Vieira v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Deborah Barnes on 3/8/2017; GRANTING in PART DENYING in PART 17 Motion for Summary Judgment; GRANTING in PART DENYING in PART 18 Cross-Motion for Summary Judgment; The Commissioner's decision is reversed; This matter is remanded for further proceedings consistent with this order. CASE CLOSED (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANKIE REIS VIEIRA,

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Plaintiff,

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No. 2:15-cv-1685 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This social security action was submitted to the court without oral argument for ruling on

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plaintiff’s motion for summary judgment.1 Plaintiff’s motion argues that the ALJ committed the

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following three principal errors: (1) the ALJ’s treatment of the subjective testimony constituted

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error; (2) the ALJ’s treatment of the medical opinion evidence constituted error; and (3) the ALJ’s

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residual functional capacity determination and step five finding constituted error.
For the reasons explained below, plaintiff’s motion is granted in part and denied in part,

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the decision of the Commissioner of Social Security (“Commissioner”) is reversed, and the matter

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is remanded for further proceedings consistent with this order.

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 6 & 9.)
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PROCEDURAL BACKGROUND

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On December 10, 2010, plaintiff filed applications for Disability Insurance Benefits

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(“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security

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Income (“SSI”) under Title XVI of the Act alleging disability beginning on January 14, 2008.

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(Transcript (“Tr.”) at 245, 428-43.) Plaintiff’s applications were denied initially, (id. at 279-83),

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upon reconsideration, (id. at 285-90), and later by an Administrative Law Judge. (Id. at 245-64.)

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On February 28, 2014, the Appeal Council vacated the ALJ’s decision and remanded the

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matter to the ALJ for further proceedings. (Id. at 271-74.) On December 3, 2014, a hearing was

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held before an ALJ. (Id. at 48-94.) Plaintiff was represented by an attorney and testified at the

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administrative hearing. (Id. at 48-49.)
In a decision issued on February 18, 2015, the ALJ found that plaintiff was not disabled.
(Id. at 39.) The ALJ entered the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity
since January 14, 2008, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: major
depression, alcohol abuse disorder in remission, cannabis abuse
disorder, bipolar disorder, borderline intellectual functioning,
attention deficit hyperactivity disorder, cervical spine stenosis
status post surgery with residual degenerative disk disease at the C3
and C4 levels, status post bilateral posterior cervical
foraminotomies at the C5-6 level, right shoulder arthritis, and
bilateral carpal tunnel syndrome (20 CFR 404.1520(c) and
416.920(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). The claimant can lift, carry, push and or pull 20
pounds occasionally and 10 pounds frequently. The claimant can
stand and/or walk, with normal breaks, for 6 hours in an 8-hour
workday. The claimant can sit, with normal breaks, for 6-hours in
an 8-hour workday. The claimant can never climb ladders, ropes,
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or scaffolds. The claimant can frequently kneel, crouch, bend, and
can frequently climb ramps and stairs. The claimant can
occasionally crawl. The claimant can frequently perform fingering,
fine and gross manipulation with the bilateral upper extremities.
The claimant can perform simple, repetitive, routine-type tasks.
The claimant can frequently interact with supervisors, co-workers,
and the public. The claimant can maintain concentration,
persistence, and pace for simple, repetitive, and routine tasks.

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6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).

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7. The claimant was born on November 27, 1968 and was 39 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 CFR 404.1563 and 416.963).

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8. The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564 and 416.964).

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9. Transferability of job skills is not an issue in this case because
the claimant’s past relevant work is unskilled (20 CFR 404.1568
and 416.968).

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10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

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11. The claimant has not been under a disability, as defined in the
Social Security Act, from January 14, 2008, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

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(Id. at 19-39.)

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On May 29, 2015, the Appeals Council denied plaintiff’s request for review of the ALJ’s

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February 18, 2015 decision. (Id. at 5-7.) Plaintiff sought judicial review pursuant to 42 U.S.C. §

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405(g) by filing the complaint in this action on August 7, 2015. (ECF No. 1.)
LEGAL STANDARD

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“The district court reviews the Commissioner’s final decision for substantial evidence,

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and the Commissioner’s decision will be disturbed only if it is not supported by substantial

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evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

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Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).

