Mary Ann Parker v. Michael J Astrue

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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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 MARY ANN PARKER, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-01763-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on November 14, 2011, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for a period of disability and disability 21 insurance 22 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the 23 undersigned United States Magistrate Judge. The parties filed a Joint 24 Stipulation on July 11, 2012, in which: plaintiff seeks an order 25 reversing benefits the (“DIB”). Commissioner’s On December decision 19, and 2011, awarding the parties benefits or, 26 27 28 1 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) 1 alternatively, remanding for further administrative proceedings; and the 2 Commissioner requests that his decision be affirmed or, alternatively, 3 remanded for further administrative proceedings. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On March 6, 2008, plaintiff filed an application for a period of 8 disability and DIB, alleging an inability to work since March 11, 2006, 9 due to “Rt arm can’t push pull lift. Very weak and bad spasms . . . .” 10 (Administrative Record (“A.R.”) 97-98, 99-100, 107.) Plaintiff has past 11 relevant work experience as a health assistant. (A.R. 108.) 12 13 The Commissioner denied plaintiff’s application initially and upon 14 reconsideration. (A.R. 51-60.) On September 23, 2009, plaintiff, who 15 was represented by counsel, appeared and testified at a hearing before 16 Administrative Law Judge F. Keith Varni (the “ALJ”). 17 November 13, 2009, the ALJ denied plaintiff’s claim (A.R. 13-25), and 18 the Appeals Council subsequently denied plaintiff’s request for review 19 of the ALJ’s decision (A.R. 1-6, 11). 20 this action. (A.R. 26-48.) On That decision is now at issue in 21 22 SUMMARY OF ADMINISTRATIVE DECISION 23 24 The ALJ found that plaintiff has not engaged in substantial gainful 25 activity since March 11, 2006, her application date. 26 ALJ determined that plaintiff has the severe impairment of “post- 27 surgical right shoulder impingement syndrome with subacromial bursitis 28 and rotator cuff tendonopathy,” but through the date last insured, she 2 (A.R. 18.) The 1 did not have any impairment or combination of impairments that met or 2 medically equaled one of the listed impairments in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1, the Listing of Impairments. (Id.) 4 5 After reviewing the record, the ALJ determined that plaintiff has 6 the residual functional capacity (“RFC”) to perform less than a full 7 range of light work as defined in 20 C.F.R. 404.1567(b). 8 Specifically, the ALJ found that plaintiff can: 9 pounds occasionally and 10 pounds frequently; stand and/or walk six 10 hours in an 8-hour workday; sit for six hours in an 8-hour workday; and 11 occasionally reach above the shoulder with her right upper extremity. 12 (A.R. 18-19.) (A.R. 18.) lift and/or carry 20 13 14 The ALJ found that plaintiff’s past relevant work, as a school 15 health aide, does not require the performance of work-related activities 16 precluded 17 concluded that plaintiff has not been under a disability, as defined in 18 the Social Security Act, since March 11, 2006, the alleged onset date, 19 through December 31, 2008, the date last insured. by plaintiff’s RFC. (A.R. 21.) Accordingly, the ALJ (A.R. 22.) 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 24 decision to determine whether it is free from legal error and supported 25 by substantial evidence. 26 2007). Substantial evidence is “‘such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion.’” 28 omitted). Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The “evidence must be more than a mere scintilla but not 3 1 necessarily a preponderance.” Connett v. Barnhart, 340 F.3d 871, 873 2 (9th Cir. 2003). 3 substantial evidence, only those ‘reasonably drawn from the record’ will 4 suffice.” 5 2006)(citation omitted). “While inferences from the record can constitute Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 6 7 Although this Court cannot substitute its discretion for that of 8 the Commissioner, the Court nonetheless must review the record as a 9 whole, “weighing both the evidence that supports and the evidence that 10 detracts from the [Commissioner’s] conclusion.” Desrosiers v. Sec’y of 11 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 13 responsible for determining credibility, resolving conflicts in medical 14 testimony, and for resolving ambiguities.” 15 1035, 1039 (9th Cir. 1995). “The ALJ is Andrews v. Shalala, 53 F.3d 16 17 The Court will uphold the Commissioner’s decision when the evidence 18 is susceptible to more than one rational interpretation. 19 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 20 review only the reasons stated by the ALJ in his decision “and may not 21 affirm the ALJ on a ground upon which he did not rely.” 22 at 630; see also Connett, 340 F.3d at 874. 