Tonya Renee Clowser v. Carolyn W. Colvin

Filing 28

MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TONYA RENEE CLOWSER,
Plaintiff,

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v.

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

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Defendant.

) Case No. EDCV 16-2044-JPR
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) MEMORANDUM DECISION AND ORDER
) REVERSING COMMISSIONER
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I.

PROCEEDINGS

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Plaintiff seeks review of the Commissioner’s final decision

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denying her application for Social Security disability insurance

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benefits (“DIB”).

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the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).

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The matter is before the Court on the parties’ Joint Stipulation,

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filed July 11, 2017, which the Court has taken under submission

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without oral argument.

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Commissioner’s decision is reversed and this action is remanded

The parties consented to the jurisdiction of

For the reasons stated below, the

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Nancy A. Berryhill is substituted in as the correct
Defendant.
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for further proceedings.

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II.

BACKGROUND

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Plaintiff was born in 1976.

(Administrative Record (“AR”)

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186.)

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vocational nurse (id.; see also AR 57-58).

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She has a GED (AR 218) and last worked as a licensed

On January 22, 2013, Plaintiff filed an application for DIB,

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alleging that she had been disabled since December 21, 2011 (AR

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186), because of “disc herniation facet joint hypertrophy

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bursitis nerve,” “back injury multiple disc desiccation with

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annular tear,” spinal retrolisthesis,2 bursitis of the hips, pain

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and numbness in her right leg, anxiety, depression, insomnia,

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colitis, irritable bowel syndrome, and fibromyalgia (see AR 217,

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230).

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upon reconsideration (AR 116), she requested a hearing before an

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Administrative Law Judge (see AR 131).

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December 30, 2014, at which Plaintiff, who was represented by

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counsel, testified, as did a vocational expert.

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a written decision issued March 20, 2015, the ALJ found Plaintiff

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not disabled.

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Appeals Council, and on August 1, 2016, it denied review.

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6.)

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III. STANDARD OF REVIEW

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After her application was denied initially (AR 110) and

(AR 33-47.)

A hearing was held on

(AR 53-81.)

In

Plaintiff requested review from the
(AR 1-

This action followed.

Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

The ALJ’s findings and

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2

Retrolisthesis is a joint dysfunction in which a single
vertebra slips backward along or underneath a disc. See
Retrolisthesis: Types, Causes, and Symptoms, MedicalNewsToday,
https://www.medicalnewstoday.com/articles/319571.php (last
updated Sept. 30, 2017).
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decision should be upheld if they are free of legal error and

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supported by substantial evidence based on the record as a whole.

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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra

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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

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evidence means such evidence as a reasonable person might accept

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as adequate to support a conclusion.

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401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

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It is more than a scintilla but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.

Substantial

Richardson, 402 U.S. at

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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

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substantial evidence supports a finding, the reviewing court

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“must review the administrative record as a whole, weighing both

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the evidence that supports and the evidence that detracts from

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the Commissioner’s conclusion.”

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720 (9th Cir. 1996).

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either affirming or reversing,” the reviewing court “may not

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substitute its judgment” for the Commissioner’s.

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IV.

To determine whether

Reddick v. Chater, 157 F.3d 715,

“If the evidence can reasonably support

Id. at 720-21.

THE EVALUATION OF DISABILITY

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People are “disabled” for purposes of receiving Social

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Security benefits if they are unable to engage in any substantial

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gainful activity owing to a physical or mental impairment that is

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expected to result in death or has lasted, or is expected to

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last, for a continuous period of at least 12 months.

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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.

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1992).

42 U.S.C.

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A.

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The ALJ follows a five-step sequential evaluation process to

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The Five-Step Evaluation Process

assess whether a claimant is disabled.
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20 C.F.R.

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§ 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th

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Cir. 1995) (as amended Apr. 9, 1996).

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Commissioner must determine whether the claimant is currently

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engaged in substantial gainful activity; if so, the claimant is

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not disabled and the claim must be denied.

In the first step, the

§ 404.1520(a)(4)(i).

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If the claimant is not engaged in substantial gainful

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activity, the second step requires the Commissioner to determine

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whether the claimant has a “severe” impairment or combination of

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impairments significantly limiting her ability to do basic work

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activities; if not, the claimant is not disabled and her claim

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must be denied.

