Maribel Alvarado v. Carolyn W. Colvin

Filing 16

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. It is ORDERED that Judgment be entered REVERSING the decision of the Commissioner andREMANDING this action for the award of benefits. (See document for further details). (sbou)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

MARIBEL ALVARADO,
Plaintiff,

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13
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15

Case No. SACV 14-1510 (SS)

v.

MEMORANDUM DECISION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of the Social
Security Administration,
Defendant.

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19

I.

20
INTRODUCTION
21
Plaintiff Maribel Alvarado (“Plaintiff”) brings this action
22
seeking to reverse the final decision of the Commissioner of the
23
Social

Security

Administration

denying

her

application

for

24
Disability Insurance Benefits and Supplemental Security Income.
25
The parties consented, pursuant to 28 U.S.C. § 636(c), to the
26
jurisdiction of the undersigned United States Magistrate Judge.
27
For the reasons stated below, the decision of the Commissioner is
28

1

REVERSED and the action is REMANDED for an award of benefits

2

consistent with this decision.

3
4

II.

5

PROCEDURAL HISTORY

6
7

Plaintiff

filed

applications

for

Disability

Insurance

8

Benefits and Supplemental Security Income on July 28, 2010, and

9

August 10, 2010, respectively.

(AR 158-63, 164-68).

Plaintiff

10

alleged disability beginning on March 16, 2004.

(AR 160, 164).

11

Both applications were denied on initial review.

(AR 111-14, AR

12

115—7).

13

(AR 118-22, 123-27).

14

administrative law judge, and a hearing (the “ALJ Hearing”) was

15

held

16

Administrative Law Judge John Kays (“the ALJ”).

17

102).

18

Plaintiff testified at the hearing, along with Dr. Samuel Landau,

19

a Medical Expert, and Alan Boroskin, a Vocational Expert.

20

81-102).

21

decision, finding that Plaintiff was not disabled and was capable

22

of performing her past work as an office clerk.

23

Plaintiff sought review of the ALJ’s decision before the Appeals

24

Council, which the Council denied on July 22, 2015.

25

a result, the ALJ’s decision became the final decision of the

26

Commissioner.

27

25, 2015.

28

\\

The applications were also denied upon reconsideration.

on

August

Plaintiff

Plaintiff requested a hearing before an

6,

was

2012

in

represented

Orange,

by

California,

counsel.

before

(AR 128, 81(AR

35,

156).

(AR

On September 20, 2012, the ALJ issued an unfavorable

(AR 1-6).

(AR 35-49).

(AR 1).

As

Plaintiff filed this action on February

2

1

III.

2

FACTUAL BACKGROUND

3
4

Plaintiff was thirty-two years old at the alleged onset of

5

her disability on March 16, 2004.

6

March or April of 2004 as an office clerk for an automobile

7

finance company.

8

(AR

9

suffered

186).

In
from

(AR 89).
her

(AR 160).

She completed the eleventh grade.

application,

bilateral

She last worked in

carpal

Plaintiff
tunnel

alleged

syndrome,

that

back

she

pain,

10

depression

11

developed carpal tunnel syndrome at her last job, where an expert

12

found that her work station was improperly set up with regard to

13

the repeated reaching that was required.

and

migraines.

(AR

186).

She

alleges

that

she

(AR 89-90).

14
15

A.

Plaintiff’s Medical History

16
17

1.

Mark Giglio, M.D.

18
19

Dr. Mark Giglio is Plaintiff’s general care physician, and

20

records show that he has been treating Plaintiff on a monthly

21

basis since approximately June 2006.

22

2006, Dr. Giglio ordered a CT scan of the pelvis, which showed an

23

enlarged

24

surrounding the gallbladder.

25

Plaintiff presented with depression and requested a prescription

26

to help with her alcohol addiction.

27

increased her alcohol consumption in 2004, after her multiple

28

carpal tunnel surgeries and resulting complications.

spleen

and

liver

as

well

(AR 2150, 2248).

as

thickness

(AR 2336-37).

3

In July

and

fluid

In October 2006,

(AR 2244).

Plaintiff had

(Id.).

Dr.

1

Giglio diagnosed Plaintiff with alcohol dependence with episodic

2

drinking behavior and depression.

3

Plaintiff reported that she completed an alcohol detoxification

4

program and that a psychiatrist, Dr. Michael Wu, was treating her

5

for depression.

6

enlarged liver, though Plaintiff was not drinking again.

7

2232).

8

past two months, for which Dr. Giglio prescribed medication.

9

2218-19).

(AR 2242).

(AR 2246).

In March 2007,

Examination in June 2008 showed an
(AR

In April 2009, Plaintiff reported daily headaches for the
(AR

Dr. Giglio also referred Plaintiff to a neurologist

10

for

11

ultrasound of the abdomen revealed an enlarged liver and spleen,

12

consistent with underlying cirrhosis.

13

Plaintiff

14

sadness, weight gain, and a lack of motivation.

15

the

16

Plaintiff’s antidepressant medications to relieve her symptoms.

17

(AR

18

depression

19

medications prescribed by her new treating psychiatrist, Dr. Greg

20

Sentenn.

migraine

treatment.

reported

ensuing

symptoms

follow-up

2187-92).

(AR

In

symptoms

2204-09).

of

were

Dr.

2012,

April

(AR 2334).

depression,

visits,

January

In

Giglio

fatigue,

(AR 2193).

continued

by

an

In May 2011,

including

Plaintiff

controlled

2011,

reported

to

Over
adjust

her

combination

a

that

of

(AR 2179).

21
22

In January 2012, Dr. Giglio completed a Multiple Impairment

23

Questionnaire on the basis of his monthly treatment of Plaintiff.

24

(AR

25

following diagnoses: chronic major depression, alcoholic liver

26

disease

27

headaches, hypothyroidism, carpal tunnel syndrome and fatigue.

28

(AR

2150-57).

with

2150).

In

the

cirrhosis,

Questionnaire,

lumbar

Plaintiff’s

major
4

disc

Dr.

Giglio

disease,

symptoms

noted

the

multi-factorial

included

fatigue,

1

insomnia, nausea, headaches, weight gain, anxiety and depression.

2

(AR

3

stand/walk for no more than one hour each, with the need to get

4

up every thirty minutes, and that she could lift and carry only

5

five pounds frequently and ten pounds occasionally.

