Roberta Flores v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERTA FLORES,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

NO. CV 17-5831-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied, and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a Complaint on August 7, 2017, seeking review of

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the Commissioner’s denial of benefits.

The parties filed a consent to

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proceed before a United States Magistrate Judge on September 1, 2017.

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///

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On January 19, 2018, Plaintiff filed a motion for summary

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judgment.

On February 13, 2018, Defendant filed a “Memorandum in

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Support of Defendant’s Answer,” which the Court has construed as

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Defendant’s motion for summary judgment.

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motions under submission without oral argument.

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“Order,” filed August 15, 2017.1

The Court has taken both
See L.R. 7-15;

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BACKGROUND

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Plaintiff, a former medical assistant and office manager,

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reportedly stopped working in 2009 after she allegedly injured her

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back and neck on the job while lifting a patient (Administrative

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Record (“A.R.”) 38, 55).

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Compensation case that settled (A.R. 38-39).

Plaintiff filed a related Workers’

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On May 8, 2013, Plaintiff applied for disability insurance

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benefits, asserting disability beginning February 3, 2010, based on

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alleged physical and mental impairments (A.R. 184-85, 198-99, 226-27,

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245-46).

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alia:

Presented to an Administrative Law Judge (“ALJ”) were, inter

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a February 9, 2011 report authored by her Workers’

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Compensation treating orthopedist, Dr. Simon Lavi (A.R. 380-

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89).

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impairments would preclude Plaintiff from “pushing, pulling,

Dr. Lavi opined that Plaintiff’s orthopedic

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Defendant’s motion violates paragraph VI of this
Court’s “Order,” filed August 15, 2017. Defendant’s counsel
shall heed the Court’s orders in the future.
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gripping, grasping, forward reaching, and working at or

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above shoulder level” (A.R. 384-85).

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reportedly included right carpal tunnel syndrome per

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clinical evidence (A.R. 284, 289-90, 294, 349-50, 356, 363,

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375, 381-82, 384), cervical disc protrusion at C5-C6 and C6-

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C7 per MRI study (A.R. 295-96, 384-85), right shoulder

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impingement with labral tear per MRI study (A.R. 295-96,

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385), and left shoulder impingement syndrome per examination

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(A.R. 385, 395));

These impairments

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2.

a September 12, 2013 internal medicine evaluation report

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authored by consultative examiner Dr. Marvin Perer (A.R.

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417-21).

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(which included multiple joint pain of unknown etiology,

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right carpal tunnel syndrome, and degenerative disc disease

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of the cervical spine (by history)) would limit Plaintiff to

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light work with occasional gross manipulation of the right

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upper extremity (A.R. 421); and

Dr. Perer opined that Plaintiff’s impairments

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3.

state agency review physicians’ opinions:

(a) on initial

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evaluation limiting Plaintiff to light work with “limited”

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(i.e., occasional) handling (gross manipulation) of the

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right side based on Dr. Perer’s opinion (A.R. 71-73); and

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(b) on reconsideration limiting Plaintiff to medium work

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with “limited” (i.e., occasional) overhead reaching,

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bilaterally, but with “unlimited” handling, also purportedly

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based, at least in part, on Dr. Perer’s opinion (A.R. 111-

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12).
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In a February 10, 2016 decision, the ALJ found that Plaintiff has

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the following “severe” impairments: degenerative disc disease,

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bilateral shoulder pain, fibromyalgia, obesity, a mood disorder, and

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psoriasis (but not carpal tunnel syndrome) (A.R. 17-18).

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opined that Plaintiff could perform a reduced range of light work

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with:

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ropes or scaffolds; (2) occasional over the shoulder work,

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bilaterally; (3) no work around unprotected heights or dangerous

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machinery; (4) non-complex routine tasks but no tasks requiring

The ALJ

(1) occasional postural activities but no climbing of ladders,

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hypervigilance, responsibility for the safety of others, or public

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interaction (A.R. 21-27).

