Ma Victoria Perez v. Carolyn W Colvin

Filing 20

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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MA VICTORIA PEREZ,

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Plaintiff,
v.

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NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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) No. ED CV 16-00583-AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

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19

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY

20

ORDERED

that

this

matter

is

remanded

21

for

further

administrative

action consistent with this Opinion.

22

I. PROCEEDINGS

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24
25

On March 30, 2016, Plaintiff filed a Complaint seeking review

26

of the Commissioner’s denial of Plaintiff’s application for a period

27
28

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
1

1

of disability and disability insurance benefits.

2

1).

3

and the Certified Administrative Record (“AR”).

4

15-16).

5

States Magistrate Judge.

6

filed a Joint Stipulation (“Joint Stip.”) on December 23, 2016,

7

setting

8

(Docket Entry No. 19).

(Docket Entry No

On August 29, 2016, Defendant filed an Answer to the Complaint,
(Docket Entry Nos.

The parties have consented to proceed before a United

forth

their

(Docket Entry Nos. 11-12).

respective

positions

on

The parties

Plaintiff’s

claims.

9
10

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

11
12

On June 20, 2011, Plaintiff, formerly employed as a products

13

assembler and machine packager (see AR 411), filed an application

14

for disability insurance benefits, alleging disability beginning on

15

November

16

Administrative

17

record

18

(“VE”), Troy Scott.

19

denied Plaintiff benefits in a written decision.

21,

and

2009.
Law

heard

(AR

Judge

360-61).
(“ALJ”),

testimony

from

On

James

P.

Plaintiff

(AR 61-81).

September

21,

Nguyen,

examined

and

vocational

2012,
the

expert

On October 26, 2012, the ALJ
(AR 187-208).

20
21

On

December

14,

2012,

Plaintiff

requested

the

Appeals

22

Council review the ALJ’s decision.

23

the Appeals Council issued an order vacating the ALJ’s decision and

24

remanding the case to the ALJ in order to: evaluate the medical

25

source opinion of Plaintiff’s treating physician as it relates to

26
27
28
2

(AR 289).

that

On January 17, 2014,

(“RFC”);2

1

Plaintiff’s

2

Plaintiff’s subjective complaints; and, if warranted, seek testimony

3

from a VE to determine the effect of Plaintiff’s limitations on her

4

“occupational base.”

(AR 212-14).

5

second hearing, with

testimony

6

Fioretti.

7

Plaintiff benefits in a written decision (“the ALJ’s Decision”).

8

(AR 21-34).

residual

(AR

functional

108-34).

capacity

On June 4, 2014, the ALJ held a

from

On

consider

Plaintiff

August

and

VE

Sandra

22,

the

ALJ

denied

2014,

9
10

The ALJ applied the five-step process in evaluating Plaintiff’s

11

case.

At

step

12

engaged in substantial gainful activity after the alleged onset date

13

of November 21, 2009, and that Plaintiff’s date last insured was

14

December 31, 2013.

15

Plaintiff

16

impingement

17

partial

18

shoulder impingement syndrome and small rotator cuff tear of the

19

supraspinatus tendon; right knee medial meniscal tear; right heel

20

tendonitis/bursitis

21

cervical

22

temporomandibular

23

anxiety/depression.

had

tear

one,

the

ALJ

determined

(AR 21-23).
following

syndrome
of

the

the

with

severe

radiculopathy;
joint

impairments:

tendinosis

plantar

Plaintiff

had

not

At step two, the ALJ found that

supraspinatus

and

that

of

the

tendon

degenerative

changes

disorder;

obesity;

(AR 23-24).3

shoulder

rotator

and

fasciitis;

right

cuff

with

labral

tear;

left

lumbar
of

radiculopathy;

the

and

right

hand;

post-traumatic

At step three, the ALJ determined

24
25
26
27
28

2

A Residual Functional Capacity is what a claimant can still
do despite existing exertional and nonexertional limitations.
See
20 C.F.R. § 404.1545(a)(1).
3

The ALJ found that Plaintiff’s alleged sleep disorder was
not a severe impairment. (AR 24).
3

1

that Plaintiff’s impairments did not meet or equal a listing found

2

in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(AR 24).

