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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ROBERTA FLORES, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. CV 17-5831-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a Complaint on August 7, 2017, seeking review of 26 the Commissioner’s denial of benefits. The parties filed a consent to 27 proceed before a United States Magistrate Judge on September 1, 2017. 28 /// 1 On January 19, 2018, Plaintiff filed a motion for summary 2 judgment. On February 13, 2018, Defendant filed a “Memorandum in 3 Support of Defendant’s Answer,” which the Court has construed as 4 Defendant’s motion for summary judgment. 5 motions under submission without oral argument. 6 “Order,” filed August 15, 2017.1 The Court has taken both See L.R. 7-15; 7 8 BACKGROUND 9 10 Plaintiff, a former medical assistant and office manager, 11 reportedly stopped working in 2009 after she allegedly injured her 12 back and neck on the job while lifting a patient (Administrative 13 Record (“A.R.”) 38, 55). 14 Compensation case that settled (A.R. 38-39). Plaintiff filed a related Workers’ 15 16 On May 8, 2013, Plaintiff applied for disability insurance 17 benefits, asserting disability beginning February 3, 2010, based on 18 alleged physical and mental impairments (A.R. 184-85, 198-99, 226-27, 19 245-46). 20 alia: Presented to an Administrative Law Judge (“ALJ”) were, inter 21 22 1. a February 9, 2011 report authored by her Workers’ 23 Compensation treating orthopedist, Dr. Simon Lavi (A.R. 380- 24 89). 25 impairments would preclude Plaintiff from “pushing, pulling, Dr. Lavi opined that Plaintiff’s orthopedic 26 27 28 1 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. 2 1 gripping, grasping, forward reaching, and working at or 2 above shoulder level” (A.R. 384-85). 3 reportedly included right carpal tunnel syndrome per 4 clinical evidence (A.R. 284, 289-90, 294, 349-50, 356, 363, 5 375, 381-82, 384), cervical disc protrusion at C5-C6 and C6- 6 C7 per MRI study (A.R. 295-96, 384-85), right shoulder 7 impingement with labral tear per MRI study (A.R. 295-96, 8 385), and left shoulder impingement syndrome per examination 9 (A.R. 385, 395)); These impairments 10 11 2. a September 12, 2013 internal medicine evaluation report 12 authored by consultative examiner Dr. Marvin Perer (A.R. 13 417-21). 14 (which included multiple joint pain of unknown etiology, 15 right carpal tunnel syndrome, and degenerative disc disease 16 of the cervical spine (by history)) would limit Plaintiff to 17 light work with occasional gross manipulation of the right 18 upper extremity (A.R. 421); and Dr. Perer opined that Plaintiff’s impairments 19 20 3. state agency review physicians’ opinions: (a) on initial 21 evaluation limiting Plaintiff to light work with “limited” 22 (i.e., occasional) handling (gross manipulation) of the 23 right side based on Dr. Perer’s opinion (A.R. 71-73); and 24 (b) on reconsideration limiting Plaintiff to medium work 25 with “limited” (i.e., occasional) overhead reaching, 26 bilaterally, but with “unlimited” handling, also purportedly 27 based, at least in part, on Dr. Perer’s opinion (A.R. 111- 28 12). 3 1 In a February 10, 2016 decision, the ALJ found that Plaintiff has 2 the following “severe” impairments: degenerative disc disease, 3 bilateral shoulder pain, fibromyalgia, obesity, a mood disorder, and 4 psoriasis (but not carpal tunnel syndrome) (A.R. 17-18). 5 opined that Plaintiff could perform a reduced range of light work 6 with: 7 ropes or scaffolds; (2) occasional over the shoulder work, 8 bilaterally; (3) no work around unprotected heights or dangerous 9 machinery; (4) non-complex routine tasks but no tasks requiring The ALJ (1) occasional postural activities but no climbing of ladders, 10 hypervigilance, responsibility for the safety of others, or public 11 interaction (A.R. 21-27). 12 Plaintiff assertedly could perform, and, on that basis, denied 13 disability benefits (A.R. 28-29 (adopting vocational expert testimony 14 at A.R. 55-57)). The ALJ identified certain light work jobs 15 16 In determining Plaintiff’s residual functional capacity, the ALJ 17 purportedly gave “some weight” to Dr. Lavi’s opinion as consistent 18 with Dr. Lavi’s clinical findings (A.R. 26). 