23 the Commissioner’s decision if it is based on harmless error, which 24 exists only when it is “clear from the record that an ALJ’s error was 25 ‘inconsequential to the ultimate nondisability determination.’” Robbins 26 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 27 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 28 at 679. 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 DISCUSSION 2 3 Plaintiff alleges the following issues: (1) whether the ALJ 4 properly considered fibromyalgia as a severe impairment; (2) whether the 5 ALJ properly considered the opinion of treating physician Paul Liu, 6 M.D.; (3) whether the ALJ properly considered plaintiff’s testimony; and 7 (4) whether the ALJ properly considered if plaintiff could perform her 8 past relevant work. (Joint Stipulation (“Joint Stip.”) at 3.) 9 10 I. The 11 ALJ Failed To Properly Consider Plaintiff’s Fibromyalgia As A Severe Impairment. 12 13 At step two of the sequential evaluation process, the ALJ is tasked 14 with identifying a claimant’s “severe” impairments. 20 C.F.R. §§ 15 404.1520(a)(4)(ii), 404.1520(c). 16 “significantly limits [a claimant’s] physical or mental ability to do 17 basic work activities.”2 18 term “severe,” most circuits, including the Ninth Circuit, have held 19 that the step two inquiry is “a de minimus screening device to dispose 20 of groundless claims.” 21 1996). 22 be A severe impairment is one that 20 C.F.R. § 404.1520(c). Despite use of the Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. Accordingly, “[a]n impairment or combination of impairments may found ‘not severe only if the evidence establishes a slight 23 24 25 26 27 28 2 Basic work activities are “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). Examples of such activities include: (1) “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; (2) the capacity for “seeing, hearing, and speaking”; (3) “[u]nderstanding, carrying out, and remembering simple instructions”; (4) the “use of judgment”; (5) “[r]esponding appropriately to supervision, co-workers and ususal work situations”; and (6) “[d]ealing with changes in a routine work setting.” Id. 5 1 abnormality that has no more than a minimal effect on [a claimant’s] 2 ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686–87 (9th Cir. 3 2005)(citation omitted); see Soc. Sec. Ruling 85–28, 1985 WL 56856, at 4 *3, 1985 SSR LEXIS 19, at *9 (stating that “[a] claim may be denied at 5 step two only if . . . a finding [that the relevant impairments are not 6 medically severe] is clearly established by medical evidence”)(emphasis 7 added). 8 9 On July 2, 2008, Sanjay C. Bhakta, M.D., plaintiff’s treating 10 physician, noted that plaintiff had “diffuse myalgias/trigger point 11 pains suggestive of fibromyalgia . . . .” 12 2009, Dr. Bhakta recounted plaintiff’s symptoms of “persistent pains in 13 the right shoulder, hand and forearm, neck, and knee/ankle[] pains x 17 14 years” 15 250.) Upon physical examination, he noted that plaintiff had “[d]iffuse 16 tender 17 shoulders, elbows, medial knees and medial ankles . . . .” and “similar points over milder the symptoms posterior (A.R. 275.) on the occiput, left neck On February 18, side.” anterior (A.R. chest, (A.R. 251.) 18 19 At the referral of Dr. Bhakta, on February 20, 2009, Anthony Te-Hui 20 Lin, M.D., a rheumatologist,3 examined plaintiff for “diffuse pain, rule 21 out fibromyalgia.” 22 of “diffuse arthralgia involving [s]houlders, arms, neck, back and 23 legs.” (A.R. 318.) (A.R. 318-22.) Dr. Lin noted plaintiff’s symptoms Upon examination, Dr. Lin observed that plaintiff 24 25 26 27 28 3 “Rheumatology is the relevant specialty for fibromyalgia.” Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004); see Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872-73 (9th Cir. 2004) (overruled on other grounds in Abatie v. Alta Health & Life Ins., 458 F.3d 955, 970 (2006). “Specialized knowledge may be particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community.” Id. 6 1 exhibited “14/18 tender points,” and he diagnosed her with fibromyalgia. 2 (A.R. 3 fibromyalgia. 319.) He proscribed “flexeril (cyclobenzaprine)” for the (A.R. 320.) 4 5 On August 10, 2009, Dr. Lin noted that plaintiff had “tenderness 6 and stiffness at her tender points” and observed 12 tender points. (A.R. 7 292.) 8 arthritis or muscle weakness” and “[w]orkup for rheumatoid arthritis was 9 negative.” 10 He also noted that there was “no evidence of inflammatory (A.R. 293.) Dr. Lin assessed plaintiff with fibromyalgia and rotator cuff syndrome. (A.R. 292.) 11 12 On December 23, 2009, Dr. Lin again documented that plaintiff had 13 tenderness at 12 tender 14 fibromyalgia as improved. points. (A.R. 358.) He assessed her (Id.) 15 16 On April 12, 2010, Dr. Bhakta noted that plaintiff’s fibromyalgia 17 was “inadequately controlled.” (A.R. 332-34.) He recommended that she 18 start a “trial of Vitamin B12 shots every 2 weeks for fibromyalgia.” 