Sotero Gutierrez-Ponce v. Carolyn W. Colvin

Filing 21

MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich: The Commissioner's decision is reversed, and this case is remanded to the Commissioner for further administrative proceedings consistent with this memorandum of decision. (see document for further details) (klg)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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EASTERN DIVISION
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SOTERO GUTIERREZ-PONCE,
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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of the
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Social Security Administration,
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Defendant.
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_____________________________________)

Case No. EDCV 16-1664 AJW
MEMORANDUM OF DECISION

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Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the

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Social Security Administration (the “Commissioner”), denying plaintiff’s application for disability insurance

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benefits and supplemental security income benefits. The parties have filed a Joint Stipulation (“JS”) setting

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forth their contentions with respect to each disputed issue.

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Administrative Proceedings

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The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation.

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[See JS 2]. Plaintiff alleged disability beginning August 1, 2012. [JS 2]. In a January 16, 2014 written

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hearing decision that constitutes the Commissioner’s final decision, an administrative law judge (“ALJ”)

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concluded that plaintiff was not disabled. [JS 2; Administrative Record (“AR”) 15-22]. The ALJ

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determined that plaintiff suffered from the following severe impairments: status post (“S/P”) laminectomy

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of the lumbar spine; mild degenerative disc disease of the lumbar spine with radiculopathy; and rheumatoid

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arthritis in the knees bilaterally. [AR 18]. The ALJ also found that plaintiff had non-severe impairments

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consisting of diabetes, atypical chest pain, and hypertension. [AR 18]. The ALJ determined that plaintiff

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retained the residual functional capacity (“RFC”) to perform light work, and that plaintiff was not disabled

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because his RFC did not preclude performance of his past relevant work as actually performed. [AR 21].

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Standard of Review

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The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial

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evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas

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v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a mere scintilla,

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but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). “It is such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to

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review the record as a whole and to consider evidence detracting from the decision as well as evidence

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supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v.

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Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas, 278

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F.3d at 954 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).

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Discussion

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Medical opinion

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Plaintiff contends that the ALJ erred in rejecting the opinion of plaintiff’s treating physician and

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family medicine practitioner, Elmer Symonett, M.D., and in relying instead on non-treating source opinions.

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In general, “[t]he opinions of treating doctors should be given more weight than the opinions of

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doctors who do not treat the claimant.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick

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v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.

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2001). A treating physician’s opinion is entitled to greater weight than those of examining or non-

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examining physicians because “treating physicians are employed to cure and thus have a greater opportunity

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to know and observe the patient as an individual . . . .” Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir.

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2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) and citing Social Security Ruling

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(“SSR”) 96-2p, 1996 WL 374188); see generally 20 C.F.R. §§ 404.1502, 404.1527(c), 416.902, 416.927(c).
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When a treating physician’s medical opinion as to the nature and severity of an individual’s impairment is

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well-supported and not inconsistent with other substantial evidence in the record, that opinion must be given

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controlling weight. Edlund, 253 F.3d at 1157; see Orn, 495 F.3d at 631; SSR 96-2p, 1996 WL 374188, at

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*1-*2.

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Even when not entitled to controlling weight, “treating source medical opinions are still entitled to

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deference and must be weighed” in light of (1) the length of the treatment relationship; (2) the frequency

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of examination; (3) the nature and extent of the treatment relationship; (4) the supportability of the

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diagnosis; (5) consistency with other evidence in the record; and (6) the area of specialization. Edlund, 253

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F.3d at 1157 & n.6 (quoting SSR 96-2p and citing 20 C.F.R. § 404.1527).

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If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons,

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supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor,

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a treating or examining source opinion may be rejected for specific and legitimate reasons that are based

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on substantial evidence in the record. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th

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Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

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Plaintiff underwent double arterial bypass surgery around 2006 and a lumbar spine laminectomy

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several years earlier. [AR 18, 32, 40, 289]. Between June 2011 and November 2011, plaintiff saw Dr.