19 adopt Dr. Lavi’s preclusions from pushing, pulling, gripping, 20 grasping, forward reaching, and working at or above shoulder level 21 (A.R. 26). 22 reasonable,” and yet failed to adopt them, ostensibly because Dr. Lavi 23 had “not performed any recent evaluations” of Plaintiff or reviewed 24 additional records in evidence (A.R. 26). 25 weight” to Dr. Perer’s opinion that Plaintiff should be limited to 26 occasional gross manipulation of the right upper extremity (A.R. 26). 27 The ALJ asserted that Dr. Perer’s opinion was based on “only one brief 28 encounter,” that Dr. Perer failed to review all the medical records, However, the ALJ did not The ALJ described these preclusions as “relatively 4 The ALJ gave “little 1 and that EMG results supposedly showed that Plaintiff does not 2 currently have right carpal tunnel syndrome (A.R. 26). 3 purportedly gave “great weight” to the state agency review physicians’ 4 opinions in part because these physicians “had the opportunity to 5 review some of the records in evidence” (A.R. 25). The ALJ 6 7 On June 19, 2017, the Appeals Council denied review (A.R. 1-4). 8 Plaintiff had submitted to the Appeals Council additional evidence 9 dated September 23, 2015 through February 3, 2016 (during the alleged 10 disability period), which the Appeals Council declined to “consider 11 and exhibit” (A.R. 2). 12 did not show a reasonable possibility of changing the outcome of the 13 decision (A.R. 2). 14 Council additional medical evidence post-dating the ALJ’s decision, 15 which the Appeals Council declined to include in the record, stating 16 that the evidence did not relate to the disability period at issue 17 (A.R. 2). The Appeals Council stated that the evidence Plaintiff also had submitted to the Appeals 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Administration’s decision to determine if: 23 findings are supported by substantial evidence; and (2) the 24 Administration used correct legal standards. 25 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 26 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 27 682 F.3d 1157, 1161 (9th Cir. 2012). 28 relevant evidence as a reasonable mind might accept as adequate to 5 (1) the Administration’s See Carmickle v. Substantial evidence is “such 1 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 2 (1971) (citation and quotations omitted); see also Widmark v. 3 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 4 5 If the evidence can support either outcome, the court may 6 not substitute its judgment for that of the ALJ. 7 Commissioner’s decision cannot be affirmed simply by 8 isolating a specific quantum of supporting evidence. 9 Rather, a court must consider the record as a whole, But the 10 weighing both evidence that supports and evidence that 11 detracts from the [administrative] conclusion. 12 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 14 quotations omitted). 15 16 DISCUSSION 17 18 19 I. On the Present Record, Substantial Evidence Does Not Support the ALJ’s Decision. 20 21 The ALJ’s decision purports to rely on the opinions of the non- 22 examining state agency physicians to find Plaintiff capable of 23 performing occasional over the shoulder work, bilaterally, with no 24 other manipulative limitations (A.R. 25). 25 ALJ’s rejection of the contrary opinions of Plaintiff’s treating 26 physician, Dr. Lavi. 27 reasons discussed below, the ALJ materially erred in the evaluation of 28 Plaintiff’s alleged physical impairments. Plaintiff challenges the See Plaintiff’s Motion, pp. 8-9. 6 For the 1 A. Summary of Dr. Lavi’s Treatment Records and the Medical 2 Opinion Evidence Concerning Plaintiff’s Alleged Physical 3 Impairments 4 5 Dr. Lavi first examined Plaintiff on March 15, 2010 (A.R. 280- 6 87). Plaintiff reported she developed pain to her right wrist in 7 2005, which she attributed to the repetitive typing and filing 8 required by her job (A.R. 281). 9 having neck and bilateral shoulder pain in mid-2008, which she 10 attributed to the repetitive lifting of file boxes (A.R. 281). 11 time, her symptoms reportedly increased, and by 2009 Plaintiff 12 allegedly was having headaches and difficulty sleeping (A.R. 281). 