19 (Id.) 20 21 Plaintiff testified that she has pain in both her upper 22 extremities, hips, legs, and feet, and she has muscle spasms. (A.R. 38- 23 39.) She has pain “almost constantly.” (A.R. 39-40.) Plaintiff stated 24 that she was diagnosed with fibromyalgia approximately a year prior to 25 the hearing, but “all through the years I was told I had tendinitis.” 26 (A.R. 38.) 27 pounds, has difficulty sitting and standing for prolonged periods of 28 time, and needs to be reclined with her feet up a total of four hours in As a result of her pain, she can only lift up to five 7 1 a day. (A.R. 43-44.) 2 3 The ALJ proffered several reasons for finding that plaintiff’s 4 fibromyalgia was “not a severe impairment.” (A.R. 20.) First, the ALJ 5 stated that, although plaintiff has been diagnosed with fibromyalgia, 6 the “only basis for the diagnosis . . . appears to be diffuse myalgias 7 and tenderness at tender points,” and therefore, “without further 8 objective evidence, the diagnosis is questionable.” 9 reflects a lack of understanding of fibromyalgia and its diagnosis. (Id.) This reason 10 11 Fibromyalgia is not well-understood, its symptoms are subjective, 12 and it is difficult to diagnose. 13 that "fibromyalgia’s cause or causes are unknown, there is no cure, and 14 of greatest importance to disability law, its symptoms are entirely 15 subjective"). 16 clinical or diagnostic evidence upon which a fibromyalgia diagnosis may 17 be based. 18 ("[f]ibromyalgia 19 “[T]here are no laboratory tests for the presence and severity of 20 fibromyalgia." 21 objectively determinable signs of fibromyalgia does not mean that she 22 does not suffer from it. There generally See Jordan, 370 F.3d at 872 (noting is very little, if any, objective See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) . Id. . . [is an] elusive and mysterious disease"). Thus, the fact that plaintiff has only minimal, 23 24 Moreover, Dr. Lin’s findings of “diffuse arthralgia involving 25 [s]houlders, arms, neck, back, and legs” and “14/18 tender points” 26 reflects the principal diagnostic test for fibromyalgia. (A.R. 318-19.) 27 “‘[T]he only symptom that discriminates between [fibromyalgia] and other 28 diseases of a rheumatic character’ [are] multiple tender spots, more 8 1 precisely 18 fixed locations on the body (and the rule of thumb is that 2 the patient has to have at least 11 of them to be diagnosed as having 3 fibromyalgia) that when pressed firmly cause the patient to flinch.” 4 Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001)(quoting Sarchet, 5 78 F.3d at 306). 6 7 Second, the ALJ found that plaintiff’s fibromyalgia was not a 8 severe impairment, because the diagnosis was based on plaintiff’s 9 subjective complaints, which the ALJ found not to be fully credible. 10 (A.R. 20.) However, as discussed below, the ALJ erred in finding that 11 plaintiff was not credible. 12 13 Third, the ALJ found fibromyalgia to be not a severe impairment, 14 because “no medical source describe[d] any limitations caused by the 15 fibromyalgia.” 16 regarding functional limitations caused by plaintiff’s fibromyalgia, the 17 ALJ 18 accordance with his duty to conduct an appropriate inquiry. 19 C.F.R. 20 additional evidence or clarification from your medical source when the 21 report . . . from your medical source contains a conflict or ambiguity 22 that must be resolved, [or] the report does not contain all the 23 necessary 24 constitutes error. should § (A.R. 20.) have However, if the ALJ had any question(s) recontacted 404.1512(e) (noting information”).4 plaintiff’s that Failure the to treating physicians administration develop the See 20 “will record in seek fully 25 26 27 28 4 At a minimum, and as properly noted by plaintiff, she had nonfunctional limitations, e.g., pain, for which she was prescribed medication. 9 1 In sum, plaintiff’s testimony and the opinions of plaintiff’s 2 treating physicians demonstrates that plaintiff’s fibromyalgia would 3 have more than a minimal effect on her ability to function in the 4 workplace. 5 substantial evidence and constitute error. The ALJ’s findings to the contrary are not based on 6 7 Moreover, contrary to defendant’s contention, the ALJ’s error 8 cannot be deemed harmless. 9 a claimant’s impairment at step two may be deemed harmless only when the error did not In general, an ALJ’s failure to acknowledge 10 ALJ’s prejudice a claimant at later steps in the 11 sequential evaluation process. In Burch, for example, the Ninth Circuit 12 assumed, without deciding, that the ALJ’s failure to discuss plaintiff’s 13 obesity in his step two analysis constituted legal error. 14 682. 15 harmless, because it would not have impacted the ALJ’s analysis at 16 either step four or five of the evaluation process. 17 Ninth Circuit found that, for purposes of step four, plaintiff failed to 18 point to any evidence of functional limitations due to her obesity that 19 would have impacted the ALJ’s analysis. 20 Ninth 21 “adequately considered [plaintiff’s] obesity in his RFC determination,” 22 i.e., there were no “functional limitations as a result of [plaintiff’s] 23 obesity that the ALJ failed to consider.” 