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§ 404.1520(a)(4)(ii).

If the claimant has a “severe” impairment or combination of

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impairments, the third step requires the Commissioner to

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determine whether the impairment or combination of impairments

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meets or equals an impairment in the Listing of Impairments set

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forth at 20 C.F.R. part 404, subpart P, appendix 1; if so,

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disability is conclusively presumed.

§ 404.1520(a)(4)(iii).

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If the claimant’s impairment or combination of impairments

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does not meet or equal an impairment in the Listing, the fourth

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step requires the Commissioner to determine whether the claimant

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has sufficient residual functional capacity (“RFC”)3 to perform

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her past work; if so, she is not disabled and the claim must be

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denied.

§ 404.1520(a)(4)(iv).

The claimant has the burden of

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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 404.1545; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The
Commissioner assesses the claimant’s RFC between steps three and
four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017)
(citing § 416.920(a)(4)).
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proving she is unable to perform past relevant work.

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F.2d at 1257.

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case of disability is established.

Drouin, 966

If the claimant meets that burden, a prima facie
Id.

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If that happens or if the claimant has no past relevant

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work, the Commissioner then bears the burden of establishing that

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the claimant is not disabled because she can perform other

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substantial gainful work available in the national economy.

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§ 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257.

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determination comprises the fifth and final step in the

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sequential analysis.

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That

n.5; Drouin, 966 F.2d at 1257.

§ 404.1520(a)(4)(v); Lester, 81 F.3d at 828

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B.

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At step one, the ALJ found that Plaintiff had not engaged in

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substantial gainful activity since December 21, 2011, the alleged

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disability onset date.

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she had the following severe impairments: “degenerative disc

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disease of the lumbar spine with mild radiculopathy; bilateral

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bursitis of the hips, left more than right; and pain disorder,

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likely due to fibromyalgia.”4

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that she did not have an impairment or combination of impairments

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falling under a Listing.

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The ALJ’s Application of the Five-Step Process

(AR 35.)

At step two, he concluded that

(Id.)

At step three, he found

(AR 38-39.)

At step four, the ALJ found that Plaintiff had the RFC to

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perform a modified version of sedentary work: she can “lift,

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carry, push, and pull ten pounds occasionally and less than five

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pounds frequently,” “sit for six hours out of an eight-hour day,

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for a maximum of forty minutes at a time,” “stand and walk for

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Plaintiff does not challenge the ALJ’s finding that her
other alleged impairments were not severe.
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six hours of an eight-hour day, for a maximum of 10-15 minutes at

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a time,” and “perform occasional climbing of ramps and stairs,

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balancing, stooping, kneeling, crouching, and crawling.”

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39.)

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“must avoid extreme cold,” and “must avoid hazardous machinery

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and unprotected heights.”

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(AR

She also “can never climb ladders, ropes, or scaffolds,”

(Id.)

Based on the VE’s testimony, the ALJ concluded that

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Plaintiff could not perform any past relevant work.

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step five, however, given her “age, education, work experience,

(AR 45.)

At

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and [RFC],” he determined that she could successfully perform two

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jobs in the national economy: booth ticket seller, DOT 211.467-

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030, 1991 WL 671853, and bench hand, DOT 715.684-026, 1991 WL

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679344.

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(AR 46-47.)

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V.

(AR 46.)

Thus, the ALJ found Plaintiff not disabled.

DISCUSSION

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Plaintiff argues that the ALJ erred in evaluating (1) the

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medical-opinion evidence of record, specifically regarding the

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length of time Plaintiff could stand and walk, (2) the medical

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opinion from an “other source,” and (3) the credibility of

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Plaintiff’s “pain and symptom testimony.”

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Because the ALJ erred as to the medical-opinion evidence and part

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of the other-source opinion, the matter must be remanded for

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further proceedings.

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A.

(See J. Stip. at 4-5.)

The ALJ Improperly Evaluated the Medical-Opinion
Evidence

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The ALJ gave only “partial weight” to the opinions of

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nonexamining state-agency internists G. Taylor-Holmes and M. Yee

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and examining internist Robin Alleyne because they were “overly
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optimistic” and the “record support[ed] further limitations.”5

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(AR 43-45.)