6

54).

7

perform fine and gross manipulations and reach with either arm

8

due to carpal tunnel syndrome in both hands.

9

keep her neck in a constant position.

2150-51).

He

estimated

that

Plaintiff

could

sit

or

(AR 2153-

Plaintiff would have moderate limitations in her ability to

Id.

She could not

(AR 2154).

Dr. Giglio

10

indicated that Plaintiff’s symptoms would “frequently” interfere

11

with her attention and concentration, and she was capable of only

12

a “low stress” work environment.

13

than three work days each month due to her impairments.

14

2155-56).

Plaintiff would also miss more
(AR

15
16

2.

Rick Pospisil, M.D.

18

Dr.

Rick

19

surgeon.

20

pain in both wrists and in the low back.

21

diagnosed

22

status post attempted release of right wrist on January 18, 2005,

23

post-operative swelling and stiffness suggestive of a causalgia

24

or complex regional pain syndrome and lumbar strain.

25

45).

26

EMG consistent with ongoing moderate denervation due to right

27

carpal tunnel syndrome and mild to chronic denervation due to

28

left carpal tunnel syndrome, and the NCV consistent with moderate

17
Pospisil

is

Plaintiff’s

treating

orthopedic

Plaintiff first saw Dr. Pospisil on March 7, 2005 for

Plaintiff

with

carpal

tunnel

(AR 936).

Dr. Pospisil

syndrome

bilaterally,

(AR 944-

EMG and NCV studies from March 18, 2005 were abnormal, the

5

1

to severe right carpal tunnel syndrome and moderate left carpal

2

tunnel syndrome.

(AR 948-51).

3
4

On May 25, 2005, an MRI of Plaintiff’s right wrist ordered

5

by Dr. Pospisil revealed an ulnar artery aneurysm of the right

6

palm.

7

surgically repaired the aneurysm.

8

operative follow-up visit on November 1, 2005, Dr. Salibian found

9

that

(AR 1013-14).

Plaintiff

On September 20, 2005, Dr. Arthur Salibian

could

use

(AR 1056-57).

Plaintiff’s

right

At the post-

hand

without

any

10

restrictions.

11

noted that her right hand, low back and shoulder continued to

12

improve, but examination still showed complications with the left

13

wrist.

14

that Plaintiff remained symptomatic in the left hand, reporting

15

pain,

16

finger and thumb.

(AR 1090).

(AR 1085-88).

numbness

and

On November 2, 2005, Dr. Pospisil

On November 28, 2005, Dr. Pospisil noted

tingling

in

the

left

index

finger,

third

(AR 1094).

17
18

On January 20, 2006, Dr. Pospisil performed a carpal tunnel

19

release on Plaintiff’s left wrist.

20

2006, an exam showed minimal swelling and good mobility with

21

negative Phalen’s signs in both wrists and no dysthesias, but

22

Plaintiff

23

wrists with radiation into all fingers.

24

28, 2006, Plaintiff reported that she felt numbness and tingling

25

in her hands, the left worse than the right.

26

January 15, 2007, Plaintiff continued to have dysesthesias in

27

both hands, the left worse than the right, with mid- and upper

28

back pain.

was

still

reporting

(AR 1214-15).

(AR 1133-34).

numbness

and

On May 1,

tingling

(AR 1169-70).

in

both

On June

(AR 1178).

On

Plaintiff reported the same symptoms
6

1

at monthly visits between February and July 2007.

2

On October 1, 2007, the examination showed spasm and tenderness

3

in the low back, with slight restriction of lumbar mobility, as

4

well as dysesthesias to light touch.

5

precluded Plaintiff from repetitive fine motion of either hand or

6

lifting more than fifteen pounds with either hand.

(AR 1222-52).

(AR 1293).

Dr. Pospisil

(AR 1294).

7
8

In

9

compensation

January

2008,

Agreed

Dr.

Pospisil

Medical

adopted

Examiner’s

a

workers’

restrictions

on

10

Plaintiff’s abilities, precluding Plaintiff from repetitive fine

11

motion of the hand and lifting more than fifteen pounds.

12

1329).

13

positions as necessary and avoid all pushing, pulling, carrying,

14

and lifting because of her back symptomatology.

15

February 2008, Plaintiff noted that the back pain had worsened,

16

and Dr. Pospisil precluded her from more than occasional fine

17

motion of the hands, lifting more than fifteen pounds, carrying

18

and/or lifting more than fifteen pounds and pushing or pulling

19

more than twenty pounds.

20

Plaintiff needed the opportunity to change positions as necessary

21

to relieve pain.

(AR

Dr. Pospisil added the need for Plaintiff to change

(AR 1334).

(AR 1329).

In

He again reported that

22
23

On April 30, 2008, Dr. Pospisil diagnosed Plaintiff with

24

lumbar strain with lower extremity radiculopathy, supported by

25

MRI

26

reported continued pain in her low back, radiating into her lower

27

extremities, and pain in both wrists.

28

symptoms and Dr. Pospisil’s clinical findings remained constant

findings.

(AR

1364).

On

7

January

12,

2009,

(AR 1498-99).

Plaintiff

Plaintiff’s

1

throughout regular visits between February and December 2009.

2

(AR 1509-12, 1547-48, 1574-77, 1591-94, 1608-11, 1643-46, 1659-

3

62, 1677-80, 1692-95).

4
5

On

September

19,

2011,

Dr.

Pospisil

completed

an

Upper

6

Extremity Impairment Questionnaire on the basis of his treatment

7

of Plaintiff since 2008.

8

cervicogenical headaches, lumbar disc protrusion, and residual

9

carpal tunnel syndrome status post three release procedures.

(AR 2125).

He diagnosed Plaintiff with

(AR

10

2125).

11

could lift or carry only ten pounds occasionally and five pounds

12

frequently, had moderate limitations in her abilities to perform

13

gross

14

limitations in her abilities to reach with either arm, would need

15

to take ten to fifteen minute breaks four to six times a day, and

16

that she would likely miss three or more workdays each month due

17

to her impairments.

18

restricted her from all pushing, pulling, kneeling, bending and

19

stooping.