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Plaintiff assertedly could perform, and, on that basis, denied

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disability benefits (A.R. 28-29 (adopting vocational expert testimony

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at A.R. 55-57)).

The ALJ identified certain light work jobs

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In determining Plaintiff’s residual functional capacity, the ALJ

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purportedly gave “some weight” to Dr. Lavi’s opinion as consistent

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with Dr. Lavi’s clinical findings (A.R. 26).

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adopt Dr. Lavi’s preclusions from pushing, pulling, gripping,

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grasping, forward reaching, and working at or above shoulder level

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(A.R. 26).

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reasonable,” and yet failed to adopt them, ostensibly because Dr. Lavi

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had “not performed any recent evaluations” of Plaintiff or reviewed

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additional records in evidence (A.R. 26).

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weight” to Dr. Perer’s opinion that Plaintiff should be limited to

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occasional gross manipulation of the right upper extremity (A.R. 26).

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The ALJ asserted that Dr. Perer’s opinion was based on “only one brief

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encounter,” that Dr. Perer failed to review all the medical records,

However, the ALJ did not

The ALJ described these preclusions as “relatively

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The ALJ gave “little

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and that EMG results supposedly showed that Plaintiff does not

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currently have right carpal tunnel syndrome (A.R. 26).

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purportedly gave “great weight” to the state agency review physicians’

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opinions in part because these physicians “had the opportunity to

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review some of the records in evidence” (A.R. 25).

The ALJ

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On June 19, 2017, the Appeals Council denied review (A.R. 1-4).

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Plaintiff had submitted to the Appeals Council additional evidence

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dated September 23, 2015 through February 3, 2016 (during the alleged

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disability period), which the Appeals Council declined to “consider

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and exhibit” (A.R. 2).

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did not show a reasonable possibility of changing the outcome of the

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decision (A.R. 2).

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Council additional medical evidence post-dating the ALJ’s decision,

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which the Appeals Council declined to include in the record, stating

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that the evidence did not relate to the disability period at issue

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(A.R. 2).

The Appeals Council stated that the evidence

Plaintiff also had submitted to the Appeals

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if:

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

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682 F.3d 1157, 1161 (9th Cir. 2012).

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relevant evidence as a reasonable mind might accept as adequate to
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(1) the Administration’s

See Carmickle v.

Substantial evidence is “such

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support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401

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(1971) (citation and quotations omitted); see also Widmark v.

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Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

But the

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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DISCUSSION

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I.

On the Present Record, Substantial Evidence Does Not Support the
ALJ’s Decision.

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The ALJ’s decision purports to rely on the opinions of the non-

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examining state agency physicians to find Plaintiff capable of

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performing occasional over the shoulder work, bilaterally, with no

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other manipulative limitations (A.R. 25).

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ALJ’s rejection of the contrary opinions of Plaintiff’s treating

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physician, Dr. Lavi.

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reasons discussed below, the ALJ materially erred in the evaluation of

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Plaintiff’s alleged physical impairments.

Plaintiff challenges the

See Plaintiff’s Motion, pp. 8-9.

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For the

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A.

Summary of Dr. Lavi’s Treatment Records and the Medical

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Opinion Evidence Concerning Plaintiff’s Alleged Physical

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Impairments

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Dr. Lavi first examined Plaintiff on March 15, 2010 (A.R. 280-

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87).

Plaintiff reported she developed pain to her right wrist in

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2005, which she attributed to the repetitive typing and filing

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required by her job (A.R. 281).

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having neck and bilateral shoulder pain in mid-2008, which she

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attributed to the repetitive lifting of file boxes (A.R. 281).

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time, her symptoms reportedly increased, and by 2009 Plaintiff

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allegedly was having headaches and difficulty sleeping (A.R. 281).

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December of 2009, Plaintiff reportedly developed symptoms of

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depression and nausea associated with burning in her stomach, which

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she attributed to job-related stress (A.R. 281).

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Plaintiff sought treatment with her personal physician and was taken

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off work secondary to stress (A.R. 281).

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numbness in her fingers and pain in her right wrist, neck, and

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shoulders since being off work (A.R. 281).