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“[A] reviewing court must consider the entire record as a whole and may not affirm

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simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

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1989)). If, however, “the record considered as a whole can reasonably support either affirming or

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reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

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1072, 1075 (9th Cir. 2002).

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A five-step evaluation process is used to determine whether a claimant is disabled. 20

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C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

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process has been summarized as follows:

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Step one: Is the claimant engaging in substantial gainful activity?
If so, the claimant is found not disabled. If not, proceed to step
two.

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Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, then a finding of not disabled is
appropriate.

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Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.

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Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.

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Step five: Does the claimant have the residual functional capacity
to perform any other work? If so, the claimant is not disabled. If
not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation

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process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

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if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

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1098 (9th Cir. 1999).

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APPLICATION

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In his pending motion plaintiff argues that the ALJ committed the following three

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principal errors2: (1) the ALJ’s treatment of the subjective testimony constituted error; (2) the

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ALJ’s treatment of the medical opinion evidence constituted error; and (3) the ALJ’s residual

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functional capacity determination and step five finding constituted error.3 (Pl.’s MSJ (ECF No.

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17) at 10-26.4)

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I.

Plaintiff argues that the ALJ’s treatment of plaintiff’s testimony and the testimony of his

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Subjective Testimony

mother constituted error. (Id. at 20-24.)
Plaintiff’s Testimony

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A)

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The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s

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credibility as follows:
To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
ALJ may not reject subjective symptom testimony . . . simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.

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Second, if the claimant meets this first test, and there is no evidence
of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so . . . .

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

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omitted). “The clear and convincing standard is the most demanding required in Social Security

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cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

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As noted by defendant, it is difficult to discern all of the arguments found in plaintiff’s motion
for summary judgment. In this regard, the court has attempted to comprehend and analyze
plaintiff’s arguments to the extent possible.
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The court has reordered plaintiff’s arguments for purposes of clarity and efficiency.
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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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the same time, the ALJ is not required to believe every allegation of disabling pain, or else

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disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d 1104, 1112

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(9th Cir. 2012).

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“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant’s complaints.” Valentine v. Commissioner Social Sec. Admin., 574

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F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other

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things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s]

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testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work

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record, and testimony from physicians and third parties concerning the nature, severity, and effect

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of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59

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(9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792

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(9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the

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record, the court “may not engage in second-guessing.” Id.

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Here, the ALJ found that plaintiff’s medically determinable impairments could reasonably

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be expected to cause his alleged symptoms, but that plaintiff’s statements concerning the

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intensity, persistence and limiting effects of those symptoms were not “entirely credible for the

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reasons explained in this decision.” (Tr. at 24.) That is the entirety of the ALJ’s specific analysis

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of plaintiff’s credibility. In this regard, the ALJ’s decision fails to provide a clear and convincing

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reason for discrediting plaintiff’s testimony.

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Defendant’s motion argues that the ALJ “appropriately found Plaintiff’s testimony not

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fully credible.” (Def.’s MSJ (ECF No. 18) at 14.) In support of this argument, defendant cites to

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the ALJ’s decision pages “20-36.” (Id.) Defendant then proceeds to assert that the ALJ did

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provide specific reasons for rejecting plaintiff’s testimony, referencing various parts of the ALJ’s

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decision in which the ALJ “noted” or “pointed to” evidence that defendant contends undermined

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plaintiff’s credibility. (Id. at 14-18.)

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Although the ALJ’s decision did generally discuss the findings and evidence cited by
defendant, the ALJ did not specifically refer to any of these as a reason for discrediting plaintiff’s
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testimony. This is perhaps most easily recognized from defendant’s attempt to support her

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argument with citations to the ALJ’s decision. Such citations are not found on a single page or

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spanning two pages, but from disparate parts of the ALJ’s decision. And the ALJ’s decision

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made no effort to specifically link the discussion of these items of evidence to the rejection of

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plaintiff’s testimony.

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It is well established that the court is required “to review the ALJ’s decision based on the

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reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to

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intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554

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F.3d 1219, 1225 (9th Cir. 2009). Rather, the Commissioner’s decision “must stand or fall with

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the reasons set forth in the ALJ’s decision, as adopted by the Appeals Council.” Barbato v.

