Robert Perez v. Carolyn W. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. SEE ORDER FOR DETAILS. (ch)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11
12

ROBERT PEREZ,

13

Plaintiff,

14
15

v.

16

NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

17

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 16-9342-PLA
MEMORANDUM OPINION AND ORDER

18
19

I.

20

PROCEEDINGS

21

Plaintiff filed this action on December 19, 2016, seeking review of the Commissioner’s1

22

denial of his application for Supplemental Security Income (“SSI”) payments. The parties filed

23

Consents to proceed before the undersigned Magistrate Judge on January 10, 2017, and January

24

16, 2017. Pursuant to the Court’s Order, the parties filed a Joint Stipulation (alternatively “JS”) on

25

August 2, 2017, that addresses their positions concerning the disputed issue in the case. The

26
27
28

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current
Acting Commissioner of Social Security, is hereby substituted as the defendant herein.

1

Court has taken the Joint Stipulation under submission without oral argument.

2
3

II.

4

BACKGROUND

5

Plaintiff was born on October 20, 1969. [Administrative Record (“AR”) at 167.] He has past

6

relevant work experience as an operations supervisor, a security guard, and a prisoner

7

transporter. [AR at 18, 34-35.]

8

On August 23, 2013, plaintiff filed an application for SSI payments, alleging that he has

9

been unable to work since March 29, 2013.2 [AR at 9, 167-72.] After his application was denied

10

initially and upon reconsideration, plaintiff timely filed a request for a hearing before an

11

Administrative Law Judge (“ALJ”). [AR at 9, 93-95.] A hearing was held on April 14, 2015, and

12

on October 5, 2015; plaintiff appeared at both hearings represented by an attorney, and testified

13

on his own behalf. [AR at 24-36, 37-53.] The same vocational expert (“VE”) also testified at both

14

hearings [AR at 31-35, 48-52], and a medical expert (“ME”) testified at the second hearing. [AR

15

at 40-43.] On November 12, 2015, the ALJ issued a decision concluding that plaintiff was not

16

under a disability since August 23, 2013, the date the application was filed. [AR at 9-19.] Plaintiff

17

requested review of the ALJ’s decision by the Appeals Council. [AR at 5.] When the Appeals

18

Council denied plaintiff’s request for review on November 7, 2016 [AR at 1-3], the ALJ’s decision

19

became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.

20

2008) (per curiam) (citations omitted). This action followed.

21

/

22

/

23

/

24

III.

25
26
27
28

2

The Court notes that plaintiff’s application for SSI payments reflects that he was alleging
disability since February 1, 2013. [AR at 167.] Other records, however, reflect March 29, 2013,
as the alleged onset date. [See, e.g., AR at 9, 54, 190, 194 (also reflecting that plaintiff made
changes to his work activities on February 1, 2013, due to his conditions).] Whether the alleged
onset date was February 1, 2013, or March 29, 2013, does not impact on the Court’s decision.
2

1

STANDARD OF REVIEW

2

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s

3

decision to deny benefits. The decision will be disturbed only if it is not supported by substantial

4

evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622

5

F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

6

“Substantial evidence means more than a mere scintilla but less than a preponderance; it

7

is such relevant evidence as a reasonable mind might accept as adequate to support a

8

conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation

9

and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)

10

(same). When determining whether substantial evidence exists to support the Commissioner’s

11

decision, the Court examines the administrative record as a whole, considering adverse as well

12

as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted);

13

see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must

14

consider the entire record as a whole and may not affirm simply by isolating a specific quantum

15

of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is

16

susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan,

17

528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin.,

18

466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the

19

ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”)

20

(citation omitted).

21
22

IV.

23

THE EVALUATION OF DISABILITY

24

Persons are “disabled” for purposes of receiving Social Security benefits if they are unable

25

to engage in any substantial gainful activity owing to a physical or mental impairment that is

26

expected to result in death or which has lasted or is expected to last for a continuous period of at

27

least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

28

1992).
3

1

A.