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Symonett for complaints of hypertension, diabetes, back pain, and left foot pain, redness, and swelling. Dr.

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Symonett diagnosed diabetes and hypertension. He prescribed or refilled a variety of medications

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(tramadol, an opioid pain reliever; enalapril, an anti-hypertensive; Restoril (temazepam), used to treat

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insomnia; metformin, used to treat type 2 diabetes; and aspirin. [AR 287, 289]. In September 2011, Dr.

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Symonett opined that plaintiff should remain off work for 90 days due to left ankle swelling. [AR 288]. In

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November 2011, plaintiff complained of back pain and bilateral foot pain that was not relieved by pain

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medication. Dr. Symonett prescribed Vicodin (hydrocodone and oxycodone), an opioid pain reliever. [AR

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287].

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During a March 2012 follow-up visit, plaintiff requested refills of his medications and complained

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of chest pain, which led to a diagnosis of gastroesophageal reflex. Plaintiff’s Vicodin prescription was

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refilled. [AR 286]. In April 2012, plaintiff complained of leg pain radiating into his left lower extremity.

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His diagnoses were diabetes, hypertension, and S/P laminectomy with radiculopathy. Dr. Symonett
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prescribed the opioid pain reliever Percocet (hydrocodone and oxycodone) and refilled plaintiff’s

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temazepam. [AR 285].

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In September 2012, plaintiff complained of fatigue in both legs. His diagnoses were uncontrolled

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diabetes, hypertension, S/P laminectomy with radiculopathy, and diabetic neuropathy. Dr. Symonett

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discontinued Percocet, prescribed the opioid pain reliever Norco (acetaminophen and hydrocodone), and

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refilled plaintiff’s other medications. [AR 317].

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Plaintiff’s September 2012 blood test results were positive for rheumatoid arthritis (“RA”) and also

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revealed elevated blood glucose and hemoglobin A1c, consistent with plaintiff’s diagnosis of uncontrolled

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diabetes. [AR 332]. In October 2012, diagnoses of rheumatoid arthritis and hyperlipidimia were added to

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plaintiff’s chart, and a prescription for a statin drug (pravastatin) was added. [AR 315]. Dr. Symonett

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completed a “Physical Capacities” form in October 2012 for purposes of determining whether plaintiff’s

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“current physical condition would interfere with his/her ability to work or participate in a CalWORKs

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activity.” [AR 296]. Dr. Symonett indicated that plaintiff could perform less than sedentary work due to

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his history of lumbar spine laminectomy. [AR 296-297].

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In July 2013, plaintiff’s blood work was again positive for RA, elevated blood glucose and elevated

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hemoglobin A1c. [AR 324-325]. During a follow-up visit for lab results in September 2013, plaintiff

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complained of low back pain, burning in his left foot, and depression. He exhibited reduced range of motion

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in the low back. He requested sleep medication. [AR 314]. Lumbar discopathy and depression were added

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to his diagnoses, and the anti-depressant Paxil was added to his prescriptions. Plaintiff’s diabetes continued

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to be uncontrolled. [AR 314].

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In February 2014, plaintiff presented for medication refills and complained of a two-month history

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of bilateral knee pain. He exhibited tenderness in both knees with swelling and reduced range of motion.

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Plaintiff’s diagnoses were RA, controlled hypertension, and diabetes. [AR 313]. Dr. Symonett prescribed

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Vicodin, prednisone, and glyburide, a diabetes medication. [AR 313]. In April 2014, plaintiff complained

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of severe pain bilaterally in the knees, fingers, and elbows. Examination revealed reduced range of motion,

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swelling, and crepitus in the knees; decreased strength and motion in the fingers; and tenderness to flexion

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in the elbows. [AR 312]. Plaintiff’s blood pressure was elevated. His diagnoses were uncontrolled

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hypertension, uncontrolled diabetes, and RA. Plaintiff was continued on medications, including Norco and
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prednisone, a corticosteroid. [AR 312].

