Johnny Francisco Rodriguez v. Commissioner Social Security

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for further proceedings consistent with this Memorandum Opinion. SEE ORDER FOR DETAILS. (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JOHNNY FRANCISCO RODRIGUEZ, 13 Plaintiff, 14 15 v. 16 NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 16-1639-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on July 27, 2016, seeking review of the Commissioner’s1 denial of 22 his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 23 payments. The parties filed Consents to proceed before the undersigned Magistrate Judge on 24 August 19, 2016, and September 21, 2016. Pursuant to the Court’s Order, the parties filed a Joint 25 Stipulation (alternatively “JS”) on March 23, 2017, that addresses their positions concerning the 26 27 28 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current Acting Commissioner of Social Security, is hereby substituted as the defendant herein. 1 disputed issue in the case. The Court has taken the Joint Stipulation under submission without 2 oral argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born on February 23, 1986. [Administrative Record (“AR”) at 297, 315.] He 7 has past relevant work experience as a construction laborer and a warehouse worker. [AR at 57, 8 77.] 9 On January 25, 2012, plaintiff filed an application for a period of disability and DIB, and on 10 August 21, 2013, he filed an application for SSI payments, alleging that he has been unable to 11 work since July 2, 2007. [AR at 26, 297-303, 315-24.] After his applications were denied initially 12 and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law 13 Judge (“ALJ”). [AR at 26, 119-20.] Hearings were held on October 16, 2013, May 19, 2014, and 14 January 28, 2015. [AR at 26.] Plaintiff appeared represented by an attorney at the first and third 15 hearings, and testified on his own behalf. [AR at 45-59, 60-68, 69-82.] A different vocational 16 expert (“VE”) also testified at each of the hearings. [AR at 57-59, 63-67, 76-78.] A medical expert 17 (“ME”) testified at the final hearing. [AR at 72-76.] On February 5, 2015, the ALJ issued a 18 decision concluding that plaintiff was not under a disability from July 2, 2007, the alleged onset 19 date, through February 5, 2015, the date of the decision. [AR at 26-38.] Plaintiff requested review 20 of the ALJ’s decision by the Appeals Council. [AR at 18.] When the Appeals Council denied 21 plaintiff’s request for review on May 23, 2016 [AR at 1-6], the ALJ’s decision became the final 22 decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) 23 (citations omitted). This action followed. 24 25 III. 26 STANDARD OF REVIEW 27 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 28 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 2 1 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 2 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 3 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 4 is such relevant evidence as a reasonable mind might accept as adequate to support a 5 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation 6 and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) 7 (same). When determining whether substantial evidence exists to support the Commissioner’s 8 decision, the Court examines the administrative record as a whole, considering adverse as well 9 as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); 10 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 11 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 12 of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is 13 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 14 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 15 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 16 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”) 17 (citation omitted). 18 19 IV. 20 THE EVALUATION OF DISABILITY 21 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 22 to engage in any substantial gainful activity owing to a physical or mental impairment that is 23 expected to result in death or which has lasted or is expected to last for a continuous period of at 24 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 25 1992). 26 27 28 A. THE FIVE-STEP EVALUATION PROCESS The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 3 1 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 3 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 4 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 5 substantial gainful activity, the second step requires the Commissioner to determine whether the 6 claimant has a “severe” impairment or combination of impairments significantly limiting his ability 7 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 8 If the claimant has a “severe” impairment or combination of impairments, the third step requires 9 the Commissioner to determine whether the impairment or combination of impairments meets or 10 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, 11 subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If 12 the claimant’s impairment or combination of impairments does not meet or equal an impairment 13 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 14 sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled 15 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 16 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 17 case of disability is established. Id. The Commissioner then bears the burden of establishing 18 that the claimant is not disabled, because he can perform other substantial gainful work available 19 in the national economy. Id. The determination of this issue comprises the fifth and final step 20 in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 21 966 F.2d at 1257. 