THE FIVE-STEP EVALUATION PROCESS

2

The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing

3

whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821,

4

828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must

5

determine whether the claimant is currently engaged in substantial gainful activity; if so, the

6

claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in

7

substantial gainful activity, the second step requires the Commissioner to determine whether the

8

claimant has a “severe” impairment or combination of impairments significantly limiting his ability

9

to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id.

10

If the claimant has a “severe” impairment or combination of impairments, the third step requires

11

the Commissioner to determine whether the impairment or combination of impairments meets or

12

equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404,

13

subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If

14

the claimant’s impairment or combination of impairments does not meet or equal an impairment

15

in the Listing, the fourth step requires the Commissioner to determine whether the claimant has

16

sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled

17

and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform

18

past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie

19

case of disability is established. Id. The Commissioner then bears the burden of establishing

20

that the claimant is not disabled, because he can perform other substantial gainful work available

21

in the national economy. Id. The determination of this issue comprises the fifth and final step

22

in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin,

23

966 F.2d at 1257.

24
25

B.

THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

26

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since

27

August 23, 2013, the application date. [AR at 11.] At step two, the ALJ concluded that plaintiff

28

has the severe impairments of rheumatoid arthritis and morbid obesity. [Id.] He found plaintiff’s
4

1

medically determinable impairment of hypertension to be nonsevere. [Id.] At step three, the ALJ

2

determined that plaintiff does not have an impairment or a combination of impairments that meets

3

or medically equals any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff

4

retained the residual functional capacity (“RFC”)3 to perform light work as defined in 20 C.F.R. §

5

416.967(b),4 as follows:

6

[He] can lift no more than twenty pounds occasionally, and he can lift ten pounds
frequently. He can stand and walk no more than four hours, and he can sit for six
hours with normal breaks. [Plaintiff] can push and pull with his right lower extremity
occasionally. He can occasionally negotiate ramps, stairs, ladders, ropes, and
scaffolding. [Plaintiff] can frequently balance, stoop, kneel, crouch, and crawl. [He]
can perform fine and gross manipulation frequently.

7
8
9
10

[AR at 12.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded

11

that plaintiff is able to perform his past relevant work as an operations supervisor and a security

12

guard. [AR at 18, 35, 51.] Accordingly, the ALJ determined that plaintiff was not disabled at any

13

time since August 23, 2013, the date the application was filed. [AR at 19.]

14
15

V.

16

THE ALJ’S DECISION

17

Plaintiff contends that the ALJ erred when he rejected the opinions of plaintiff’s treating

18

rheumatologist, Jaffar A. Tremazi, M.D. [JS at 2.] As set forth below, the Court agrees with

19

plaintiff and remands for further proceedings.

20
3

21
22
23
24
25
26
27
28

RFC is what a claimant can still do despite existing exertional and nonexertional
limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps
three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which
the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149,
1151 n.2 (9th Cir. 2007) (citation omitted).
4

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do substantially all of
these activities. If someone can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for
long periods of time.” 20 C.F.R. § 416.967(b).
5

1

A.

MEDICAL OPINIONS

2

1.

Legal Standard

3

“There are three types of medical opinions in social security cases: those from treating

4

physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec.

5

Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527. “As a

6

general rule, more weight should be given to the opinion of a treating source than to the opinion

7

of doctors who do not treat the claimant.” Lester, 81 F.3d at 830; Garrison v. Colvin, 759 F.3d

8

995, 1012 (9th Cir. 2014) (citing Ryan, 528 F.3d at 1198); Turner v. Comm’r of Soc. Sec., 613

9

F.3d 1217, 1222 (9th Cir. 2010). “The opinion of an examining physician is, in turn, entitled to

10

greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan, 528

11

F.3d at 1198.

12

“[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical

13

opinion based on clear and convincing reasons.” Carmickle, 533 F.3d at 1164 (citation and

14

internal quotation marks omitted); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

15

“Where such an opinion is contradicted, however, it may be rejected for specific and legitimate

16

reasons that are supported by substantial evidence in the record.” Carmickle, 533 F.3d at 1164

17

(citation and internal quotation marks omitted); Ryan, 528 F.3d at 1198; Ghanim v. Colvin, 763

18

F.3d 1154, 1160-61 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the requisite

19

specific and legitimate standard “by setting out a detailed and thorough summary of the facts and

20

conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 157

21

F.3d at 725. The ALJ “must set forth his own interpretations and explain why they, rather than the

22

[treating or examining] doctors’, are correct.” Id.