3
4

Before proceeding to step four, the ALJ found that, through the

5

date last insured, Plaintiff had the RFC to perform light work4 with

6

the following limitations: she is able to occasionally climb ramps

7

and stairs, balance, stoop, kneel, crouch, and crawl; occasionally

8

use the right lower extremity for pushing and pulling; never perform

9

overhead

reaching,
to

above

controls;

or

the

12

ladders, ropes, and scaffolds; can understand, remember, and carry

13

out

14

concentration to perform simple, routine and repetitive tasks in a

15

work environment free of fast-paced production requirements; have

16

occasional interaction with co-workers, supervisors, and the general

17

public; work in an environment with occasional changes to the work

18

setting and work-related decision making; and never perform work

19

that would require directing others, abstract thought, or planning.

20

(AR 25).

maintain

working

lower

unprotected hazardous machinery or unprotected heights; never climb

can

avoid

right

11

instructions;

should

use

extremity

job

foot

work,

10

simple

operate

shoulder

around

attention

and

21
22
23
24
25
26
27
28

4

“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is
in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.
To be considered
capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities.
If
someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as
loss of fine dexterity or inability to sit for long periods of
time.” 20 C.F.R. § 404.1567(b).
4

1

The ALJ found Plaintiff’s statements regarding the intensity,

2

persistence, and limiting effects of her symptoms not credible.

(AR

3

26-27).

After

the

ALJ

4

addressed

the

examining,

and

5

nonexamining physicians.

discussing

opinions

Plaintiff’s
Plaintiff’s

of

medical

record,

treating,

(See AR 27-32).

6
7

The ALJ rejected opinion evidence from Plaintiff’s treating

8

physician, Lorenzo Tizon, M.D., a general practitioner at Samaritan

9

Medical Rehabilitation Center.

(AR 28-32).

10

questionnaire,

Dr.

that

11

stand,

walk

12

workday;

13

occasionally,

14

percent compared to the general population; bend/stoop, reach up,

15

and

16

crouch,

17

Plaintiff’s pain as muscle spasms and “abnormal MRI findings.”

18

Tizon stated that Plaintiff will need surgery for tears in both of

19

her shoulders.

20

Tizon opined that Plaintiff’s impairments are likely to produce good

21

days and bad days, and that Plaintiff would be absent from work

22

about once per month because of her symptoms.

and/or
lift

reach

and
and

forward

or

Tizon

opined

less

than

carry
never

up
50

two

to
or

kneel.

Dr.

(AR 890-91).

in

never

use

able
an

her

squat,

identified

In a

is

to

sit,

eight-hour

frequently,

pounds;

and

Tizon

each

pounds

100

occasionally;

Plaintiff

hours

10

In a January 2013

20

pounds

hands

crawl,

objective

34-66

climb,

signs

of
Dr.

February 2014 questionnaire, Dr.

(AR 893).

23
24

The ALJ gave “little weight” to the opinion of Dr. Tizon for

25

three

reasons:

(1)

Dr.

26

obtaining

27

compensation

28

Plaintiff’s treatment history did not support Dr. Tizon’s opinion;

disability
capacity;

Tizon

because
(2)

was
he

the

biased
saw

favor

Plaintiff

objective

5

in

in

medical

of
a

Plaintiff
workers’

evidence

and

1

and (3) Dr. Tizon relied on Plaintiff’s subjective complaints “and

2

seemed to uncritically accept as true most, if not all, of what the

3

[Plaintiff] reported.”

(AR 31).

4

The

5

ALJ

also

gave

examiner,

“little

Samir

weight”

Kadada,

to

M.D.,

the
and

opinions
“State

of

6

consultative

agency

7

physical medical consultants,” P.M. Balson, M.D. and M.D. Morgan,

8

M.D.

(AR 31).