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On April 30, 2014, Dr. Symonett completed a “Lumbar Spine Impairment Questionnaire.” He stated

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that plaintiff had diagnoses of degenerative joint disease of the low back, S/P laminectomy at L4-L5, S/P

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coronary artery bypass surgery, type 2 diabetes, hypertension, and rheumatoid arthritis. Plaintiff’s prognosis

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was “poor.” [AR 305]. Dr. Symonett noted positive clinical findings consisting of limited range of lumbar

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spine motion with numbness and pain in the left lower extremity and in all joints; swelling of the joints of

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the fingers and knees; abnormal gait involving the left leg; sensory loss in the posterior left thigh to big toe;

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reflex changes in the left knee; and muscle atrophy and weakness in left lower extremity. [AR 305-306].

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Dr. Symonett also said that MRI findings and laboratory results positive for RA supported his diagnoses.

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[AR 306]. Dr. Symonett described plaintiff’s symptoms as constant pain, loss of strength, compression in

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the low back, burning and numbness in his thigh and leg, and sharp pain on top of his foot and big toe. He

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opined that plaintiff’s symptoms and limitations were “reasonably consistent” with the physical impairments

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described in the questionnaire. [AR 306]. Dr. Symonett noted that he had not been able to relieve the pain

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with medication without unacceptable side effects. He opined that during an eight-hour workday, plaintiff

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could sit for one hour, stand and walk for one hour, with the need to move around for 45 minutes every hour,

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and lift and carry no more than 10 pounds occasionally. Additionally, plaintiff’s symptoms are constantly

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severe enough to interfere with his attention and concentration. He would incapable of tolerating even a

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“low stress” work environment. He would need to take unscheduled breaks at unpredictable intervals and

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would likely miss more than three workdays per month due to his impairments. [AR 309-310].

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In October 2014, plaintiff returned to Dr. Symonett complaining of pain in his fingers and right foot.

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On examination, plaintiff exhibited loss of sensation in an L3 distribution in the right lower extremity. [AR

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334]. Dr. Symonett diagnosed low back pain and diabetes, and he prescribed gabapentin (used to treat nerve

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pain), tramadol (Ultram), and Norco. [AR 334].

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Robyne Alleyne, M.D. conducted a consultative internal medicine examination at the

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Commissioner’s request in February 2013. [AR 298-302]. Dr. Alleyne interviewed plaintiff and performed

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a physical and neurologic examination. He did not have any medical records to review. Positive

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examination findings included elevated blood pressure of 230/150; reduced grip strength bilaterally; limited

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lumbar flexion; positive straight leg raising on the left; marked lumbar spasm; slight scoliosis; and inability
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to tiptoe or heel walk. [AR 298-301]. Dr. Alleyne diagnosed: (1) history of chronic, severe back pain with

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signs and symptoms of lumbar radiculopathy affecting his left leg; (2) history of coronary artery disease

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with severe hypertension; and (3) history of rheumatoid arthritis, without evidence of joint deformity. [AR

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301]. Dr. Alleyne opined that plaintiff could perform light work. [AR 299-301]. The non-examining state

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agency physicians essentially agreed, with some differences noted in plaintiff’s ability to push and pull and

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in his environmental and postural limitations. [AR 64-67, 73-76, 301-302].

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The ALJ concluded that Dr. Symonett’s October 2012 and April 2014 opinions had “no probative

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value,” explaining that “[t]hese checklist-style forms appear to have been completed as an accommodation

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to the claimant and include only conclusions regarding functional limitations without any rationale . . . .”

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[AR 20]. The ALJ reasoned that Dr. Symonett’s conclusions were not supported by “any objective

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evidence,” and that the course of treatment pursed by Dr. Symonett was inconsistent with his opinions. [AR

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20].