23

Although the opinion of a non-examining physician “cannot by itself constitute substantial

24

evidence that justifies the rejection of the opinion of either an examining physician or a treating

25

physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians,

26

psychologists, and other medical specialists who are also experts in Social Security disability

27

evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray v.

28

Astrue, 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (the ALJ properly relied “in large part on the
6

1

DDS physician’s assessment” in determining the claimant’s RFC and in rejecting the treating

2

doctor’s testimony regarding the claimant’s functional limitations). Reports of non-examining

3

medical experts “may serve as substantial evidence when they are supported by other evidence

4

in the record and are consistent with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

5
6

2.

The Medial Opinions

7

On August 14, 2015, Dr. Tremazi, plaintiff’s treating rheumatologist between June 2014 and

8

August 2015, completed a “Medical Opinion Re: Ability to do Work-Related Activities (Physical)”

9

form. [AR at 446-48.] Dr. Tremazi found that plaintiff had the following limitations: can lift and

10

carry ten pounds occasionally, and less than ten pounds frequently; stand and walk about two

11

hours in an eight-hour day; sit about three hours in an eight-hour day; needs to alternate between

12

sitting and standing or walking every twenty to thirty minutes; needs to be able to shift at will from

13

sitting or standing/walking; will need to lie down approximately three times during a work shift; can

14

occasionally twist, stoop (bend), crouch, and climb stairs and ladders; would have trouble with fine

15

manipulation as a result of his impairments; and should avoid concentrated exposure to cold, heat,

16

wetness, humidity, noise, fumes, and hazards (machinery, heights, etc.). [Id.] He also opined that

17

plaintiff would be absent from work more than three times per month as a result of his impairments

18

or treatment. [AR at 448.] He noted that plaintiff’s lifting/carrying, and standing/walking/sitting

19

limitations were supported by the swelling in plaintiff’s hands, elbows, and knees. [AR at 447.]

20

The ALJ gave “little weight” to Dr. Tremazi’s opinion:

21

Dr. Tremazi’s opinion is inconsistent with the findings from his own examinations.
For example, in 2015, Dr. Tremazi consistently found [plaintiff’s] skin did not have
any abnormalities, his extremities did not have any abnormalities, there was not any
atrophy noted in any muscle groups, and [plaintiff’s] muscle strength was 5/5 in both
his upper and lower extremities. [AR at 338, 339, 342, 343, 450, 451, 454, 455,
458, 459.] Additionally, Dr. Tremazi’s opinion is inconsistent with the diagnostic
imaging contained in the record. [AR at 310 (stating only a “plan” to obtain a lumbar
MRI), 399.] Further, Dr. Tremazi’s opinion is inconsistent with laboratory findings
which showed [plaintiff’s] inflammation was controlled with the use of medications.
[AR at 457.]

22
23
24
25
26

[AR at 17.]
27
The ALJ gave only “some weight” to the impartial medical expert, Dr. Morse, who testified
28
7

1

at the hearing that plaintiff can lift ten pounds occasionally and frequently; is limited to

2

standing/walking for two hours out of an eight-hour day; can sit for six hours out of an eight-hour

3

day; is limited with the use of his right lower extremity for pushing and pulling foot pedals; can

4

occasionally climb ramps and stairs, balance, and stoop; can never climb ladders, ropes, or

5

scaffolds; is limited bilaterally to frequent gross and fine handling; and should avoid concentrated

6

exposure to hazardous machinery and unprotected heights. [AR at 16, 40-41.] Dr. Morse also

7

noted that plaintiff was taking some “major league medicines,” which had brought his “sed rate and

8

his other inflammatory markers . . . down,” but that plaintiff does have “active synovitis, and he

9

does have limitations of multiple joints.” [AR at 42.] He opined that plaintiff “could perform

10

sedentary activities, with the restrictions” he had offered. [AR at 43.]