9

can

lift

On August 24, 2011, Dr. Kadada opined that Plaintiff

twenty-five

pounds

frequently

and

fifty

pounds

10

occasionally; stand and walk six hours out of an eight-hour workday;

11

and had no sitting, postural, or manipulative limitations.

12

53).

13

did not have the opportunity to consider the evidence as a whole,”

14

and the RFC that the ALJ assigned Plaintiff took “into consideration

15

the

16

determination,” (AR 31).

17

respectively, Dr. Morgan and Dr. Balson found that Plaintiff had no

18

severe medically determinable physical impairments.

19

172-85).

20

“[a]dditional evidence added to the record after this determination

21

.

22

determinable physical impairments . . . ” (AR 31).

(AR 448-

The ALJ gave little weight to Dr. Kadada’s opinion because “he

evidence

.

.

added

The

ALJ

to

record

after

[Dr.

Kadada’s]

On October 4, 2011, and January 27, 2012,

gave

establishe[d]

the

these

the

opinions

presence

of

little

the

(AR 152-65,

weight

severe

because

medically

23
24

The

ALJ,

in

determining

Plaintiff’s

mental

RFC,

gave

some

25

weight to the opinions of consultative examiner, Divy J. Kikani,

26

M.D., and the State agency medical consultants.

27

weight

28

Plaintiff and the State agency consultants were “highly qualified

to

their

opinions

because

6

Dr.

Kikani

The ALJ gave some
personally

observed

1

physicians and psychologists who [were] experts in Social Security

2

Disability programs,” (Id.).

3

The ALJ gave some weight to the opinion of Kimberly M. Spitz

4
5

Mares, Psy.D.5

6

impaired

7

perform simple and repetitive tasks; relate to other people beyond

8

giving

9

generalizations,

in

(AR 32).

the

and

Dr. Mares opined that Plaintiff was mildly

ability

receiving

to

comprehend

instructions;

evaluations,

or

and

follow

influence

decisions

instructions;

people;

without

make

immediate

10

supervision; and accept and carry out responsibility for direction,

11

control,

12

moderately

13

appropriate to the given workload and perform complex or varied

14

tasks.

15

Mares

16

findings [were] generally consistent with the treatment records.

17

However, [Dr. Mares] gave the benefit of the doubt to the claimant’s

18

subjective complaints in adopting additional mental restrictions.”

19

(AR 32).

and

planning.

impaired

(AR 1026).
“personally

in

Dr.
the

Mares

opined

ability

to

that

Plaintiff

maintain

a

work

was
pace

The ALJ gave Dr. Mares some weight because Dr.
observed

and

examined

the

claimant,

and

her

20

The ALJ also gave “little weight” to the opinion of Vocational

21
22

Return to Work Counselor, Boska Dundov.

23

2012, Ms. Dundov opined that Plaintiff can frequently reach, handle,

24

and finger; never stoop, kneel, crouch, crawl, climb, or balance;

25

sit,

26

occasionally lift five pounds.

stand,

and

walk

for

up

to

30

(AR 31).

minutes

(AR 1011-13).

On November 30,

at

a

time;

and

The ALJ reasoned that

27
28

5

setting.

Dr. Mares also examined Plaintiff in a workers’ compensation
(See 1022-27).
7

1

Ms. Dundov’s non-medical source opinion “is not entitled to be given

2

the same weight as a qualifying medical source opinion,” and that

3

she “provided a one-time assessment and did not provide any specific

4

functional limitations that prevented the [Plaintiff] from working.”

5

(AR 31).

6
7

At step four, the ALJ determined that Plaintiff was not able

8

to perform her past relevant work as a machine packager because she

9

was limited to a light range of work.

(AR 32).

At step five, the

10

ALJ found Plaintiff was able to perform jobs consistent with her

11

age,

12

numbers in the national economy.

In particular, the ALJ found that

13

Plaintiff

requirements

14

occupations:

15

(“DOT”) No. 706.684-042), small products assembler (DOT 739.687-

16

030), and plastic hospital products assembler (DOT 712.687-010).

