Adolpho Quiroz Vasquez v. Nancy A. Berryhill

Filing 20

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Fernando M. Olguin. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the Report and Recommendatio n of the Magistrate Judge is accepted and adopted; (2) the decision of the Commissioner of the Social Security Administration is reversed in part; and (3) the matter is remanded for further administrative action consistent with the Report and Recommendation. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ADOLFO QUIROZ VASQUEZ, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. SA CV 17-537-FMO(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 This Report and Recommendation is submitted to the Honorable 19 Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District Court 21 for the Central District of California. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on March 24, 2017, seeking review of 26 the Commissioner’s denial of disability benefits. 27 motion for summary judgment on August 16, 2017. 28 a motion for summary judgment on October 20, 2017. Plaintiff filed a Defendant filed The Court has 1 taken the motions under submission without oral argument. 2 See L.R. 7- 15; “Order,” filed March 28, 2017. 3 4 BACKGROUND 5 6 Plaintiff asserts disability since December 20, 2009, based on 7 several alleged physical and mental impairments (Administrative Record 8 [“A.R.”] 151, 170). 9 to symptomatology of allegedly disabling severity (A.R. 41-42, 44-52; Plaintiff testified at an administrative hearing 10 see also A.R. 58-59 (vocation expert testifying that certain of 11 Plaintiff’s alleged limitations would preclude competitive work)). 12 Administrative Law Judge (“ALJ”) found that Plaintiff suffers from the 13 following severe impairments: “diabetes mellitus, degenerative disk 14 disease, affective disorder, paranoid-type schizophrenia, anxiety, 15 asthma, chronic obstructive pulmonary disease, obstructive sleep 16 apnea, obesity, and neuropathy” (A.R. 23). 17 that Plaintiff retains the residual functional capacity to perform a 18 “restricted” range of light work, including work as an assembler of 19 small parts or an assembler of electrical accessories (A.R. 25, 30-31 20 (adopting vocational expert testimony at A.R. 56-57)). 21 Plaintiff’s contrary statements not fully credible (A.R. 26, 29). 22 Appeals Council received additional evidence but denied review (A.R. 23 1-6). An However, the ALJ found The ALJ deemed The 24 25 STANDARD OF REVIEW 26 27 28 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: 2 (1) the Administration’s 1 findings are supported by substantial evidence; and (2) the 2 Administration used correct legal standards. 3 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 4 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 5 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 6 Substantial evidence is “such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion.” 8 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 9 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Richardson v. 10 11 If the evidence can support either outcome, the court may 12 not substitute its judgment for that of the ALJ. 13 Commissioner’s decision cannot be affirmed simply by 14 isolating a specific quantum of supporting evidence. 15 Rather, a court must consider the record as a whole, 16 weighing both evidence that supports and evidence that 17 detracts from the [administrative] conclusion. But the 18 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 20 quotations omitted). 21 22 Where, as here, the Appeals Council considered additional 23 evidence but denied review, the additional evidence becomes part of 24 the record for purposes of the Court’s analysis. 25 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 26 new evidence in deciding whether to review a decision of the ALJ, that 27 evidence becomes part of the administrative record, which the district 28 court must consider when reviewing the Commissioner’s final decision 3 See Brewes v. 1 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 2 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 3 1228, 1231 (2011) (courts may consider evidence presented for the 4 first time to the Appeals Council “to determine whether, in light of 5 the record as a whole, the ALJ’s decision was supported by substantial 6 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 7 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 8 information and it became part of the record we are required to review 9 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 10 11 DISCUSSION 12 13 The Magistrate Judge recommends that the Court reverse the ALJ’s 14 decision in part and remand the matter for further administrative 15 proceedings. 