13 December of 2009, Plaintiff reportedly developed symptoms of 14 depression and nausea associated with burning in her stomach, which 15 she attributed to job-related stress (A.R. 281). 16 Plaintiff sought treatment with her personal physician and was taken 17 off work secondary to stress (A.R. 281). 18 numbness in her fingers and pain in her right wrist, neck, and 19 shoulders since being off work (A.R. 281). 20 (1) constant pain in the cervical spine radiating to the upper 21 extremities and paresthesia, aggravated by repetitive motions of the 22 neck, lifting, pushing, pulling, forward reaching, and working at or 23 above shoulder level; (2) intermittent pain in both shoulders 24 aggravated by forward reaching, lifting, pushing, pulling, and working 25 at or above shoulder level; (3) intermittent pain in the right wrist 26 associated with tingling and numbness, aggravated by gripping, 27 grasping, pushing, pulling, and lifting, which causes difficulty with 28 fine manipulation (A.R. 282). Plaintiff reported that she began 7 Over In On February 4, 2010, Plaintiff reported continued Plaintiff complained of: 1 On examination of the cervical spine, Dr. Lavi noted 2 paravertebral muscle tension, positive axial loading compression, and 3 positive Spurling’s maneuver with symptomatology into the C5-C6 and 4 C6-C7 dermatomes, right side more pronounced than left (A.R. 283). 5 Examination of Plaintiff’s shoulders reportedly revealed tenderness in 6 the bilateral trapezius and deltoid regions, positive axial loading 7 compression, tenderness around the anterior glenohumeral region and 8 subacromial space, and positive Hawkins and impingement signs (A.R. 9 284). Examination of Plaintiff’s right wrist reportedly revealed 10 tenderness at the volar aspect, positive Tinel and Phalen signs, pain 11 with terminal flexion, and dysethesia at the radial digits (A.R. 284). 12 X-rays of Plaintiff’s cervical spine showed disc space height collapse 13 at C5-C6 and C6-C7 with unconvertebral joint arthrosis and 14 calcification over the anterior longitudinal ligament (A.R. 284). X- 15 rays of Plaintiff’s shoulders showed no abnormalities (A.R. 284). Dr. 16 Lavi diagnosed cervical discopathy/radiculitis, right greater than 17 left, and clinical right carpal tunnel syndrome (A.R. 284). 18 noted to rule out bilateral shoulder impingement/rotator cuff tear 19 (A.R. 284). 20 acupuncture, physical therapy, and medication (A.R. 285). 21 considered Plaintiff temporarily totally disabled and ordered follow 22 up in several weeks (A.R. 286). Dr. Lavi Dr. Lavi ordered further testing and prescribed Dr. Lavi 23 24 Dr. Lavi’s physician’s assistant evaluated Plaintiff again in 25 April and May of 2010 (A.R. 288-98). 26 reports which Dr. Lavi reviewed and approved (A.R. 288-98). 27 Examination findings did not change (A.R. 289-90, 294). 28 Electrodiagnostic studies of the bilateral upper extremities were 8 This assistant prepared progress 1 normal (A.R. 295; see also A.R. 495-500 (normal electrodiagnostic 2 studies from September 2015)). 3 mild levoscoliosis, straightening of the cervical spine, a 2-3 mm disc 4 protrusion at C5-C6, and a 3-4 mm disc protrusion at C6-C7 5 compromising the nerve root on the left (A.R. 295; see also A.R. 494 6 (September 2015 cervical spine MRI showing similar findings)). 7 of the right shoulder showed superior and anterior labral tears, 8 athrosis of the the acromioclavicular joint, downward sloping of the 9 acromion, impingement, several benign cysts, fluid in the joint, An MRI of the cervical spine showed An MRI 10 anterior and posterior capsulitis, and sprain (A.R. 295). The report 11 reflects additional diagnoses of cervical disc protrusion at C5-C6 and 12 C6-C7, and right shoulder impingement with labral tear (A.R. 296). 13 Plaintiff was referred for pain management (A.R. 297). 14 15 Dr. Lavi evaluated Plaintiff again in June of 2010 and prepared a 16 progress report (A.R. 348-54). Plaintiff complained of increasing 17 symptomatology and progressive weakness in the upper extremities (A.R. 18 349). 19 measures” (i.e., activity modification, physical therapy, and pain 20 management) (A.R. 349). 21 similar to the findings made during Dr. Lavi’s initial examination. 