In the Questionnaire, Dr. Pospisil opined that Plaintiff

and

fine

manipulations

with

her

right

hand,

moderate

He also marked that Plaintiff’s impairments

(AR 2130).

20
21

3.

Andrew Morovati, M.D.

22
23

Dr. Andrew Morovati, a neurologist, began treating Plaintiff

24

for migraines on March 3, 2011.

25

with Dr. Jack Florin, another treating neurologist.

26

Plaintiff began seeing Dr. Florin in March 2010 and reported

27

suffering headaches on a daily basis for the last two years.

28

838-39).

(AR 2104).

Dr. Morovati works
(AR 2104).

(AR

Dr. Florin diagnosed chronic migraine without aura and
8

1

cervical dystonia.

2

migraines

3

injections provided a five to ten percent improvement in the

4

severity of her headaches and that she was only headache-free for

5

five to six hours each day.

6

Florin completed a Treating Physician’s Migraine Headache Form

7

and indicated that Plaintiff’s headaches occur more than once a

8

week, lasted an average of two to three hours each, two to three

9

times a day, caused nausea, photophobia, phonophobia and were

with

(AR 839).

Botox,

and

Dr. Florin treated Plaintiff’s

Plaintiff

reported

(AR 832).

that

the

Botox

On October 12, 2010, Dr.

10

throbbing and pulsating.

11

had a “fair” response to Indocin, Botox, Cymbalta, Tylenol and

12

Topamax and had failed nerve blocks.

13

migraines would interfere with her ability to work and cause her

14

to miss two to three days of work per week.

15

2011,

16

ineffective and the oral medications were not working either.

17

(AR 2347).

Plaintiff

(AR 841).

reported

that

He indicated that Plaintiff

(Id.).

the

He opined that the

(Id.).

Botox

In September

injections

were

18
19

Dr. Morovati began to treat Plaintiff for migraines in March

20

2011.

21

months.

22

and

23

modalities.”

24

completed a Headaches Impairment Questionnaire on the basis of

25

his treatment of Plaintiff.

26

Dr.

27

intense, accompanied by nausea and photosensitivity, occur daily

28

for up to eight hours, or sometimes the entire day, without any

(AR 2104).

Dr. Morovati treated her every two to three

(AR 2143).

“severe,

Morovati

daily,

He described her migraines as “uncontrolled”
and

(AR 2104).

wrote

that

unresponsive

to

multiple

treatment

On October 25, 2011, Dr. Morovati

(AR 2143-48).
Plaintiff’s

9

In the Questionnaire,

headaches

were

severely

1

specific triggers.

2

frequently

3

concentration, that she would be incapable of tolerating a “low

4

stress” work environment and that she would likely miss more than

5

three days of work each month because of her headaches.

6

2146-47).

severe

(AR 2144).
enough

to

He opined that her symptoms are

interfere

with

her

attention

and

(AR

7
8

B.

Examining Physician’s Opinion

9
10

On March 25, 2011, state agency examining psychiatrist Fahmy

11

Ibrahim, M.D., performed a psychiatric evaluation of Plaintiff.

12

(AR 1931-35).

13

developed carpal tunnel syndrome and stopped working in 2004.

14

(AR 1932).

15

low

16

migraines.

17

to dress and bathe herself, tried to do house cleaning and cook

18

and had good relationships with her family and friends.

19

1933).

20

affect restricted.

back

Plaintiff reported feeling depressed since she

She also stated that she is unable to work because of
pain,

limitations

(Id.).

on

her

standing

and

sitting

and

Dr. Ibrahim reported that Plaintiff was able

(AR

He reported that Plaintiff’s mood was depressed and her
(Id.).

21
22

In

his

functional

assessment,

Dr.

Ibrahim

wrote

that

23

Plaintiff’s ability to maintain focus and concentration is mildly

24

limited,

25

detailed instructions is mildly to moderately limited and her

26

ability to cope with workplace stress is mildly to moderately

27

limited.

28

\\

her

ability

(AR 1934).

to

understand

and

carry

out

complex

or

Plaintiff’s ability to relate and interact

10

1

with co-workers, colleagues and supervisors is normal, as is her

2

ability to understand and carry out simple instructions.

Id.

3
4

C.

Medical Expert’s Opinion

5
6

Dr.

Samuel

Landau

testified

at

the

ALJ

Hearing

that

7

Plaintiff suffered from degenerative disc disease of the neck and

8

low back, bilateral carpal tunnel lesions with pain, persistent

9

pain

and

headaches.

(AR

83-84).

Dr.

Landau

opined

that

10

Plaintiff’s impairments would affect her ability to function.

11

(AR 84).

12

eight hours each day, could sit with breaks every two hours,

13

could lift and carry ten pounds frequently and twenty pounds

14

occasionally and could occasionally stoop or bend.

15

could climb stairs but could not climb ladders, work at heights

16

or

17

equipment

18

machinery, or doing work where the safety of others could be

19

compromised.

20

but

21

comfortable position at other times.

22

hold her head in a fixed position for fifteen to thirty minutes

23

at

24

grasping,

25

manipulation as required for keyboarding, opening drawers and

26

carrying files.

27

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28

\\

Plaintiff could only stand and walk for two out of

balance.
or

should

a

Id.

time.
or

She

motorized

Id.
avoid

was

restricted

vehicles,

from

working

Id.

operating

around

She

heavy

unprotected

She could engage in occasional neck motion,
extremes,

Id.

She

twisting,

was
but

and

should
Id.

precluded
not

Id.

11

from

hold

her

head

in

a

She could occasionally

from

forceful

frequent

fine

gripping,
and

gross

1

Dr. Landau opined that Plaintiff could engage in frequent

2

fine

3

syndrome because the carpal tunnel was released and the aneurysm

4

repaired.

5

release may not have “made any difference at all . . . in her

6

symptoms.”

and

gross

manipulation

(AR 85-86).

despite

bilateral

carpal

tunnel

Dr. Landau also acknowledged that the

(AR 86).

7
8

D.

Vocational Expert

9
10

Vocational

Expert

(“V.E.”)

Alan

Boroskin

identified

11

Plaintiff’s past work in the Dictionary of Occupational Titles

12

(“DOT”) as “office clerk.”

13

performed

14

classifies it as light.

this

work

at

(AR 98).

the

He noted that Plaintiff

sedentary

level,

though

the

DOT

Id.