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(1) constant pain in the cervical spine radiating to the upper

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extremities and paresthesia, aggravated by repetitive motions of the

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neck, lifting, pushing, pulling, forward reaching, and working at or

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above shoulder level; (2) intermittent pain in both shoulders

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aggravated by forward reaching, lifting, pushing, pulling, and working

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at or above shoulder level; (3) intermittent pain in the right wrist

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associated with tingling and numbness, aggravated by gripping,

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grasping, pushing, pulling, and lifting, which causes difficulty with

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fine manipulation (A.R. 282).

Plaintiff reported that she began

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Over

In

On February 4, 2010,

Plaintiff reported continued

Plaintiff complained of:

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On examination of the cervical spine, Dr. Lavi noted

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paravertebral muscle tension, positive axial loading compression, and

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positive Spurling’s maneuver with symptomatology into the C5-C6 and

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C6-C7 dermatomes, right side more pronounced than left (A.R. 283).

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Examination of Plaintiff’s shoulders reportedly revealed tenderness in

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the bilateral trapezius and deltoid regions, positive axial loading

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compression, tenderness around the anterior glenohumeral region and

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subacromial space, and positive Hawkins and impingement signs (A.R.

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284).

Examination of Plaintiff’s right wrist reportedly revealed

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tenderness at the volar aspect, positive Tinel and Phalen signs, pain

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with terminal flexion, and dysethesia at the radial digits (A.R. 284).

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X-rays of Plaintiff’s cervical spine showed disc space height collapse

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at C5-C6 and C6-C7 with unconvertebral joint arthrosis and

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calcification over the anterior longitudinal ligament (A.R. 284).

X-

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rays of Plaintiff’s shoulders showed no abnormalities (A.R. 284).

Dr.

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Lavi diagnosed cervical discopathy/radiculitis, right greater than

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left, and clinical right carpal tunnel syndrome (A.R. 284).

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noted to rule out bilateral shoulder impingement/rotator cuff tear

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(A.R. 284).

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acupuncture, physical therapy, and medication (A.R. 285).

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considered Plaintiff temporarily totally disabled and ordered follow

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up in several weeks (A.R. 286).

Dr. Lavi

Dr. Lavi ordered further testing and prescribed
Dr. Lavi

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Dr. Lavi’s physician’s assistant evaluated Plaintiff again in

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April and May of 2010 (A.R. 288-98).

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reports which Dr. Lavi reviewed and approved (A.R. 288-98).

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Examination findings did not change (A.R. 289-90, 294).

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Electrodiagnostic studies of the bilateral upper extremities were
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This assistant prepared progress

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normal (A.R. 295; see also A.R. 495-500 (normal electrodiagnostic

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studies from September 2015)).

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mild levoscoliosis, straightening of the cervical spine, a 2-3 mm disc

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protrusion at C5-C6, and a 3-4 mm disc protrusion at C6-C7

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compromising the nerve root on the left (A.R. 295; see also A.R. 494

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(September 2015 cervical spine MRI showing similar findings)).

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of the right shoulder showed superior and anterior labral tears,

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athrosis of the the acromioclavicular joint, downward sloping of the

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acromion, impingement, several benign cysts, fluid in the joint,

An MRI of the cervical spine showed

An MRI

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anterior and posterior capsulitis, and sprain (A.R. 295).

The report

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reflects additional diagnoses of cervical disc protrusion at C5-C6 and

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C6-C7, and right shoulder impingement with labral tear (A.R. 296).

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Plaintiff was referred for pain management (A.R. 297).

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Dr. Lavi evaluated Plaintiff again in June of 2010 and prepared a

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progress report (A.R. 348-54).

Plaintiff complained of increasing

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symptomatology and progressive weakness in the upper extremities (A.R.

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349).

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measures” (i.e., activity modification, physical therapy, and pain

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management) (A.R. 349).

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similar to the findings made during Dr. Lavi’s initial examination.

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Compare A.R. 349-50 with A.R. 283-84.

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from the May visit (A.R. 350).