22 Compare A.R. 349-50 with A.R. 283-84. 23 from the May visit (A.R. 350). 24 shoulder with Celestone, Lidocaine, and Marcaine, and reported 25 significant symptom relief subsequent to the injection (A.R. 350). 26 Dr. Lavi ordered pain medication and requested approval for a C5-C6 27 and C6-C7 anterior cervical microdiscectomy with implantation of 28 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 9 1 remained temporarily totally disabled (A.R. 353). 2 3 Dr. Lavi’s physician’s assistant evaluated Plaintiff in August of 4 2010, November of 2010, and January of 2011 (A.R. 355-67, 374-79). 5 Findings on examinations were consistent with prior findings. 6 Compare A.R. 356, 363, and 375 with A.R. 283-84, 349-50. 7 of 2010, Plaintiff had received a cervical epidural steroid injection 8 with some relief of her symptomatology (A.R. 363). 9 2011, Plaintiff had received a second cervical steroid injection with By November By January of 10 some improvement (A.R. 375). Plaintiff was approved to follow up with 11 other specialists (A.R. 365, 377). 12 authorization for cervical spine surgery (A.R. 377). 13 Lavi’s physician’s assistant, Plaintiff remained temporarily totally 14 disabled (A.R. 378). Plaintiff was awaiting According to Dr. 15 16 Dr. Lavi prepared a “Permanent and Stationary” report dated 17 February 9, 2011 (A.R. 380-89). Dr. Lavi stated that Plaintiff’s 18 relief from cervical steroid injections was “short-lived,” and 19 Plaintiff still was awaiting surgical authorization (A.R. 380-81). 20 Examination findings reportedly were unchanged (A.R. 381). 21 believed Plaintiff’s condition had plateaued, and Dr. Lavi considered 22 Plaintiff permanent and stationary based on: 23 right wrist carpal tunnel syndrome (including positive Tinel and 24 Phalen signs); (2) MRI findings consistent with examinations of the 25 cervical spine and right shoulder; and (3) and positive signs of left 26 shoulder impingement and tenderness over the subacromial region on 27 examination (A.R. 384-85; see also A.R. 395 (supplemental report 28 noting omitted diagnosis of left shoulder impingement syndrome)). 10 Dr. Lavi (1) clinical evidence of Dr. 1 Lavi opined that Plaintiff should be precluded from: “repetitive 2 and/or prolonged positioning of the cervical spine, heavy lifting, 3 pushing, pulling, gripping, grasping, forward reaching and working at 4 or above shoulder level” (A.R. 385). 5 should be considered a “Qualified Injured Worker” for vocational 6 rehabilitation training to enable Plaintiff to resume gainful 7 employment within Dr. Lavi’s recommended guidelines (preclusions) 8 (A.R. 386). Dr. Lavi stated that Plaintiff 9 10 Consultative examiner Dr. Perer prepared an internal medicine 11 evaluation dated September 12, 2013 (A.R. 417-21). There is no 12 indication whether Dr. Perer reviewed any medical records (A.R. 417). 13 During the examination, Plaintiff complained of headaches, joint pain 14 (shoulders, elbows, hips, and knees), and neck and back pain (A.R. 15 417-18). 16 418). 17 was obese and had a positive Tinel sign on the right wrist (A.R. 418- 18 21). 19 right carpal tunnel syndrome, and degenerative disc disease of the 20 cervical spine (by history) (A.R. 421). 21 Plaintiff would be limited to light work with only occasional gross 22 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 23 24 Consultative examiner Dr. Mehran Sourehnissani prepared an 25 internal medicine evaluation dated February 20, 2014 (A.R. 448-52). 26 There is no indication whether Dr. Sourehnissani reviewed any medical 27 records (A.R. 449). 28 generalized body aches (i.e., pain in her entire body and joints), During the examination, Plaintiff complained of 11 1 lack of energy, lack of refreshed sleep, and said she had been 2 diagnosed with fibromyalgia (A.R. 448). 3 but for notations that Plaintiff was obese, had zero to two pounds of 4 grip strength in her hands “with poor effort,” and had trigger point 5 tenderness (A.R. 449-51). 6 syndrome and right knee pain status post arthroscopic surgery (A.R. 7 451). 