24 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). Legal Standard. 25 If the ALJ finds testimony as to the severity of a claimant’s pain and 26 impairments is unreliable, “the ALJ must make a credibility determination with 27 findings sufficiently specific to permit the court to conclude that the ALJ did not 28 arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 14 1 (9th Cir. 2002). If the ALJ’s credibility finding is supported by substantial evidence 2 in the record, courts may not engage in second-guessing. Id. 3 In evaluating a claimant’s subjective symptom testimony, the ALJ engages in 4 a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 5 “First, the ALJ must determine whether the claimant has presented objective medical 6 evidence of an underlying impairment [that] could reasonably be expected to produce 7 the pain or other symptoms alleged.” Id. at 1036. If so, the ALJ may not reject a 8 claimant’s testimony “simply because there is no showing that the impairment can 9 reasonably produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 10 1273, 1282 (9th Cir. 1996). 11 Second, if the claimant meets the first test, the ALJ may discredit the 12 claimant’s subjective symptom testimony only if he makes specific findings that 13 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent 14 a finding or affirmative evidence of malingering, the ALJ must provide “clear and 15 convincing” reasons for rejecting the claimant’s testimony. Lester v. Chater, 81 F.3d 16 821, 834 (9th Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 17 2014). The ALJ must consider a claimant’s work record, observations of medical 18 providers and third parties with knowledge of claimant’s limitations, aggravating 19 factors, functional restrictions caused by symptoms, effects of medication, and the 20 claimant’s daily activities. Smolen, 80 F.3d at 1283-84 & n.8. “Although lack of 21 medical evidence cannot form the sole basis for discounting pain testimony, it is a 22 factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 23 F.3d 676, 681 (9th Cir. 2005). The ALJ may also use ordinary techniques of 24 credibility evaluation, such as considering the claimant’s reputation for lying and 25 inconsistencies in his statements or between his statements and his conduct. Smolen, 26 80 F.3d at 1284; Thomas, 278 F.3d at 958-59. 27 2. 28 The Social Security Administration (“SSA”) recently published SSR 16-3p, 15 Application of SSR 16-3p. 1 2016 SSR LEXIS 4, Policy Interpretation Ruling Titles II and XVI: Evaluation of 2 Symptoms in Disability Claims. SSR 16-3p eliminates use of the term “credibility” 3 from SSA policy, as the SSA’s regulations do not use this term, and clarifies that 4 subjective symptom evaluation is not an examination of a claimant’s character. 5 Murphy v. Comm’r of Soc. Sec., 2016 U.S. Dist. LEXIS 65189, at *25-26 n.6 (E.D. 6 Tenn. May 18, 2016). SSR 16-3p took effect on March 16, 2016, and therefore is 7 not applicable to the ALJ’s 2014 decision in this case. Id. 8 Plaintiff argues that this Court should apply SSR 16-3p retroactively because 9 it is “a clarification of sub-regulatory policy, rather than a new policy.” JS at 22. At 10 least three district courts in this Circuit have addressed this issue and found that SSR 11 16-3p does not apply retroactively, reasoning that Congress has not authorized the 12 Commissioner to engage in retroactive rulemaking. See, e.g., Wright v. Colvin, No. 13 15-02495, 2017 WL 697542, at *9 (N.D. Cal. Feb. 22, 2017); Smith v. Colvin, No. 14 15-1625, 2017 WL 388814, at *4 n.2 (D. Oregon Jan. 27, 2017); Thayer v. Colvin, 15 No. 16-545, 2017 WL 132450, at *7 (W.D. Wash. Jan. 13, 2017). Plaintiff has cited 16 no authority to the contrary. (JS at 22, 26-27.) This Court “cannot assign error to 17 the ALJ for failing to comply with a regulation that did not exist at the time.” Garner 18 v. Colvin, 626 F. App’x 699, 701 (9th Cir. 2015) (discussing a different SSR). 19 Moreover, the Ninth Circuit has suggested that SSR 16-3p is consistent with 20 the standard previously laid out by the Ninth Circuit in the case law described above. 