16 17 18 I. The ALJ’s Residual Functional Capacity Determination and the Opinions of Non-Examining Physicians 19 20 The ALJ determined: 21 22 [Plaintiff] can lift and/or carry 10 pounds frequently and 23 20 pounds occasionally; he can stand and/or walk six hours 24 out of an eight-hour day, with the use of a cane as 25 necessary, he can sit six hours out of an eight-hour day, 26 with the ability to stand and stretch, estimated to take one 27 to three minutes per hour; he can frequently stoop; he can 28 frequently climb stairs but can never climb ladders, ropes, 4 1 and scaffolds; he [can] never kneel, crouch, or crawl; he is 2 precluded from concentrated exposure to dust, fumes and 3 other pulmonary irritants, from work around moving and 4 dangerous machinery, and from work at unprotected heights; 5 he is limited to simple tasks with a reasoning level of 6 three or less,1 only non-intense public contact, and no jobs 7 requiring teamwork. 8 9 (A.R. 25). 10 11 The non-examining state agency physicians reviewed a portion of 12 the medical record (including opinions from consultative examiners 13 Drs. Yu and Doan),2 and opined that Plaintiff retains a light residual 14 functional capacity with fewer limitations than the ALJ found to exist 15 (A.R. 61-90). 16 sources in the record who believed that Plaintiff has a residual 17 functional capacity equal to or greater than the capacity the ALJ 18 found to exist. These non-examining doctors are the only medical As summarized below, all examining and treating 19 1 20 21 22 23 24 This part of the ALJ’s determination is problematic. A limitation to simple work is inconsistent with Reasoning Level 3. See Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017) (citing Zavalin v. Colvin, 778 F.3d 842, 846-48 (9th Cir. 2015) (joining Tenth Circuit in holding that there is “an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning”; citations omitted). 2 25 26 27 28 On initial evaluation, the state agency physicians reportedly gave “moderate” weight to Dr. Yu’s opinion and “great” weight to Dr. Doan’s opinion. See A.R. 68-69. On reconsideration, the state agency physicians gave “other” weight to these opinions, deeming the opinions “without substantial support from other evidence of record, which renders [the opinions] less persuasive.” See A.R. 83, 87. 5 1 physicians believe that Plaintiff has less functional capacity than 2 the ALJ believes. 3 4 II. The Opinions of the Examining and Treating Physicians 5 6 Consultative examiner Dr. Warren Yu prepared a Complete 7 Orthopedic Consultation dated November 16, 2013 (A.R. 291-95). 8 reviewed a recent MRI of Plaintiff’s lumbar spine which showed, inter 9 alia, moderate to severe spinal canal stenosis at L3-L4 and L4-L5, Dr. Yu 10 moderate right foraminal narrowing below the exiting nerve root, mild 11 left foraminal narrowing at L3-L4, and severe left and moderate to 12 severe right foraminal narrowing with compression of the exiting left 13 L4 nerve root at L4-L5 (A.R. 291; see also A.R. 287-88 (MRI study)). 14 There is no indication that Dr. Yu reviewed any other medical records 15 (A.R. 291).3 16 17 On examination, Dr. Yu noted moderate lumbosacral tenderness, 18 limited range of motion of the lumbar spine, decreased sensation over 19 the left anterolateral thigh and anterior left leg, and trace reflexes 20 throughout the lower extremities (A.R. 292-94). 21 that Plaintiff walked with a slight limp on the left side (id.). 22 Yu diagnosed severe lumbar stenosis, L3 to L5, with moderate to severe 23 claudication (A.R. 294). 24 (1) lift and carry 20 pounds occasionally and 10 pounds frequently; 25 (2) push and pull without limitations; (3) walk and stand four hours Dr. Yu also noted Dr. Yu opined that Plaintiff could: 26 27 28 Dr. 3 A subsequent MRI of Plaintiff’s cervical spine dated July 17, 2014, showed multilevel disc disease, with moderate to severe spondylosis at C4-C5 and C5-C6 (A.R. 304-05). 6 1 out of an eight-hour day; (4) sit six hours out of an eight-hour day; 2 (5) walk up to two blocks without an assistive device, but would 3 require a cane for longer distances for balance and support; (6) 4 squat, stoop, kneel, crawl, climb, bend, and lift occasionally; (7) 5 walk on uneven terrain, climb ladders, and work at heights 6 occasionally; and (8) use his upper extremities without limitation 7 (A.R. 294-95) (emphasis added for those limitations which are greater 8 than the ALJ found to exist). 