8 work with no limitations (A.R. 452). Examination was unremarkable Dr. Sourehnissani diagnosed fibromyalgia Dr. Sourehnissani opined that Plaintiff could perform medium 9 10 On initial review in September of 2013, Dr. William Collie, a 11 non-examining state agency review physician, reviewed portions of the 12 medical record including treatment records from Dr. Lavi, Dr. Lavi’s 13 Permanent and Stationary Report, and Dr. Perer’s opinion (A.R. 64-78). 14 Dr. Collie reportedly gave “great weight” to Dr. Perer’s opinion (A.R. 15 71). 16 in Dr. Lavi’s Permanent and Stationary Report to constitute medical 17 opinions, and Dr. Collie did not indicate whether he gave any weight 18 to Dr. Lavi’s opinions. 19 containing no opinion evidence), A.R. 71 (excluding Dr. Lavi’s 20 opinions from “treating sources with medical opinions”). 21 opined that Plaintiff has a residual functional capacity for a reduced 22 range of light work with, inter alia, “limited” (occasional) handling 23 (gross manipulation) on the right side based on Dr. Perer’s evaluation 24 (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 25 26 On reconsideration, Dr. H. Pham, another non-examining state 27 agency review physician, reviewed additional medical records and 28 opinions from doctor(s) with South Atlantic Medical Group from April 12 1 and May of 2014 (A.R. 97-117). These records and opinions reviewed by 2 Dr. Pham are not a part of the Administrative Record. 3 reportedly gave “great weight” to Dr. Perer’s opinion and to the 4 missing South Atlantic Medical Group opinions (A.R. 111). 5 Collie, Dr. Pham did not consider Dr. Lavi’s opinions to constitute 6 medical opinions (A.R. 104-05, 111). 7 has a residual functional capacity for medium work with, inter alia, 8 “limited” (occasional) overhead reaching, bilaterally, but with 9 unlimited handling (A.R. 111-12). Dr. Pham Like Dr. Dr. Pham opined that Plaintiff 10 11 B. Substantial Evidence Does Not Support the ALJ’s Residual 12 Functional Capacity Determination; the ALJ Failed to Provide 13 Legally Sufficient Reasons for Discounting or Rejecting Dr. 14 Lavi’s Opinions. 15 16 The opinions of the non-examining state agency physicians, which 17 contradict Dr. Lavi’s opinions, do not constitute substantial evidence 18 to support the ALJ’s decision. 19 physician cannot by itself constitute substantial evidence that 20 justifies the rejection of the opinion of either an examining 21 physician or a treating physician.” 22 831 (9th Cir. 1995) (emphasis in original); see also Orn v. Astrue, 23 495 F.3d 625, 632 (9th Cir. 2007) (“When [a nontreating] physician 24 relies on the same clinical findings as a treating physician, but 25 differs only in his or her conclusions, the conclusions of the 26 [nontreating] physician are not ‘substantial evidence.’”); Pitzer v. 27 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (“The nonexamining 28 physicians’ conclusion, with nothing more, does not constitute “The opinion of a nonexamining 13 Lester v. Chater, 81 F.3d 821, 1 substantial evidence, particularly in view of the conflicting 2 observations, opinions, and conclusions of an examining physician”). 3 4 In this case, the state agency review physicians did not even 5 consider Dr. Lavi’s opinions to be medical opinions. In actuality, 6 Dr. Lavi’s opinions were the only treating source opinions of record 7 concerning Plaintiff’s physical impairments. 8 9 The opinions of treating physicians command particular respect. 10 “As a general rule, more weight should be given to the opinion of the 11 treating source than to the opinion of doctors who do not treat the 12 claimant. . . .” 13 omitted). 14 substantial weight.” 15 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the 16 ALJ must give sufficient weight to the subjective aspects of a 17 doctor’s opinion. . . . 18 that of a treating physician”) (citation omitted); see also Orn v. 19 Astrue, 495 F.3d at 631-33 (discussing deference owed to treating 20 physicians’ opinions). 21 are contradicted, as here,2 “if the ALJ wishes to disregard the 22 opinion[s] of the treating physician he . . . must make findings 23 setting forth specific, legitimate reasons for doing so that are based 24 on substantial evidence in the record.” 25 643, 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 26 27 28 2 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). 