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shoulder with Celestone, Lidocaine, and Marcaine, and reported

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significant symptom relief subsequent to the injection (A.R. 350).

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Dr. Lavi ordered pain medication and requested approval for a C5-C6

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and C6-C7 anterior cervical microdiscectomy with implantation of

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dynamic hardware (A.R. 351-52).

Plaintiff reportedly had failed all “conservative [treatment]

Physical examination revealed findings

Diagnoses remained unchanged

Dr. Lavi injected Plaintiff’s right

According to Dr. Lavi, Plaintiff
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remained temporarily totally disabled (A.R. 353).

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Dr. Lavi’s physician’s assistant evaluated Plaintiff in August of

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2010, November of 2010, and January of 2011 (A.R. 355-67, 374-79).

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Findings on examinations were consistent with prior findings.

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Compare A.R. 356, 363, and 375 with A.R. 283-84, 349-50.

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of 2010, Plaintiff had received a cervical epidural steroid injection

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with some relief of her symptomatology (A.R. 363).

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2011, Plaintiff had received a second cervical steroid injection with

By November

By January of

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some improvement (A.R. 375).

Plaintiff was approved to follow up with

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other specialists (A.R. 365, 377).

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authorization for cervical spine surgery (A.R. 377).

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Lavi’s physician’s assistant, Plaintiff remained temporarily totally

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disabled (A.R. 378).

Plaintiff was awaiting
According to Dr.

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Dr. Lavi prepared a “Permanent and Stationary” report dated

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February 9, 2011 (A.R. 380-89).

Dr. Lavi stated that Plaintiff’s

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relief from cervical steroid injections was “short-lived,” and

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Plaintiff still was awaiting surgical authorization (A.R. 380-81).

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Examination findings reportedly were unchanged (A.R. 381).

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believed Plaintiff’s condition had plateaued, and Dr. Lavi considered

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Plaintiff permanent and stationary based on:

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right wrist carpal tunnel syndrome (including positive Tinel and

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Phalen signs); (2) MRI findings consistent with examinations of the

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cervical spine and right shoulder; and (3) and positive signs of left

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shoulder impingement and tenderness over the subacromial region on

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examination (A.R. 384-85; see also A.R. 395 (supplemental report

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noting omitted diagnosis of left shoulder impingement syndrome)).
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Dr. Lavi

(1) clinical evidence of

Dr.

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Lavi opined that Plaintiff should be precluded from: “repetitive

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and/or prolonged positioning of the cervical spine, heavy lifting,

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pushing, pulling, gripping, grasping, forward reaching and working at

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or above shoulder level” (A.R. 385).

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should be considered a “Qualified Injured Worker” for vocational

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rehabilitation training to enable Plaintiff to resume gainful

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employment within Dr. Lavi’s recommended guidelines (preclusions)

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(A.R. 386).

Dr. Lavi stated that Plaintiff

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Consultative examiner Dr. Perer prepared an internal medicine

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evaluation dated September 12, 2013 (A.R. 417-21).

There is no

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indication whether Dr. Perer reviewed any medical records (A.R. 417).

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During the examination, Plaintiff complained of headaches, joint pain

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(shoulders, elbows, hips, and knees), and neck and back pain (A.R.

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417-18).

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418).

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was obese and had a positive Tinel sign on the right wrist (A.R. 418-

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21).

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right carpal tunnel syndrome, and degenerative disc disease of the

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cervical spine (by history) (A.R. 421).

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Plaintiff would be limited to light work with only occasional gross

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manipulation of the right upper extremity (A.R. 421).

Plaintiff reportedly was taking several medications (A.R.

Examination was unremarkable but for notations that Plaintiff

Dr. Perer diagnosed multiple joint pain of unclear etiology,

Dr. Perer opined that

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Consultative examiner Dr. Mehran Sourehnissani prepared an

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internal medicine evaluation dated February 20, 2014 (A.R. 448-52).

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There is no indication whether Dr. Sourehnissani reviewed any medical

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records (A.R. 449).