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Comm’r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n. 2 (C.D. Cal. 1996); see also Gonzalez

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v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (“[W]e are wary of speculating about the basis

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of the ALJ’s conclusion . . . .”).

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In this regard, it simply cannot be said that the ALJ offered specific, clear, and convincing
reasons for rejecting plaintiff’s testimony.
Plaintiff’s Mother’s Testimony

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B)

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The testimony of lay witnesses, including family members and friends, reflecting their

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own observations of how the claimant’s impairments affect his activities must be considered and

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discussed by the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006); Smolen

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v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.

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1987). Persons who see the claimant on a daily basis are competent to testify as to their

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observations. Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999);

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Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). If the ALJ chooses to reject or discount

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the testimony of a lay witness, he or she must give reasons germane to each particular witness in

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doing so. Regennitter, 166 F.3d at 1298; Dodrill, 12 F.3d at 919.

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The mere fact that a lay witness is a relative of the claimant cannot be a ground for

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rejecting the witness’s testimony. Regennitter, 166 F.3d at 1298; Smolen, 80 F.3d at 1289.

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Moreover, “the reasons ‘germane to each witness’ must be specific.” Bruce v. Astrue, 557 F.3d
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1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006)).
Here, the ALJ’s decisions discussed the testimony of plaintiff’s mother, noting that

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plaintiff’s mother had “prepared several statements on behalf of her son.” (Tr. at 23.) Those

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statements reflected that plaintiff was “easily sidetracked,” “experienced many failed

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relationships,” was unable to handle money, was violent and had “memory difficulty.” (Id.)

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Moreover, plaintiff struggled to perform simple tasks, required “a book of reminders,” had

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difficulty understanding directions, and could not “fill out, or read, paperwork.” (Id.) Plaintiff’s

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mother also recounted that he suffered mood swings, and numbness and pain in his arms and

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hands. (Id.) Plaintiff’s violence resulted in physical fights with his brother, the destruction of

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property, and threats “forcing [his mother] to obtain a restraining order against” him. (Id.)

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The ALJ ultimately found that plaintiff’s mother’s testimony was not credible because

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“the evidence shows otherwise.” (Id. at 37.) In this regard, the ALJ found that her statements

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were “not consistent with the preponderance of the evidence in this case.” (Id.) That is the extent

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of the reasoning offered by the ALJ in support of the decision to reject the testimony of plaintiff’s

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mother.
“[A]n ALJ may discount lay testimony . . . that . . . conflicts with medical evidence.”

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Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). From the ALJ’s vague and conclusory

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assertion, however, the court is unable to determine whether the ALJ’s finding is accurate. In this

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regard, the ALJ’s decision only informs the court that the testimony of plaintiff’s mother was not

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consistent with the preponderance of evidence. The court is left in the dark as to what evidence

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the ALJ found supported and what evidence contradicted the testimony of plaintiff’s mother and

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whether the ALJ’s findings are accurate.

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Accordingly, the court finds that plaintiff is entitled to summary judgment on his claim

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that the ALJ’s treatment of the subjective testimony constituted error.

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II.

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Medical Opinion Evidence
The weight to be given to medical opinions in Social Security disability cases depends in

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part on whether the opinions are proffered by treating, examining, or nonexamining health

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professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a
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general rule, more weight should be given to the opinion of a treating source than to the opinion

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of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a

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treating doctor is employed to cure and has a greater opportunity to know and observe the patient

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as an individual. Smolen, 80 F.3d at 1285; Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir.

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1990).

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The uncontradicted opinion of a treating or examining physician may be rejected only for

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clear and convincing reasons, while the opinion of a treating or examining physician that is

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controverted by another doctor may be rejected only for specific and legitimate reasons supported

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by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining

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physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion

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of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a

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treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not

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accept the opinion of any physician, including a treating physician, if that opinion is brief,

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conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661,

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671 (9th Cir. 2012) (quoting Bray, 554 F.3d at 1228).

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A.