22 23 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 24 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 25 July 2, 2007, the alleged onset date.2 [AR at 29.] At step two, the ALJ concluded that plaintiff has 26 27 2 28 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through June 30, 2009. [AR at 29.] 4 1 the medically determinable impairments of degenerative disk disease of the lumbar spine; left 2 shoulder impingement; depressive disorder; and anxiety. [Id.] The ALJ also determined that 3 plaintiff “does not have an impairment or a combination of impairments that has significantly limited 4 (or is expected to significantly limit) the ability to perform basic work-related activities for 12 5 consecutive months” and, therefore, “does not have a severe impairment or combination of 6 impairments.” [Id.] Accordingly, the ALJ determined that plaintiff was not disabled at any time 7 from the alleged onset date of July 2, 2007, through February 5, 2015, the date of the decision. 8 [AR at 38.] 9 10 V. 11 THE ALJ’S DECISION 12 Plaintiff contends that the ALJ erred when he found at step two that plaintiff was not 13 disabled because the evidence did not show that plaintiff’s impairments significantly limited his 14 ability to perform basic work activities. [JS at 11 (citing AR at 38).] As set forth below, the Court 15 agrees with plaintiff, in part, and remands for further proceedings. 16 17 A. STEP TWO LEGAL STANDARD 18 At step two of the five-step process, plaintiff has the burden to provide evidence of a 19 medically determinable physical or mental impairment that is severe and that has lasted or can 20 be expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 21 F.3d 1002, 1004-05 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D)); see 20 C.F.R. 22 §§ 404.1508, 404.1509, 404.1520(a)(4)(ii); see generally Bowen v. Yuckert, 482 U.S. 137, 148, 23 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987) (Secretary may deny Social Security disability benefits 24 at step two if claimant does not present evidence of a “medically severe impairment”). This must 25 be “established by medical evidence consisting of signs, symptoms, and laboratory findings, not 26 only by [the claimant’s] statement of symptoms.” 20 C.F.R. § 404.1508. The Commissioner’s 27 regulations define “symptoms” as a claimant’s own description of her physical or mental 28 impairment. 20 C.F.R. § 404.1528. “Signs,” by contrast, “are anatomical, physiological, or 5 1 psychological abnormalities which can be observed, apart from [the claimant’s] statements . . . [,] 2 [and] must be shown by medically acceptable clinical diagnostic techniques.” Id. Finally, 3 “[l]aboratory findings are anatomical, physiological, or psychological phenomena which can be 4 shown by the use of medically acceptable laboratory diagnostic techniques.” Id. A claimant’s 5 statements about an impairment (i.e., “symptoms”) “are not enough [by themselves] to establish 6 that there is a physical or mental impairment.” Id. 7 Step two is “a de minimis screening device [used] to dispose of groundless claims.” 8 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment, or combination of 9 impairments, is defined as one that significantly limits physical or mental ability to do basic work 10 activities. 20 C.F.R. § 404.1520. An impairment or combination of impairments should be found 11 to be “non-severe” only when the evidence establishes merely a slight abnormality that has no 12 more than a minimal effect on an individual’s physical or mental ability to do basic work activities. 13 Yuckert, 482 U.S. at 153-54 & n.11 (Social Security claimants must make “de minimis” showing 14 that impairment interferes with ability to engage in basic work activities) (citations omitted); Webb 15 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); see also 20 C.F.R. § 404.1521(a). “Basic work 16 activities” mean the abilities and aptitudes necessary to do most jobs, including “[p]hysical 17 functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or 18 handling . . . .” 20 C.F.R. § 404.1521(b). It also includes mental functions such as the ability to 19 understand, carry out, and remember simple instructions, deal with changes in a routine work 20 setting, use judgment, and respond appropriately to supervisors, coworkers, and usual work 21 situations. [See AR at 29 (citing Soc. Sec. Ruling (“SSR”)3 85-28).] 22 When reviewing an ALJ’s findings at step two, the Court “must determine whether the ALJ 23 had substantial evidence to find that the medical evidence clearly established that [the claimant] 24 did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at 25 26 27 28 3 “SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). 