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generalized body aches (i.e., pain in her entire body and joints),

During the examination, Plaintiff complained of

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lack of energy, lack of refreshed sleep, and said she had been

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diagnosed with fibromyalgia (A.R. 448).

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but for notations that Plaintiff was obese, had zero to two pounds of

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grip strength in her hands “with poor effort,” and had trigger point

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tenderness (A.R. 449-51).

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syndrome and right knee pain status post arthroscopic surgery (A.R.

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451).

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work with no limitations (A.R. 452).

Examination was unremarkable

Dr. Sourehnissani diagnosed fibromyalgia

Dr. Sourehnissani opined that Plaintiff could perform medium

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On initial review in September of 2013, Dr. William Collie, a

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non-examining state agency review physician, reviewed portions of the

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medical record including treatment records from Dr. Lavi, Dr. Lavi’s

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Permanent and Stationary Report, and Dr. Perer’s opinion (A.R. 64-78).

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Dr. Collie reportedly gave “great weight” to Dr. Perer’s opinion (A.R.

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71).

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in Dr. Lavi’s Permanent and Stationary Report to constitute medical

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opinions, and Dr. Collie did not indicate whether he gave any weight

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to Dr. Lavi’s opinions.

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containing no opinion evidence), A.R. 71 (excluding Dr. Lavi’s

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opinions from “treating sources with medical opinions”).

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opined that Plaintiff has a residual functional capacity for a reduced

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range of light work with, inter alia, “limited” (occasional) handling

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(gross manipulation) on the right side based on Dr. Perer’s evaluation

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(A.R. 71-73).

Dr. Collie purportedly did not consider the opinions expressed

See A.R. 67 (describing Dr. Lavi’s records as

Dr. Collie

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On reconsideration, Dr. H. Pham, another non-examining state

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agency review physician, reviewed additional medical records and

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opinions from doctor(s) with South Atlantic Medical Group from April
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and May of 2014 (A.R. 97-117).

These records and opinions reviewed by

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Dr. Pham are not a part of the Administrative Record.

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reportedly gave “great weight” to Dr. Perer’s opinion and to the

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missing South Atlantic Medical Group opinions (A.R. 111).

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Collie, Dr. Pham did not consider Dr. Lavi’s opinions to constitute

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medical opinions (A.R. 104-05, 111).

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has a residual functional capacity for medium work with, inter alia,

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“limited” (occasional) overhead reaching, bilaterally, but with

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unlimited handling (A.R. 111-12).

Dr. Pham

Like Dr.

Dr. Pham opined that Plaintiff

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B.

Substantial Evidence Does Not Support the ALJ’s Residual

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Functional Capacity Determination; the ALJ Failed to Provide

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Legally Sufficient Reasons for Discounting or Rejecting Dr.

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Lavi’s Opinions.

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The opinions of the non-examining state agency physicians, which

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contradict Dr. Lavi’s opinions, do not constitute substantial evidence

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to support the ALJ’s decision.

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physician cannot by itself constitute substantial evidence that

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justifies the rejection of the opinion of either an examining

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physician or a treating physician.”

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831 (9th Cir. 1995) (emphasis in original); see also Orn v. Astrue,

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495 F.3d 625, 632 (9th Cir. 2007) (“When [a nontreating] physician

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relies on the same clinical findings as a treating physician, but

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differs only in his or her conclusions, the conclusions of the

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[nontreating] physician are not ‘substantial evidence.’”); Pitzer v.

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Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“The nonexamining

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physicians’ conclusion, with nothing more, does not constitute

“The opinion of a nonexamining

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Lester v. Chater, 81 F.3d 821,

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substantial evidence, particularly in view of the conflicting

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observations, opinions, and conclusions of an examining physician”).

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In this case, the state agency review physicians did not even

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consider Dr. Lavi’s opinions to be medical opinions.

In actuality,

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Dr. Lavi’s opinions were the only treating source opinions of record

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concerning Plaintiff’s physical impairments.

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The opinions of treating physicians command particular respect.