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could “stand and walk for four hours in an eight-hour workday”

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(J. Stip. at 6 (citing AR 88-90, 101-03, 501-04)), but the ALJ

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rejected that finding “without an explanation,” Plaintiff

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alleges, when he determined an RFC in which she could “stand and

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walk for six hours in an eight-hour day, for a maximum of 10-15

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minutes at a time” (id. at 6 (citing AR 39), 7).

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Those doctors specifically opined that Plaintiff

Applicable law

Three types of physicians may offer opinions in Social

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Security cases: those who directly treated the plaintiff, those

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who examined but did not treat the plaintiff, and those who did

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neither.

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is generally entitled to more weight than an examining

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physician’s, and an examining physician’s opinion is generally

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entitled to more weight than a nonexamining physician’s.

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see § 404.1527(c)(1).6

Lester, 81 F.3d at 830.

A treating physician’s opinion

Id.;

This is so because treating physicians

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As noted by both parties (see J. Stip. at 5 n.3, 11 n.6),
the ALJ mistakenly refers to Dr. Alleyne as “Dr. Resnick”
(compare AR 44 (stating that “Dr. Resnick” conducted consultative
examination in July 2013), with AR 500-05 (Dr. Alleyne in fact
conducted July 2013 consultative examination while radiologist
Lawrence Resnick provided radiological assessment of Plaintiff’s
lumbar spine)).
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Social Security regulations regarding the evaluation of
opinion evidence were amended effective March 27, 2017. When, as
here, the ALJ’s decision is the final decision of the
Commissioner, the reviewing court generally applies the law in
effect at the time of the ALJ’s decision. See Lowry v. Astrue,
474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of
regulation in effect at time of ALJ’s decision despite subsequent
amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647
(8th Cir. 2004) (“We apply the rules that were in effect at the
time the Commissioner’s decision became final.”); Spencer v.
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are employed to cure and have a greater opportunity to know and

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observe the claimant.

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Cir. 1996).

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physician can amount to substantial evidence, so long as other

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evidence in the record supports those findings.”

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Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as

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amended).

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Smolen v. Chater, 80 F.3d 1273, 1285 (9th

But “the findings of a nontreating, nonexamining

Saelee v.

The ALJ may disregard a treating or examining physician’s
opinion regardless of whether it is contradicted.

Magallanes v.

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Bowen, 881 F.2d 747, 751 (9th Cir. 1989); see Carmickle v.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).

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When a treating or examining physician’s opinion is not

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contradicted by other medical-opinion evidence, however, it may

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be rejected only for “clear and convincing” reasons.

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881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing Lester, 81

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F.3d at 830-31).

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only “specific and legitimate reasons” for discounting it.

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Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31).

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The weight given an examining physician’s opinion, moreover,

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depends on whether it is consistent with the record and

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accompanied by adequate explanation, among other things.

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§ 404.1527(c)(3)-(6).

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afforded the opinions of nonexamining physicians.

Magallanes,

When it is contradicted, the ALJ must provide

Those factors also determine the weight
§ 404.1527(e).

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Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D.
Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any
express authorization from Congress allowing the Commissioner to
engage in retroactive rulemaking.”). Accordingly, citations to
20 C.F.R. § 404.1527 are to the version in effect from August 24,
2012, to March 26, 2017.
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The ALJ considers findings by state-agency medical consultants

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and experts as opinion evidence.

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Id.

Furthermore, “[t]he ALJ need not accept the opinion of any

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physician . . . if that opinion is brief, conclusory, and

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inadequately supported by clinical findings.”

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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v.

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Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

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An ALJ need not recite “magic words” to reject a physician’s

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opinion or a portion of it; the court may draw “specific and

Thomas v.

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legitimate inferences” from the ALJ’s opinion.

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F.2d at 755.

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record, the ALJ does not need to ‘discuss every piece of

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evidence.’”

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1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386

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(8th Cir. 1998)).

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Magallanes, 881

“[I]n interpreting the evidence and developing the

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,

The Court must consider the ALJ’s decision in the context of

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“the entire record as a whole,” and if the “‘evidence is

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susceptible to more than one rational interpretation,’ the ALJ’s

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decision should be upheld.”

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F.3d 1194, 1198 (9th Cir. 2008) (citation omitted).

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2.

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Ryan v. Comm’r of Soc. Sec., 528

Relevant background

On February 22, 2011, Plaintiff, a licensed vocational

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nurse, injured her lower back at work.

