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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 11 12 MA VICTORIA PEREZ, 13 Plaintiff, v. 14 15 16 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 17 ) No. ED CV 16-00583-AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 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 23 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 \\ 25 \\ 26 \\ 27 \\ 28 \\ 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). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 9 (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 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 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. 9 A Morton’s Test is an orthopedic exam metarsal pain in the ankle.'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. 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 §

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