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“As a general rule, more weight should be given to the opinion of the

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treating source than to the opinion of doctors who do not treat the

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claimant. . . .”

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omitted).

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substantial weight.”

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1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the

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ALJ must give sufficient weight to the subjective aspects of a

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doctor’s opinion. . . .

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that of a treating physician”) (citation omitted); see also Orn v.

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Astrue, 495 F.3d at 631-33 (discussing deference owed to treating

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physicians’ opinions).

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are contradicted, as here,2 “if the ALJ wishes to disregard the

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opinion[s] of the treating physician he . . . must make findings

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setting forth specific, legitimate reasons for doing so that are based

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on substantial evidence in the record.”

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643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted);

Lester v. Chater, 81 F.3d at 830 (citations

A treating physician’s conclusions “must be given
Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.

This is especially true when the opinion is

Even where the treating physician’s opinions

Winans v. Bowen, 853 F.2d

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Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
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see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the

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treating physician’s opinion, but only by setting forth specific,

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legitimate reasons for doing so, and this decision must itself be

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based on substantial evidence”) (citation and quotations omitted).

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These reasons must be stated in the ALJ’s decision itself; the Court

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“cannot affirm the decision of an agency on a ground that the agency

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did not invoke in making its decision.”

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840, 847 (9th Cir. 2001).

Pinto v. Massanari, 249 F.3d

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Here, the ALJ’s stated reasons for discounting or rejecting Dr.

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Lavi’s opinions are legally insufficient.

First, the timing of Dr.

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Lavi’s opinions, which post-dated the alleged onset date by a little

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over one year, is not a specific, legitimate reason for discounting or

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rejecting Dr. Lavi’s opinions.

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treatment of Plaintiff, which began not long after Plaintiff claimed

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her symptoms became disabling.

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relevant to the period of alleged disability.

Dr. Lavi’s opinions were based on his

Dr. Lavi’s opinions were directly

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The Court is mindful of case authority indicating that, as a

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general matter, a more recent medical opinion may have more probative

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value as to a claimant’s current abilities than an older opinion.

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See, e.g., Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986); Stone

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v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985); see also Hunter v.

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Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).

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apply only if the record reflects that the claimant’s condition has

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changed in the period between the two opinions.

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761 F.2d at 532 (finding that the most recent medical opinion was the

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most probative because the claimant’s condition “was progressively
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However, these authorities

See Stone v. Heckler,

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deteriorating”); cf. Young v. Heckler, 803 F.2d at 968 (declining to

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afford greater weight to a more recent report when “it is far from

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clear that [claimant’s] condition was progressively deteriorating”).

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Here, contrary to the ALJ’s apparent assumption, the record is

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far from clear that Plaintiff’s conditions improved after Dr. Lavi

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stopped treating Plaintiff.

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suggests that Plaintiff’s spine, shoulder, and wrist conditions which

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caused Plaintiff pain persisted throughout the period of alleged

The objective evidence in the record

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disability.

Compare A.R. 295-96 (Dr. Lavi’s summary of the 2010

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diagnostic studies) with:

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upper extremity electrodiagnostic study) and A.R. 609 (June, 2015

13

bilateral wrist x-ray showing bone or calcific density in the dorsal

14

aspect of the carpal bones at the base of the right third metacarpal);

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(2) A.R. 494 (September, 2015 MRI of the cervical spine showing mild

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disc dessication of C6-C7 with a 2 mm bulge causing mild central canal

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stenosis, 1 mm disc protrusions at C3-C4 and C5-C6, and mild reversal

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of the lordotic curvature); A.R. 604 (June, 2015 lumbar spine x-ray

19

showing osteoporosis with spondylosis, degenerative disc disease at

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L5-S1, and 1 mm spondylolisthesis of L5 on S1); A.R. 633 (December,

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2012 lumbar spine x-ray showing mild osteoarthritic spurring but no

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compression or disc space narrowing); see also A.R. 543 (July 5, 2012

23

treatment note for upper body pain finding “12/12” positive tender

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points and diagnosing Plaintiff with fibromyalgia).