6 1 687 (citing Yuckert, 841 F.2d at 306 (“Despite the deference usually accorded to the Secretary’s 2 application of regulations, numerous appellate courts have imposed a narrow construction upon 3 the severity regulation applied here.”)). 4 5 B. ANALYSIS 6 Here, although the ALJ found that plaintiff has the medically determinable impairments of 7 degenerative disk disease of the lumbar spine, left shoulder impingement, depressive disorder, 8 and anxiety, he concluded that plaintiff does not have a severe impairment or combination of 9 impairments because his impairments have not significantly limited plaintiff’s ability to perform 10 basic work-related activities for twelve consecutive months. [AR at 29.] The ALJ gave a number 11 of reasons for this conclusion4: (1) plaintiff’s subjective symptom allegations “are less than fully 12 credible” because (a) plaintiff “has engaged in a somewhat normal level of daily activity and 13 interaction”; (b) there is no evidence of muscle atrophy, which “is a common side effect of 14 prolonged and/or chronic pain due to lack of use of a muscle in order to avoid pain”; and (c) the 15 medical evidence does not support plaintiff’s subjective symptom allegations; (2) some of the 16 medical records “were reports prepared in the context of the adversarial workers’ compensation 17 claim system” and “physicians retained . . . in the context of workers’ compensation cases are 18 often biased and do not provide truly objective opinions”; (3) the diagnostic tests performed 19 “showed no significant findings”; (4) the impartial medical expert, Darius Ghazi, M.D., a certified 20 orthopedic surgeon, determined that plaintiff’s impairments did not meet or equal a medical listing 21 and that plaintiff “was able to engage in any occupation that was suitable for him”; (5) the opinions 22 of plaintiff’s treating physicians, Donald Kim, M.D., Jonathan Lee, M.D., and Max Matos, M.D., 23 among others, were entitled to “little weight” because they were inconsistent with plaintiff’s MRIs 24 of the lumbar spine, which revealed no significant findings, and because their opinions “are 25 26 27 28 4 Because several of the ALJ’s stated reasons for finding that plaintiff’s impairments were not severe are not supported by substantial evidence and, therefore, remand is warranted, the Court will not discuss all of the ALJ’s stated reasons herein. The Court’s lack of discussion of any reason given by the ALJ to find plaintiff’s impairments not severe should not be construed as an indication that the reason was legally sufficient. 7 1 inconsistent with records reflecting that [plaintiff’s] gait was normal, and his straight leg raising 2 [“SLR”] test was negative bilaterally,” as well as with plaintiff’s ability to perform daily activities5; 3 (6) the opinions of the State agency medical consultants, who determined that plaintiff had the 4 ability to perform a range of light work, were given “little weight” because they were inconsistent 5 with records reflecting that plaintiff’s gait was normal, his SLR test was negative bilaterally, and 6 with an MRI, which revealed no significant findings, as well as with plaintiff’s ability to perform daily 7 activities; (7) the opinions in the workers’ compensation medical records that indicated plaintiff was 8 “temporarily totally disabled,” were rejected as an opinion reserved to the Commissioner, and 9 because their opinions were in the context of the workers’ compensation claim; (8) the medical 10 evidence reflects only mild mental problems with symptoms that remained stable; and (9) the 11 opinions of the State agency psychological consultants, who opined there was “insufficient 12 evidence for a medical disposition,” were given “great weight” because they were consistent with 13 records reflecting “normal” memory, attention, and concentration, logical and coherent thoughts, 14 and appropriate affect, as well as with plaintiff’s ability to perform daily activities. [AR at 31-38.] 15 A number of these reasons are legally insufficient and fail to support the ALJ’s conclusion that 16 plaintiff’s impairments are nonsevere. 17 18 1. Workers’ Compensation Records 19 The ALJ found that the records of plaintiff’s treating physicians, Dr. Kim, Dr. Lee, and Dr. 20 Matos, were entitled to “little weight” because they were prepared “in the context of workers’ 21 22 23 24 25 26 27 28 5 In his decision, the ALJ noted that the opinions of plaintiff’s treating physicians are inconsistent with plaintiff’s “ability to perform daily activities, such as driving, taking care of his girlfriend and son, shopping in stores, paying bills, handling the finances, walking his eight-year old son to school, and spending time with others.” [See, e.g., AR at 35-36 (citing plaintiff’s testimony and Function Report-Adult (AR at 370-77)).] He also stated that the opinions of Dr. Ghazi, and the State agency psychological consultants -- whose opinions he gave “great weight” -- were consistent with plaintiff’s ability to perform these daily activities. [See, e.g., AR at 35, 38.] An ALJ is required to consider the evidence as a whole. See Reddick, 157 F.3d at 722-23; Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). As the ALJ’s reevaluation of the medical signs and laboratory findings in the record on remand may impact on his evaluation of plaintiff’s subjective symptom statements, the ALJ is instructed on remand to also reevaluate plaintiff’s subjective symptom statements to the extent necessary, in accordance with SSR 16-3p. [See infra note 9.] 