21 See Trevizo v. Berryhill, 862 F.3d 987, 1000 n.5 (9th Cir. 2017) (noting that SSR 16- 22 3p simply “makes clear what our precedent already required,” i.e., that the ALJ is 23 “not to delve into wide-ranging scrutiny of the claimant’s character and apparent 24 truthfulness,” but rather focus on “evaluat[ing] the intensity and persistence of [the 25 alleged] symptoms”). Thus, it is not clear that applying SSR 16-3p in this case would 26 materially affect the Court’s analysis. 27 3. 28 The ALJ found that Plaintiff’s “medically determinable impairments could 16 The ALJ’s Findings. 1 reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] 2 statements concerning the intensity, persistence and limiting effects of these 3 symptoms are not entirely credible….” AR 23. The ALJ gave several reasons for 4 this credibility finding. 5 First, the ALJ found that the “treatment records at times refer to [Plaintiff] 6 engaging in activities that appear to be inconsistent with some of her more extreme 7 allegations in this case,” such as swimming and walking, and Plaintiff reported that 8 “she is generally able to tend to some of her personal needs, drive short distances, 9 and engage in other activities that one might not expect a person with [Plaintiff’s] 10 alleged disabling symptoms to be able to perform.” AR 26-27. 11 Second, the ALJ found that “with regard to [Plaintiff’s] other impairments 12 [other than her back problems], her care has consisted mainly of conservative 13 measures such as the prescription of medications and monitoring,” and particularly 14 with regard to the fibromyalgia, ME Dr. Winkler suggested that Plaintiff could have 15 sought “more consistent and/or more aggressive forms of care.” AR 26-27. 16 Third, the ALJ found that Plaintiff’s “work history and statements about that 17 work history also tend to undercut the overall credibility of her claims in this case” 18 because she did not “perform[] significant gainful activity in several years when she 19 does not claim to have been disabled … , which at least arguably suggests that 20 [Plaintiff] has a comparatively weak commitment to engaging in work, even when 21 able to do so.” AR 27-28. 22 4. 23 Plaintiff argues that “the ALJ failed to adequately support [the] adverse 24 credibility finding” and “while specific, none of the ALJ’s credibility findings are 25 ‘clear and convincing.’” (JS at 23, 27.) The Court agrees. 26 27 28 Analysis. a. The ALJ failed to explain how Plaintiff’s daily activities are inconsistent with her testimony. In finding that Plaintiff’s daily activities were inconsistent with her assertion 17 1 of disability, the ALJ cited two exertion questionnaires completed by Plaintiff in May 2 2012, see AR 222-26, and December 2012, see AR 238-40, as well as Plaintiff’s 3 hearing testimony, see AR 43-72. In the questionnaires, Plaintiff stated that she 4 prepares one meal a day; takes 15-minute exercise walks on her doctors’ orders; 5 grocery shops with the aid of a motorized cart and her children; drives her son to his 6 school about 5 minutes away; and drives to her doctor’s office. AR 238-39, 223. She 7 stated she sometimes does dishes and vacuuming, but this “has [her] off her feet for 8 the rest of the day,” and she does no other chores. AR 222, 224, 239-40. 9 At the hearing, Plaintiff testified that she left her job as a paralegal because “I 10 couldn’t – still, I still can’t sit for very long. I can’t stand for very long.” AR 56. At 11 the time of the hearing, she testified that she could remain standing “maybe about 12 five to seven minutes” without experiencing pain or discomfort. AR 59. She testified 13 that as soon as she sits down and “put[s] the pressure on [her] buttocks, [the pain] 14 starts shooting up to [her] back.” AR 60. Regarding the use of her hands, she 15 testified, “My hands were tingling to where I can’t really hold a pen and just write.” 16 AR 56. She also testified, “My hands feel like when I go to bend them, like they’re 17 going to break,” and that when she tries “to grip something, I feel pain shooting from 18 my hands, my wrists, my elbows, up into my shoulder.” AR 58-59. She testified she 19 had buttoned the buttons on her outfit that day, but “when my hands are very swelled 20 up, then I will have a hard time buttoning my clothes or zipping my pants.” AR 62. 