17

(AR 33-34).

18

disabled.

education,

and

could

medical

perform

bench

limitations

the

assembler

(Dictionary

existing

of

in

of

the

significant

following

Occupational

Titles

Accordingly, the ALJ concluded that Plaintiff was not

(AR 34).

19

Plaintiff requested that the Appeals Council review the ALJ’s
20

Decision, which was denied on January 29. 2016.

(AR 1-3).

The

21

ALJ’s Decision then became the final decision of the Commissioner,
22

allowing

this

Court

to

review

the

23

405(g), 1383(c).
24

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8

decision.

See

42

U.S.C.

§§

1

III. STANDARD OF REVIEW

2
3

This court reviews the Commissioner’s decision to determine if

4

the decision is free of legal error and supported by substantial

5

evidence.

6

1161 (9th Cir. 2012).

7

scintilla, but less than a preponderance.

8

F.3d 995, 1009 (9th Cir. 2014).

9

evidence supports a finding, “a court must consider the record as a

See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,

weighing

“Substantial evidence” is more than a mere

whole,

11

detracts

12

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

13

the evidence can reasonably support either affirming or reversing

14

the ALJ’s conclusion, [a court] may not substitute [its] judgment

15

for that of the ALJ.”

16

882 (9th Cir. 2006).

the

evidence

To determine whether substantial

10

from

both

Garrison v. Colvin, 759

that

[Commissioner’s]

supports

and

conclusion.”

evidence
Aukland

that
v.

As a result, “[i]f

Robbins v. Soc. Sec. Admin., 466 F.3d 880,

17

IV. PLAINTIFF’S CONTENTIONS

18
19
20

Plaintiff alleges that, in assessing her RFC, the ALJ failed to

21

give proper weight to the opinions of treating physician, Dr. Tizon,

22

and Vocational Return to Work Counselor, Boska Dundov.

23

at 5-13, 19-27).

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(Joint Stip.

1

V. DISCUSSION

2
3

After reviewing the record, the Court finds that the ALJ did

4

not provide specific and legitimate reasons supported by substantial

5

evidence in the record to reject the opinion of Dr. Tizon, but gave

6

proper, germane reasons to reject the opinion of Vocational Return

7

to Work Counselor, Buska Dundov.

8

A.

9

The ALJ Did Not Provide Specific And Legitimate Reasons To
Reject Dr. Tizon’s Opinion

10
11

Plaintiff contends that the ALJ did not provide specific and

12
13

legitimate reasons to reject the opinion of Dr. Tizon.

14

specifically

15

Tizon’s

16

compensation claim, and (2) improperly found that Dr. Tizon relied

17

on

18

(Joint Stip. at 5-13, 19-25).

asserts

opinion

Plaintiff’s

that

because

the

Dr.

subjective

ALJ

Tizon

(1)
saw

complaints

improperly
Plaintiff

to

rejected

for

formulate

Plaintiff

a

his

Dr.

workers’

opinion.

19
20

Dr. Tizon’s opinion and the ALJ’s ultimate RFC determination

21

primarily differ in their views on the amount of time that Plaintiff

22

is able to sit, stand, and walk during an eight-hour workday.

23

Tizon opined that Plaintiff can sit, stand, and walk a total of two

24

hours each in an eight-hour workday.

25

found that Plaintiff could perform a light range of work (AR 25),

26

which would entail “a good deal of walking or standing, or when it

27

involves sitting most of the time with some pushing and pulling of

28

arm or leg controls,” 20 C.F.R. 404.1567(b).
10

(AR 890).

Dr.

However, the ALJ

1

Although a treating physician’s opinion is generally afforded

2

the greatest weight in disability cases, it is not binding on an ALJ

3

with respect to the existence of an impairment or the ultimate

4

determination of disability.

5

359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes v. Bowen, 812 F.2d

6

747,

7

physician’s opinion depends on whether it is supported by sufficient

8

medical data and is consistent with other evidence in the record.

9

20 C.F.R. § 416.927(b)-(d).

751

(9th

Cir.