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“[A]n ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported

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by the record as a whole or by objective medical findings.” Batson v. Comm’r of Social Sec. Admin., 359

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F.3d 1190, 1195 & n.3 (9th Cir. 2004). Even when a physician’s opinions “are expressed in check-box

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form,” however, they are “entitled to weight that an otherwise unsupported and unexplained check-box form

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would not merit” when they are “based on significant experience with [a claimant] and supported by

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numerous records . . . .” Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (footnote omitted); see

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Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (holding that the ALJ did not give specific and

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legitimate reasons supported by substantial evidence for rejecting a check the box medical assessment by

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the claimant's treating physician; although the assessment contained “almost no detail or explanation,” the

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record supported the treating physician’s “opinions because they are consistent both with [the claimant’s]

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testimony at the hearing and with [the treating physician’s] own extensive treatment notes which, as

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discussed above, the ALJ largely overlooked”).

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Here, as in Garrision, the ALJ failed to recognize that even those parts of Dr. Symonett’s opinion

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that were expressed as a “check-box opinion” were gleaned from his treating relationship with plaintiff for

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impairments that the ALJ found independently severe, and that at least some aspects of Dr. Symonett’s

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treating source opinion were supported by his treatment notes or, as to the April 2014 opinion, by
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summarizing clinical and objective findings supporting his “check-box” responses, including range of

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motion limitation, joint swelling, abnormal gait, sensory loss, reflex changes in the left knee, and muscle

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weakness. Dr. Symonett’s treatment records also include laboratory test results supporting his diagnoses

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of diabetes and RA. [AR 305-306]. See Sproul v. Astrue, 2012 WL 553306, at *8 (S.D. Cal. Feb. 17,

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2012) (stating that “[t]here is a difference . . . between a conclusory ‘checklist’ and a ‘fill-in-the-blank’ form

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that also calls for comments from the physician in support of his or her answers, and that the ALJ erred in

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rejecting assessments on a questionnaire that were supported by substantive comments”); see also SSR 96-

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2p, 1996 WL 374188, at *3-*4 (“For a medical opinion to be well-supported by medically acceptable

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clinical and laboratory diagnostic techniques, it is not necessary that the opinion be fully supported by such

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evidence . . . .”). In contrast, Dr. Alleyne never treated plaintiff and reviewed no records in conjunction

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with his examination in February 2013. Additionally, the ALJ’s dismissal of Dr. Symonnett’s opinion as

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“an accommodation to” to plaintiff is not based on substantial evidence of any actual improprieties. See

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Lester, 81 F.3d at 832 (“The [Commissioner] may not assume that doctors routinely lie in order to help their

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patients collect disability benefits. While the [Commissioner] may introduce evidence of actual

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improprieties, no such evidence exists here.”) (internal quotation marks and citation omitted); Burrow v.

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Barnhart, 224 Fed.Appx. 613, 615 (9th Cir. Mar. 7, 2007) (holding that the ALJ's conclusion that the

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claimant’s treating physician was acting as her advocate was “unsupported by substantial evidence” where

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the record revealed “only that [the treating doctor] reached the unbiased medical opinion that [the

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claimant’s] impairments prevented her from working and that he communicated these opinions to others

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inquiring about her condition”).

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The ALJ also described the “course of treatment pursued by [Dr. Symonett] as not “consistent with

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what one would expect if the claimant were truly disabled, as [Dr. Symonett] has reported.” [AR 20].

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Plaintiff already had undergone bypass surgery and back surgery. Nonetheless, Dr. Symonett maintained

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him on a rotating regimen of narcotic, opioid pain relievers (Vicodin, Norco, or Percocet). Dr. Symonett

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also prescribed steroid medication, the pain reliever tramadol, and medication for diabetes, high blood

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pressure, and neuropathy. Cf. Lapeirre-Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010) (questioning

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whether “a regimen of powerful pain medications and injections” was “conservative” treatment, and noting

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that even if it was, the claimant’s treatment had not been so limited where she had undergone cervical fusion
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surgery several years earlier “in an attempt to relieve her pain symptoms,” and although she had not

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undergone further surgery, “the record does not reflect that more aggressive treatment options are

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appropriate or available. A claimant cannot be discredited for failing to pursue non-conservative treatment

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options where none exist.”).