Dr. A. Genest

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Plaintiff challenges the ALJ’s treatment of the opinion of Dr. A. Genest. (Pl.’s MSJ

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(ECF No. 17) at 13-16.) In this regard, Dr. Genest testified at the December 3, 2014

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administrative hearing. (Tr. at 49.) The ALJ’s decision recounted Dr. Genest’s opinion, noting

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first that “Dr. Genest opined that the [plaintiff’s] major depression combined with ADHD and

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borderline intellectual functioning equaled listing 12.04,”5 and that “it was not unreasonable for a

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person with such psychiatric issues to miss work more than three times per month.” (Id. at 33.)

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The ALJ, however, assigned Dr. Genest’s opinion “little weight,” finding the opinion to

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be “not wholly consistent with the medical evidence of record or with his medical specialty[.]”

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At step three of the sequential evaluation, the ALJ must determine whether a claimant’s
impairment or impairments meet or equal one of the specific impairments set forth in the Listings.
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The physical and mental conditions
contained in the Listings are considered so severe that “they are irrebuttably presumed disabling,
without any specific finding as to the claimant’s ability to perform his past relevant work or any
other jobs.” Lester, 81 F.3d at 828.
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(Id.) In this regard, the ALJ began by noting that Dr. Genest was a “neurosurgeon whose

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specialty is not consistent with psychiatric disorders.” (Id.) It is true that greater weight should

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be given to the “‘opinion of a specialist about medical issues related to his or her area of

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specialty.’” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (quoting 20 C.F.R. §

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404.1527(d)(5)). However, that Dr. Genest is not a specialist is not cause to reject his opinion.6

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The ALJ then stated that Dr. Genest’s opinion was given little weight because “[t]here is

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no support in the record that the claimant’s concussions caused borderline intellectual

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functioning.” (Tr. at 33.) Dr. Genest testified, however, that his opinion was based, in part, on

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plaintiff’s January 2, 2014 Learning Disability Evaluation, performed by Dr. Kenneth

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Brynjolfsson. (Tr. at 64.) That evaluation stated that plaintiff “reported a significant history of

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concussions,” and that testing revealed that plaintiff was “functioning intellectually within the

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borderline range (4th percentile).”7 (Id. at 1385, 1388.) In this regard, it cannot be said that there

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was no support in the record that plaintiff’s concussions caused borderline intellectual

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functioning.
Nonetheless, the ALJ also rejected Dr. Genest’s opinion that plaintiff equaled Listing

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12.04 because “[t]he record shows that when the claimant does stop consuming alcohol, his

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symptoms stabilize.” (Tr. at 33.) The ALJ noted that treatment notes from Dr. Imran Khan

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reflected that plaintiff’s drug and alcohol use “exacerbates some symptoms.”8 (Id.) Dr. Khan’s

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treatment notes support the ALJ’s findings. (Id. at 1324, 1327, 1340.) “The Commissioner may

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reject the opinion of a non-examining physician by reference to specific evidence in the medical

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record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).
Dr. Genest also opined that plaintiff’s cervical spine stenosis with degenerative disk

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disease met the criteria for listing 1.04. (Tr. at 33.) The ALJ’s decision, however, found that Dr.

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Genest’s opinion was “not consistent with the medical evidence of record” and assigned the

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It is somewhat puzzling that the ALJ would call Dr. Genest to testify as an expert, ask him to
opine as to plaintiff’s mental impairments, and then reject his opinion because he is not a
specialist.
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The ALJ assigned this opinion “significant weight.” (Tr. at 36.)
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At the administrative hearing, Dr. Genest seemed to acknowledge that he “missed” the fact that
plaintiff was again consuming alcohol during a relevant period of time. (Tr. at 67.)
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opinion “little weight.” (Id. at 33, 34.)

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The ALJ noted that although plaintiff alleges disability beginning in 2008, he hurt his

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shoulder playing softball in August of 2010, and again in December of 2010 by jumping off a

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bridge. (Id. at 34.) Moreover, the ALJ noted that on September 19, 2013, plaintiff’s treating

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physician opined that plaintiff could return to “light duty” for six weeks and then “return to full

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duty.” (Id. at 34, 1209.) As noted above, “[t]he Commissioner may reject the opinion of a non-

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examining physician by reference to specific evidence in the medical record.” Sousa, 143 F.3d at

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1244.