Batson v. Comm'r of Soc. Sec. Admin.,

1989).

The

weight

given

to

a

treating

Controlling weight must be given to

10

medical opinions of treating physicians where the opinion is well-

11

supported and not inconsistent with the other substantial evidence

12

in the record.

13

Social Security Ruling 96-2p.

14

of a treating physician, the ALJ must give “clear and convincing

15

reasons that are supported by substantial evidence.”

16

Colvin, 763 F.3d 1154, 1160–61 (9th Cir. 2014) (citing Bayliss v.

17

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)); Thomas v. Barnhart,

18

278 F.3d 947 (9th Cir. 2002).

19

contradicted by another doctor, the ALJ must provide “specific and

20

legitimate reasons” for rejecting the treating physician’s opinion.

21

Orn, 495 F.3d at 632; Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

22

1998).

Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007);
To reject the uncontradicted opinion

Ghanim v.

If the treating doctor's opinion is

23
24

Because Dr. Tizon’s opinion was contradicted by the opinions of

25

consultative

examiner,

Dr.

Kadada

26

physicians, Dr. Balson and Dr. Morgan, and State agency medical

27

consultant Dr. Mares (see AR 152-65, 172-85), the ALJ was required

28

to give specific and legitimate reasons supported by substantial
11

(see

AR

448-53),

State

agency

1

evidence in the record to reject Dr. Tizon’s opinion.

2

F.3d at 1160.

Hill, 698

3
4

The ALJ’s decision to reject Dr. Tizon’s opinion because Dr.

5

Tizon treated Plaintiff for workers’ compensation purposes (see AR

6

28) was not a specific and legitimate reason to reject Dr. Tizon’s

7

opinion.

8

opinion

9

physician for workers’ compensation purposes); Lester v. Chater, 81

10

F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (“[T]he

11

purpose for which medical reports are obtained does not provide a

12

legitimate

13

F.Supp.2d 1099, 1105 (C.D. Cal. 2002) (an “ALJ may not disregard a

14

physician’s medical opinion simply because it was initially elicited

15

in a workers’ compensation proceeding).

Batson, 359 F.3d at 1196 (the ALJ erred in rejecting
of

physician

basis

for

solely

because

rejecting

plaintiff

them.”);

Booth

was

v.

treated

Barnhart,

by

181

16
17

Moreover, the ALJ’s finding that Dr. Tizon’s opinion rested

18

largely on Plaintiff’s subjective complaints (see AR 28) was not

19

supported by substantial evidence.

20

1035, 1041 (9th Cir. 2008) (ALJ may reject treating physician’s

21

opinion where it relies on claimant’s discredited self-report and

22

objective clinical evidence does not support the opinion).

Contrary

23

to

clinical

24

evidence,

25

orthopedic surgeon, Edwin Horainian, M.D., and podiatric physician,

26

Schlomo Schmuel, D.P.M., to support his opinion.

27

1046-76).

the

ALJ’s

findings,

including

Dr.

MRIs,

Tizon

x-rays,

28
12

Tommasetti v. Astrue, 533 F.3d

relied
and

on

objective

examination

findings

from

(See AR 1021,

1

In

his

treating

notes,

Dr.

Tizon

cited

a

May

2012

MRI

of

with

an

2

Plaintiff’s

3

underlying tear” and “[a] suprapatellar joint effusion” and a May

4

2012 MRI and x-ray of the right heel showing “a small inferior

5

calcaneal heel spur,” (AR 824, 826).6

6

February 27, 2012, Dr. Tizon found that Plaintiff had a 65 percent

7

extension/flexion and a 70 percent bending/rotation range of motion

8

in her lumbar spine; “tenderness over the superior joint of the

9

right

knee;”

right

pain

knee

“at

showing

extreme

“meniscal

degeneration

(See AR 1021, 1046-49).

ranges

of

motion;”

and

On

“positive

10

tenderness over the lateral malleolus and plantar fascia” in the

11

right ankle.