8 1 compensation cases” and physicians retained in such cases “are often biased and do not provide 2 truly objective opinions.” [AR at 32.] The ALJ points to no evidence, however, that any of 3 plaintiff’s workers’ compensation physicians were anything but professional in conducting their 4 examinations and writing their reports. Moreover, it could just as easily be said that an ME, a VE, 5 a state agency reviewing or consulting physician, and a treating physician, all of whom are 6 compensated in some way for examining a claimant, or for reviewing the records and rendering 7 their opinions in an action, are not “totally unbiased.” An ALJ is not entitled to reject a medical 8 opinion based “on the purpose for which medical reports are obtained.” Batson v. Comm’r of Soc. 9 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Lester, 81 F.3d at 832). Moreover, an 10 ALJ “may not disregard a . . . medical opinion simply because it was initially elicited in a state 11 workers’ compensation proceeding . . . .” Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. 12 Cal. 2002). 13 Furthermore, these treating providers provided relevant information regarding the severity 14 of plaintiff’s impairments. For instance, on November 7, 2007, and again on November 28, 2007, 15 Dr. Kim opined that plaintiff should not push, pull, or lift any weight over 25 pounds, and was 16 limited in bending and stooping [AR at 890-91, 897-98]; on July 16, 2008, Dr. Matos provided 17 plaintiff with a cane, requested pain management authorization, noted that an October 31, 2007, 18 MRI showed L5-S1 disc herniation, and found plaintiff temporarily totally disabled [AR at 547-48]; 19 on August 28, 2008, Dr. Matos requested a neurological evaluation and noted plaintiff was 20 temporarily totally disabled [AR at 554]; on October 23, 2008, Dr. Lee opined plaintiff could not 21 engage in prolonged walking or standing, or handle more than 30 pounds [AR at 925]; on May 22 20, 2009, Dr. Matos noted plaintiff’s “increasing difficulty with ambulation,” and recommended use 23 of a walker with a seat [AR at 584]; on July 2, 2010, Dr. Matos opined that plaintiff’s medical 24 conditions would prevent him from working [AR at 480]; on October 20, 2010, Dr. Matos indicated 25 plaintiff was limited to working sedentary-type work only four hours per day with limited overhead 26 work, no climbing, and no lifting, carrying, pushing, or pulling over five pounds [AR at 638]; on 27 December 29, 2010, and March 4, 2011, Dr. Matos indicated similar findings and restrictions as 28 his October 20, 2010, findings [AR at 649-52, 653-56]; on June 15, 2011, Dr. Matos discussed Dr. 9 1 Lee’s October 23, 2008, evaluation and stated that he believed Dr. Lee had declared plaintiff 2 “permanent and stationary prematurely and without complete review” of the case, as evidenced 3 by Dr. Moheimani’s evaluation on January 21, 2010, recommending median branch facet blocks 4 at L4-S1 and possible radiofrequency rhizotomy, indictating plaintiff “still required active care and 5 was not at maximum medical improvement” [AR at 515-16]; on October 11, 2011, Dr. Matos again 6 opined plaintiff was limited to working four hours per day, lifting, carrying, pushing, and pulling five 7 pounds, and never driving or doing overhead work [AR at 673]; on February 6, 2012, Dr. Matos 8 provided a lumbar support and indicated the need for a cane, reiterated his October 2011, 9 limitations, and stated that plaintiff “must be able to stand and/or sit at liberty” [AR at 1021-22]; he 10 again reiterated those limitations and/or observations on March 7, 2012, May 2, 2012, June 29, 11 2012, December 7, 2012, January 11, 2013, and throughout the second half of 2013 and 2014. 12 [AR at 679-81, 686-87, 694, 1108-09, 1100, 816, 1057, 1065-66, 1086, 1269, 1277, 1285, 1289, 13 1294.] On June 16, 2014, November 6, 2014, December 18, 2014, December 31, 2014, and 14 January 15, 2015, plaintiff received trigger point injections in his left shoulder. [AR at 1252-54, 15 1263.] 16 Accordingly, the medical opinions from these three treating workers’ compensation doctors 17 indicate that plaintiff’s impairments had, at the very least, more than a minimal effect on plaintiff’s 18 ability to work. In the absence of specific evidence showing bias, the ALJ’s questioning of 19 plaintiff’s doctors’ motives for evaluating plaintiff’s physical and/or mental health conditions in the 20 way that they did was not a specific or legitimate reason to discount the opinions of plaintiff’s 21 workers’ compensation physicians regarding the severity of plaintiff’s impairments. 22 23 2. Medical Opinions Inconsistent with Treatment Records 24 The ALJ determined that the opinions of plaintiff’s treating physicians were entitled to “little 25 weight” because they were inconsistent with plaintiff’s diagnostic test results that “showed no 26 significant findings,” including plaintiff’s MRIs of the lumbar spine, records reflecting that plaintiff’s 27 gait was normal and his SLR test was negative bilaterally, and with plaintiff’s ability to perform 28 daily activities. [AR at 33-34 (citing AR at 1048).] 