11

The ALJ gave great weight to the November 10, 2013, report of the consultative examiner,

12

Azizollah Karamlou, M.D. [AR at 253-57.] Dr. Karamlou found that plaintiff can lift twenty pounds

13

occasionally and ten pounds frequently; stand/walk and sit for six hours; push or pull with his lower

14

extremities; cannot climb ladders or be exposed to heights, possibly on a temporary basis; cannot

15

walk on uneven terrain; has no restrictions for fine and gross manipulative movements of both

16

hands; and has no environmental restrictions. He also gave great weight to the February 6, 2014,

17

opinion of state agency reviewing medical consultants: Dr. Keairnes, who reviewed plaintiff’s

18

medical records through November 2013, and Dr. Cooper, who affirmed Dr. Keairnes’ opinion on

19

June 10, 2014. [AR at 54-64, 66-75.]

20
21

B.

ANALYSIS

22

1.

Dr. Tremazi

23

The ALJ first discounted Dr. Tremazi’s August 14, 2015, opinion regarding plaintiff’s

24

limitations on the ground that his opinion is inconsistent with his own examinations. [AR at 17.]

25

In support, the ALJ noted that, based on Dr. Tremazi’s treatment notes, Dr. Tremazi “consistently

26

found [plaintiff’s] skin did not have any abnormalities, his extremities did not have any

27

abnormalities, there was not any atrophy noted in any muscle groups, and [plaintiff’s] muscle

28

strength was 5/5 in both his upper and lower extremities.” [AR at 17 (citations omitted).] The ALJ
8

1

failed to explain, however, how a lack of skin and extremity “abnormalities” is necessarily

2

inconsistent (if they are) with Dr. Tremazi’s opinions about plaintiff’s limitations from his

3

rheumatoid arthritis; neither did the ALJ explain why a lack of atrophy and/or full muscle strength

4

in the upper and lower extremities are necessarily unexpected findings (if they are) in light of

5

plaintiff’s diagnosis. Additionally, Dr. Tremazi also reported on February 5, 2015, that plaintiff’s

6

rheumatoid arthritis had been “very poorly managed by [the] previous physician,” and he adjusted

7

plaintiff’s medications; on February 27, 2015, he again adjusted plaintiff’s medications; and on

8

April 24, 2015, he noted “elevated crp [C-reactive protein],” “still with severe synovitis,” and

9

indicated an intent to obtain authorization for the rheumatoid arthritis medication, Enbrel [AR at

10

449-52]; on June 19, 2015, he noted an ESR (erythrocyte sedimentation rate) test result of 16 and

11

“seropositive RA [rheumatoid arthritis],” “still with severe synovitis,” pain level at 8/10 of the

12

shoulders, hands, elbows, and knees bilaterally; swelling in the knees; and that he was still waiting

13

for authorization for Enbrel [AR at 453-56]; and, on August 14, 2015, Dr. Tremazi noted plaintiff’s

14

pain level at 8/10 bilaterally in the shoulders, hands, elbows, and knees; seropositive RA; “still with

15

severe synovitis”’; and “continue Enbrel” (which apparently had been authorized sometime after

16

June 19, 2015). [AR at 457-60.]

17

The ALJ also stated that Dr. Tremazi’s opinions were “inconsistent with the diagnostic

18

imaging contained in the record . . . [and] with laboratory findings which showed [plaintiff’s]

19

inflammation was controlled with the use of medications.” [AR at 17 (citing AR at 310, 399, 457).]