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B.

Dr. Kimberly A Page

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Plaintiff argues that the ALJ’s decision ignored the medical opinions provided by

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plaintiff’s treating surgeon, Dr. Kimberly Page. (Pl.’s MSJ (ECF No. 17) at 17-18.) As noted by

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defendant, however, plaintiff is mistaken. (Def.’s MSJ (ECF No. 18) at 12.) In this regard, Dr.

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Page’s opinions can be found in her treatment notes. And the ALJ’s decision thoroughly

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discussed Dr. Page’s treatment notes.

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With respect to Dr. Page, the ALJ’s decision stated:

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Dr. Mikulecky referred the claimant to neurosurgeon, Dr. Kimberly
Page, who . . . recommended anterior cervical discectomy with
fusion (ACDF) at the most stenotic cervical levels at C3-4 and C45. Dr. Page performed the surgery on February 1, 2012 without
incident.

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Follow up imaging revealed a broad-based disc osteophye complex
at the C5-6 level, which Dr. Page opined, was causing moderate
bilateral neural foraminal narrowing. She recommended posterior
cervical decompression surgery. The claimant underwent the
recommended surgery on July 25, 2013 . . . . In a follow up
appointment with Dr. Page in August 2013, the claimant reported
doing well with only some residual weakness. Examination of the
cervical spine revealed no tenderness to palpation, no pain, normal
cervical spine movements, and normal postures. Examination of
the thoracic and lumbar spine were unremarkable as well. On
September 19, 2013, Dr. Page returned the claimant to work with
restriction to a twenty-five pound weight restriction.

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Treatment notes however indicate that the claimant presented to
care with Dr. Page again in August 2014 reporting an 8-month
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history of cervical pain with radiation to the left arm and hand. He
helped move furniture in January 2014 and experienced neck pain
with radiation down the left arm. Dr. Page noted positive Tinel’s
sign of the left wrist. She opined his symptoms were related to
spasms in his neck and referred the claimant to physical therapy but
ordered EMG studies as well. The EMG study performed in
September 2014 revealed moderate right carpal tunnel syndrome
and no evidence of cervical radiculopathy or other entrapment or
peripheral neuropathy. She opined no surgery was currently
indicated for the claimant’s carpal tunnel syndrome.

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(Id. at 30-31) (citations omitted).

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The ALJ’s decision also acknowledged that, after plaintiff experienced pain playing

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basketball in the fall of 2012, Dr. Page opined that plaintiff’s “broad-based disc osteophyte

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complex at the C5-6 level . . . was causing moderate neural foraminal narrowing not cord

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compression.” (Id. at 34.) Dr. Page performed bilateral posterior cervical foraminotomies in July

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2013. (Id.) In September of 2014 plaintiff underwent EMG studies which “were consistent with

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bilateral carpal tunnel syndrome,” however, Dr. Page “opined [it] did not require surgery.” (Id.)

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(citations omitted).

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In this regard, it cannot be said that the ALJ’s decision ignored Dr. Page’s opinions.

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C.

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Plaintiff also makes a vague and conclusory assertion that the ALJ improperly discredited

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“other” medical source testimony. (Pl.’s MSJ (ECF No. 17) at 21.) In addition to evidence from

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acceptable medical sources, a plaintiff may offer opinions from “other sources” to establish the

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severity of impairments. See 20 C.F.R. §§ 404.1513(d), 416.913(d). However, the ALJ may

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afford less weight to other source opinions. Nonetheless, the ALJ may only reject evidence from

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an “other source,” if the ALJ gives a germane reason for doing so. See Molina v. Astrue, 674

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F.3d 1104, 1111 (9th Cir. 2012); Bain v. Astrue, 319 Fed. Appx. 543, 546 (9th Cir. 2009); Petty

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v. Colvin, 954 F.Supp.2d 914, 926 (D. Ariz. 2013) (“An ALJ is free to discount testimony from

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other sources, but as the Commissioner concedes, he must give reasons germane to each witness

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for doing so.”).