10 1 a. MRI Findings 2 The ALJ noted that an MRI of the lumbar spine taken on October 31, 2007, “revealed no 3 significant findings.” [AR at 33-34 (citing AR at 746).] A review of that MRI report, however, 4 reflects a “3.0 mm, dorsal midline disk protrusion at L5-S1,” and “degenerative facet hypertrophy 5 from L3 to S1 without significant spinal stenosis.” [AR at 746.] Additionally, Dr. Matos commented 6 that this MRI indicated L5-S1 disc herniation and diagnosed lumbosacral sciatica. [AR at 544.] 7 The ALJ also noted that a lumbar spine MRI taken on March 29, 2012, “revealed 1-2 mm central 8 disk bulge [at L5-S1], otherwise, the study was normal without spondylolisthesis.”6 [AR at 134 9 (citing AR at 750-51).] The ALJ fails to explain, however, how the treating physicians’ opinions 10 regarding plaintiff’s limitations are inconsistent (if they are) with any of these MRI results. 11 Additionally, the ALJ failed to note that on August 13, 2012, Dr. Matos stated that he 12 “respectfully disagreed” with the interpretation of the MRI study from March 29, 2012, and stated 13 that he believed that the MRI showed a “4 to 5.89 mm disc towards the right of the midline which 14 is on the axial views compressing the right S1 nerve root.” [AR at 1027.] He stated that by his 15 measurement, “[t]here is significant compression.” [Id.] Dr. Matos also stated that the “findings 16 of the MRI are concordant with the patient’s symptoms and physical examination.” [Id.] An ALJ 17 must explain why “significant, probative evidence has been rejected.” See Vincent v. Heckler, 739 18 F.2d 1393, 1395 (9th Cir. 1984) (citation omitted). Accordingly, the ALJ’s failure to discuss Dr. 19 Matos’ interpretation of the March 29, 2012, MRI results was error. 20 21 b. Normal Gait and Negative SLR 22 The ALJ stated that the treating physicians’ opinions were inconsistent with the records 23 reflecting that plaintiff’s gait was normal and his SLR was negative bilaterally. [See, e.g., AR at 24 34 & 35 (citing AR at 1048).] The one record repeatedly relied on by the ALJ for this proposition -- 25 26 27 28 6 The ALJ failed to mention an MRI done on August 21, 2008, that also notes at the L5-S1 level “very mild bilateral facet degenerative change and prominence of ligamenium flavum[,] . . . diffuse disc dessication, and a small broad-based posterior disc protrusion measuring approximately 2 mm in size,” with very mild bilateral foraminal narrowing. [AR at 747.] 11 1 AR at 1048 -- is a February 13, 2013, report by A. Michael Moheimani, M.D., a qualified medical 2 examiner. However, although on that date Dr. Moheimani noted a normal gait and negative SLR 3 bilaterally, he also noted reduced flexion and extension of the lumbar spine, and declined to make 4 any treatment recommendations without having first reviewed plaintiff’s most recent lumbar MRI. 5 [AR at 1047-48.] The ALJ’s reliance on that single record to support his rejection of the treating 6 physicians’ opinions was improper, as was his selective reliance on only certain evidence in that 7 record.7 Additionally, notwithstanding Dr. Moheimani’s findings on February 13, 2013, this one 8 record -- as well as the two or three others cited in passing by the ALJ -- is directly in conflict with 9 a significant number of other records that do reflect plaintiff’s antalgic or otherwise abnormal gait, 10 and positive SLR, either unilaterally or bilaterally. For instance: 11 • March 5, 2008: positive bilateral SLR in seated and supine positions, and right antalgic gait 12 [AR at 492-93]; 13 • April 16, 2008: mildly antalgic gait [AR at 700]; 14 • May 6, 2008: positive bilateral SLR [AR at 528-29]; 15 • August 28, 2008: ambulation with a cane and an antalgic gait, and limited range of motion 16 [AR at 553]; 17 • October 23, 2008: limited range of motion and antalgic gait [AR at 922]; 18 • December 24, 2008: positive bilateral SLR [AR at 932]; 19 • January 21, 2009: reduced range of motion of the lumbar spine, supine SLR positive 20 7 21 22 23 24 25 26 27 28 Defendant points to other records cited by the ALJ where plaintiff’s SLR was found to be negative [JS at 18-19 (citing AR at 31)]: a January 16, 2008, examination note that the ALJ also stated showed “no decreased range of motion of the lumbar spine,” but that actually showed a significantly reduced range of lumbar motion on flexion and extension [AR at 877], and also reflected L5-S1 degenerative disc disease with 3 mm bulge and right lower extremity radiculopathy [AR at 877-78]; and a December 5, 2007, examination note that indicated the same additional findings. [AR at 886-87.] Although defendant and the ALJ also asserted that in January 2009 another examination showed negative SLR bilaterally, that plaintiff walked with a normal gait, and that he performed a heel and toe walk test without difficulty [JS at 19 (citing AR at 31)], the cited record actually shows positive supine straight leg raising bilaterally, and also that plaintiff had “great difficulty” moving about the room and lying down on the table and getting up, and that the range of motion of his right hip was painful. [AR at 1137-38.] Thus, the ALJ (and defendant) selectively cited to the benign findings in those selected records while completely ignoring other, significant findings. 