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The ALJ’s reasons for rejecting Dr. Symonett’s treating source opinion in favor of the non-treating
source opinions are insufficient.

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Subjective symptom testimony

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Plaintiff contends that the ALJ failed to articulate clear and convincing reasons for finding plaintiff’s

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subjective complaints not fully credible.

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If the record contains objective evidence of an underlying physical or mental impairment that is

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reasonably likely to be the source of a claimant’s subjective symptoms, the ALJ is required to consider all

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subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.

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2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a),

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416.929(a) (regulations regarding the evaluation of pain and other symptoms); SSR 16-3p, 2016 WL

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1119029 (providing guidance about how symptoms are evaluated).

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malingering, the ALJ must then provide specific, clear and convincing reasons for rejecting a claimant’s

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subjective complaints. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 2008); Carmickle v. Comm’r, Soc.

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Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008); Moisa, 367 F.3d at 885. The ALJ “may weigh

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inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record,

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among other factors.” Bray v. Comm’r of Social Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009);

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Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ's reasons for rejecting subjective

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testimony “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the

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claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony.”

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Moisa, 367 F.3d at 885. If the ALJ's interpretation of the claimant's testimony is reasonable and is

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supported by substantial evidence, it is not the court's role to “second-guess” it. Rollins v. Massanari, 261

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F.3d 853, 857 (9th Cir. 2001).

Absent affirmative evidence of

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Plaintiff, who was represented by counsel during the hearing, testified that since 2010 he had

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experienced sharp, burning pain in his lower back, and had suffered from chronic numbness in his left leg,
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[AR 32, 40]. He estimated that he could sit 10 to 20 minutes before getting sometimes sharp back pain that

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he needed to relieve by standing for awhile. [AR 43]. Plaintiff said that he could stand and walk for about

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20 minutes. [AR 43]. Plaintiff testified that he went to the grocery store once a week for about half an hour,

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and sometimes had difficulty lifting or walking while there. During a typical day, he did a little

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housecleaning, such as dishwashing, for 25 to 30 minutes. He spent most of the day lying down watching

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television. [AR 44-45]. His medication made him drowsy for about an hour after taking it. [AR 45]. He had

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difficulty sleeping and took sleeping pills, which helped. [AR 46]. He had pain in his fingers. [AR 46].

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There is no evidence of malingering, so the ALJ was obliged to articulate clear and convincing

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reasons for rejected the alleged severity of plaintiff’s subjective complaints.1 The ALJ gave three reasons

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for finding plaintiff’s subjective complaints only “partially credible”: the absence of objective medical

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evidence fully corroborating plaintiff’s subjective symptoms; plaintiff’s “mild and conservative treatment”

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with “medication management only”; and, relatedly, the lack of referral for specialized treatment. [AR 19-

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20].

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Those reasons are not clear and convincing. For the reasons described above, the ALJ improperly

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disregarded or discounted positive clinical and objective findings summarized in Dr. Symonett’s treating

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source records, and the ALJ also unreasonably minimized plaintiff’s treatment history by labeling it as “mild

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and conservative.” The absence of a referral to a specialist is simply another way of minimizing the course

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of treatment that plaintiff received. Although some of plaintiff’s conditions might have benefitted from

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specialized treatment, there is no evidence that Dr. Symonett could not treat them effectively, so that reason

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alone is not a clear and convincing reason for the ALJ’s finding regarding plaintiff’s subjective symptoms.

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Accordingly, the ALJ’s credibility finding is not supported by substantial evidence.