12

found that Plaintiff was limited to 20-60 degrees range of motion in

13

the lumbar spine; 45-80 degrees range of motion in the thoracic

14

spine; and 120-135 degrees range of motion in the knees.

15

69).

(AR 865-67).

In addition, on May 20, 2013, Dr. Tizon

(AR 1067-

16

Dr. Tizon’s opinion was also supported by the treating notes of

17
18

board

19

treated Plaintiff from July to August 2012.

20

89).

21

arthroscopic surgery in both shoulders and the right knee (AR 837-

22

50),

23

meniscus and rotator cuffs, and an examination that showed Plaintiff

24

“continues to be significantly symptomatic with catching, locking,

25

and a sensation of instability in the knee causing falls.”

26

848).

27
28

certified

orthopedic

surgeon,

Edwin

Horainian,

M.D.,

who

(See AR 837-50, 883-

On July 2, 2012, Dr. Horaininan recommended Plaintiff for

relying

on

MRI

results

that

showed

tears

in

Plaintiff’s

(AR

During an August 2012 follow-up appointment, Dr. Horainian
6

There was no objective medical evidence of
meniscal tear diagnosis until May 2012, well after
November 21, 2009, alleged onset date.
13

Plaintiff’s
Plaintiff’s

1

reiterated his recommendation for all three surgeries.7

2

89).

(AR 888-

3
4

Finally, the treating notes of podiatric physician, Schlomo

5

Schmuel, D.P.M., who saw Plaintiff on Jun 29, 2012, also supported

6

Dr.

7

Plaintiff for plantar fasciitis and instability in her right ankle,

8

and he observed that Plaintiff had an abnormal gait, “antalgic limp,

9

and “shorten[ed] stance phase.”

Tizon’s

opinion.

(AR

989-1000).

Dr.

(AR 989, 996).

Schmuel

diagnosed

Although Plaintiff

10

reportedly underwent twenty-four sessions of physical therapy for

11

her

12

subsided.

13

“observable

14

examination of Plaintiff showed 2+

15

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ankle,

Dr.

Schmuel

Plaintiff
signs

also
of

noted

that

“failed

functional

Plaintiff’s

injection

symptoms

therapy”

improvement.”

(AR

and

had
had

991).

not
no
An

deep tendon reflexes in the knee

24
25
7

26
27
28

Plaintiff did not undergo surgery for her knee or shoulders,
and the record is unclear as to why. One doctor’s note states that
the workers’ compensation clinic “backed out” of the surgeries,
whereas Plaintiff testified that her insurance did not authorize the
surgeries. (AR 115, 913).
14

1

and

2

anterior drawer test,8 Morton’s Test,9 and Talar (Inversion) Test.10

3

(AR 993-94).

Achilles

tendon;

pain

to

deep

palpation;

and

an

abnormal

4
5

Dr.

Horainian’s

and

Dr.

Schmuel’s

examination

findings,

as

6

discussed above, supported Dr. Tizon’s opinion that Plaintiff was

7

limited in the amount of sitting, standing, and walking she could do

8

each day.

9

between doctors provides a reason to credit the opinions of both

See Lester, 81 F.3d at 832 (a similarity of conclusions

10

doctors).

Accordingly, the ALJ’s finding that Dr. Tizon’s opinion

11

was based on subjective complaints was not a specific and legitimate

12

reason supported by substantial evidence in the record.

13
14

B.

The ALJ Properly Rejected The Opinion Of Vocational Return
To Work Counselor Dundov

15
16
17

Plaintiff contends that the ALJ erred in rejecting the opinion

18

of Vocational Return to Work Counselor, Boska Dundov.

19

(See Joint

Stip. at 25-27, 29).