9 to Dr. Yu’s opinion (A.R. 28). The ALJ purportedly gave “some” weight 10 11 Consultative examiner Dr. Bong Doan prepared a Complete 12 Psychiatric Evaluation dated November 17, 2013 (A.R. 298-302). 13 Doan reviewed progress notes from “Los Angeles Pain Center” dated 14 May 9, 2013, and a Function Report from Plaintiff (A.R. 298; see 15 also A.R. 196-203 (Function Report); A.R. 234 (“California Pain 16 Center” treatment note for May 9, 2013); and see A.R. 234-46 17 (California Pain Center treatment notes)). 18 mentioned Plaintiff’s treatment by psychiatrists at the Central City 19 Community Health Center, Dr. Doan did not indicate that these records 20 were reviewed (A.R. 298-99). 21 anxiety, social withdrawal, and difficulty sleeping, for which he was 22 prescribed Cymbalta and Lorazepam (Ativan) (A.R. 298-99). 23 reportedly had been clean and sober since 2009, and yet Dr. Doan 24 stated, “claimant reported drinking a 6-[pack] of beer daily” (A.R. 25 298-99). Dr. Although Dr. Doan Plaintiff reported depression and Plaintiff 26 27 Mental status examination was unremarkable but for the following: 28 mood “described as depressed”; affect constricted; unable to do serial 7 1 sevens; difficulty spelling “world” backward; and unable to analyze 2 the meaning of simple proverbs (A.R. 300-01). 3 alcohol dependence in remission and major depressive disorder, 4 recurrent, moderate (A.R. 301-02). 5 Assessment of Functioning (“GAF”) score of 50, with a “poor” prognosis 6 due to alcoholism (id.).4 Dr. Doan diagnosed Dr. Doan assessed a Global Dr. Doan opined: 7 8 Based on the objective findings presented during this 9 interview, the claimant would have no limitations performing 10 simple and repetitive tasks and mild limitations performing 11 detailed and complex tasks. 12 difficulties to be able to perform work activities on a 13 consistent basis without special or additional supervision. 14 The claimant would have moderate limitations completing a 15 normal workday or work week due to their [sic] mental 16 condition. 17 instructions from supervisor[s] and interacting with 18 coworkers and with the public. 19 difficulties to be able to handle the usual stresses, 20 changes and demands of gainful employment. The claimant would have no The claimant would have no limitations accepting He would have mild 21 22 4 23 24 25 26 27 28 Clinicians use the GAF scale to report an individual’s overall psychological functioning. The scale does not evaluate impairments caused by physical or environmental factors. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV-TR”) 34 (4th Ed. 2000 (Text Revision)). A GAF score of 41-50 denotes “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. Dr. Doan stated that Plaintiff’s impairment is very likely related to alcoholism (A.R. 302). 8 1 (A.R. 301) (emphasis added for a limitation that the ALJ appears to 2 not have included in the ALJ’s residual functional capacity 3 assessment). 4 opinion (A.R. 29). The ALJ reportedly gave “some” weight to Dr. Doan’s 5 6 7 The remaining opinions post-date the state agency physicians’ review of the record (A.R. 61-90). 8 9 Plaintiff’s treating psychiatrist Dr. Robert Hampton completed an 10 “Impairment Questionnaire” dated August 6, 2014 (A.R. 306-10). 11 Hampton indicated that he first treated Plaintiff in June of 2012 and 12 had examined Plaintiff on the day Dr. Hampton completed the 13 questionnaire (A.R. 306; see also A.R. 368-76, 424-25, 545-46 (Dr. 14 Hampton’s treatment notes from January through August 2015)).5 15 Hampton’s diagnosis was schizophrenia, paranoid type, based on 16 “prominent and persistent audio hallucinations and paranoid ideations” 17 (A.R. 306). 18 pain radiating down his legs, precipitated and/or aggravated by 19 Plaintiff’s psychiatric symptoms (A.R. 307). 20 Zyprexa at bedtime and Lorazepam as needed for anxiety (A.R. 307, 21 314). 22 prescribed Celexa, Cymbalta, Seroquel, and Seroquel XR (A.R. 307). 23 response to a question regarding Plaintiff’s ability to work seated or 24 standing, Dr. Hampton wrote: “[Patient] is unable to work due to 25 psychiatric [symptoms]” (A.R. 308). 26 Plaintiff’s symptoms would likely increase because stress would lead Dr. Dr. Hampton also stated that Plaintiff had lower back Dr. Hampton prescribed As “other treatment,” Plaintiff also reportedly had been 5 There appear to be no earlier mental health treatment notes from Dr. Hampton in the Administrative Record. 9 In Dr. Hampton believed that 27 28 Dr. 1 to more hallucinations and paranoia, and Plaintiff would likely miss 2 work more than three times per month (A.R. 309-10). 3 concluded: “This patient is permanently disabled. 