24 Astrue, 498 F.3d 909, 911 (9th Cir. 2007)(finding that any error the ALJ 25 committed 26 harmless, because the ALJ “extensively discussed” plaintiff’s bursitis 27 and “considered any limitations posed by the bursitis at [s]tep 4”). 400 F.3d at The Ninth Circuit concluded, however, that the assumed error was Circuit in found failing that to no list Id. at 683. prejudice 10 At step five, the occurred, because the ALJ Id. at 684; see also Lewis v. plaintiff’s 28 Specifically, the bursitis at step 2 was 1 In this case, unlike in Burch and Lewis, the Court cannot conclude 2 that the ALJ’s failure to consider plaintiff’s fibromyalgia was harmless 3 error. 4 credibility. 5 testified, if credited, could have impacted the ALJ’s analysis at either 6 step four or five of the sequential evaluation process. 7 because the Court cannot conclude that plaintiff was not prejudiced at 8 a later step, the Court cannot find the ALJ’s step two error to be 9 harmless. As discussed below, the ALJ improperly rejected plaintiff’s Certainly the alleged limitations to which plaintiff Accordingly, See Stout, 454 F.3d at 1055 (finding an error to be harmless 10 when it “was nonprejudicial to the claimant or irrelevant to the ALJ’s 11 ultimate disability conclusion”).5 12 13 14 15 16 5 Defendant argues that plaintiff failed to establish fibromyalgia as a severe impairment prior to her date last insured, and thus, the ALJ need not have considered fibromyalgia as a severe impairment. But this is a post hoc rationalization, which the Court cannot consider. See, e.g., Orn, 395 F.2d at 630 (noting that the court may “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely”); see also Connett, 340 F.3d at 874. 17 18 19 20 21 22 23 24 25 26 Plaintiff testified that she was given the diagnosis of fibromyalgia just one year prior to the date of the hearing, but previously she “was always told” she had tendinitis. “All through the years I was told I had tendinitis. And I always wondered, you know, why doesn’t it go away? Because I thought tendinitis . . . , you know, went away.” (A.R. 38.) Dr. Bhakta reported on February 18, 2009, that plaintiff: notes persistent pains in the right shoulder, hand and forearm, neck and knee/ankles pains x 17 years [--] s/p surgery x 2 years ago for calcific tendonitis in the shoulder [--] seen by Orthopedic Surgery Dept without benefit. Also notes similar milder symptoms on the left side. Also notes bilateral medial ankle and knee pains. [--]overall symptoms are not improving and pt feels like she may have Rheumatological problem like fibromyalgia vs. other [--] requests to be seen by a Rheumatologist for further evaluation. 27 28 (A.R. 250.) Two days later, plaintiff was diagnosed by Dr. Lin as suffering from fibromyalgia. It thus strains reason to suggest that 11 1 II. The ALJ Failed To Give Clear And Convincing Reasons For 2 Finding Plaintiff’s Testimony To Be Not Credible. 3 4 Once a disability claimant produces objective medical evidence of 5 an underlying impairment that is reasonably likely to be the source of 6 claimant’s subjective symptom(s), all subjective testimony as to the 7 severity of the symptoms must be considered. 8 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 9 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain Moisa v. Barnhart, 367 10 and other symptoms are evaluated). 11 malingering based on affirmative evidence thereof, he or she may only 12 find an applicant not credible by making specific findings as to 13 credibility 14 each.” 15 weighing 16 reputation for 17 claimant’s testimony 18 conduct; (3) the claimant’s daily activities; (4) the claimant’s work 19 record; and (5) testimony from physicians and third parties concerning 20 the nature, severity, and effect of the symptoms of which the claimant 21 complains. 22 2002); see also 20 C.F.R. § 404.1529(c). and stating “[U]nless an ALJ makes a finding of clear and Robbins, 466 F.3d at 883. a claimant’s or (2) between reasons for The factors to be considered in credibility truthfulness; convincing include: (1) inconsistencies the claimant’s the claimant’s either in the testimony and her See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 23 24 25 26 27 28 plaintiff’s fibromyalgia suddenly appeared. (A.R. 318-22.) The fact that Dr. Lin diagnosed fibromyalgia so quickly based upon plaintiff’s medical history and symptoms suggests that plaintiff likely suffered from undiagnosed fibromyalgia prior to its diagnosis. In view of the ambiguity surrounding the timing of the onset date of that disease, the ALJ should further develop the record by contacting Dr. Lin and Dr. Bhakta regarding this issue. It is well-settled that the diagnosis of a condition may occur after the onset of that condition. Lester v. Chater, 81 F.3d 821, 832 n.9 (9th Cir. 1995). 12 1 Here, the ALJ found that “[a]fter careful consideration of the 2 evidence, . . . [plaintiff]’s medically determinable impairment could 3 reasonably be expected to cause the alleged symptoms . . . .” 4 19.) 