21 Plaintiff testified that she will “take a bath to relieve the pain” and “sometimes [she 22 does not] take a shower because [she is] in too much pain.” AR 61. She testified 23 that her son helps her take a bath and shave her legs, and her daughter helped her 24 place her hair in a bun on the day of the hearing. AR 61-62. 25 The ALJ found that this evidence showed that Plaintiff “is generally able to 26 tend to some of her personal needs, drive short distances, and engage in other 27 activities that one might not expect a person with [Plaintiff’s] alleged disabling 28 symptoms to be able to perform[.]” AR 27. He found these activities, along with the 18 1 treatment notes’ references to swimming and exercising, “difficult to reconcile with 2 some of [Plaintiff’s] more drastic claims regarding her ability to stand, walk, and 3 move her body.” AR 27. The ALJ clarified: 4 I am not saying that [Plaintiff’s] activities, by themselves, equate with 5 work activity or show the ability to engage in work. The ability to 6 engage in some daily activities does not prove that one is able to 7 perform competitive work on a regular and continuous basis. Rather, 8 [Plaintiff’s] activities suggest two points to me. First, they suggest that 9 [Plaintiff] has greater capabilities than she has alleged. This, in turn, 10 indicates that [Plaintiff] has not been completely frank, and makes me 11 cautious about fully accepting the claims advanced in this case. 12 AR 27. 13 The Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff 14 has carried on certain daily activities … does not in any way detract from her 15 credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 625, 639 (2007) 16 (quoting Verigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). The Ninth Circuit 17 has described two circumstances in which daily activities can form the basis of an 18 adverse credibility determination: (1) if they contradict the Plaintiff’s testimony, or 19 (2) if they “meet the threshold for transferable works skills.” Id. 20 The ALJ expressly stated that Plaintiff’s activities did not meet the threshold 21 for transferable work skills. Yet he failed to explain how the activities, as Plaintiff 22 described them, specifically contradicted her testimony. See Smolen v. Chater, 80 23 F.3d 1273, 1284 (9th Cir. 1996) (“The ALJ must state specifically which symptom 24 testimony is not credible and what facts in the record lead to that conclusion.”); Derr 25 v. Colvin, No. 12-00415, 2014 WL 5080437, at *12 (D. Ariz. Oct. 9, 2014) (“Only 26 when a level of activity is inconsistent with a claimant’s claims of limitations should 27 those activities have any bearing on the claimant’s credibility.”). This is not a clear 28 and convincing reason for discounting her subjective complaints of pain. 19 1 b. It is not clear whether Plaintiff’s ability to swim, walk, and 2 perform other exercise is inconsistent with her claimed 3 limitations. 4 As an additional reason for finding Plaintiff’s complaints of pain not credible, 5 the ALJ found that “treating sources … have commented on, and commended the 6 benefits of, [Plaintiff’s] ability to exercise.” AR 24. The ALJ cited treatment notes 7 from Dr. Yang, which they state that Plaintiff “swims everyday [for] 45 minutes,” 8 AR 543 (October 2012); “continues to swim 45 minutes every day when she can,” 9 AR 541 (November 2012); “continues to exercise with swimming and walking every 10 other day,” AR 785 (June 2013); and “she did start exercising with swimming 11 already,” AR 778 (December 2013). 12 Plaintiff argues that the ALJ misinterpreted these treatment notes, which 13 merely reflect that Plaintiff was “struggling through [pool] therapy sessions”; 14 Plaintiff argues that other records “explain[] the low level of exercise and its therapy 15 base[.]” (JS at 19, 21 [citing AR 417, 670].) Plaintiff cites the March 28, 2012 16 treatment note from Plaintiff’s physical therapist stating: “Goal is to wein [sic] off 17 pool program [and] transition to land based therapy” and to “decrease difficulty 18 standing and walking 15’ [feet].” AR 417. Plaintiff also cites a September 2011 19 treatment note referring to “pool therapy” rather than swimming. AR 670; see also 20 AR 380 (Dr. Aho recommends one month of “pool therapy”). The Commissioner 21 argues that the records Plaintiff cites “predate the ALJ’s references to regular exercise 22 by more than one year” and “that Plaintiff had pool therapy in 2011 and 2012 does 23 not mean that she did not swim and walk regularly in 2013, as she told her doctors at 24 that time.” (JS at 25.) 