20
21
22
23
24
25
26
27
28

8

An Anterior Drawer Test is an orthopedic examination that
tests
for
anterior
cruciate
ligament
(“ACL”)
integrity.
http://physicaltherapyweb.com/anterior-drawer-test-orthopedicexamination-knee/.
9

A Morton’s Test is an orthopedic exam
metarsal
pain
in
the
ankle.
dictionary.thefreedictionary.com/Morton's+test.
10

that tests for
http://medical-

A Talar (Inversion) Test is an orthopedic exam that tests
the collateral stability of the ankle joint.
http://medicaldictionary.thefreedictionary.com/talar+tilt+test.
15

1

Public

and

private

social

welfare

agency

personnel,

nurse

2

practitioners, and interns are defined as “other sources,” 20 C.F.R.

3

§ 404.1513(d), and are therefore entitled to less deference than

4

traditional

5

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

6

only give germane reasons to discount such opinions.

7

Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting

8

Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).

medical

sources,

such

as

doctors

and

psychiatrists.
An ALJ need
See Turner v.

9
10

Here, the ALJ properly found that Ms. Dundov, a vocational

11

counselor, did not qualify as a medically acceptable source (AR

12

1015).

13

only a germane reason to reject Ms. Dundov’s opinion.

14

Astrue, 472 F. App'x 550, 552-53 (9th Cir. 2012) (ALJ properly

15

provided a germane reason to reject vocational counselor’s opinion).

20 C.F.R. § 404.1513(d).

Thus, the ALJ needed to provide
See Carter v.

16
17

Although the ALJ incorrectly stated that Ms. Dundov did not

18

assign Plaintiff functional limitations in her assessment (see 1005,

19

1007, 1011), this was not the sole basis for the ALJ’s rejection of

20

Ms.

21

Plaintiff

22

germane reason to reject Ms. Dundov’s opinion.

23

No. CV 13-154-BLG-SEH, 2014 WL 5341931, at *7 (D. Mont. Oct. 20,

24

2014) (occupational therapist’s limited observations of Plaintiff

25

was

26

Astrue, No. CIVS-09-1113 GGH, 2010 WL 2348738, at *4 (E.D. Cal. June

27

8, 2010) (chiropractor’s one-time observation of Plaintiff did not

28

constitute substantial evidence).

Dundov’s

a

on

opinion.
a

germane

The

limited,

reason

to

ALJ

also

“one-time”

reject

found

basis

(AR

therapist’s

16

that

Ms.

31).

Dundov
This

saw

was

a

See Todd v. Colvin,

opinion);

Molter

v.

1

C.

Remand Is Warranted

2
3

The decision whether to remand for further proceedings or order

4

an

immediate

award

of

benefits

Harman

v.

Apfel,

5

discretion.

6

2000).

7

administrative

8

developed, it is appropriate to exercise this discretion to direct

9

an immediate award of benefits.

Where

no

useful

proceedings,

is

211

purpose
or

within
F.3d

the

1172,

would

where

the

be

district
1175-78

served

record

has

court’s

(9th
by

Cir.

further

been

fully

Id. at 1179 (“[T]he decision of

10

whether to remand for further proceedings turns upon the likely

11

utility of such proceedings.”).

12

the case suggest that further administrative review could remedy the

13

Commissioner’s errors, remand is appropriate.

14

F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.

However, where the circumstances of

McLeod v. Astrue, 640

15
16

Here, the Court remands because the ALJ did not articulate

17

specific and legitimate reasons supported by substantial evidence in

18

the

19

functional limitations.

20

would

21

assessment

22

Remand is therefore appropriate.

23

\\

24

\\

25

\\

26

\\

27

\\

28

\\

record

to

reject

necessarily
to

Dr.

be

Dr.

Tizon’s

opinion

regarding

Plaintiff’s

The record does not establish that the ALJ
required

Tizon’s

to

opinion

17

give

more

weight

in

and

find

Plaintiff

the

RFC

disabled.

1

VI.

CONCLUSION

2
3

For the foregoing reasons, the decision of the Administrative

4

Law Judge is VACATED, and the matter is REMANDED, without benefits,

5

for

6

405(g).

further

proceedings

pursuant

to

Sentence

4

of

42

U.S.C.

7
8

LET JUDGMENT BE ENTERED ACCORDINGLY.

9
10

Dated: February 7, 2017.

11
12
13
14

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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

§