5 Accordingly, the ALJ’s reason for rejecting plaintiff’s credibility must 6 be “clear and convincing.” (A.R. Further, the ALJ cited no evidence of malingering by plaintiff. 7 8 The ALJ stated that plaintiff’s “statements concerning the 9 intensity, persistence and limiting effects of [her] symptoms are not 10 credible to the extent they are inconsistent with [the ALJ’s RFC] 11 assessment.” 12 “exaggerating her limitations,” because: 13 testimony that there is no job she can do, she admits she can: cook, 14 drive, 15 examination of [plaintiff] was within normal limits other than for 16 subjective complaints of tenderness”; (3) plaintiff’s “lack of ongoing 17 non-conservative treatment”; and (4) “[t]he medical evidence of record 18 simply fails to support [plaintiff]’s allegation of extreme limitations 19 in sitting, standing and lifting.” do (A.R. 19.) housework, Specifically, the ALJ found plaintiff to be do laundry, and (1) “despite [plaintiff’s] shop”; (2) “nearly every (Id.) 20 21 The ALJ’s first ground for discrediting plaintiff does not 22 constitute a clear and convincing basis upon which to reject her 23 subjective pain testimony. The ALJ fails to demonstrate how plaintiff’s 24 performance 25 translates into the ability to engage in full-time work. 26 v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990)(daily activities may not 27 be relied upon to support an adverse credibility decision where those 28 activities do not affect the claimant’s ability to perform appropriate of basic self-care activities 13 and household chores See Gonzalez 1 work activities on an ongoing and daily basis). 2 3 The fact do that plaintiff laundry, and can intermittently shop” contradict do housework, 5 testimony that she is unable to maintain a full-time job because of the 6 “almost constant[]” pain in both her upper extremities, hip, legs, feet, 7 and hands. 8 she can go to the “grocery store but when [she] get[s] home from the 9 grocery store [her] feet are hurting, [her] ankles are hurting and [are] (A.R. 43.) not drive, 4 (See A.R. 36-38, 40.) does “cook, plaintiff’s Moreover, plaintiff testified that 10 swollen and red.” She testified that she does housework 11 only when “[she] feel[s] up to it, and [she] take[s] a break when [she] 12 need[s] to.” 13 drives, some weeks she does not do anything, “[she] do[es]n’t go 14 anywhere.” 15 daily activities cited by the ALJ, which plaintiff apparently struggles 16 to perform, are easily transferable to the more grueling environment of 17 the workplace, much less that they are inconsistent with and/or negate 18 plaintiff’s assertions regarding the subjective symptoms flowing from 19 her objectively determined physical impairments. See Reddick v. Chater, 20 157 F.3d 715, 722 (9th Cir. 1998)(only if the level of activity was 21 inconsistent with claimant’s claimed limitations would the activity have 22 any bearing on claimant’s credibility); Cooper v. Bowen, 815 F.2d 557, 23 561 (9th Cir. 1987)(disability claimant need not “vegetate in a dark 24 room” to be deemed eligible for benefits). (A.R. 47.) Plaintiff further explained that although she (A.R. 45.) There is no basis for finding that the simple 25 26 The ALJ’s second and fourth ground for finding plaintiff to be not 27 credible -- both of which cite the failure of the objective evidence to 28 support plaintiff’s subjective complaints -- do not constitute clear and 14 1 convincing reasons for discrediting plaintiff. The failure of the 2 objective medical record to corroborate fully plaintiff’s subjective 3 symptom testimony is not, by itself, a legally sufficient basis for 4 rejecting such testimony. 5 at 347 (noting that “[i]f an adjudicator could reject a claim of 6 disability simply because [plaintiff] fails to produce medical evidence 7 supporting the severity of the pain, there would be no reason for an 8 adjudicator to consider anything other than medical findings”).6 Rollins, 261 F.3d at 856; Bunnell, 947 F.2d 9 10 The ALJ’s third ground for discrediting plaintiff, i.e., the lack 11 of ongoing non-conservative 12 convincing reason. 13 to work.” treatment, is also not a clear and Plaintiff stated that for her pain, “nothing seems (A.R. 41.) She testified that she was: 14 15 prescribed two different muscle relaxers and they work so 16 slightly that it’s not worth the feeling that [she] get[s] 17 from them. 18 has] tried two different pain pills and they don’t work, and 19 they -- [she] do[es]n’t like what they do to [her] -- the way 20 [she] feel[s]. 21 takes the pain away well enough to be worth the side effects.7 And [she] take[s] Ibuprofen occasionally. [She It’s like nothing works well enough. Nothing 22 6 23 24 25 26 27 28 Moreover, as noted above, the lack of objective medical evidence is consistent with the nature and symptoms of fibromyalgia -an impairment which the ALJ rejected in evaluating plaintiff’s allegations of disabling pain, symptoms, and limitations. Benecke, 379 F.3d at 594 (stating that fibromyalgia “is diagnosed entirely on the basis of patients’ reports of pain and other symptoms”). 