20

One of the cited records, however, is a November 23, 2014, treatment note that reflects only that

21

plaintiff should “continue prednisone/folate and mtx [methotrexate] per his rheumatologist,” and

22

does not indicate that plaintiff’s inflammation was controlled. [AR at 310.] Another record cited

23

consists of x-rays taken on June 7, 2012 (two years before Dr. Tremazi started treating plaintiff

24

for rheumatoid arthritis) of plaintiff’s hands, feet, and knees, that generally reflected “no evidence

25

of acute fracture, subluxation, or dislocation,” mild degenerative changes of the left third distal

26

interphalangeal (finger) joint; minimal degenerative changes of the bilateral medial compartments

27
28
9

1

of the knees; and mild enthesopathy5 of the calcaneus of the right foot, and of the knees

2

bilaterally. [AR at 399-402.] The ALJ did not explain how these x-rays were inconsistent (if they

3

are) with Dr. Tremazi’s opinions regarding plaintiff’s limitations. Moreover, although there is a

4

treatment record that seems to reflect that plaintiff’s recent laboratory results may have been “nl

5

[normal]” [see AR at 457 (“labs nl esr crp cmp cbc”)], Dr. Tremazi also noted at that visit that

6

plaintiff’s pain was 8/10 bilaterally, he had “seropositive RA,” and he was “still with severe

7

synovitis,” i.e., inflammation of the synovial membrane lining the joints. [AR at 457-60 (emphasis

8

added).] There simply is no mention in that treatment record (or in any other of Dr. Tremazi’s

9

treatment records), that plaintiff’s inflammation was “controlled[6] with the use of medications.” In

10

fact, the ME, who reviewed all of the medical records, including Dr. Tremazi’s, testified that the

11

“major league medications” plaintiff was taking led to his “sed rate and . . . other inflammatory

12

markers” being “brought down,” but that plaintiff still has seropositive rheumatoid arthritis, active

13

synovitis, and “limitations of multiple joints.” [AR at 42.]

14

Dr. Tremazi never mentioned any incongruence between his assessments that reflected

15

“No Abnormality Detected” with respect to plaintiff’s skin, neurovascular, and other system

16

examinations, and plaintiff’s diagnosis and other laboratory findings, nor did the independent ME

17

express such concerns. Similarly, the ALJ’s finding that plaintiff’s range of motion, which was

18

deemed by the examining physician to be “grossly within normal limits,” was equivalent to being

19

a “full range of motion” [see Discussion infra, part V. B.2.b], is also unsupported. It is improper

20

for an ALJ to substitute his own opinion for that of a treating medical professional who examined

21

plaintiff regularly for months. See Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006)

22

(“An ALJ cannot arbitrarily substitute his own judgment for competent medical opinion, and he

23
24
25
26
27
28

5

If the areas where tendons and ligaments attach to bones become inflamed, enthesopathy,
or pain in the area around the joint, may result. See http://www.healthline.com/health/
enthesopathy.
6

The Court acknowledges that the ALJ may be using the term “controlled” to mean only that
plaintiff’s inflammation is treated with the use of medication; however, to the extent the ALJ uses
“controlled” to indicate that the inflammation was alleviated or “under control” -- which is the more
likely intent -- the evidence in Dr. Tremazi’s records does not support that finding.
10

1

must not succumb to the temptation to play doctor and make his own independent medical

2

findings.”) (internal quotation marks, alterations, and citations omitted). In reviewing the medical

3

opinions, that appears to be what the ALJ has done here.

4

Based on the foregoing, substantial evidence does not support the ALJ’s findings that Dr.

5

Tremazi’s treatment records are not consistent with his opinions, not consistent with the diagnostic

6

imaging in the record, or not consistent with laboratory records showing plaintiff’s inflammation

7

was “controlled.” Thus, the ALJ did not provide specific and legitimate reasons for discounting Dr.

8

Tremazi’s opinions.

9
10

2.

Harmless Error

11

In order to determine whether the ALJ’s failure to provide specific and legitimate reasons

12

for discounting Dr. Tremazi’s opinion was harmless error, the Court will consider the weight given

13

by the ALJ to the other medical opinions of record. See Curry v. Sullivan, 925 F.2d 1127, 1131

14

(9th Cir. 1991) (harmless error rule applies to review of administrative decisions regarding

15

disability).

16
17

a.

18

Dr. Morse

The ALJ gave the hearing testimony of the independent ME, Dr. Morse, only “some weight”

19

because Dr. Morse “did not have the opportunity to examine” plaintiff.7

20

Notwithstanding this observation, the ALJ nevertheless gave “great weight” to Drs. Keairnes and

21

Cooper, the state agency consultants who reviewed plaintiff’s medical records in early 2014, not

22

only without examining plaintiff, but without the benefit of the records and opinions of Dr. Tremazi.