(AR 279-81.)

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treated with analgesic medication she had at home” but did not

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seek medical care and continued to work.

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however, worsened, and in November 2011 an MRI scan revealed

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“degeneration and disc bulging.”

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300.)

(AR 280.)

She “self-

Her pain,

(AR 280-81; see also AR 297-

Surgery was not required, but Plaintiff stopped working on
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December 20, 2011, at the request of her doctor.

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In July 2013, Plaintiff received an internal-medicine

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consultation from Dr. Alleyne of the Department of Social

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Services.

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a “slightly antalgic gait” and had difficulty walking on her

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heels but could walk on tiptoes without difficulty.

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There was “some lower lumbar tenderness” in Plaintiff’s back but

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“no evidence of muscle spasm.”

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waist was “limited to 40 degrees,” she was “only able to crouch

(AR 500-04.)

Dr. Alleyne observed that Plaintiff had

(AR 502.)

(AR 501.)

Back flexion at the

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to 50%,” and bilateral positive straight-leg raises were limited

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to 40 degrees.

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knees, and ankles were all within normal limits.

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noted that Plaintiff was taking various prescription medications.

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(AR 500.)

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Plaintiff had “mild to moderate limitations.”

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could “walk and stand four hours out of an eight-hour day” and

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“crouch, climb and crawl occasionally,” among other things.

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(Id.)

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(Id.)

But the ranges of motion in her hips,
(Id.)

She

Based on her findings, Dr. Alleyne concluded that
(AR 503.)

She

Plaintiff’s medical records were reviewed in 2013 by Drs.

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Taylor-Holmes and Yee, who found her not disabled.

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94-107.)

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stand and walk for four hours a day “with normal breaks” and

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occasionally climb stairs, crouch, and crawl.

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November, Dr. Yee assessed no change since Dr. Taylor-Holmes’s

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evaluation (AR 99-100) and found those same exertional

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limitations.

(AR 82-93,

In August, Dr. Taylor-Holmes found that Plaintiff could

(See AR 102-03.)

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(AR 88-89.)

In

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3.

Analysis

The opinions on standing and walking of Drs. Taylor-Holmes,

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Yee, and Alleyne were not contradicted by other medical-opinion

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evidence in the record, and the ALJ was therefore required to

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provide clear and convincing reasons for discounting them.

See

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Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164.7

But

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he provided no such reason for rejecting the four-hour standing-

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and-walking limitations found by those doctors in favor of the

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six-hour limitation he included in the RFC.

Indeed, nothing in

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the record supports a six-hour standing-and-walking limitation.

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See Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999)

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(finding that ALJ erred in rejecting treating physician’s opinion

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in part because “[t]here [was] no medical evidence to support the

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ALJ’s finding that [plaintiff] could work through an eight hour

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workday with breaks every two hours”).

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The ALJ did note that Plaintiff’s “standing[] and walking

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abilities” as found by Drs. Taylor-Holmes, Yee, and Alleyne were

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undermined by medical findings suggesting “more restrictive”

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limitations (AR 43-44) and by “claimant’s allegations concerning

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Though the ALJ found that the opinions of Dr. TaylorHolmes and Dr. Yee stood “in contrast” to the opinion of
chiropractors Christine Abgaryan and Anna Gasparian (AR 44), who
determined that Plaintiff should not stand for longer than an
hour at a time (AR 357), a chiropractor’s contradictory opinion
does not constitute medical-opinion evidence. See
§ 404.1513(d)(1); Bara v. Colvin, No. C15-5214 RAJ, 2016 WL
4444030, at *2 (W.D. Wash. Jan. 4, 2016) (“[Plaintiff] fails to
point to a specific medical record or medical opinion (as opposed
to other source opinion) that contradicts [the treating
physician’s] opinion,” warranting clear-and-convincing-reasons
standard (citing Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th
Cir. 1991)).
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the maximum amount of time she can . . . stand[] and walk” (AR

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44-45).

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right leg sensory deficits, tenderness to the palpation of the

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inguinal area of the hip,8 and marked tenderness to palpation of

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the great trochanteric area of the hip” supported “more

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restrictive limitations in [Plaintiff]’s sitting, standing, and

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walking abilities” than Drs. Taylor-Holmes and Yee had opined.