12 1 bilaterally, painful range of motion of right hip [AR at 1137]; 2 • February 17, 2009: positive SLR on right more than left [AR at 572-73]; 3 • May 20, 2009: gait was “quite antalgic” despite using a cane, and range of motion testing 4 5 was “deferred secondary to pain” [AR at 584]; • 6 July 2, 2009: gait antalgic when not using his single-point cane, and painful and limited range of motion [AR at 592]; 7 • July 9, 2009: gait was possible with a cane [AR at 1346]; 8 • August 14, 2009: plaintiff antalgic in sitting, standing, and walking positions [AR at 598]; 9 • December 17, 2009: plaintiff antalgic in sitting, standing, and walking positions, limited 10 range of motion, and positive SLR at 45 degrees [AR at 613]; 11 • January 18, 2010: antalgic gait with cane, decreased range of motion [AR at 619]; 12 • January 21, 2010: positive SLR in the supine position [AR at 1137-38]; 13 • March 11, 2010: antalgic while sitting, standing, and walking, and limited and painful 14 15 lumbar range of motion [AR at 623]; • 16 17 slightly tilted to the left [AR at 500]; • 18 19 October 20, 2010: positive SLR and decreased range of motion, difficulty standing, sitting, and rising from sitting, and an antalgic gait [AR at 640-42]; • 20 21 July 12, 2010: bilateral antalgic gait with left shoulder slightly higher than the right and neck October 11, 2011: difficulty rising from sitting, a high left shoulder, and antalgic gait [AR at 674]; • 22 February 6, 2012: positive bilateral SLR and decreased lumbar range of motion [AR at 1018]; 23 • March 7, 2012: difficulty rising from sitting, and an antalgic gait [AR at 679-81]; 24 • May 2, 2012: difficulty standing, sitting, and rising from sitting, an antalgic gait favoring the 25 left leg, and gingerly movements [AR at 686-87]; 26 • June 29, 2012: same as May 2, 2012 [AR at 694]; 27 • August 13, 2012: Dr. Matos disagreed with reading of March 29, 2012, MRI and instead 28 found a “4 to 5.89 mm disc towards the right of the midline which is on the axial views 13 1 compressing the right S1 nerve root,” and stating that by his measurement, “[t]here is 2 significant compression” and plaintiff “has persistent severe symptoms concordant with the 3 MRI findings” [AR at 1027-28]; 4 • 5 6 October 29, 2012: difficulty standing, sitting, and rising from sitting, an antalgic gait, and stiff and gingerly movements [AR at 1118]; and • December 7, 2012: stiff movements. [AR at 1100.] 7 In short, it is clear that the ALJ selectively relied on only certain “positive” evidence in the 8 records that he cited, and completely ignored evidence in those and other medical records 9 reflecting signs and laboratory findings showing more severe impairment or limitations. 10 Accordingly, the ALJ’s finding that the opinions of plaintiff’s treating physicians were inconsistent 11 with the records reflecting that plaintiff’s gait was normal and his SLR was negative bilaterally, was 12 not supported by substantial evidence. 13 14 3. Dr. Ghazi’s Opinion 15 The ALJ gave “great weight” to the opinion of Dr. Ghazi, who opined that plaintiff had no 16 functional limitations. [AR at 35.] Indeed, Dr. Ghazi also relied on the lack of any “objective 17 findings of any serious injury” to plaintiff’s back, and found that plaintiff’s symptoms were “basically 18 out of proportion with the physical findings and imaging findings,” without any discussion of the 19 many records reflecting limitations in range of motion, positive SLR, antalgic gait, and other things. 20 The ALJ gave “great weight” to Dr. Ghazi’s opinion because Dr. Ghazi’s opinions were consistent 21 with the records reflecting that plaintiff’s MRI examinations revealed no significant findings, with 22 records reflecting that plaintiff’s gait was normal and his SLR was negative bilaterally, and with 23 plaintiff’s “ability to perform daily activities, such as driving, taking care of his girlfriend and son, 24 shopping in stores, paying bills, handling the finances, walking his eight-year old son to school, 25 and spending time with others.” [AR at 35 (citations omitted).] 26 Because, as discussed above, the ALJ’s findings regarding plaintiff’s MRI reports, and the 27 evidence reflecting plaintiff’s test results and other clinical diagnostic findings, were not supported 28 by substantial evidence, the weight he gave to Dr. Ghazi’s opinion based on these same reasons 14 1 was also not supported by substantial evidence. 2 3 4. Mental Health Issues 4 In a psychological evaluation on June 3, 2008, Loren Green, Ph.D., observed that plaintiff 5 was cooperative but made little eye contact, had slow interpersonal mannerisms, leaned forward 6 in his chair, was in observable physical discomfort, appeared to experience mental or physical 7 fatigue during the interview, spoke softly, had a limited range of affect and depressed mood, 8 became distressed when discussing his stressors, and had a preoccupation with his pain. [AR 9 at 722-37.] Dr. Green found no evidence of malingering or exaggeration and diagnosed plaintiff 10 with Adjustment Disorder with Mixed Anxiety & Depressed Mood. [AR at 733.] Several 11 subsequent progress notes found that plaintiff’s affect was restricted, his mood was sad and 12 irritable, and/or he was depressed and anxious. [AR at 738-45.] On October 20, 2010, Ted 13 Tribble, Psy.D., opined plaintiff was mentally disabled as of that date due to depression and 14 anxiety with symptoms of depressed mood, fatigue, insomnia, irritability, anxiety, tension, and 15 impaired memory and concentration. [AR at 483.] 