Wilburn v. Commissioner of Social Security

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/25/2021 RECOMMENDING that Defendant's 29 cross-motion for summary judgment be denied. The Commissioner's final decision be reversed and this matter be remanded for further proceedings consistent with these findings and recommendations. Motion referred to Judge William B. Shubb. Objections to F&R due within 14 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIMBERLY LYNN WILBURN,

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No. 2:18-CV-0994-WBS-DMC

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding pro se, brings this action for judicial review of a final

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decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pending before the

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Court are the parties’ briefs on the merits, ECF Nos. 26, 28, and 29.

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The Court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).
For the reasons discussed below, the court recommends the matter be remanded
for further proceedings.

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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

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Step 5

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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Plaintiff applied for social security benefits on October 11, 2013. See CAR 1129.1

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In the application, plaintiff claims disability began on December 21, 2012. See id. Plaintiff’s

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claim was initially denied. Following denial of reconsideration, plaintiff requested an

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administrative hearing, which was held on September 13, 2016, before Administrative Law Judge

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(ALJ) Trevor Skarda. At the time of the hearing, Plaintiff was represented by attorney Jonathan

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A. Hendricks. In a February 1, 2017, decision, the ALJ concluded plaintiff is not disabled based

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on the following relevant findings:

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1.

The claimant has the following severe impairment(s): degenerative
disc disease of the cervical spine, migraine headaches, status post
traumatic brain injury, and depression;

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The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

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The claimant has the following residual functional capacity: light
work; the claimant is never able to climb ladders, ropes, or
scaffolds; she can frequently handle, bilaterally, and occasional
reach overhead; the claimant must avoid concentrated exposure to
excessive noise and hazards, defined as operational control of
dangerous, moving machinery and unprotected heights; she is
limited to simple, routine, repetitive tasks; she is limited to a lowstress job, defined as having only occasional decision-making
requirements and only occasional changes in the work setting; she
is limited to occasional face-to-face interaction with the public;

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony, there
are jobs that exist in significant numbers in the national economy
that the claimant can perform.

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See id. at 1129-41.

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After the Appeals Council declined review on February 23, 2018, this appeal followed.

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Citations are the to the Certified Administrative Record (CAR) lodged on July 5,
2019, ECF No. 19.
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III. DISCUSSION

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In support of the instant action for judicial review, Plaintiff has submitted the
following:

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ECF No. 26

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ECF No. 28. “Plaintiff’s (1) Certificate of Service; (2) Traffic Collision
Report (3) Medical Records – Sutter Health Memorial Hospital;
(4) Medical Records – Palo Alto Medical Foundation.”

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“Plaintiff’s Reply in Support of Motion for Summary
Judgment/Remand.”2

The Court will treat Plaintiff’s filing at ECF No. 26 as her opening brief.
Plaintiff challenges the ALJ’s vocational findings and the ALJ’s evaluation of

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medical opinions offered by Drs. Hirsch, Falkenburg, and Desai. Plaintiff also appears to

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challenge the ALJ’s credibility assessment. In her pro se brief, Plaintiff states:

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Defendant fails to meaningfully address that the ALJ
committed legal error at step four in finding Plaintiff can perform her/my
past “composite” job work as it is “generally performed.”
Defendant miscasts the issue on Plaintiff’s first claim of error as
one of substantial evidence. The question, however, is if the ALJ
committed legal error by violating Social Security’s own rules which
prohibit the ALJ from finding a claimant capable of her/my past work as it
is generally performed where that work is a “composite” job. Defendant’s
opposition does not meaningfully address this issue.
Defendant does not address or at all rebut that the vocational
expert testified affirmatively to the fact that she cannot do past work and
that the one job in U.S. economy that the vocational expert chose did not
go with doctors NeuroPsyche eval on capacity. The ALJ denied Plaintiff’s
disability claim at step four and five strictly on the basis she could perform
the only one job the vocational expert found in the U.S. economy was a
swimming locker room. This goes against the NeuroPsych eval of
Stanford for Plaintiff’s tramatic [sic] brain injury that the Plaintiff if ever
would go back to work would need a quiet room that is not what the
vocational expert used they dismissed the doctors at Standord’s
evaluations and professional opions [sic] and did not choose a job in the
U.S. economy based on doctors evaluations.
Moreover, Defendants [sic] omits medical records only choses
medical records were used. (citation omitted). This Court and other
courts in this Circuit have reversed on the same issue specific to the
present case; that a job performed at a greater exertional level than under
the DOT is a composite job, and thus cannot support a finding at step four
& five as it is generally performed and the ignoring doctors evaluations
even to the extent not to believe the Plaintiff about her inurys [sic].