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(AR 43-44 (citing AR 269, 285-86).)

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reasons for discounting the opinion of Dr. Alleyne, stating that

The ALJ noted that “findings of right leg hypesthesia,

The ALJ offered similar

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“findings of tenderness to palpation in [Plaintiff’s] lumbar

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spine and right hip, decreased sensation in her right leg, and

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limited range of motion in her lumbar spine and right hip

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support[ed] further limitations than [what was] opined.”

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(citing AR 269, 285-86, 380-81, 532, 543).)

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added a limitation to Plaintiff’s RFC that she stand or walk for

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no more than 10 to 15 minutes at a time.

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(AR 44

As a result, the ALJ

The ALJ pointed to the findings of a treating orthopedic

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surgeon who diagnosed Plaintiff with degenerative disc disease

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and bilateral trochanteric bursitis in 2012.

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(citing AR 269, 285-86), 288.)

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physical examination he conducted at the time (see, e.g., AR 285

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(Plaintiff demonstrating limited flexion and extension in her

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back and tenderness in areas of her lower back and hips)) and

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medical images of Plaintiff’s spine (see, e.g., AR 286 (x-ray

(See AR 43-44

His opinion was corroborated by a

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The ALJ stated that Plaintiff was found to have
“tenderness to palpation of the inguinal area of the hip.” (AR
44 (citing AR 269).) But at AR 269 Plaintiff was noted as having
“no inguinal tenderness.”
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images showing narrowing of L3-4 and L4-5 intervertebral space),

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287 (MRI images showing disc desiccation, disc protrusion, and

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bilateral facet joint hypertrophy, among other things)).

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findings were supported by other medical records from 2012.

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(See, e.g., AR 268-70 (Plaintiff’s pain did not change following

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April 2012 extracorporeal-shockwave-therapy treatment), 478-79

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(in April 2012 Plaintiff demonstrated limited range of motion in

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her back, low-back pain, muscle spasms, and swelling), 389-93

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(May 2012 MRI imaging of her thoracic spine showing restricted

His

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range of motion in extension position, disc desiccation, diffuse

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disc protrusion, and bilateral facet joint hypertrophy).)

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None of the cited records, however, suggest that Plaintiff

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could stand or walk for six hours in an eight-hour workday.

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ALJ did not identify any such medical finding, nor did he

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articulate why a six-hour standing-and-walking limitation, even

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for “10-15 minutes at a time,” is “more restrictive” than a four-

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hour standing-and-walking limitation with “normal breaks.”

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Kline v. Colvin, 140 F. Supp. 3d 912, 918 (D. Ariz. 2015) (as

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amended Jan. 12, 2016) (finding that ALJ erred under “clear and

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convincing” standard because “she did not explain which aspects

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of [treating physician’s] opinion were contradicted or by whom”).

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Defendant argues that “common sense dictates that the ALJ’s RFC

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assessment is, in fact, more restrictive than the doctors’

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opinion” because of the ALJ’s added limitation of standing for no

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more than 10 to 15 minutes at a time (J. Stip. at 13), but no

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matter how you do the math, six hours is more than four.

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Further, the ALJ never stated that he was increasing the total

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amount of time Plaintiff could stand or walk because he had
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The

See

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limited the length of time she could do either without a break.

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See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th

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Cir. 2009) (district court must “review the ALJ’s decision based

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on the reasoning and factual findings offered by the ALJ — not

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post hoc rationalizations that attempt to intuit what the

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adjudicator may have been thinking”).

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Thus, the ALJ erred in evaluating the medical-opinion

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evidence as to Plaintiff’s standing and walking abilities, which

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was uncontradicted in concluding that Plaintiff could stand and

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walk no more than four hours in an eight-hour day.

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157 F.3d at 725 (ALJ must explain why his conclusions, rather

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than doctors’, are correct); Burden v. Berryhill, No. 2:17-cv-

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00222-RBL, 2017 WL 4417225, at *2 (W.D. Wash. Oct. 5, 2017)

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(“[T]he ALJ erred by tacitly rejecting part of [a nonexamining

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physician’s] opinion without explanation.”); see also Soholt v.

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Astrue, No. 10-cv-5937-RBL-JRC, 2011 WL 5909992, at *5 (W.D.