25 There is a significant difference between participating in relatively sedentary 26 “pool therapy” and swimming laps vigorously for 45 minutes. It is not clear on which 27 end of the spectrum Plaintiff’s activities fell, and Plaintiff was engaging in this 28 exercise on the recommendation of her treating physicians. See Vertigan v. Halter, 20 1 260 F.3d 1044, 1050 (9th Cir. 2001) (“[A]ctivities such as walking in the mall and 2 swimming are not necessarily transferable to the work setting with regard to the 3 impact of pain. A patient may do these activities despite pain for therapeutic reasons, 4 but that does not mean she could concentrate on work despite the pain or could 5 engage in similar activity for a longer period given the pain involved.”); Waldon v. 6 Colvin, No. 15-0631, 2016 WL 4501074, at *4 (S.D. Cal. Aug. 29, 2016) (noting that 7 “a social security claimant may engage in exercise for therapeutic reasons despite 8 pain” and finding that “Plaintiff’s attempts to comply with the exercise regime 9 suggested by his providers is not a clear and convincing reason to reject [a treating 10 physician’s] report about Plaintiff’s pain levels”). Because the record is ambiguous 11 as to the nature and extent of Plaintiff’s exercise, the treatment notes’ references to 12 swimming and walking do not provide substantial evidence for the ALJ’s conclusion 13 that Plaintiff’s ability to exercise was inconsistent with her claimed limitations. 14 c. The ALJ did not adequately explain his assertion that Plaintiff’s 15 treatment for fibromyalgia has been inconsistent and/or too 16 conservative. 17 The ALJ admitted there was “no dispute that [Plaintiff] has had significant 18 back problems that have been treated with surgery on several occasions,” but he 19 found that “with regard to [her] other impairments, her care has consisted mainly of 20 conservative measures such as the prescription of medications and regular 21 monitoring.” 22 “noteworthy that the medical expert [Dr. Winkler] – who is a board-certified 23 rheumatologist … – opined that ‘more attention to treatment might improve [this] 24 condition’ … adding that many of the measures already employed ‘in general would 25 normally not [be] use[d]’ for ‘mild lumbar disease or fibromyalgia.” AR 26. The 26 ALJ concluded, “[I]f [Plaintiff’s] conditions were as she claims, one might expect 27 that she would have sought – and, if warranted, received – more consistent and/or 28 more aggressive forms of care.” AR 27. AR 26. Regarding Plaintiff’s fibromyalgia, the ALJ found it 21 1 Evidence of conservative treatment can be a reason for discounting a plaintiff’s 2 testimony regarding the severity of an impairment. Parra v. Astrue, 481 F.3d 742, 3 751 (9th Cir. 2007). Here, however, it is not clear whether the ALJ concluded that 4 Plaintiff’s treatment for fibromyalgia was too conservative or too aggressive. The 5 ME Dr. Winkler opined: “[L]umbar MRI showed minimal findings after surgery yet 6 very aggressive pain techniques used. Pain pumps/stimulators/ narcotics are not 7 recommended for treatment of fibromyalgia.” AR 911 (Rog 13). Dr. Winkler 8 therefore appeared to criticize these treatments as too aggressive. Yet the ALJ 9 appeared to rely on Dr. Winkler’s opinion to find that Plaintiff’s treatment for her 10 fibromyalgia had been too conservative. AR 27. 