16 The ALJ noted Dr. Green’s findings and diagnoses, but stated, among other things, that 17 “[d]espite these diagnoses, [plaintiff’s] ability to focus his attention and concentrate were normal,” 18 there “was no evidence of any distraction or confusion,” “his mood was calm and pleasant,” his 19 affect was appropriate, and Dr. Green “indicated that [plaintiff’s] mental conditions would improve 20 if he were to return to work.” [AR at 37 (citing AR at 706-34).] The ALJ also mentioned a March 21 11, 2010, examination, where plaintiff “was found to have depression and anxiety,” and was 22 prescribed medications. [Id. (citing AR at 935-40).] He also referenced Dr. Tribble’s October 20, 23 2010, examination, and noted that although plaintiff had been diagnosed with major depression, 24 single episode, and generalized anxiety disorder, Dr. Tribble’s report also noted that plaintiff’s 25 affect was appropriate and plaintiff admitted his Wellbutrin was helping. [Id. (citations omitted).] 26 The ALJ then stated that between October 20, 2010, and June 20, 2012, plaintiff’s “mental 27 symptoms remained stable,” as at seven examinations between those dates, plaintiff’s “memory, 28 attention, and concentration were normal.” [Id. (citations omitted).] 15 1 The ALJ gave great weight to the State agency psychological consultants “who opined that 2 there was insufficient evidence for a medical disposition,” because their opinions “are consistent 3 with records reflecting that [plaintiff’s] memory, attention, and concentration were normal.” [AR 4 at 37-38 (citing AR at 88, 98-99).] He found that their opinions were also consistent with records 5 reflecting that plaintiff’s thoughts were logical and coherent, and his affect appropriate [AR at 38 6 (citing AR at 941)], as well as with plaintiff’s “ability to perform daily activities, such as driving, 7 taking care of his girlfriend and son, shopping in stores, paying bills, handling the finances, walking 8 his eight-year old son to school, and spending time with others.” [Id. (citations omitted).] 9 As with the records relating to plaintiff’s physical impairments, the ALJ appears to have 10 selectively considered only those portions of the mental health records and reports that reflect 11 positive findings (e.g., normal memory, attention, and concentration; logical and coherent 12 thoughts; and appropriate affect), and ignored those portions of the reports that reflect depression, 13 anxiety, fatigue, irritability, feelings of helplessness, minimal stress management, minimal pain 14 management, and minimal anger management. [See AR at 738-45.] In addition, he appears to 15 have substituted his lay opinion (in this case that normal memory, attention, and concentration, 16 logical and coherent thought processes, and appropriate affect are inconsistent with a severe 17 mental impairment) for the medical opinions of the mental health professionals. See Tackett v. 18 Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999) (ALJ may not substitute his own interpretation of 19 the medical evidence for the opinion of medical professionals); Banks v. Barnhart, 434 F. Supp. 20 2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute his own judgment for 21 competent medical opinion, and he must not succumb to the temptation to play doctor and make 22 his own independent medical findings.”) (internal quotation marks, alterations, and citations 23 omitted). In any event, what is relevant to the disability determination here is the severity of the 24 mental impairments and resulting limitations. 25 The ALJ on remand must reassess the severity of plaintiff’s mental health impairments. 26 27 5. Conclusion 28 An ALJ must consider all of the relevant evidence in the record and may not point to only 16 1 those portions of the record that bolster his findings. See Reddick, 157 F.3d at 722-23 (it is 2 impermissible for the ALJ to develop an evidentiary basis by “not fully accounting for the context 3 of materials or all parts of the testimony and reports”); see also Gallant v. Heckler, 753 F.2d 1450, 4 1456 (9th Cir. 1984) (error for an ALJ to ignore or misstate the competent evidence in the record 5 in order to justify her conclusion). Thus, an ALJ may not cherry-pick evidence to support a 6 conclusion that a claimant is not disabled, but must consider the evidence as a whole in making 7 a reasoned disability determination. Holohan, 246 F.3d at 1207 (concluding that the ALJ’s basis 8 for rejecting the treating physician’s medical opinion was not supported by substantial evidence 9 because the ALJ “selectively relied on some entries . . . and ignored the many others that 10 indicated continued, severe impairment.”). That is exactly what the ALJ did here when he 11 repeatedly relied on selective portions of less than a handful of records that showed normal gait 12 and/or negative bilateral SLR test results to discount the opinions of plaintiff’s treating physicians, 13 despite the abundance of evidence in the record showing just the opposite, and instead gave great 14 weight to the medical expert, who -- like the ALJ -- appeared to ignore the plethora of evidence 15 reflecting antalgic gait and positive SLR test results, as well as other signs and diagnostic findings 16 relating to the severity of plaintiff’s impairments. 