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Plaintiff states this filing is a “reply to defendant, Commissioner of Social
Security’s (“Defendant” or the “Commissioner”) opposition and cross-motion for summary
Judgment. ECF No. 26, pg. 1. In this regard, the Court observes that this document was filed
before Defendant’s brief.
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For these reasons and those set forth in Plaintiff’s moving papers,
the Court should reverse the ALJ’s step for [sic] denial. At the very least
remand back to the ALJ’s court.
2.
The ALJ’s rejection of opinions from consulting
neurologist Dr. Karen G. Hirsch neurology specialist in Stanford,
California. The rejection of primary care Dr. Joanne Falkenburg on
Plaintiff’s medical condition.
Defendant’s opposition also does not specifically address any of
Plaintiff’s arguments that the reasons the ALJ gave to reject both doctors
[sic] medical opions [sic] were erroneous as a matter of law.
First, Defendant ignors [sic] that ALJ’s conclusion that doctors
[sic] opions [sic] are “not consistent with the record” or that the record
shows the “limitations are less than mild” constitutes legal error. (citation
omitted).
Second, Defendant ignors [sic] ALJ committed legal error by
relying on her preliminary evaluation at step two to support the ALJ’s
RFC finding, which rejected all of Plaintiff’s limitations.
Third, Defendant does not respond to the point that the ALJ could
not reject the doctors [sic] consulting opions [sic] on the basis that the
record lacked extensive mental health treatment without the ALJ
considering the evidence that Plaintiff lacked insurance coverage to access
the “comprehensive” treatment Plaintiff’s doctors and specialist requires
for treatment of Plaintiff’s medical conditions and that Plaintiff still does
not have insurance coverage to access proper treatment still.
Fourth, Defendants make no mention of the fact that ALJ distorted
Plaintiffs [sic] testimony that she stopped work somehow equating to an
admission that Plaintiff is not limited to tramatic [sic] brain injury &
spinal cord injury. Post traumatic stress disorder depression, anxiety,
adjustment disorder, dificultly [sic] walking, dificulty [sic] with ADL’s.
Plaintiff has had three head injurys [sic] in adult life and those records left
out.
Defendants [sic] opposition is limited to broad generalizations that
the ALJ ‘reasonably” evaluated the record, and it makes it so Plaintiff [sic]
points of error are not substantively challenged. Given the limitations of
these conditions will impact regular attendance and likely would cause
difficulties in completing an eight-hour day.
The ALJ’s legally erroneous reasons for dismissing this evidence
should result in remand.
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The ALJ & Defendant’s present opposition mischaracterize
Dr. Desi treatment reports which do not constitute medical opions [sic].
Defendant charge that Plaintiff seeks to “re-weigh.” There are two
claims of error here. First limiting reasoning the ALJ provided that Dr.
Desi treatment reports contradict RFC.
Plaintiff is “severely” disabled in lifting, walking, sitting, standing,
travelling, and personal care. There is on re-weighing the of [sic]
evidence involved; noting ALJ & Defendants [sic] opposition
misunderstands & misrepresents. Diagnosises [sic] & treatment notes and
law officers of Stanislaus County.
Law officer Kathleen S. who went under cover as Debbie Frasula
and Gracie Christmas as the apartment manager at Plaintiff’s apartment
complex due to Plaintiff’s sever [sic] complications with traumatic brain
injury had witnessed in demeaning and humiliating effects of Plaintiff’s
severe disabilities – this officer was the Stanislaus County’s determining
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factor for SSDI. She told me yes as to her observance I do have a tramatic
[sic] brain injury and that I would be getting approved – because she
witnessed first-hand how bad the multiple brain injury’s [sic] had affected
me. I the Plaintiff do feel there is discrimination. I have a severe
disability but was discriminated on basis of religion, no children, and
disability’s [sic] that are unseen.
My neighbor Tanya was approved for SSDI – because she has a
child she lied to the ALJ stating that she could not sit at a desk for eight
hours – however when she got her SSDI approval she sat on a train for
over 30 days across county back & forth on an Amtrack [sic] train. If she
can sit on a train over 30 days across the US & back she can work all the
hours required for the U.S. economy – she was approved because she had
a child when I told the local SSA office they made excuses for her
protecting her. This is not what SSDI is for.
I am requesting a remand of my case but of hers as well. The ALJs
[sic] conclusory finding should be reversed as legal error.