11 Plaintiff cites a December 2013 treatment note from Dr. Yang that states in 12 relevant part: “I discussed that being on narcotics can cause pain amplification with 13 fibromyalgia. … One of the newer treatments for fibromyalgia I also discussed could 14 be naloxone; however, she would have to be off of narcotic for that and especially 15 we need to formulate a low does that is used for fibromyalgia pain.” AR 779. This 16 note suggests that there were other avenues of treatment Plaintiff could pursue for 17 her fibromyalgia, but also that such treatment might interfere with the treatment for 18 her back pain. The ALJ did not discuss this note. 19 20 d. The ALJ’s finding that Plaintiff had a weak commitment to engaging in work is not supported by substantial evidence. 21 The ALJ found that Plaintiff had “not performed significant gainful activity 22 even in several years when she does not claim to have been disabled … which at least 23 arguably suggests that [Plaintiff] has a comparatively weak commitment to engage 24 in work, even when able to do so.” AR 28. The ALJ acknowledged Plaintiff’s 25 testimony that, during these periods, she had been caring for sick relatives. AR 28; 26 see also AR 67-69 (Plaintiff’s testimony describing how she had cared for her 27 grandfather, who had dementia, and then her mother, who had a nervous breakdown 28 after the unexpected death of Plaintiff’s stepfather). 22 1 2 The ALJ nevertheless found Plaintiff had a weak commitment to work because: 3 [Plaintiff] testified at the June 4, 2014 hearing that she worked as a 4 medical assistant for only one day and left that job after finding out 5 some new information, which at least arguably suggests to me that 6 [Plaintiff] would have – and could have – continued working in this job 7 if not for business reasons wholly unrelated to her health. 8 AR 28. When Plaintiff testified about this, the ALJ failed to ask any follow-up 9 questions about what information Plaintiff learned that caused her to leave the job, 10 or otherwise develop the record on this point. AR 50-51. 11 Plaintiff also continued to work after leaving that job as a medical assistant; 12 she later worked in a law office as a receptionist and paralegal. See AR 46-50 13 (Plaintiff’s testimony that her last job in December 2010 was at a law firm and that, 14 prior to this, she had worked as a medical assistant and certified nursing assistant); 15 AR 206 (work history report completed by Plaintiff, stating that she worked as a 16 certified nurse between 2001 and 2002 and worked as an assistant in a law firm from 17 2006 to 2010). The law firm where she worked submitted a letter, dated December 18 22, 2012, stating that Plaintiff “was an excellent employee” but was laid off because 19 “problems with her back and health issues became so acute that she was not able to 20 perform her duties. … [H]er job was waiting for her at such time as she recovered….” 21 AR 623. 22 commitment to work and was not discussed by the ALJ. This letter undermines the ALJ’s finding that Plaintiff had a weak 23 Plaintiff adequately explained the gaps in her employment due to caring for 24 sick relatives, and the ALJ did not sufficiently develop the record about why she 25 voluntarily left one position as a medical assistant. Thus, the ALJ’s finding that 26 Plaintiff had a weak commitment to work is not supported by substantial evidence. 27 5. 28 In sum, the ALJ failed to give clear and convincing reasons, supported by 23 Conclusion. 1 substantial evidence, for finding Plaintiff’s pain testimony not credible. Plaintiff 2 argues that her testimony should therefore be credited as true. (JS at 23.) 3 Upon review of the Commissioner’s decision denying benefits, this Court has 4 “power to enter … a judgment affirming, modifying, or reversing the decision of the 5 Commissioner of Social Security, with or without remanding the cause for a 6 rehearing.” 42 U.S.C. § 405(g). If additional proceedings can remedy defects in the 7 original administrative proceeding, a Social Security case usually should be 8 remanded. Garrison v. Colvin, 795 F.3d 995, 1019 (9th Cir. 2014). However, courts 9 will sometimes reverse and remand with instructions to calculate and award benefits 10 “when it is clear from the record that a claimant is entitled to benefits, observing on 11 occasion that inequitable conduct on the part of the Commissioner can strengthen, 12 though not control, the case for such a remand.” Id. 13 In Varney v. Secretary of Health and Human Services (“Varney II”), 859 F.2d 14 1396 (9th Cir. 1988), the Ninth