15
16

The ALJ then posed two hypotheticals to the V.E.

First, the

17

ALJ proposed a hypothetical individual with the same education,

18

training

19

standing and walking for no more than two hours each day and

20

could

21

hours.

22

and

23

occasionally, but was precluded from jobs requiring her to use

24

ladders,

25

balance, operating heavy equipment or motor vehicles, or being

26

responsible for the safety and welfare of others.

27

The

28

forceful gripping or grasping, but she could engage in frequent

and

sit

work

without

(AR 99).

twenty

history

individual

Plaintiff

restriction,

but

who

required

was

limited

breaks

every

to

two

She could lift and carry ten pounds frequently

pounds

ropes,

as

or

was

occasionally

scaffolding,

also

and

work

precluded

12

could

at

from

stoop

heights

jobs

or

and

bend

requiring

(AR 99-100).
that

required

1

fine

2

occasionally hold her head in a fixed position for fifteen to

3

thirty minutes at a time, though only in a comfortable position.

4

(AR 100).

5

individual

6

(Id.).

7

occasionally

8

handling, she would not be able to perform Plaintiff’s past work

9

as an office clerk.

and

gross

manipulation

such

as

keyboarding,

and

could

The V.E. testified that that such a hypothetical
would

be

However,
use

if
her

able

to

the

perform

Plaintiff’s

hypothetical

hands

Id.

for

past

work.

individual
manipulation

fine

could
and

only
gross

Additionally, if the hypothetical

10

individual experienced extreme pain for up to one third of the

11

day that prevented her from focusing on simple and repetitive

12

tasks, she could not work.

13

hypothetical, the V.E. testified that a hypothetical individual

14

who misses two days of work a month regularly would not be able

15

to do any work.

(AR 100-01).

In response to a second

(AR 101).

16
17

E.

18

Plaintiff’s Testimony Before The ALJ And Statements On Her
Benefits Application

19
20

Plaintiff

testified

that

she

suffers

from

carpal

tunnel

21

syndrome in both hands.

22

surgeries,

23

bilateral

24

feeling that her hands “fall[ ] asleep.”

25

had problems typing.

26

lift light objects, but her hands would spasm if she lifted heavy

27

objects, and she “can’t get a good grip.”

28

\\

Plaintiff
carpal

(AR 89-90).

continued

tunnel

to

syndrome,

(AR 93).

After her carpal tunnel
experience

including

symptoms

numbness

(AR 86, 93).

and

of
the

She also

She was able to hold onto and

13

(AR 93-94).

Plaintiff

1

testified that she cannot lift anything more than five or ten

2

pounds and that “it can’t be like an everyday situation.”

3

100).

(AR

4
5

Plaintiff also described her back pain.

(AR 94-95).

She

6

could sit for only fifteen minutes at a time, alternating with

7

standing fifteen minutes.

8

her back because she was afraid this would interfere with her

9

ability to interact with her young child.

(AR 94).

She had not had surgery on

Id.

10
11

Plaintiff

testified

that

she

suffered

from

migraines,

a

12

condition

13

experienced migraines every day, and they sometimes lasted for

14

over

15

migraines,

16

migraine, she would lie down, close her eyes in a dark room, and

17

ice or heat her forehead.

18

saw a psychiatrist to treat her depression and experienced blurry

19

vision.

a

for

week.
but

which

Id.

she

She

“nothing

saw

a

tried

neurologist.

different

works.”

Id.

Id.

(AR

95).

treatments
When

for

She

her

experiencing

a

Plaintiff also testified that she

(AR 96, 97).

20
21

Plaintiff did not have any difficulties with personal care.

22

(AR 206).

23

nineteen, and a pet, prepared meals, performed household chores,

24

read,

25

grandmother to doctors’ appointments, had lunch with a friend

26

occasionally, and shopped on a weekly basis.

27

It took her a long time to complete household chores and she

28

sometimes needed help to complete these tasks, as well as to

She cared for her husband and two sons, aged nine and

watched

television,

drove

14

a

car,

took

her

mother

and

(AR 205-09, 90).

1

bathe and change her clothes.

2

being an alcoholic but stated that she had not had any alcohol in

3

the last five years.

(AR 207, 98).

She admitted to

(AR 97).

4
5

IV.

6

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

7
8
9

To

qualify

demonstrate

a

for

disability

medically

benefits,

determinable

a

claimant

physical

or

must
mental

10

impairment that prevents him from engaging in substantial gainful

11

activity1 and that is expected to result in death or to last for

12

a

13

Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. §

14

423(d)(1)(A)).

15

of performing the work he previously performed and incapable of

16

performing any other substantial gainful employment that exists

17

in the national economy.

18

(9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

continuous

period

of

at

least

twelve

months.

Reddick

v.

The impairment must render the claimant incapable

Tackett v. Apfel, 180 F.3d 1094, 1098

19
20

To decide if a claimant is entitled to benefits, an ALJ

21

conducts a five-step inquiry.

22

The steps are:

23

\\

24

\\

25

\\

20 C.F.R. §§ 404.1520, 416.920.

26
27
28

1

Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1510, 416.910.
15

1

(1) Is the claimant presently engaged in substantial

2

gainful activity?

3

not disabled.

4

If so, the claimant is found

If not, proceed to step two.

(2) Is the claimant’s impairment severe?

5

claimant is found not disabled.

6

If not, the

to step three.

If so, proceed

7

(3) Does the claimant’s impairment meet or equal one

8

on the list of specific impairments described in

9

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

10

so, the claimant is found disabled.

11

If

proceed to step four.

12

If not,

(4) Is the claimant capable of performing his past

13

work?

14

If not, proceed to step five.

15

If so, the claimant is found not disabled.

(5) Is the claimant able to do any other work?

16

not, the claimant is found disabled.

17

If

claimant is found not disabled.

If so, the

18
19

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

20

262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R.

21

§§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1).

22
23

The claimant has the burden of proof at steps one through

24

four and the Commissioner has the burden of proof at step five.

25

Bustamante, 262 F.3d at 953-54.

26

affirmative duty to assist the claimant in developing the record

27

at every step of the inquiry.

28

claimant meets his burden of establishing an inability to perform

Additionally, the ALJ has an

Id. at 954.