14 1 see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the 2 treating physician’s opinion, but only by setting forth specific, 3 legitimate reasons for doing so, and this decision must itself be 4 based on substantial evidence”) (citation and quotations omitted). 5 These reasons must be stated in the ALJ’s decision itself; the Court 6 “cannot affirm the decision of an agency on a ground that the agency 7 did not invoke in making its decision.” 8 840, 847 (9th Cir. 2001). Pinto v. Massanari, 249 F.3d 9 10 Here, the ALJ’s stated reasons for discounting or rejecting Dr. 11 Lavi’s opinions are legally insufficient. First, the timing of Dr. 12 Lavi’s opinions, which post-dated the alleged onset date by a little 13 over one year, is not a specific, legitimate reason for discounting or 14 rejecting Dr. Lavi’s opinions. 15 treatment of Plaintiff, which began not long after Plaintiff claimed 16 her symptoms became disabling. 17 relevant to the period of alleged disability. Dr. Lavi’s opinions were based on his Dr. Lavi’s opinions were directly 18 19 The Court is mindful of case authority indicating that, as a 20 general matter, a more recent medical opinion may have more probative 21 value as to a claimant’s current abilities than an older opinion. 22 See, e.g., Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986); Stone 23 v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985); see also Hunter v. 24 Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). 25 apply only if the record reflects that the claimant’s condition has 26 changed in the period between the two opinions. 27 761 F.2d at 532 (finding that the most recent medical opinion was the 28 most probative because the claimant’s condition “was progressively 15 However, these authorities See Stone v. Heckler, 1 deteriorating”); cf. Young v. Heckler, 803 F.2d at 968 (declining to 2 afford greater weight to a more recent report when “it is far from 3 clear that [claimant’s] condition was progressively deteriorating”). 4 5 Here, contrary to the ALJ’s apparent assumption, the record is 6 far from clear that Plaintiff’s conditions improved after Dr. Lavi 7 stopped treating Plaintiff. 8 suggests that Plaintiff’s spine, shoulder, and wrist conditions which 9 caused Plaintiff pain persisted throughout the period of alleged The objective evidence in the record 10 disability. Compare A.R. 295-96 (Dr. Lavi’s summary of the 2010 11 diagnostic studies) with: 12 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); 15 (2) A.R. 494 (September, 2015 MRI of the cervical spine showing mild 16 disc dessication of C6-C7 with a 2 mm bulge causing mild central canal 17 stenosis, 1 mm disc protrusions at C3-C4 and C5-C6, and mild reversal 18 of the lordotic curvature); A.R. 604 (June, 2015 lumbar spine x-ray 19 showing osteoporosis with spondylosis, degenerative disc disease at 20 L5-S1, and 1 mm spondylolisthesis of L5 on S1); A.R. 633 (December, 21 2012 lumbar spine x-ray showing mild osteoarthritic spurring but no 22 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 24 points and diagnosing Plaintiff with fibromyalgia). 25 Plaintiff suffers from severe degenerative disc disease, bilateral 26 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). 25 The ALJ’s cursory discounting or rejection of Dr. Lavi’s opinions was 26 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 6 Defendant’s Motion, p. 10). 7 ALJ’s decision on the basis of reasons the ALJ did not invoke, and the 8 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. 16 17 Accordingly, the ALJ erred by discounting or rejecting the 18 opinions of Dr. Lavi without stating legally sufficient reasons for 19 doing so. 20 21 22 II. The Court is Unable to Determine that the ALJ’s Errors Were Harmless. 23 24 An error “is harmless where it is inconsequential to the ultimate 25 non-disability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 26 (9th Cir. 2012) (citations and quotations omitted); see Treichler v. 27 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 16 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. 6 7 8 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22

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