23

The ALJ also gave the ME’s opinions only “some weight” for the same reasons that he discounted

24

Dr. Tremazi’s opinions, i.e., Dr. Morse’s opinion was “more limiting than treatment notes from Dr.

25

Tremazi,” and inconsistent with the June 7, 2012, diagnostic testing, which consisted of x-rays of

[AR at 16.]

26
27
28

7

Dr. Karamlou, the consulting examiner to whom the ALJ gave “great weight” [AR at 16],
only examined plaintiff on one occasion, on November 10, 2013, several months before plaintiff
was first seen by Dr. Tremazi, his rheumatologist. [AR at 253-57.]
11

1

plaintiff’s hands, feet, and knees to “rule out osteoarthritis.” [AR at 15-16 (citing AR at 399-402).]

2

Those reasons, which were discussed -- and rejected -- above, fare no better in the context of

3

discounting Dr. Morse’s opinions.

4

inconsistent with the consultative examination results, is rejected based on the Court’s findings

5

regarding the consultative examination results discussed below.

The ALJ’s further finding that Dr. Morse’s opinion was

6
7

b.

Drs. Karamlou, Keairnes, and Cooper

8

The ALJ found that Dr. Karamlou’s opinion that plaintiff was capable of a range of light work

9

was consistent with his consultative examination of plaintiff, which the ALJ stated reflected a “full

10

range of motion in [plaintiff’s] cervical spine, lumbar spine, shoulders, elbows, wrists, hands, and

11

hips.” However, with the exception of plaintiff’s right knee, which Dr. Karamlou stated showed

12

decreased range of motion, Dr. Karamlou actually reported that plaintiff’s range of motion in each

13

of these areas was “grossly within normal limits.” [AR at 255-56 (emphasis added).] As he did

14

not include any of plaintiff’s actual clinical test results, it is ambiguous at best whether plaintiff

15

actually had a full range of motion in any of these areas.

16

The ALJ also found Dr. Karamlou’s opinion to be consistent with “the diagnostic imaging

17

in the record and the normal exam findings [in 2015] by [plaintiff’s] rheumatologist.” [AR at 16

18

(citations omitted).] He also relied on the same diagnostic imaging results and Dr. Tremazi’s

19

purportedly “normal” examination findings for giving the opinions of the reviewing examiners, Drs.

20

Keairnes [AR at 54-62] and Cooper [AR at 66-73], “great weight.” As discussed above, however,

21

because the ALJ did not properly consider the diagnostic imaging results and/or Dr. Tremazi’s

22

examination findings, those findings also do not constitute substantial evidence for giving “great

23

weight” to the consulting and reviewing examiners’ opinions.

24

Moreover, of note -- and not mentioned by the ALJ -- both Dr. Keairnes and Dr. Cooper

25

acknowledged that Dr. Karamlou’s opinion “[did] not fully consider the pain, effusion and limited

26

motion of right knee nor the extensive tenderness of hands, wrists and other joints that he

27

described.” [AR at 59; see also AR at 73 (stating that Dr. Karamlou’s opinion “does not seem to

28

reflect the extensive pattern of joint and back tenderness that he found”).] In light of their concern,
12

1

the reviewing examiners generally found plaintiff somewhat more limited than did Dr. Karamlou.

2

For instance, they found plaintiff able to stand and walk no more than 4 hours (as opposed to Dr.

3

Karamlou’s 6 hours and the RFC for 6 hours); occasionally able to climb ramps, stairs, ladders,

4

ropes, and scaffolds (an opinion adopted by the ALJ and in contrast with Dr. Karamlou’s finding

5

that plaintiff could not climb ladders or work at heights at least on a temporary basis); frequently

6

able to balance and stoop (an opinion adopted by the ALJ and in contrast with Dr. Karamlou’s

7

finding of no limitation); occasionally able to kneel, crouch and crawl (as opposed to Dr.