16

If, at step four, the

1

past

2

perform some other work that exists in “significant numbers” in

3

the national economy, taking into account the claimant’s residual

4

functional

5

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20

6

C.F.R. §§ 404.1520(f)(1), 416.920(f)(1).

7

so by the testimony of a vocational expert or by reference to the

8

Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,

9

Subpart P, Appendix 2 (commonly known as “the Grids”).

work,

the

Commissioner

capacity,

age,

must

show

that

education,

and

the

claimant

work

can

experience.

The Commissioner may do

Osenbrock

10

v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett).

11

When

12

nonexertional limitations, the Grids are inapplicable and the ALJ

13

must take the testimony of a vocational expert.

14

216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856

15

F.2d 1335, 1340 (9th Cir. 1988)).

a

claimant

has

both

exertional

(strength-related)

and

Moore v. Apfel,

16
17

V.

18

THE ALJ’S DECISION

19
20

The ALJ employed the five-step sequential evaluation process

21

and concluded that Plaintiff was not disabled within the meaning

22

of the Social Security Act.

23

that

24

employment since her alleged onset date of March 16, 2004.

25

37).

Plaintiff

had

not

(AR 49).

been

At step one, the ALJ found

engaged

in

substantial

gainful
(AR

26
27
28

At step two, the ALJ found that Plaintiff had the severe
impairments

of

status-post

bilateral
17

carpal

tunnel

releases,

1

degenerative disc disease of the lumbar spine, cervicalgia and

2

cervical dystonia and headaches.

3

Plaintiff’s other impairments, such as blurry vision, erosive

4

gastritis and depression, were not severe.

5

found that Plaintiff’s depression caused only mild limitations in

6

the

7

concentration, persistence or pace, and no extended episodes of

8

decompensation, and was therefore non-severe.

functional

areas

of

daily

Id.

The ALJ also found that

living,

(AR 38).

social

The ALJ

functioning

and

(AR 37-38).

9
10

At step three, the ALJ found that Plaintiff does not have an

11

impairment or combination of impairments that meets or medically

12

equals the severity of from of the listed impairments in 20

13

C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404 1520(d),

14

416.1525,

15

The ALJ then found that Plaintiff had the residual functional

16

capacity (“RFC”) to:

414.1526,

416.920(d),

416.925,

416.926).

(AR

17
18

lift

19

pounds frequently; sit without restrictions but stand

20

or walk for only two hours in an eight–hour work day;

21

never

22

balance; only occasionally stoop or bend; never perform

23

forceful

24

perform fine and gross manipulation; only occasionally

25

hold her head in a fixed position for fifteen to thirty

26

minutes

27

comfortable position; never operate heavy equipment or

28

motor

and

carry

climb

twenty

ladders,

gripping

at

pounds

a

vehicles;

or

time

ropes,

or

grasping

and

never

must

work
18

occasionally

and

hold

at

and

scaffolds;

only

her

heights;

ten

never

frequently

head

and

in

a

never

41).

1

perform jobs involving the safety operations or the

2

safety and welfare of others.

Id.

3
4

The ALJ also specified that, in reaching this opinion, he had

5

considered all symptoms and the extent to which these symptoms

6

could reasonable be accepted as consistent with the objective

7

medical evidence and the other evidence.

8

considered opinion evidence in his finding as well.

Id.

He stated that he
Id.

9
10

In considering Plaintiff’s symptoms, the ALJ followed a two-

11

step process in which he first determined whether there is an

12

underlying

13

impairment(s) that could reasonably be expected to produce the

14

Plaintiff’s

15

underlying

impairment(s)

16

intensity,

persistence,

17

symptoms to determine the extent to which they limit Plaintiff’s

18

functioning.

19

Plaintiff’s physicians and questioned their findings, ultimately

20

finding that the opinion of the testifying medical expert, Dr.

21

Landau, found the greatest support in the medical record.

22

48).

23

testimony.

medically

pain

or

Id.

determinable

other

symptoms.

had
and

physical

been

Id.
shown,

limiting

or

Next,

after

the

evaluated

he

effects

mental

the

of

Plaintiff’s

The ALJ reviewed the specific findings of

(AR

Accordingly, the ALJ gave “great weight” to Dr. Landau’s
(Id.).

24
25

The ALJ questioned Plaintiff’s testimony and stated that

26

Plaintiff’s

“allegations

27

limitations

are

28

noting that Plaintiff’s activities, such as caring for her two

not

of

generally

corroborated

19

by

disabling

the

evidence

symptoms
of

and

record,”

1

sons and husband, performing household chores, taking her mother

2

and grandmother to the doctor, having lunch with a friend, and

3

working

4

allegations

5

capable of performing appropriate work activities on an ongoing

6

and daily basis.”

7

determinable impairments could reasonably be expected to cause

8

the

9

intensity, persistence and limiting effects of these symptoms

10

in

alleged

her
of

son’s

classroom,

disability

Id.

symptoms,

were not credible.

and

are

“inconsistent

indicate

that

[Plaintiff]

with
is

The ALJ found that Plaintiff’s medically

but

Plaintiff’s

statements

about

the

Id.

11
12

At step four, the ALJ found that Plaintiff is capable of

13

performing her past work as an office clerk and that such work

14

does

15

precluded by Plaintiff’s RFC.

16

this finding was consistent with the testimony of the Vocational

17

Expert, Mr. Boroskin.

18

Plaintiff was not disabled.

not

require

the

performance

of

work-related

(AR 48-49).

(AR 49).

activities

The ALJ opined that

As a result, the ALJ found that

Id.

19
20

VI.

21

STANDARD OF REVIEW

22
23

Under 42 U.S.C. § 405(g), a district court may review the

24

Commissioner’s decision to deny benefits. The court may set aside

25

the Commissioner’s decision to deny benefits. “The court may set

26

aside the Commissioner’s decision when the ALJ’s findings are

27

based on legal error or are not supported by substantial evidence

28

in the record as a whole.”

Auckland v. Massanari, 257 F.3d 1033,
20

1

1035 (9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen

2

v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v.

3

Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

4
5

“Substantial evidence is more than a scintilla, but less

6

than a preponderance.”

7

v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is “relevant

8

evidence which a reasonable person might accept as adequate to

9

support a conclusion.”