4 [symptoms] started in early 20’s” (A.R. 310). Dr. Hampton His psychiatric 5 6 Dr. Hampton also completed a “Mental Impairment Questionnaire” 7 dated December 24, 2014 (A.R. 315-19). Dr. Hampton most recently had 8 seen Plaintiff on December 3, 2014 (A.R. 315). 9 the same diagnosis as previously and assessed a GAF of 40 (A.R. 315).6 Dr. Hampton recorded 10 Plaintiff then had been prescribed Zyprexa, Buspar, and Lorazepam 11 (A.R. 315). 12 to support his diagnosis and assessment: 13 anxiety, auditory hallucinations, difficulty thinking or 14 concentrating, intrusive recollections of a traumatic experience, 15 paranoia/suspiciousness, recurrent panic attacks, psychomotor 16 retardation, slowed speech, social withdrawal or isolation, delusions 17 of persecution, ongoing auditory hallucinations, occasional visual 18 hallucinations and sleep disturbances (A.R. 316). 19 clinical findings supporting his diagnosis and assessment, Dr. Hampton 20 underlined “mental status examinations” and added “[patient’s] ongoing 21 complaints” (A.R. 317). 22 episodes of decompensation or deterioration in a work or work-like 23 setting, Dr. Hampton answered, “[patient] can’t work due to fear of Dr. Hampton identified the following signs and symptoms persistent or generalized When asked to list When asked whether Plaintiff experienced 24 25 26 27 28 6 A GAF of 31-40 indicates “[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work. . .).” See DSM-IV-TR at 34. 10 1 others ([with] a few exceptions)” (A.R. 317). 2 mostly “marked”7 limitations in understanding and memory, 3 concentration and persistence, social interactions, and adaptation 4 (A.R. 318). 5 than three times a month due to his impairments (A.R. 319). 6 Hampton also opined that Plaintiff’s symptoms applied as far back as 7 May 1, 2013 (A.R. 319). 8 psychiatric illness precludes any work. 9 disabled” (A.R. 319). 10 Dr. Hampton indicated Dr. Hampton opined that Plaintiff would miss work more Dr. Dr. Hampton concluded, “This patient’s He is permanently totally The ALJ gave “little” weight to Dr. Hampton’s opinions (A.R. 29). 11 12 Treating physician Dr. Rosemary Reyes of the Central City 13 Community Health Center provided a letter and completed a “Disability 14 Impairment Questionnaire” dated April 6, 2015 (A.R. 336-41). 15 Reyes first treated Plaintiff in December of 2014 and last examined 16 Plaintiff the day she completed the questionnaire (A.R. 337; see also 17 A.R. 251-84, 473-90, 539-44 (Central City Community Health Center 18 treatment notes for physical conditions)). 19 diabetes type 2, chronic back pain, neuropathy, hypertriglycerides, 20 hypertension, psychosis, and GERD (A.R. 337). 21 diagnoses, Dr. Reyes cited laboratory findings of HgbA1c at 13.6 and 22 triglycerides at 1738 when Plaintiff was not taking medication (A.R. 23 337). 24 had been referred to an endocrinologist (A.R. 336). 25 primary symptoms were sharp, constant pain in his lower back, 26 aggravated by walking and standing, and numbness in his hands (A.R. Dr. Reyes diagnosed As support for her Plaintiff’s diabetes reportedly was uncontrolled and Plaintiff Plaintiff’s 27 7 28 Dr. “Marked” means “constantly interfering with ability” (A.R. 318). 11 1 338). Plaintiff was prescribed/taking ten (10) medications at the 2 time, including Norco (A.R. 338).8 3 4 Dr. Reyes opined that Plaintiff could work in a seated position 5 only one hour in a workday, and could work standing and/or walking 6 less than one hour in a workday (A.R. 339). 7 was medically necessary for Plaintiff to avoid continuous sitting 8 during a workday, that Plaintiff must move from a seated position 9 every hour for 10 minutes, and that, while sitting, Plaintiff must Dr. Reyes opined that it 10 elevate both legs six inches or less twice a day for 45 minutes to one 11 hour (A.R. 339). 12 up to five pounds occasionally, but could never or rarely grasp, turn 13 and twist objects, use his hands and fingers for fine manipulation, or 14 use his arms for reaching (A.R. 339-40). 15 Plaintiff’s symptoms would be severe enough to interfere with his 16 attention and concentration from 1/3 to 2/3 of an eight-hour day (A.R. 17 340). 18 every hour for 10 minutes (A.R. 340). 