7 There is no indication that the side effects of plaintiff’s medications were considered in the disability evaluation. See Erickson v. Shalala, 9 F.3d 813, 817–18 (9th Cir. 1993)(noting that an ALJ must consider all factors, including the side effects of medications, that might have a “‘significant impact on an individual’s ability to work’”) 15 1 (A.R. 41-42.) 2 3 The record also indicates that plaintiff is given Vitamin B12 shots 4 every 2 weeks for her fibromyalgia. 5 testified that it was recommended that she get massages for her pain 6 “but it’s expensive to do that, so [she] ha[s]n’t -- [she] ha[s]n’t done 7 that.”8 8 treatment, it does not appear that it is so conservative as to call into 9 question (A.R. 45.) plaintiff’s Given the subjective (A.R. 334, 330, 328.) nature and extent testimony. of Further, Plaintiff plaintiff’s there is no 10 substantial evidence in the record to support the ALJ’s inference that 11 plaintiff’s debilitating pain and symptoms would be alleviated if she 12 were to secure more aggressive treatment. 13 or 14 disease. 15 for 16 subjective complaints also is not convincing. other cure for fibromyalgia, Indeed, there is no surgical which can be a debilitating See Jordan, 370 F.3d at 872 (recognizing that there is no cure fibromyalgia). Thus, this reason for rejecting plaintiff’s 17 18 Accordingly, setting the forth ALJ’s clear rejection and of plaintiff’s convincing reasons, credibility, 19 without constitutes 20 reversible error. 21 if they exist, in accordance with the requisite legal standards, for 22 discrediting plaintiff’s pain testimony. On remand, the ALJ must provide reasons for doing so, 23 24 25 26 27 28 (citation omitted); see also Soc. Sec. Ruling 96–7p, 1996 WL 374186, at *2–*3, 1996 SSR LEXIS 4, at *7–*8 (noting that type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv). 8 While an unexplained failure to seek treatment may cast doubt on a claimant’s credibility, such an inference is unreasonable where plaintiff is indigent. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). 16 1 III. The ALJ Failed To Set Forth The Requisite Specific And 2 Legitimate Reasons For Rejecting The Opinion 3 Of Plaintiff’s Treating Physician, Paul Liu, M.D. 4 5 When the ALJ rejects the opinion of a treating physician which has 6 been contradicted, the ALJ may reject that opinion only by providing 7 specific and legitimate reasons for doing so, supported by substantial 8 evidence in the record. 9 physician opinions considered in assessing a social security claim, 10 “[g]enerally, a treating physician’s opinion carries more weight than an 11 examining physician’s, and an examining physician’s opinion carries more 12 weight than a reviewing physician’s.” 13 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527. 14 reasons will not suffice for rejecting the treating physician’s opinion. 15 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). Lester, 81 F.3d at 830. In the hierarchy of Holohan v. Massanari, 246 F.3d Broad and vague 16 17 The ALJ accorded “very little weight” to Dr. Liu’s opinion that 18 plaintiff has been “unable to work since early 2007, due to chronic 19 activity related right upper extremity pain, pain around the shoulder 20 blade, and related neck and right shoulder discomfort” (A.R. 212), 21 because: 22 Liu “does not describe limitations associated with any other body part”; 23 (3) “[i]n light of the minimal findings . . . , the opinion overstates 24 [plaintiff]’s limitations”; and (4) his opinion is contradicted by the 25 State agency review physicians. (1) the assessment was made for disability purposes; (2) Dr. (A.R. 21.) 26 27 The ALJ’s first reason for rejecting Dr. Liu’s opinion -- to wit, 28 that Dr. Liu’s assessment was made for disability purposes -- is 17 1 unavailing. The ALJ’s assertion lacks foundation and is not a legally 2 sufficient ground upon which to reject a treating doctor’s report. 3 Lester, 81 F.3d at 832 (“The purpose for which medical reports are 4 obtained does not provide a legitimate basis for rejecting them.”); see 5 also Ratto v. Sec’y, 839 F. Supp. 1415, 1426 (D. Or. 1993)(an ALJ “may 6 not assume that doctors routinely lie in order to help their patients 7 collect disability benefits”). 8 of actual improprieties,’” no such evidence exists here. 9 F.3d at 832 (citation omitted). See While the ALJ “‘may introduce evidence Lester, 81 Thus, the fact that Dr. Liu’s letter 10 was prepared for “disability purposes” is of no moment, and Dr. Liu’s 11 opinion constitutes substantial evidence that plaintiff had significant 12 pain, limitations, and restrictions resulting from impairments of her 13 upper extremities. Accordingly, the ALJ’s rejection of Dr. Liu’s letter 14 on this basis is reversible error. 15 16 The ALJ’s second reason for rejecting Dr. Liu’s opinion -- to wit 17 that he "does not describe limitations associated with any other body 18 part” -- is not legitimate. 19 provides findings with respect to plaintiff’s upper extremities in his 20 May 15, 2008 letter, it does mean that those findings alone would not 21 render plaintiff 22 referred her upper 23 extremities, particularly for her left and right shoulder pain. (A.R. 24 176, 182-83.) 