Reddick, 157 F.3d at 720 (citing Jamerson

Id. (citing Jamerson, 112 F.3d at 1066;

10

Smolen,

11

evidence

12

record

13

evidence that detracts from the [Commissioner’s] conclusion.’”

14

Auckland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d

15

953,

16

support either affirming or reversing that conclusion, the court

17

may not substitute its judgment for that of the Commissioner.

18

Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health &

19

Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

80

F.3d

at

1279).

a

finding,

the

whole,

weighing

both

supports

as

956

a

(9th

Cir.

1993)).

To

determine

If

court

whether

must

evidence

the

substantial

“

‘consider

the

that

supports

and

evidence

can

reasonably

20
21

VII.

22

DISCUSSION

23
24

Plaintiff

contends

that

opinions

of

the

ALJ

improperly

assessed

and

25

rejected

26

(Compl.

27

treating physicians’ opinions been given proper weight, she would

28

have been found disabled.

the
18,

21,

23).

Plaintiff’s

Plaintiff

also

(Compl. 25).
21

treating
contends

physicians.

that

had

This Court agrees.

the

1

A.

2

The ALJ Improperly Rejected The Treating Physicians’
Opinions

3
4

Plaintiff claims that the ALJ’s finding that Plaintiff can

5

perform frequent fine and gross manipulations like keyboarding,

6

the lifting and carrying requirements of light work and the non-

7

exertional

8

erroneous

9

Pospisil, Giglio and Morovati.

10

requirements
rejection

of

of

full-time

the

work

opinions

of

is

based

treating

(Compl. 21, 23).

on

an

physicians
The Court

agrees.

11
12

The Ninth Circuit recognizes three types of physicians: (1)

13

treating

14

physicians, who examine but do not treat, and (3) non-examining

15

physicians who neither examine nor treat.

16

Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Treating

17

physicians

18

“employed to cure and [have] a greater opportunity to know and

19

observe the patient as an individual.”

20

F.3d 747, 751 (9th Cir. 1989); Thomas v. Barnhart, 278 F. 3d 947,

21

956-57 (9th Cir. 2002); Connett v. Barnhart, 340 F.3d 871, 874

22

(9th Cir. 2003).

23

opinion is refuted by another doctor, the ALJ may not reject this

24

opinion without providing specific, legitimate reasons, supported

25

by substantial evidence in the record.

26

821, 830-31 (9th Cir. 1995); see also Orn v. Astrue, 495 F.3d

27

625, 632 (9th Cir. 2007); Ryan v. Comm’r of Soc. Sec., 528 F.3d

28

1194,

physicians,

1198

are

(9th

given

who

the

examine

and

greatest

treat,

(2)

examining

Valentine v. Comm’r,

weight

because

they

are

Magallanes v. Bowen, 881

Accordingly, where the treating physicians’

Cir.

2008).

Where
22

Lester v. Chater, 81 F.3d

the

treating

physician’s

1

opinion is not refuted by another doctor, the ALJ must provide

2

clear

3

physician’s

4

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

The opinion of a

5

non-examining,

not

6

substantial evidence to justify rejecting the opinion of either

7

an examining or a treating physician unless it is consistent with

8

and supported by other evidence in record.

9

831; Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600-01 (9th

10

Cir. 1998). However, treating physicians’ opinions are not given

11

more weight if they are conclusory or not supported by medical

12

evidence.

13

(9th Cir. 2004).

and

convincing

reasons

for

opinions.

Lester,

81

non-treating

rejecting
F.3d

physician

at

does

the

830;

treating

Holohan

v.

constitute

Lester, 81 F.3d at

Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195

14
15

Here,

the

opinions

of

treating

physicians

Pospisil

and

16

Giglio are contradicted by the opinion of Dr. Landau.

17

Plaintiff’s treating physicians are presumed to be in the best

18

position to assess Plaintiff’s functional limitations, the ALJ

19

must

20

substantial evidence in the record, for rejecting their opinions.

21

See Lester, 81 F.3d at 830; see also Magallanes, 881 F.2d at 751.

22

The ALJ found that Dr. Pospisil’s assessments were inconsistent

23

and lacked support in the record, and that Dr. Giglio’s opinions

24

also

25

legitimate because substantial evidence in the record does, in

26

fact, support the treating doctors’ opinions.

27

\\

28

\\

provide

lacked

specific

support

in

and

the

legitimate

record.

23

reasons,

These

Because

supported

reasons

are

by

not

1

Dr.

Pospisil,

Plaintiff’s

treating

orthopedic

surgeon,

2

treated Plaintiff on a monthly basis, beginning in 2005, for both

3

her upper extremity and spinal impairments.

4

performed one of her carpal tunnel release procedures.

5

undergoing three procedures to treat her bilateral carpal tunnel

6

syndrome, Plaintiff continued to report numbness and tingling in

7

both

8

dysesthesias in both hands along with back pain.

9

1178, 1214-15, 1222-52, 1293).

hands,

and

examinations

showed

Dr. Pospisil also

that

Despite

Plaintiff

had

(AR 1169-70,

In October 2007, Dr. Pospisil

10

precluded Plaintiff from repetitive fine motion of either hand or

11

lifting more than fifteen pounds with either hand.

12

In

13

repetitive

14

fifteen pounds with either hand.

15

Dr. Pospisil also precluded Plaintiff from all pushing, pulling,

16

carrying and lifting “because of her back symptomatology.”

17

In

18

motions of the hands “more than occasionally,” lifting more than

19

fifteen pounds, carrying and/or lifting more than fifteen pounds

20

and pushing or pulling more than twenty pounds.

21

September

22

Impairment Questionnaire in which he opined that Plaintiff could

23

lift

24

frequently, had moderate limitations in her abilities to perform

25

gross

26

limitations

27

restricted

28

stooping, would need to take short breaks four to six times a

January

2008,
fine

February

or

carry

fine
in
from

Pospisil

motion

2008,

2011,

and

Dr.

Dr.

Dr.

only

of

either

Pospisil

ten

all

pushing,

hand

or

completed

to

her

reach

pulling,

24

an

more

from
than

In January 2008,

Plaintiff

occasionally

with

Plaintiff

lifting

(AR 1329).

pounds

abilities

precluded

precluded

Pospisil

manipulations
her

again

(AR 1294).

from

Id.
fine

(AR 1334).
Upper

and

hand,

with

either

kneeling,

Extremity

five

right

In

pounds

moderate
arm,

bending

is
and

1

day, and that she was likely to miss three or more workdays a

2

month because of her impairments.