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Plaintiff suffers from severe degenerative disc disease, bilateral

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shoulder pain, and fibromyalgia (A.R. 17).

27

opinion relates to the period of alleged disability, the opinion is

28

material.

(1) A.R. 495-500 (September, 2015 normal

The ALJ found

Moreover, as long as an

A claimant may be entitled to benefits for a past
16

1

disability even if improvement has rendered the claimant able to work

2

currently.

3
4

Second, the fact that Dr. Lavi may not have reviewed additional

5

(unidentified) medical records is also not a specific, legitimate

6

reason for discounting Dr. Lavi’s opinions.

7

Berryhill, 2018 WL 566217, at *10 (D. Or. Jan. 26, 2018) (finding ALJ

8

did not provide specific, legitimate reasons for rejecting a treating

9

or examining doctor’s opinion in favor of another doctor’s opinion who

See, e.g., Fowler v.

10

had “reviewed additional evidence and found no limitation”; “A

11

doctor’s decision is not necessarily entitled to more weight than

12

another doctor’s opinion merely because the opinion is more recent,

13

especially when the earlier doctor was a treating or examining

14

specialist”; the ALJ’s mere reference to the fact that the treating

15

physician had additional records that could have been considered does

16

not justify discounting the treating physician’s opinion); Barrera v.

17

Commissioner, 2018 WL 481344, at *10 (E.D. Cal. Jan. 19, 2018) (“The

18

fact that [examining doctor] did not review any medical records is not

19

in itself a specific and legitimate reason supported by substantial

20

evidence to reject his opinion.

21

medical records that are part of the administrative record would have

22

challenged or called into question the opinion.”).

23

above, Dr. Lavi based his opinions on clinical findings and testing,

24

which the ALJ observed were consistent with the opinions (A.R. 26).

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The ALJ’s cursory discounting or rejection of Dr. Lavi’s opinions was

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error under the circumstances of this case.

27

///

28

///

The appropriate question is whether

17

As discussed

1

Defendant may be arguing that Dr. Lavi’s opinions properly were

2

discounted or rejected as assertedly based on Plaintiff’s subjective

3

complaints (see Defendant’s Motion, p. 9), and/or because Dr. Lavi’s

4

opinions allegedly contradicted the opinion of another Workers’

5

Compensation examiner or the opinion of another physician (see

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Defendant’s Motion, p. 10).

7

ALJ’s decision on the basis of reasons the ALJ did not invoke, and the

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ALJ did not invoke these reasons.

9

847 (the court “cannot affirm the decision of an agency on a ground

However, the Court cannot uphold the

See Pinto v. Massanari, 249 F.3d at

10

that the agency did not invoke in making its decision”).

Moreover,

11

the contradiction of a treating physician’s opinion by another

12

physician’s opinion triggers rather than satisfies the requirement of

13

stating “specific, legitimate reasons.”

14

Commissioner, 574 F.3d 685, 692 (9th Cir. 2007); Orn v. Astrue, 495

15

F.3d at 631-33; Lester v. Chater, 81 F.3d at 830-31.

See, e.g., Valentine v.

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17

Accordingly, the ALJ erred by discounting or rejecting the

18

opinions of Dr. Lavi without stating legally sufficient reasons for

19

doing so.

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21
22

II.

The Court is Unable to Determine that the ALJ’s Errors Were
Harmless.

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24

An error “is harmless where it is inconsequential to the ultimate

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non-disability determination.”

Molina v. Astrue, 674 F.3d 1104, 1115

26

(9th Cir. 2012) (citations and quotations omitted); see Treichler v.

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Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this

28

case, an ALJ makes a legal error, but the record is uncertain and
18

1

ambiguous, the proper approach is to remand the case to the agency”);

2

cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not

3

harmless where “the reviewing court can determine from the

4

‘circumstances of the case’ that further administrative review is

5

needed to determine whether there was prejudice from the error”).

6
7

The ALJ’s error may have prejudiced Plaintiff.