25 regarding the extent of plaintiff’s impairments related to her “other 26 body part[s],” then the ALJ should have further developed the record. to Dr. disabled. Liu While it is true that Dr. Liu solely (A.R. specifically 212.) for Moreover, evaluation plaintiff was of If the ALJ required further, more specific details 27 28 Third, the ALJ concluded that Dr. Liu’s opinion is based on 18 1 “minimal findings . . . [and] overstates the [plaintiff’s] limitations” 2 concerning her upper extremities. 3 finding, it is not evident that there were “minimal findings,” as the 4 medical 5 plaintiff’s 6 regarding her upper extremities -- that support his opinion.9 record is replete symptoms, with (A.R. 21.) numerous treatment, and Contrary to the ALJ’s notations objective -- describing clinical findings Also, Dr. 7 8 9 10 9 On August 15, and October 4, 2006, plaintiff was evaluated for her right shoulder pain. (A.R. 182, 186.) Dr. Liu assessed “calcific tendinitis right shoulder” and “impingement syndrome right shoulder.” (Id.) Plaintiff was given a steroid injection, and she indicated that she had approximately 80 percent relief for the following couple of days, but she was currently at 50 percent pain relief. (Id.) 11 12 13 On April 10, 2007, Dr. Liu noted that “X-rays do show a calcific body in the area of the lateral acromial process. Remainder of the bony anatomy appears normal.” (A.R. 190.) He diagnosed her with “right shoulder impingement syndrome with calcific tendinitis.” (A.R. 190.) 14 15 16 17 On April 25, 2007, Dr. Liu noted that plaintiff had “successful left shoulder surgery for calcific tendinitis” and that plaintiff’s “right shoulder is not bothering her as badly as the left shoulder but she is not functioning normally with it because she has on and off pain, waxes and wanes in the right shoulder.” (A.R. 193.) Dr. Liu suggested that plaintiff consider surgery for her right shoulder as well. (Id.) 18 19 An MRI of plaintiff’s right shoulder on May 10, 2007, showed signs of a “small partial tear” and “small amount of fluid . . . in the subacromial/subdeltoid bursa.” (A.R. 199.) 20 21 22 23 24 On July 10, 2007, plaintiff underwent an operation on her right shoulder due to “right shoulder pain, history of calcific tendinitis with evidence of impingement” and to “rule out rotator cuff tear.” (A.R. 171.) On August 16, 2007, Dr. Liu noted that plaintiff’s right shoulder exhibited decreased range of motion, tenderness, and swelling. He assessed “calcific tendinitis shoulder” and “rotator cuff syndrome, s/ scope. Stable, probably will gradually improve.” (A.R. 151.) 25 26 27 28 On October 26, 2007, Dr. Liu noted that plaintiff “got over tendinitis post op for right shoulder, still sore, but doing exercises for ROM, and functional rehab.” (A.R. 153.) For her right shoulder, Dr. Liu noted that she exhibited decreased range of motion, tenderness, pain, and decreased strength. (A.R. 154.) He also noted tenderness in her right elbow. He assessed “calcific tendinitis shoulder, right” and “lateral epicondyltis, right.” (Id.) 19 1 Liu did not complete a functional assessment for plaintiff, and thus, it 2 is 3 limitations” as the ALJ contends. 4 does not constitute a legitimate reason for rejecting Dr. Liu’s opinion. unclear whether Dr. Liu’s findings “overstate[] (A.R. 21.) [plaintiff’s] Therefore, this basis 5 6 Lastly, the ALJ’s fourth basis for rejecting the opinions of Dr. 7 Liu -- to wit, that his opinion is contradicted by the State agency 8 physicians -- is also unavailing. 9 agency physicians, who are non-treating and non-examining physicians, 10 cannot, by themselves, constitute substantial evidence, because they are 11 not based on any independent findings.10 Indeed, it does not appear that (A.R. 21.) The opinions of State 12 13 14 15 16 On December 3, 2007, plaintiff presented with “right tennis elbow pain and wrist pain and forearm discomfort,” as well as “some numbness in right hand.” (A.R. 171.) Upon examination, Dr. Liu noted that plaintiff’s right shoulder exhibited decreased range of motion, minimal pain, decreased strength, and no tenderness. (A.R. 172.) As for her right elbow, she had normal range of motion but lateral epicondyle tenderness. (Id.) He recommended a right elbow cortisone injection. (Id.) 17 18 19 20 21 22 23 24 On January 15, 2008, plaintiff presented with pain of her right arm. (A.R. 159.) On physical exam, Dr. Liu noted that her right shoulder exhibited decreased range of motion, pain, and decreased strength. (A.R. 160.) On April 1, 2008, plaintiff presented with minimal right shoulder pain and remarked that the cause of her “arm pain which existed preop, . . . has been highlighted postop.” (A.R. 168.) Plaintiff’s right shoulder exhibited decreased range of motion and no pain. (A.R. 169.) Her right upper arm exhibited tenderness but no swelling, edema, and deformity. (Id.) Dr. Liu recommended an MRI of her right arm. (Id.) 10 On April 22, 2008, State agency physician David A. Haaland opined as follows: 25 26 27 28 [Plaintiff] has R shoulder impingement syndrome with subacaromial bursitis and RC tendonopathy w/o tear. Scoped 7/07 and now recovered so ROM is full for SSA standards and pain is controlled. Flex and ABD is 140*. She had a similar problem in L shoulder in 2004 that completely resolved with shoulder arthroscopy and time for recovery. The R shoulder is showing the same post op course. She also has a R lateral 20 1 the State agency physicians based their opinions on any medical findings 2 or tests that Dr. Liu did not consider himself. 