3

assessments

4

which

5

(AR 84).

were

placed

not

fewer

consistent

(AR 2125-30).
with

restrictions

on

Dr.

Dr. Pospisil’s

Landau’s

Plaintiff’s

testimony,
abilities.

6
7

The ALJ rejected Dr. Pospisil’s more restrictive assessments

8

of

9

inconsistencies in his assessments.

Plaintiff’s

abilities

because

of

alleged

(AR 42-43).

internal

Specifically,

10

the

11

allowing for Plaintiff to push and pull up to twenty pounds, was

12

inconsistent with his opinion in the 2011 Questionnaire, which

13

precluded

14

Plaintiff’s symptoms and limitations as early as 2007-08.

15

The ALJ also opined that the 2011 Questionnaire was inconsistent

16

with Dr. Pospisil’s October 2007 limitations report because the

17

former imposed only minimal limitations on fine manipulations

18

with the left hand, and the latter precluded all continuous,

19

repetitive fine motion with either the left or right hand.

20

Although these assessments did identify different limitations, it

21

is likely that Plaintiff’s condition was worse when Dr. Pospisil

22

completed the 2011 Questionnaire due to the passage of time.

23

Instead of addressing this likelihood, however, the ALJ rejected

24

the findings of the physician who had been treating Plaintiff for

25

nearly a decade.

ALJ

opined

all

that

Dr.

regular

Pospisil’s

pushing

and

February

pulling

2008

and

assessment,

applies

to
Id.

Id.

26
27

Dr. Giglio, Plaintiff’s primary care provider, was the only

28

other treating physician to have assessed Plaintiff’s functional
25

1

limitations due to residual carpal tunnel symptoms.

2

2012, Dr. Giglio completed a Multiple Impairment Questionnaire,

3

finding

4

occasionally and five pounds frequently and that she would have

5

moderate limitations in her ability to perform fine and gross

6

manipulations and reach with either arm.

7

rejected Dr. Giglio’s opinion, finding that it was contradicted

8

by the opinion of other doctors, including Dr. Pospisil.

9

46).

that

Plaintiff

However,

Dr.

could

lift

Giglio’s

or

carry

In January

only

ten

(AR 2152-54).

assessment

in

the

pounds

The ALJ

(AR 45-

January

2012

10

Questionnaire was almost identical to Dr. Pospisil’s September

11

2011

12

Plaintiff was moderately limited in her ability to perform fine

13

and gross manipulations with only the right hand.

14

2152-54).

15

conclude

16

findings of Plaintiff’s other physicians.

assessment,

save

for

Accordingly,
that

Dr.

Dr.

there

Giglio’s

Pospisil’s

was

no

opinion

basis

was

conclusion

for

that

(AR 2129,
the

contradicted

ALJ
by

to
the

17
18

The

ALJ

found

that

Dr.

Giglio’s

“conclusions...lack

19

support,” but the medical evidence undermines this conclusion.

20

(AR

21

legitimate

in

the

22

record, for rejecting Drs. Pospisil and Giglio’s opinions.

In

23

rejecting the treating physicians’ opinions, the ALJ adopted the

24

opinion of Dr. Landau, the medical expert.

25

Landau testified at the ALJ Hearing that Plaintiff was precluded

26

from forceful gripping, gasping or twisting, but not precluded

27

from

28

keyboarding,

46).

Moreover,
reasons,

frequent

fine

opening

the

ALJ

supported

and

gross

drawers

failed
by

to

provide

substantial

26

evidence

(AR 41, 48, 84).

manipulation,
and

specific

carrying

as

required

files.

(AR

and

Dr.

for
84).

1

According to Dr. Landau, Plaintiff could also lift and carry ten

2

pounds frequently and twenty pounds occasionally.

3

Landau’s opinion is not supported by substantial evidence in the

4

record.

5

reasons for disregarding the opinions of treating physicians who

6

cared

7

opinions supported by extensive treatment records.

8

§§ 404.1527(d)(2), (3); see also Holohan, 246 F.3d at 1207.

The

for

the

ALJ

failed

Plaintiff

to

for

provide

specific

several

year

(Id.).

and

years

Dr.

legitimate

and

provided

See 20 C.F.R.

9
10

The ALJ also failed to provide clear and convincing reasons

11

for rejecting the uncontradicted findings of treating neurologist

12

Andrew

13

Holohan, 246 F.3d at 1202.

14

opinions

15

support his assessments of Plaintiff, and because Plaintiff’s

16

treatment history reflects recent improvement in the frequency of

17

her migraines.

18

convincing because they lack substantial support in the record.

Morovati,

because

as

the

required.

See

81

F.3d

at

830;

The ALJ rejected Dr. Morovati’s

“objective

(AR 47).

Lester,

medical

evidence”

failed

to

These two reasons are not clear and

19
20

Plaintiff received treatment for migraines from Drs. Florin

21

and Morovati beginning in March 2010.

22

Plaintiff’s headaches occur more than once a week, last two to

23

three hours each, two to three times a day, cause nausea, and are

24

throbbing and pulsating.

25

would interfere with Plaintiff’s ability to work and that she

26

would miss two to three workdays each week.

27

Morovati found that Plaintiff’s headaches are severely intense,

28

accompanied by nausea and photosensitivity, occur daily for up to

(AR 841).

27

Dr. Florin found that

He opined that migraines

Id.

Similarly, Dr.

1

eight

2

specific

3

symptoms would frequently be severe enough to interfere with her

4

attention

5

tolerating even a “low stress” work environment and that she

6

would likely miss more than three workdays each month because of

7

her headaches.

hours,

sometimes

triggers.

and

lasting

(AR

the

2144).

concentration,

that

entire

He

day,

opined

she

would

and

that

be

have

no

Plaintiff’s

incapable

of

(AR 2146-47).

8
9

The treating neurologists’ notes show that Botox injections

10

were somewhat effective in relieving Plaintiff’s symptoms in late

11

2010. However, by September 2011, Plaintiff reported that the

12

injections were no longer consistently effective and none of the

13

oral medications worked.