8

Karamlou’s finding of no limitation and the RFC finding that plaintiff could kneel, crouch, and crawl

9

frequently8); and able to perform fine and gross manipulations frequently (an opinion adopted by

10

the ALJ in the RFC as opposed to Dr. Karamlou’s finding of no limitation).

11

To determine plaintiff’s RFC, the ALJ appears to have selectively picked from the findings

12

of Dr. Karamlou and Dr. Keairnes when those opinions were not even consistent with each other.

13

See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (concluding that the ALJ’s basis

14

for rejecting the treating physician’s medical opinion was not supported by substantial evidence

15

because the ALJ “selectively relied on some entries . . . and ignored the many others that

16

indicated continued, severe impairment”). Additionally, the reasons he gave for giving “great

17

weight” to the opinions of Drs. Karamlou, Keairnes, and Cooper -- that those opinions were

18

consistent with Dr. Tremazi’s treatment notes, diagnostic imaging, and laboratory findings -- were

19

the same reasons he improperly relied on (albeit finding them inconsistent with Dr. Tremazi’s and

20

Dr. Morse’s opinions) for discounting the opinions of Dr. Tremazi and Dr. Morse.

21

Based on the foregoing, the ALJ’s failure to provide specific and legitimate reasons

22

supported by substantial evidence for discounting Dr. Tremazi’s or Dr. Morse’s opinions in favor

23

of Drs. Karmlou, Keairnes, and Cooper, was not harmless error.

24
25
26
27
28

8

The Commissioner defines “frequently” as an “activity or condition [that] exists from 1/3 to
2/3 of the time.” See Selected Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles, app. C. Thus, the hypothetical individual with the same RFC as plaintiff
(and with the severe impairments of rheumatoid arthritis (including in his knees) and morbid
obesity -- which the ALJ stated he had accounted for in the RFC’s functional limitations [AR at
13]), would be expected to be able to kneel, crouch, or crawl for up to 2/3 of a work day.
13

1

Remand is warranted on this issue.

2
3

VI.

4

REMAND FOR FURTHER PROCEEDINGS

5

The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan,

6

888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further

7

proceedings, or where the record has been fully developed, it is appropriate to exercise this

8

discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028,

9

1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are

10

outstanding issues that must be resolved before a determination can be made, and it is not clear

11

from the record that the ALJ would be required to find plaintiff disabled if all the evidence were

12

properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96.

13

In this case, there are outstanding issues that must be resolved before a final determination

14

can be made.

In an effort to expedite these proceedings and to avoid any confusion or

15

misunderstanding as to what the Court intends, the Court will set forth the scope of the remand

16

proceedings.

17

discounting the opinions of Dr. Tremazi and Dr. Morse, the ALJ on remand shall reassess the

18

opinions of these physicians. In reassessing all of the medical opinion evidence, the ALJ must

19

explain the weight afforded to each opinion and provide legally adequate reasons for any portion

20

of the opinion that the ALJ discounts or rejects, including a legally sufficient explanation for

21

crediting one doctor’s opinion over any of the others. Then, if warranted, the ALJ shall reassess

22

plaintiff’s RFC and determine at step four, with the assistance of a VE if necessary, whether

23

plaintiff is capable of performing his past relevant work as security guard and/or an operations

24

supervisor.9 If plaintiff is not so capable, or if the ALJ determines to make an alternative finding

25

at step five, then the ALJ shall proceed to step five and determine, with the assistance of a VE if

First, because the ALJ failed to provide specific and legitimate reasons for

26
27
9

28

Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to
perform his past relevant work as a prisoner transporter.
14

1

necessary, whether there are jobs existing in significant numbers in the regional and national

2

economy that plaintiff can still perform.

3
4

VII.

5

CONCLUSION

6

IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the

7

decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further

8

proceedings consistent with this Memorandum Opinion.

9
10
11
12

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the
Judgment herein on all parties or their counsel.
This Memorandum Opinion and Order is not intended for publication, nor is it
intended to be included in or submitted to any online service such as Westlaw or Lexis.

13
14

DATED: August 7, 2017
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
15