19 would miss work more than three times a month (A.R. 341). Dr. Reyes opined that Plaintiff could lift and carry Dr. Reyes opined that According to Dr. Reyes, Plaintiff would need to take breaks Dr. Reyes opined that Plaintiff Dr. Reyes 20 8 21 22 23 24 25 26 27 28 The medical record includes monthly pain management treatment notes from May of 2012 through May of 2013 regarding Plaintiff’s back pain (A.R. 234-45, 250). Plaintiff was prescribed MS Contin from May of 2012 through February of 2013 (A.R. 236-45). Plaintiff had a lumbar spine epidural injection in December of 2012 (A.R. 246). Plaintiff was prescribed Norco starting in March of 2013 (A.R. 234-36). There are additional pain management treatment notes from another provider from April of 2014 through June of 2015, during which time Plaintiff was prescribed Norco and muscle relaxers (A.R. 378-412). Plaintiff also had a cervical spine epidural injection in October of 2014, and another lumbar spine epidural injection in March of 2015 (A.R. 384-85, 401-02). Plaintiff had yet another lumbar spine epidural injection in July of 2015 (A.R. 466). 12 1 opined that Plaintiff’s symptoms and related limitations apply as far 2 back as May 1, 2013 (A.R. 341). 3 Reyes’s opinion (A.R. 28). The ALJ gave “little” weight to Dr. 4 5 Treating pulmonologist Dr. John Saito completed a “Pulmonary 6 Impairment Questionnaire” dated April 9, 2015 (A.R. 330-35). Dr. 7 Saito first treated Plaintiff on May 15, 2014, and last examined 8 Plaintiff on December 6, 2014 (A.R. 330; see also A.R. 342-62, 496-501 9 (Dr. Saito’s treatment notes)). Dr. Saito diagnosed asthma and 10 chronic obstructive pulmonary disease, insomnia, chronic respiratory 11 insufficiency, and periodic limb movement (A.R. 330). 12 signs and findings to support his diagnoses, Dr. Saito cited shortness 13 of breath, chest tightness, wheezing, episodic acute asthma, coughing, 14 and pulmonary hypertension (A.R. 331). 15 pulmonary function testing also supported his diagnoses (A.R. 331). As clinical Dr. Saito reported that 16 17 Dr. Saito opined that Plaintiff would be able to work in a seated 18 position three hours per workday and would be able to work standing 19 and/or walking two hours per workday (A.R. 332). 20 that Plaintiff would need to avoid fumes, humidity, dust, perfumes, 21 and cigarette smoke (A.R. 333). 22 experience pain, fatigue or other symptoms severe enough to interfere 23 with his attention and concentration up to 1/3 of an 8-hour day (A.R. 24 334). 25 unscheduled breaks every two or three hours and rest between six to 26 eight hours before returning to work (A.R. 334). 27 that Plaintiff would miss work two to three times per month, and that 28 his symptoms and related limitations applied as far back as May 1, Dr. Saito opined Dr. Saito opined that Plaintiff would According to Dr. Saito, Plaintiff would need to take 13 Dr. Saito opined 1 2013 (A.R. 335). 2 The ALJ gave “little” weight to Dr. Saito’s opinion (A.R. 28). 3 4 III. Lack of Substantial Evidence 5 6 None of the treating or examining opinions supports the ALJ’s 7 decision. 8 by themselves, cannot constitute substantial evidence to support the 9 decision. The opinions of the non-examining state agency physicians, “The opinion of a nonexamining physician cannot by itself 10 constitute substantial evidence that justifies the rejection of the 11 opinion of either an examining physician or a treating physician.” 12 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (emphasis in 13 original); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) 14 (“When [a nontreating] physician relies on the same clinical findings 15 as a treating physician, but differs only in his or her conclusions, 16 the conclusions of the [nontreating] physician are not ‘substantial 17 evidence.’”); accord Revels v. Berryhill, 2017 WL 4819137, at *11 (9th 18 Cir. Oct. 26, 2017). 19 examining state agency physicians contradict all of the treating and 20 examining physicians’ opinions. 21 opinions cannot furnish substantial evidence to support the ALJ’s 22 decision. As discussed above, the opinions of the non- Thus, the non-examining physicians’ 23 24 The ALJ’s own lay opinions cannot fill the evidentiary gap. An 25 ALJ cannot properly rely on the ALJ’s own lay knowledge to make 26 medical interpretations of examination results or to determine the 27 severity of medically determinable impairments. 28 180 F.3d 1094, 1102-03 (9th Cir. 1999); Balsamo v. Chater, 142 F.3d 14 See Tackett v. Apfel, 1 75, 81 (2d Cir. 1998); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 2 1996); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 3 the ALJ’s residual functional capacity assessment lacks any 4 substantial supporting evidence. Thus, 5 6 The residual functional capacity assessment was of course 7 material to the conclusion Plaintiff can work. 8 vocational expert identified jobs that could be performed by a person 9 having the limitations the ALJ found to exist, the same expert Although the 10 testified that if a person with these limitations were off task 20 11 percent of the time, there would be no jobs such a person could 12 perform (A.R. 57-58). 