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Wash. Oct. 31, 2011) (finding that ALJ erred in part because he

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“did not explain why he did not adopt the aforementioned opinions

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of [an examining physician] regarding plaintiff’s functional

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ability to sit, stand or walk without breaks every thirty

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minutes”), accepted by 2011 WL 5909998 (W.D. Wash. Nov. 28,

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2011).

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See Reddick,

Accordingly, because the ALJ failed to provide a clear and

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convincing reason for rejecting the standing-and-walking opinions

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of Drs. Taylor-Holmes, Yee, and Alleyne, remand is warranted.9

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9

Defendant has not argued that any error was harmless (see
generally J. Stip. at 11-15), so the Court does not examine
whether that is so. See Press v. Astrue, No. CV. 08-1089-AC,
14

1

B.

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The ALJ Likely Improperly Evaluated the Other-Source
Opinion

Plaintiff “mainly takes issue with the ALJ’s rejection of

4

the lifting and carrying restrictions assessed by Dr[s]. Abgaryan

5

and Gasparian,” chiropractors who examined her in 2012.

6

Stip. at 17.)

7

and reject that portion of their opinion.

8

also complains that the ALJ improperly evaluated their opinion

9

regarding her ability to crouch.

10
11

1.

(J.

She argues that the ALJ did not properly evaluate
(Id. at 17, 19.)

She

(Id. at 16.)

Applicable law

“Acceptable medical sources” under the Social Security

12

regulations include only licensed physicians, psychologists,

13

optometrists, podiatrists, and speech pathologists.

14

§ 404.1513(a).10

15

see § 404.1513(d)(1), and an ALJ may reject opinions from other

16

sources by giving “reasons germane to each witness for doing so.”

17

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

18

omitted); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th

19

Cir. 2010) (citation omitted); see also Bruce v. Astrue, 557 F.3d

20

1113, 1115 (9th Cir. 2009) (reasons for rejecting other-source

21

testimony must be “germane” and “specific”).

Chiropractors are treated as “other sources,”

22
23
24
25

2010 WL 3222103, at *9 n.6 (D. Or. Aug. 13, 2010) (because
“Commissioner did not argue that the ALJ’s failure was harmless
error,” “the Commissioner has given the court no basis upon which
to evaluate whether the error was harmless and the court declines
to seek one out”).

26
10

27
28

Social Security regulations regarding the categories of
acceptable medical evidence were amended effective March 27,
2017. See § 404.1513. Again, the Court applies the law in
effect at the time of the ALJ’s decision.
15

1

2.

2

Additional relevant background

Chiropractors Abgaryan and Gasparian conducted a functional-

3

capacity evaluation for Plaintiff on June 12, 2012.

4

72.)

5

measuring both the reliability of Plaintiff’s subjective-pain

6

complaints and the extent of her functional limitations in

7

various areas, including strength, range of motion, mobility, and

8

dexterity.

9

a “dynamic lift” test, in which she demonstrated that she could

(See AR 355-

They administered several tests and questionnaires

(See id.)

They had Plaintiff complete, for example,

10

carry 8.5 pounds for 30 feet but 11 pounds at most.

11

She also demonstrated the ability to lift 8.5 pounds from “floor

12

to knuckle,” six pounds from “knuckle to shoulder,” and less than

13

six pounds from “shoulder to overhead.”

14

lift 11 pounds from floor to knuckle, 8.5 pounds from knuckle to

15

shoulder, and six pounds overhead.

(Id.)

(AR 368.)

At most she could

(Id.)

16

They concluded that Plaintiff should not sit for longer than

17

60 minutes at a time; should not stand for longer than 60 minutes

18

at a time; could not carry greater than “8.5 pounds over a length

19

of 30 feet maximum”; could not lift more than 8.5 pounds, and for

20

less than 30 percent of the day; and should “[a]void bending,”

21

“crouching,” and “twisting.”

22

subjective reports of pain and disability “moderately reliable”

23

and concluded that she “displayed moderate physical effort”

24

during the evaluation.

25

3.

26

(AR 357.)

They also found her

(AR 356.)

Analysis

The ALJ gave “partial weight” to the opinion of

27

chiropractors Abgaryan and Gasparian.

28

that “their findings from their examination support their
16

(AR 44.)