17 In short, substantial evidence does not support the ALJ’s conclusion that plaintiff’s medically 18 determinable impairments fail to meet the step two de minimis threshold of severity. Remand is 19 warranted on this issue.8 20 21 VI. 22 REMAND FOR FURTHER PROCEEDINGS 23 The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 24 8 25 26 27 28 The Court need not address whether the ALJ erred when he considered plaintiff’s subjective symptom testimony, or the evidence concerning plaintiff’s shoulder impairment, because given the error in his determination that plaintiff’s medically determinable impairments of degenerative disk disease of the lumbar spine, left shoulder impingement, depressive disorder, and anxiety -- singly or in combination-- were not severe, the ALJ on remand must also reconsider the severity of all of plaintiff’s medically determinable impairments, as well as plaintiff’s subjective symptom testimony, in light of the entire record. 17 1 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further 2 proceedings, or where the record has been fully developed, it is appropriate to exercise this 3 discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028, 4 1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are 5 outstanding issues that must be resolved before a determination can be made, and it is not clear 6 from the record that the ALJ would be required to find plaintiff disabled if all the evidence were 7 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96. 8 9 In this case, there are outstanding issues that must be resolved before a final determination can be made. In an effort to expedite these proceedings and to avoid any confusion or 10 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 11 proceedings. Because the ALJ failed to properly consider the evidence relating to the severity of 12 plaintiff’s physical and mental impairments at step two, remand is appropriate to allow the 13 Commissioner to continue the sequential evaluation process starting with the severity of plaintiff’s 14 impairments at step two. In assessing the medical opinion evidence of all of plaintiff’s providers, 15 the ALJ must explain the weight afforded to each opinion and provide legally adequate reasons 16 for any portion of the opinion that the ALJ discounts or rejects, including a legally sufficient 17 explanation for crediting one doctor’s opinion over any of the others. Additionally, in considering 18 the severity of plaintiff’s impairments at step two and, if warranted, throughout the five-step 19 evaluation process, the ALJ on remand, in accordance with SSR 16-3p,9 shall reassess plaintiff’s 20 21 22 23 24 25 26 27 28 9 On March 28, 2016, after the ALJ’s assessment in this case, SSR 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p supersedes SSR 96-7p, the previous policy governing the evaluation of subjective symptoms. Id. at *1. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s character[;] [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id. Thus, the adjudicator “will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person.” Id. at *10. The ALJ is instructed to “consider all of the evidence in an individual’s record,” “to determine how symptoms limit ability to perform workrelated activities.” Id. at *2. The ALJ’s 2015 decision was issued before March 28, 2016, when (continued...) 18 1 subjective allegations and either credit his testimony as true, or provide specific, clear and 2 convincing reasons, supported by substantial evidence in the case record, for discounting or 3 rejecting any testimony. 4 5 VII. 6 CONCLUSION 7 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 8 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 9 proceedings consistent with this Memorandum Opinion. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 12 13 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 14 15 DATED: March 31, 2017 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9 (...continued) SSR 16-3p became effective, and there is no binding precedent interpreting this new ruling including whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490, at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision); see also Smolen, 80 F.3d at 1281 n.1 (9th Cir. 1996) (“We need not decide the issue of retroactivity [as to revised regulations] because the new regulations are consistent with the Commissioner’s prior policies and with prior Ninth Circuit case law”) (citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (because regulations were intended to incorporate prior Social Security Administration policy, they should be applied retroactively)). Here, SSR 16-3p on its face states that it is intended only to “clarify” the existing regulations. However, given the status of this action, the Court need not resolve the retroactivity issue herein. Notwithstanding the foregoing, SSR 16-3p shall apply on remand. 19

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