In deciding that

8

Plaintiff is not disabled, the ALJ relied on a supposed residual

9

functional capacity for light work limited to occasional over the

10

shoulder work, bilaterally, with no other upper extremity limitations

11

(A.R. 21).

12

gripping, grasping, forward reaching, or working at or above shoulder

13

level (as Dr. Lavi opined), such limitations might well alter the

14

ALJ’s conclusion.

15

relied) did not identify any jobs performable by a person with these

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limitations (A.R. 55-58).

17

Titles (“DOT”), all of the jobs the vocational expert did identify

18

require frequent handling and fingering.

19

(Marker), 1991 WL 671802 (1991); DOT 529.587-014 (Sausage Inspector),

20

1991 WL 674625 (1991); DOT 729.687-010 (Assembler, Electrical

21

Accessories I), 1991 WL 679733 (1991).

If Plaintiff were limited to no pushing, pulling,

The vocational expert (on whose testimony the ALJ

According to the Dictionary of Occupational

See DOT 209.587-034

22
23
24

III. A Remand with a Directive for the Immediate Payment of Benefits
Would not be an Appropriate Remedy in the Present Case.

25
26

The “extreme remedy” of a “remand for an immediate award of

27

benefits is appropriate . . . only in rare circumstances.”

28

Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (citations and
19

Brown-

1

quotations omitted); see INS v. Ventura, 537 U.S. 12, 16 (2002)

2

(remand without a directive for an immediate award of benefits is “the

3

proper course, except in rare circumstances.”); Leon v. Berryhill, 880

4

F.3d 1041, 1044 (9th Cir. 2017) (reversal with a directive for the

5

immediate calculation of benefits is a “rare and prophylactic

6

exception to the well-established ordinary remand rule”).

7

Ninth Circuit, a remand for an immediate award of benefits properly

8

may occur only where:

In the

9
10

(1) the record has been fully developed and further

11

administrative proceedings would serve no useful purpose;

12

(2) the ALJ has failed to provide legally sufficient reasons

13

for rejecting evidence, whether claimant testimony or

14

medical opinion; and (3) if the properly discredited

15

evidence were credited as true, the ALJ would be required to

16

find the claimant disabled on remand.

17
18

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); see Dominguez

19

v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (district court should

20

examine whether the record “is fully developed, is free from conflicts

21

and ambiguities, and all essential factual issues have been resolved.

22

. . .

23

proceedings would serve no useful purpose, it may not remand with a

24

direction to provide benefits”) (citations and quotations omitted);

25

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531

26

U.S. 1038 (2000) (district court may not properly direct an immediate

27

award of benefits unless, among other things, “there are no

28

outstanding issues that must be resolved before a determination of

Unless the district court concludes that further administrative

20

1

disability can be made, and . . . it is clear from the record that the

2

ALJ would be required to find the claimant disabled” if the improperly

3

rejected evidence were credited) (citations and quotations omitted).3

4
5

In the present case, it is not clear that the ALJ would be

6

required to find Plaintiff disabled for the entire period of claimed

7

disability even if Dr. Lavi’s opinions were credited as true.

8

Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

9

Court will not direct the immediate payment of benefits.

See

Accordingly, the

10
11

CONCLUSION

12
13

For all of the foregoing reasons,4 Plaintiff’s and Defendant’s

14

motions for summary judgment are denied and this matter is remanded

15

///

16

///

17

///

18

///

19

///

20

///

21
22
23
24
25

3

Even when these standards are met, the district court
retains “some flexibility” to refuse to remand for an immediate
award of benefits. See Connett v. Barnhart, 340 F.3d 871, 876
(9th Cir. 2003); see also Garrison v. Colvin, 759 F.3d at 1021-22
(perhaps limiting this “flexibility” to circumstances where “an
evaluation of the record as a whole creates serious doubt as to
whether the claimant is, in fact, disabled”).

26
4

27
28

The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be an
appropriate remedy at this time.
21

1

for further administrative action consistent with this Opinion.

2
3

LET JUDGMENT BE ENTERED ACCORDINGLY.

4
5

DATED:

March 8, 2018.

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7
8

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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