13 expert, if the person were absent three or more days a month there 14 also would be no jobs that person could perform (A.R. 58). 15 the vocational expert testified that if the person were limited to 16 standing no more than two hours per day (as Dr. Saito found), or if 17 the person needed to elevate their legs (as Dr. Reyes found), there 18 would be no jobs the person could perform (A.R. 58-59). 19 light of the vocational expert’s testimony, the Court is unable to 20 deem the ALJ’s errors to have been harmless. 21 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 22 inconsequential to the ultimate non-disability determination”) 23 (citations and quotations omitted). Additionally, according to the vocational Further, Especially in See Molina v. Astrue, 24 25 IV. Remand 26 27 Remand is appropriate because the circumstances of this case 28 suggest that further administrative review could remedy the ALJ’s 15 1 errors. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 2 also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 3 administrative determination, the proper course is remand for 4 additional agency investigation or explanation, except in rare 5 circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 6 (“Unless the district court concludes that further administrative 7 proceedings would serve no useful purpose, it may not remand with a 8 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 9 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 10 proceedings is the proper remedy “in all but the rarest cases”); 11 Garrison v. Colvin, 759 F.3d at 1020 (court will credit-as-true 12 medical opinion evidence only where, inter alia, “the record has been 13 fully developed and further administrative proceedings would serve no 14 useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), 15 cert. denied, 531 U.S. 1038 (2000) (remand for further proceedings 16 rather than for the immediate payment of benefits is appropriate 17 where, as here, there are “sufficient unanswered questions in the 18 record”). 19 present record. 20 2015) (remanding for further proceedings to allow the ALJ to “comment 21 on” the treating physician’s opinion).9 There remain significant unanswered questions in the Cf. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 22 23 24 25 26 27 28 9 The Court need not and does not determine whether the ALJ stated legally sufficient reasons for rejecting the opinions of the treating and examining physicians. However, the Court observes that the ALJ cited “conservative treatment” as a reason to discount a treating physician’s opinion regarding Plaintiff’s physical conditions. See A.R. 28 (ALJ rejecting Dr. Reyes’s limitations as “not supported by the documented objective findings or the conservative treatment history”). Plaintiff’s treatment with narcotic pain medications and epidural injections (continued...) 16 1 RECOMMENDATION 2 3 For the foregoing reasons,10 IT IS RECOMMENDED that the Court 4 issue an Order: (1) accepting and adopting this Report and 5 Recommendation; and (2) directing that Judgment be entered reversing 6 in part the decision of the Administration and remanding the matter 7 for further administrative action consistent with this Report and 8 Recommendation. 9 10 DATED: November 3, 2017. 11 12 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 9 (...continued) likely does not constitute “conservative treatment.” See, e.g., Garrison v. Colvin, 759 F.3d at 1015 n. 20 (Ninth Circuit “doubt[s] that epidural steroid shots to the neck and lower back qualify as ‘conservative’ medical treatment”); Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of [Norco] (for several years) is ‘conservative’ or in conflict with Plaintiff’s pain testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“there is evidence in the record that Plaintiff has been prescribed narcotic pain medications. . . . It would be difficult to fault Plaintiff for overly conservative treatment when he has been prescribed strong narcotic pain medications”); Salinas v. Astrue, 2012 WL 1400362, at *3-4 (C.D. Cal. Apr. 23, 2012) (epidural injections are not necessarily “conservative” treatment); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to categorize as “conservative” treatment including the use of narcotic pain medication and epidural injections). 26 10 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be an appropriate remedy at this time. 17 1 NOTICE 2 Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. No notice of appeal pursuant to the 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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