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Remedy

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A district court may “revers[e] the decision of the Commissioner of Social Security, with or without

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remanding the cause for a rehearing[.]” Treichler v. Comm'r of Soc., Sec. Admin., 775 F.3d 1090, 1099 (9th

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Defendant contends that the ALJ “properly considered that Plaintiff appeared to exaggerate
his symptoms and their true limitations.” [JS 20]. Defendant has not identified any evidence outside
of the ALJ’s decision that suggests that plaintiff was malingering, such as an observation or test
result by a treating or examining physician. Thus, defendant’s contention is simply another way of
arguing that the ALJ permissibly discounted plaintiff’s subjective complaints.
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Cir. 2014) (quotomg 42 U.S.C. § 405(g)). As the Ninth Circuit has explained, however,

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the proper course, except in rare circumstances, is to remand to the agency for additional

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investigation or explanation. Our case law precludes a district court from remanding a case

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for an award of benefits unless certain prerequisites are met. The district court must first

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determine that the ALJ made a legal error, such as failing to provide legally sufficient

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reasons for rejecting evidence. If the court finds such an error, it must next review the record

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as a whole and determine whether it is fully developed, is free from conflicts and

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ambiguities, and all essential factual issues have been resolved. In conducting this review,

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the district court must consider whether there are inconsistencies between the claimant's

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testimony and the medical evidence in the record, or whether the government has pointed

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to evidence in the record that the ALJ overlooked and explained how that evidence casts into

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serious doubt the claimant's claim to be disabled. Unless the district court concludes that

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further administrative proceedings would serve no useful purpose, it may not remand with

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a direction to provide benefits. If the district court does determine that the record has been

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fully developed, and there are no outstanding issues left to be resolved, the district court

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must next consider whether the ALJ would be required to find the claimant disabled on

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remand if the improperly discredited evidence were credited as true. Said otherwise, the

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district court must consider the testimony or opinion that the ALJ improperly rejected, in the

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context of the otherwise undisputed record, and determine whether the ALJ would

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necessarily have to conclude that the claimant were disabled if that testimony or opinion

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were deemed true. If so, the district court may exercise its discretion to remand the case for

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an award of benefits. A district court is generally not required to exercise such discretion,

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however. District courts retain flexibility in determining the appropriate remedy, and a

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reviewing court is not required to credit claimants' allegations regarding the extent of their

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impairments as true merely because the ALJ made a legal error in discrediting their

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testimony. In particular, we may remand on an open record for further proceedings when

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the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled

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within the meaning of the Social Security Act.
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Dominguez v. Colvin, 808 F.3d 403, 407–408 (9th Cir. 2015) (internal quotation marks, citations, and

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brackets omitted).

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Those “rare circumstances” compelling a remand for an award of benefits are not present. The ALJ

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made legal errors evaluating Dr. Symonett’s opinion and plaintiff’s subjective symptoms. However, the

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record is not free from conflicts and ambiguities, and all essential factual issues have not been resolved.

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For example, although the ALJ unreasonably concluded that both Dr. Symonett’s October 2012 and April

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214 opinions were merely “checklist-style forms” lacking “any rationale for [his] conclusions,” that does

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not mean that one or both of those opinions are entitled to controlling weight under the Commissioner’s

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regulations. To properly evaluate those opinions, the ALJ must carefully apply the relevant factors on

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remand.

See generally 20 C.F.R. §§ 404.1527(c), 416.902, 416.927(c).

Once the ALJ has properly

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weighed the medical opinion evidence, he can also properly reassess plaintiff’s subjective symptoms.

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Accordingly, on remand, the Commissioner shall direct the ALJ to conduct a supplemental hearing, fully

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and fairly develop the record, reevaluate the medical opinion evidence in the record and plaintiff’s

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subjective complaints, and issue a new decision containing appropriate findings.
Conclusion

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For the reasons stated above, the Commissioner's decision is reversed, and this case is remanded

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to the Commissioner for further administrative proceedings consistent with this memorandum of decision.

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IT IS SO ORDERED.

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Dated: August 9, 2017
_____________________________
ANDREW J. WISTRICH
United States Magistrate Judge

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