Circuit adopted the “credit-as-true” rule: that is, “if 15 the Secretary fails to articulate reasons for refusing to credit a claimant’s subjective 16 pain testimony, then the Secretary, as a matter of law, has accepted that testimony as 17 true.” Id. at 1398. The rule does not apply in all cases, however. Varney II “was 18 specifically limited to cases ‘where there are no outstanding issues that must be 19 resolved before a proper disability determination can be made, and where it is clear 20 from the administrative record that the ALJ would be required to award benefits if 21 the claimant’s excess pain testimony were credited.’” Vasquez v. Astrue, 572 F.3d 22 586, 593 (9th Cir. 2009) (quoting Varney II, 859 F.2d at 1401). In Garrison v. Colvin, 23 795 F.3d 995 (9th Cir. 2014), the Ninth Circuit laid out three criteria that, if met, 24 warrant application of the credit-as-true doctrine: 25 (1) the record has been fully developed and further administrative 26 proceedings would serve no useful purpose; (2) the ALJ has failed to 27 provide legally sufficient reasons for rejecting evidence, whether 28 claimant testimony or medical opinion; and (3) if the improperly 24 1 discredited evidence were credited as true, the ALJ would be required 2 to find the claimant disabled on remand. 3 Id. at 1020. In evaluating the first issue, courts “consider whether the record as a 4 whole is free from conflicts, ambiguities, or gaps, whether all factual issues have 5 been resolved, and whether the claimant’s entitlement to benefits is clear under the 6 applicable legal rules.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 7 1103-04 (9th Cir. 2014). 8 On the present record, the Court cannot say that the record has been fully 9 developed and further administrative proceedings would serve no useful purpose. As 10 discussed above, there are conflicts and ambiguities in the record regarding, for 11 example: (1) whether the ALJ believed Plaintiff’s treatment for her fibromyalgia was 12 too aggressive or too conservative, (2) why Plaintiff left a job as a medical assistant 13 after only one day, and (3) the rigorousness of Plaintiff’s swimming and exercising. 14 The Court also cannot state definitively that, if the improperly discredited 15 evidence were credit as true, the ALJ would be required to find Plaintiff disabled on 16 remand. The VE opined that, if Plaintiff’s testimony about her own abilities were 17 accepted as true, Plaintiff would not be able to perform her former work or any other 18 jobs in the national economy. AR 330. Yet, as discussed above under Issue One, the 19 ALJ gave legitimate reasons for relying on the opinion of Dr. Winkler rather than on 20 the opinion of Plaintiff’s treating physicians. The RFC determined by the ALJ was 21 consistent with that opinion. Accordingly, remand for further proceedings is the 22 appropriate remedy. 23 C. Issue Three: Whether the ALJ failed to support his finding that Plaintiff 24 could perform her past relevant work as a legal assistant, or any other 25 full-time work. 26 Under Issue Three, Plaintiff argues that the ALJ erred in “adopt[ing] verbatim 27 the RFC articulated by the ME” Dr. Winkler and then “proffer[ing] several 28 hypotheticals reflecting the RFC of sedentary work with limitations” to the VE. (JS 25 1 at 27-28.) This is essentially a restatement of her argument that the ALJ’s RFC 2 finding did not account for all her limitations. See Stubbs-Danielson v. Astrue, 539 3 F.3d 1169, 1175-76 (9th Cir. 2008) (“In arguing the ALJ’s hypothetical was 4 incomplete, Stubbs-Danielson simply restates her argument that the ALJ’s RFC 5 finding did not account for all her limitations because the ALJ improperly discounted 6 her testimony and the testimony of medical experts.”). 7 V. 8 CONCLUSION 9 Based on the foregoing, IT IS ORDERED that judgment shall be entered 10 REVERSING the decision of the Commissioner denying benefits and REMANDING 11 for further proceedings consistent with this Opinion. 12 13 14 15 16 DATED: September 07, 2017 ____________________________________ KAREN E. SCOTT United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 26

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