He acknowledged

1

opinion,” but he concluded that his RFC was “a more accurate

2

depiction of [Plaintiff’s] functional abilities.”

3

(Id.)

Plaintiff argues that the ALJ incorrectly discounted the

4

chiropractors’ opinion that she “could never crouch.”

5

Stip. at 16 (citing AR 44).)

6

ability “to crouch to 50%,” as found by Dr. Alleyne (see AR 502),

7

indicated that she was unable to crouch “to the full range of 100

8

percent,” which she seems to suggest is consistent with the

9

Abgaryan and Gasparian opinion (J. Stip. at 16).

(See J.

She contends that her demonstrated

But the ALJ did

10

not err in this regard.

11

chiropractors, they are considered “other” sources, see

12

§ 404.1513(d)(1), and the ALJ properly offered a germane reason —

13

contradiction with medical evidence (AR 44) — for discounting

14

their crouching opinion, see Molina, 674 F.3d at 1111.

15

Because Drs. Abgaryan and Gasparian are

An ALJ may properly discount an other-source opinion when it

16

conflicts with medical evidence.

17

Circuit has held that “lack of support from medical records is

18

not a germane reason,” see Diedrich v. Berryhill, 874 F.3d 634,

19

640 (9th Cir. 2017); accord Bruce, 557 F.3d at 1116; Smolen, 80

20

F.3d at 1289 (citing SSR 88-13, 1988 WL 236011 (July 20, 1988)),

21

those cases are distinguishable.

22

rejection of a family member’s laywitness observations.

23

Diedrich, 874 F.3d at 640 (plaintiff’s fiancé); Bruce, 557 F.3d

24

at 1116 (plaintiff’s wife); Smolen, 80 F.3d at 1289 (various

25

family members).

26

1218 (9th Cir. 2005) (holding that inconsistency with medical

27

evidence is germane reason for discrediting testimony of family

28

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

Id. at 1112.

Though the Ninth

Each involved an ALJ’s
See

But see Bayliss v. Barnhart, 427 F.3d 1211,

17

1

(same); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395

2

(9th Cir. 1984) (per curiam) (same).

3

Here, by contrast, the ALJ rejected the opinion of a medical

4

“other source,” namely, two chiropractors.

See § 404.1513(d)

5

(distinguishing between other “[m]edical sources,” such as

6

chiropractors and physicians’ assistants, and other “non-medical

7

sources,” such as spouses and family members).

8

with medical evidence is germane to discounting the opinion of

9

medical “other sources.”

Contradiction

See Molina, 674 F.3d at 1111-12 (ALJ

10

properly discounted opinion of physician’s assistant because it

11

was inconsistent with medical evidence); Minton v. Astrue, CV 11-

12

00461-PHX-FJM, 2012 WL 1019591, at *4 (D. Ariz. Mar. 26, 2012)

13

(“One example of a germane reason to discount the opinion of an

14

‘other’ medical source is when that opinion conflicts with

15

medical evidence.”).

16

The Social Security Administration defines “crouching” as

17

“bending both the legs and spine in order to bend the body

18

downward and forward.”

19

1983); see also Filimoshyna v. Astrue, No. CIV S-08-2131 GGH,

20

2009 WL 3627946, at *8 (E.D. Cal. Oct. 29, 2009).

21

properly determined that Drs. Abgaryan and Gasparian’s opinion

22

that Plaintiff “should never crouch” was contradicted by medical

23

evidence demonstrating that she could crouch, albeit only to 50

24

percent.

25

appears to require that “crouching” be to a certain depth.

26

(AR 44.)

See SSR 83-10, 1983 WL 31251 (Jan. 1,

The ALJ

Nothing in the regulations or case law

The ALJ cited and relied on AR 502 (see AR 44), Dr.

27

Alleyne’s opinion that Plaintiff was “able to crouch to 50%” and

28

could crouch “occasionally” (AR 502-03).
18

That finding was

1

supported by a thorough physical examination conducted at the

2

time (see AR 501-02) and by medical opinions in the record also

3

stating that Plaintiff could crouch (see AR 89, 103).

4

contradiction with Dr. Alleyne’s opinion, which itself was

5

supported by substantial evidence, was a sufficiently germane

6

reason to reject the crouching opinion of Drs. Abgaryan and

7

Gasparian.