3 State 4 surgeon. 5 his area of specialty generally receives more weight than the opinions 6 of non-specialist sources. agency reviewing physicians, Dr. Liu Moreover, unlike the is an orthopedic The opinion of a specialist about medical issues related to 20 C.F.R. § 404.1527(c)(5). 7 8 Accordingly, for the aforementioned reasons, the ALJ failed to give 9 specific and legitimate reasons, supported by substantial evidence, for 10 rejecting the opinions of plaintiff’s treating physician, Dr. Liu. This 11 constitutes error. 12 Liu’s opinions and, to the degree necessary, conduct an appropriate 13 inquiry regarding the extent of plaintiff’s symptoms and limitations, 14 which Dr. Liu opined to be disabling. 15 to obtain from Dr. Liu functional limitations to be imposed based on 16 plaintiff’s impairments, or the ALJ may need to secure a consultative 17 examination for plaintiff. On remand, the ALJ needs to properly consider Dr. Specifically, the ALJ should try 18 19 20 21 22 23 epicondylitis that is resolving with conservative measures. The AOD is 3/06 for this R shoulder case. [Plaintiff] is capable of light work with occasional use of the R shoulder for overhead activities. She is credible for the shoulder problem but not for the degree of disability alleged. There will be no 12 month period when this RFC would not be in effect. 24 (A.R. 209.) 25 Dr. Haaland then opined that plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk/sit for about six hours with unlimited push and/or pull abilities; unlimited manipulative limitations except with occasional above shoulder reaching with her right upper extremity. (A.R. 204-06.) 26 27 28 On June 9, 2008, State agency physician Dr. Thu N. Do, affirmed Dr. Haaland’s RFC of plaintiff. (A.R. 213-15.) 21 1 IV. Because The ALJ’s Findings Regarding Plaintiff’s Ultimate 2 RFC Must Be Reconsidered, Additional Vocational Expert 3 Testimony Likely Will Be Required. 4 5 Based on the foregoing, there are several matters that the ALJ 6 needs to review and reconsider on remand. As a result, the ALJ’s 7 conclusion regarding plaintiff’s RFC and plaintiff’s ability to do her 8 past relevant work may change. 9 plaintiff’s fourth claim. Therefore, the Court does not reach To properly review and reconsider these 10 issues, the ALJ must correct the above-mentioned deficiencies and 11 errors. 12 additional testimony from a vocational expert likely will be required to 13 determine what work, if any, plaintiff can perform. Further, to the extent that plaintiff’s RFC is reassessed, 14 15 V. Remand Is Required. 16 17 The decision whether to remand for further proceedings or order an 18 immediate award of benefits is within the district court’s discretion. 19 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 20 useful purpose would be served by further administrative proceedings, or 21 where the record has been fully developed, it is appropriate to exercise 22 this discretion to direct an immediate award of benefits. 23 (“[T]he decision of whether to remand for further proceedings turns upon 24 the likely utility of such proceedings.”). 25 outstanding issues that must be resolved before a determination of 26 disability can be made, and it is not clear from the record that the ALJ 27 would be required to find the claimant disabled if all the evidence were 28 properly evaluated, remand is appropriate. 22 Where no Id. at 1179 However, where there are Id. at 1179-81. 1 Remand is the appropriate remedy to allow the ALJ the opportunity 2 to remedy the above-mentioned deficiencies and errors. 3 Benecke, 379 F.3d at 593 (remand for further proceedings is appropriate 4 if enhancement of the record would be useful); see also Stillwater v. 5 Comm’r of Soc. Sec. Admin., 361 Fed. Appx. 809, 812 (9th Cir. Jan. 7, 6 2010)(remand for reconsideration of State agency physicians’ opinions 7 that were discredited because they were based on a treating physician’s 8 opinion that the ALJ rejected improperly); Dodrill v. Shalala, 12 F.3d 9 915, 918 (9th Cir. 1993)(ordering remand so that the See, e.g., ALJ could 10 articulate specific and appropriate findings, if any existed, for 11 rejecting the claimant’s subjective pain testimony); McAllister, 888 12 F.2d at 603 (remand appropriate to remedy defects in the record). 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 23 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: March 26, 2013 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 24

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