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ECF No. 26, pgs. 1-16.
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A.

Medical Opinions
“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

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533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not

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explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

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2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical

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opinion over another. See id.

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Under the regulations, only “licensed physicians and certain qualified specialists”

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are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on

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an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it

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rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute

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substantial evidence when the opinions are consistent with independent clinical findings or other

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evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social

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workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec.

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Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants

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also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016).

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Opinions from “other sources” such as nurse practitioners, physician assistants, and social
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workers may be discounted provided the ALJ provides reasons germane to each source for doing

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so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874

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F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance

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when opinions from “other sources” may be considered acceptable medical opinions).

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The weight given to medical opinions depends in part on whether they are

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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual, than

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the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th

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Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the

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opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th

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Cir. 1990).

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In addition to considering its source, to evaluate whether the Commissioner

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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in

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the record; and (2) clinical findings support the opinions. The Commissioner may reject an

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uncontradicted opinion of a treating or examining medical professional only for “clear and

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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

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by an examining professional’s opinion which is supported by different independent clinical

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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

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1041 (9th Cir. 1995).

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A contradicted opinion of a treating or examining professional may be rejected

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only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d

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at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the

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facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,
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without other evidence, is insufficient to reject the opinion of a treating or examining

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professional. See id. at 831. In any event, the Commissioner need not give weight to any

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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see

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also Magallanes, 881 F.2d at 751.

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At Step 4, the ALJ summarized medical findings offered by: Nayan P. Desai,

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M.D., who conducted a neurological evaluation of Plaintiff on April 10, 2013, see CAR 1136;

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Karen G. Hirsch, M.D., who conducted a neurological evaluation of Plaintiff on May 22, 2013,

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see id. at 1136-37; and Joann Falkenburg, M.D., Plaintiff’s primary treating provider, see id. at

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1137. This evidence relates to Plaintiff’s physical impairments. As to Plaintiff’s mental

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impairments, the ALJ considered findings offered by Lauren L. Drag, Ph.D., who performed a

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neuropsychological evaluation on December 31, 2013, see id. at 1137-38, and Paul George, M.D.,

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Ph.D., who evaluated Plaintiff on January 3, 2014, relative to Plaintiff’s traumatic brain injury,

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see id. at 1138. Finally, the ALJ considered reports offered by agency consultative reviewing

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doctors – R. Fast, M.D., I. Ocrant, M.D., G. Ikawa M.D., and M. Franco, Psy.D. See id. at 1138-

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39.
The ALJ afforded “great weight” to the opinion of Dr. Fast. See id. at 1138. The

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ALJ afforded “little weight” to the opinion of Drs. Ocrant and Falkenburg. See id. Finally, the

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ALJ gave “partial weight” to the opinions of Drs. Ikawa and Franco. See id. at 1139.
Plaintiff challenges the ALJ’s analysis with respect to Drs. Deasi, Hirsch, and

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Falkenburg.

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As to Dr. Desai, the ALJ stated:

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Nayan P. Desai, M.D., performed a follow-up neurological evaluation of
the claimant on April 10, 2013. Dr. Desai noted that the claimant had a
post-concussion syndrome after an accident in December of 2012 and a
history of episodic migraine headaches. The doctor observed that the
claimant continued to get daily low-grade headaches, to have balance
problems, and to have cognitive issues. The doctor noted that the
claimant’s intense headaches had improved somewhat. Dr. Desai found
the claimant to be alert and oriented, to have a symmetric face, and to have
a normal coordination and gait. The doctor diagnosed the claimant with
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Drs. Desai and Hirsch

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post-concussion syndrome with migraine flare-ups [Exhibit 2F9]. Dr.
Desai noted on July 31, 2013, that the claimant was having fewer migraine
headaches. The doctor noted that counseling therapy was advised by Dr.
Hirsch at Stanford, but the claimant could not make it [Exhibit 2F29]. Dr.
Desai noted on September 23, 2013, that the claimant’s condition
demonstrated an unusually prolonged course of recovery. The doctor
noted that the claimant should follow-up with Dr. Hirsch at Stanford, as
her progress was not within his experience [Exhibit 2F68].