8

1320093, at *22 (E.D. Cal. Mar. 24, 2015) (finding that ALJ

9

properly rejected nurse’s other-source opinion because it was

Thus,

See Mendoza v. Colvin, No. 1:13-cv-01213-SKO, 2015 WL

10

directly contradicted by consultative examiner’s opinion, which

11

was “an acceptable medical source entitled to more weight”).

12

But the ALJ’s stated reason for rejecting the chiropractors’

13

more restrictive opinion concerning Plaintiff’s “lifting and

14

carrying restrictions” — “spinal tenderness” (AR 44) — does not

15

appear to be germane.

16

tenderness” would enable Plaintiff to lift more than the

17

chiropractors found.

The ALJ did not explain why “spinal

He may do so on remand.

18

C.

19

Plaintiff asserts that the ALJ erred in assessing the

Plaintiff’s Subjective Symptom Statements

20

credibility of her subjective symptom statements.

(J. Stip. at

21

19-23, 26.)

22

statements’ credibility after he reassesses the opinions of Drs.

23

Taylor-Holmes, Yee, and Alleyne and chiropractors Abgaryan and

24

Gasparian, so the Court does not address this argument.

25

Negrette v. Astrue, No. EDCV 08-0737 RNB, 2009 WL 2208088, at *2

26

(C.D. Cal. July 21, 2009) (finding it unnecessary to address

27

further disputed issues when court found that ALJ failed to

28

properly consider treating doctor’s opinion and laywitness

The ALJ may have to reevaluate Plaintiff’s

19

See

1

testimony).

2

D.

Remand for Further Proceedings Is Appropriate

3

Plaintiff requests that the Court reverse the ALJ’s decision

4

and “order the payment of benefits in this case.”

5

26-27.)

6

must remand to the agency for further proceedings.”

7

Berryhill, 874 F.3d 1130, 1132 (9th Cir. 2017); see also Harman

8

v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended);

9

Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).

(J. Stip. at

But when, as here, an ALJ errs, the Court “ordinarily
Leon v.

The

10

Court has discretion to make a direct award of benefits under the

11

“credit-as-true” rule, which asks (1) “whether the ‘ALJ failed to

12

provide legally sufficient reasons for rejecting evidence,’” (2)

13

“whether there are ‘outstanding issues that must be resolved

14

before a disability determination can be made,’” and (3) “whether

15

further administrative proceedings would be useful.”

16

874 F.3d at 1132-33 (citations omitted).

17

conditions are satisfied, the discredited testimony is credited

18

as true, but even then, at step three, “it is within the court’s

19

discretion either to make a direct award of benefits or to remand

20

for further proceedings.”

21

award of benefits was intended as a rare and prophylactic

22

exception to the ordinary remand rule”); see also Harman, 211

23

F.3d at 1179 (noting that “the decision of whether to remand for

24

further proceedings turns upon the likely utility of such

25

proceedings”); Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th

26

Cir. 2014).

27
28

See Leon,

When the first two

Id. at 1133 (explaining that “a direct

Here, further administrative proceedings would serve the
useful purpose of allowing the ALJ to reassess the opinions of
20

1

Drs. Taylor-Holmes, Yee, and Alleyne and chiropractors Abgaryan

2

and Gasparian.

3

Plaintiff’s standing-and-walking limitations, he can then provide

4

a clear and convincing reason for that finding.

5

clarify his rejection of chiropractors Abgaryan and Gasparian’s

6

lifting-and-carrying opinion, reassess his evaluation of the

7

credibility of Plaintiff’s symptom statements, and reevaluate

8

Plaintiff’s RFC in light of the evidence he did not previously

9

consider or did not adequately explain his consideration of.

If he again rejects the doctors’ opinions as to

10

Thus, remand is appropriate.

11

n.26.

12

VI.

He may also

13

See Garrison, 759 F.3d at 1020

CONCLUSION
Consistent with the foregoing and under sentence four of 42

14

U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered

15

REVERSING the Commissioner’s decision, GRANTING Plaintiff’s

16

request for remand, and REMANDING this action for further

17

proceedings consistent with this memorandum decision.

18
19

DATED: November 30, 2017

20

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

21
22
23
24
25
26
27
28

11

That sentence provides: “The [district] court shall have
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
21