Other Source Opinions

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Here, plaintiff argues that the ALJ improperly rejected the opinion of Ernesto Cervantes, a

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Licensed Clinical Social Worker. (Pl.’s MSJ (ECF No. 17) at 22.) The ALJ’s decision, however,
12

1

found that Cervantes’ opinion was “not consistent with the record as a whole.” (Tr. at 35.) In

2

this regard, although Cervantes opined that plaintiff suffered from panic attacks, “the record does

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not show medical evidence in support of panic attacks.” (Id.) Cervantes opinion also described

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plaintiff as “not a team player,” yet the record showed that plaintiff participated in a baseball

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league. (Id. at 36.) Moreover, the record established that when claimant abstained from

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substance use and complied with his treatment, his symptoms improved. (Id. at 35-36.)

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Inconsistency with medical evidence is a germane reason to afford less weight to an “other

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source” opinion. See Ball v. Colvin, 607 Fed. Appx. 709, 710 (9th Cir. 2015) (inconsistency with

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“contemporaneous medical evidence” is a germane reason).

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Plaintiff also argues that the ALJ erred with respect to the August 24, 2010 opinion of

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Barbara Nolet, a Psychiatric Nurse Practitioner. (Pl.’s MSJ (ECF No. 17) at 21-22.) Nolet

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opined, in part, that plaintiff was “severely disabled” and “unable to sustain employment or earn

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even a GED” due to his symptoms. (Tr. at 645.) The ALJ’s decision fails to address Nolet’s

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August 24, 2010 opinion.

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The opinions from other sources are important and must be evaluated by the ALJ. See

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Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 2014) (ALJ erred by failing to recognize

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“other source that can provide evidence about the severity of a claimant’s impairments and how it

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affects the claimant’s ability to work”); SSR 06-03p, 2006 WL 2329939, at *3 (“Opinions from

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these medical sources, who are not technically deemed ‘acceptable medical sources’ under our

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rules, are important and should be evaluated on key issues such as impairment severity and

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functional effects, along with the other relevant evidence in the file.”).

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Accordingly, the court finds that plaintiff is entitled to summary judgment on his claim

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that the ALJ’s treatment of Nolet’s other source opinion constituted error. Plaintiff is not entitled

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to summary judgment with respect to the ALJ’s treatment of the medical opinions of Dr. Genest

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or Dr. Page.

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CONCLUSION

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Plaintiff’s motion for summary judgment is granted with respect to plaintiff’s claims

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concerning the ALJ’s treatment of the subjective evidence and Nolet’s other source opinion.
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Plaintiff’s motion is denied as to plaintiff’s claims that the ALJ’s treatment of the medical

2

opinions of Dr. Genest or Dr. Page constituted error.9

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With error established, the court has the discretion to remand or reverse and award

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benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

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under the “credit-as-true” rule for an award of benefits where:

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(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.

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8
9
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Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met,

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the court retains “flexibility to remand for further proceedings when the record as a whole creates

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serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social

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Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)

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(“Unless the district court concludes that further administrative proceedings would serve no

15

useful purpose, it may not remand with a direction to provide benefits.”); Treichler v.

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Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ

17

makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand

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the case to the agency.”).

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Here, although the ALJ has erred, those errors are not such that the court can say that

20

“further administrative proceedings would serve no useful purpose.” Dominguez, 808 F.3d at

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407; see also Treichler, 775 F.3d at 1103-04 (“In evaluating this issue, we consider whether the

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record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been

23

resolved, and whether the claimant’s entitlement to benefits is clear under the applicable legal

24

rules.”).

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Plaintiff’s third claim—that the ALJ’s residual functional capacity determination and step five
finding constituted error— is premised on his arguments that the ALJ’s treatment of the
subjective testimony and the medical opinion evidence constituted error. As explained above, the
court has found that the ALJ’s treatment of the subjective testimony and some of the medical
opinion evidence constituted error. Those errors call into question that ALJ’s residual functional
capacity determination and step five finding. Accordingly, the court need not address this claim.
14

1

Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 17) is granted in part and denied in

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part;
2. Defendant’s cross-motion for summary judgment (ECF No. 18) is granted in part and
denied in part;

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3. The Commissioner’s decision is reversed; and

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4. This matter is remanded for further proceedings consistent with this order.

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Dated: March 8, 2017

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