14

became responsive to Botox injections again in November 2011 and

15

January 2012, but as of April 2013 they were “uncontrolled off

16

Botox.”

17

the preceding ten months, as her insurer would not approve such

18

frequent injections.

19

consistent with Plaintiff’s testimony at the hearing before the

20

ALJ, where she testified that she gets migraines every day and

21

that she has tried different treatments for her migraines but

22

“nothing works.”

(AR 2490).

(AR 2084-920, 2347).

Her headaches

Plaintiff had not had Botox treatments in

(AR 2494-95).

These medical records are

(AR 95).

23
24

The ALJ rejected the opinions of the treating neurologists

25

for two reasons.

26

medical evidence, including the normal brain MRI and an absence

27

of significant neurological abnormalities,” failed to support the

28

neurologists’ restrictions on Plaintiff.

First, the ALJ opined that “[t]he objective

28

However, neurological

1

examinations

2

neurological abnormalities, specifically cervical dystonia.

3

839,

4

suboccipitalis and temporalis tenderness, cervical dystonia with

5

30 degrees anterocolis and 30 degrees right lateral shift, and

6

slightly reduced cervical extension and rotation.

7

noted that Plaintiff’s brain MRI was “normal,” but did not rely

8

on any opinion from a medical professional in arriving at his

9

conclusion

did

show

836-37).

that

her

Examinations

that

a

normal

headaches

showed

brain

MRI

are

caused

moderate

(AR

bilateral

Id.

undermines

by

The ALJ

Morovati

and

10

Florin’s restrictions on Plaintiff.

11

the neurologists failed to account for “recent improvement” in

12

the frequency of Plaintiff’s migraines.

13

record shows substantial evidence supporting the neurologists’

14

assessments

15

constant.

Thus,

16

convincing

reasons

17

rejecting

18

required.

that

the

Second, the ALJ opined that

Plaintiffs’

migraines

because

the

ALJ

supported

by

treating

did

(AR 47).

However, the

remained
not

and

clear

and

provide

substantial

neurologists’

severe

evidence

opinions,

remand

for
is

19
20

Plaintiff also claims that the ALJ’s finding at step two

21

that Plaintiff’s depression imposes no mental restrictions on her

22

overall functional capacity is based on error.

23

20).

24

the evaluation at step two is a de minimis test intended to weed

25

out the most minor of impairments.

26

F.3d

27

threshold”); Smolen, 80 F.3d at 1290 (internal quotations and

28

citations

The Court agrees with this contention.

683,

687

(9th

omitted).

Cir.

Where

2005)

there
29

(Compl. at 18-

By its own terms,

See Webb v. Barnhart, 433
(step

is

two

is

evidence

“de

of

minimis

a

mental

1

impairment that prevents a claimant from working, however, the

2

Agency supplements the five-step sequential evaluation process

3

with additional inquiries.

4

(9th

Cir.

5

Here,

the

6

depression,

7

testimony, confirms that Plaintiff’s mental impairment qualified

8

as a “severe” impairment at step two.

9

Remand is required on this ground, as well.

1998)

Maier v. Comm’r, 154 F.3d 913, 914-15

(per

curiam)

of

treatment

received

with

medical

degree

combined

(citing

the

20

C.F.R.
by

§

416.920a).

Plaintiff

evidence

and

for

her

her

own

(AR 2179, 2190-96, 2242).

10
11

B.

If The Treating Physicians’ Opinions Were Given Proper

12

Weight, Plaintiff Would Be Found Disabled

13
14

The Court must ordinarily remand for an award of benefits

15

where

16

administrative proceedings would serve no useful purpose; (2) the

17

ALJ

18

rejecting

19

opinion;

20

credited as true, the ALJ would be required to find the claimant

21

disabled on remand.”

22

Cir. 2014) (citing, inter alia, Lingenfelter v. Astrue, 504 F.3d

23

1028, 1041 (9th Cir. 2007); Orn, 495 F.3d at 640; Smolen, 80 F.3d

24

at

25

flexibility to remand for further proceedings, rather than an

26

award, only where the record as a whole “creates serious doubt”

27

that a claimant is disabled.

28

\\

“(1)

has

the

record

failed

has

been

fully

to

provide

legally

evidence,

whether

claimant

and

1292).

developed

(3)

The

if

the

improperly

sufficient
testimony

discredited

and

further

reasons
or

for

medical

evidence

were

Garrison v. Colvin, 759 F.3d 995, 1020 (9th

“credit-as-true”

rule

Id. at 1021.

30

allows

courts

the

1

Here, if the opinions of Plaintiff’s treating physicians had

2

been properly weighted, the ALJ would have found Plaintiff unable

3

to perform fine and gross manipulations, the lifting and carrying

4

requirements of light work, or the non-exertional requirements of

5

full-time work.

6

able to perform the work of an office clerk if she could only

7

occasionally

8

handling.

9

be no work,” if Plaintiff were to regularly miss two days of work

The V.E. testified that Plaintiff would not be

use

her

(AR 100).

hands

for

fine

manipulation

and

gross-

The V.E. also testified that “there would

10

a

11

credited,

12

Plaintiff’s

13

would

14

Finally, a person who experiences extreme pain for up to one

15

third of the day, during which he or she cannot focus even on

16

simple and repetitive tasks, like Plaintiff, “could not work.”

17

(AR 101).

18

developed, that further administrative proceedings would serve no

19

useful purpose, and that if the discounted evidence were credited

20

as true, Plaintiff would be entitled to benefits.

21

\\

22

\\

23

\\

24

\\

25

\\

26

\\

27

\\

month

because
the

of

medical

treating

migraines

regularly

miss

impairments.

physicians’
would
two

support

days

or

(Id.).

medical
a

If

evidence

regarding

finding

more

of

that

work

fully

Plaintiff

each

month.

The Court is satisfied that the record has been fully

28
31

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, it is ORDERED that Judgment

5

be

6

REMANDING this action for the award of benefits.

7

the Court shall serve copies of this order and the Judgment on

8

counsel for both parties.

entered

REVERSING

the

decision

of

the

Commissioner

and

The Clerk of

9
10

DATED:

June 29, 2015

11
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

12
13
14
15

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW
OR ANY OTHER LEGAL DATABASE.

16
17
18
19
20
21
22
23
24
25
26
27
28
32