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CAR 1136.
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As to Dr. Hirsch, the ALJ stated:

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Karen G. Hirsch, M.D., performed a neurology examination of the
claimant on May 22, 2013. Dr. Hirsch observed that the claimant was
alert, oriented, and in no acute distress. The doctor noted that the claimant
was able to provide a full history with linear thoughts and normal naming.
The doctor noted that the claimant’s face, shoulder shrug, and head turn
were strong, bilaterally. Dr. Hirsch found the claimant to have a normal
gait and normal finger to nose. The doctor noted that the claimant had
subjective decrease in sensation to light touch on the left compared to the
right, but proprioception was intact [Exhibit 5F7-11]. Upon follow-up
evaluation of the claimant on October 16, 2013, Dr. Hirsch noted that the
claimant’s language was normal. The doctor observed that the claimant
had a degree of embellishment with pronator drift with her hands bobbing
about in a non-physiologic manner, but when asked to hold her hands still,
she was able to do so without any drift. The doctor also noted that the
claimant’s gait was slightly wide based, but again there was a slight
degree of embellishment here. The claimant was unable to tandem and
felt off balance, but when asked to do a stressed gait with walking while
squatting, the reported that she felt a slight improvement, which was a
non-physiologic response. Dr. Hirsch had the claimant fill out the
Rivermead post-concussion symptoms questionnaire for tracking purposes
and noted that she rated double vision as a 4, but when asked about double
vision in her actual symptom review, she did not note any significant
diplopia. The doctor told the claimant that there was nothing objectively
on her exam or anything concerning her history that would merit any
additional work-up. The doctor informed the claimant that while the
symptoms she was experiencing were real and frustrating, they were not
expected after a significant head injury [Exhibit 5F11-14]. Dr. Hirsch
noted in a follow-up evaluation on March 18, 2015, that the claimant
reported that things had gotten significantly better. The claimant’s
headaches and light sensitivity had significantly improved, and she agreed
that treatment of her depression had helped to improve her overall
condition significantly. She had no specific complaints at the time of the
evaluation [Exhibit 7F16-18].

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CAR 1136-37.

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Dr. Desai’s records are contained in Exhibit 2F. See CAR 1482-1565. Records

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from Dr. Hirsh are contained in Exhibits 5F and 7F. See id. at 1605-29, 1646-85. Having

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reviewed these records, the Court finds the ALJ’s summary to be accurate. Notably, neither Dr.

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Desai not Dr. Hirsch ever offered any opinions related to Plaintiff’s functional capacity. For this

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reason, the Court rejects Plaintiff’s contention that these doctors’ records undermine the ALJ’s

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residual functional capacity finding.

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2.

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As to Dr. Falkenburg, the ALJ stated:

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Joann Falkenburg, M.D. the claimant’s primary care provider, noted on
June 21, 2013, that the claimant’s urinary retention issues were improving,
she was able to walk to the store and back, and her handwriting was better.
Dr. Falkenburg observed that the claimant was in no acute distress. The
doctor’s findings on cardiovascular and respiratory examination were
normal. The doctor’s findings on examination of the claimant’s abdomen
were normal. Dr. Falkenburg found the claimant to have normal
symmetric extremities and no edema. The doctor diagnosed the claimant
with a traumatic brain injury [Exhibit 2F19-21]. Dr. Falkenburg noted on
February 13, 2014, that the claimant found gabapentin medication to be
very helpful in reducing her migraine symptoms at low doses with
minimal side effects. The doctor observed that the claimant’s postconcussion syndrome was gradually improving. The doctor noted that the
claimant still had measured speech that reflected her need to concentrate,
but speech and concentration were improved. Dr. Falkenburg observed
that the claimant was well-groomed. The doctor noted that she had some
posterior neck spasm and tenderness in muscular areas. The doctor noted
that the claimant had normal deep tendon reflexes [Exhibit 2F77-78]. Dr.
Falkenburg noted on May 21, 2014, that the claimant’s balance was
improving, that she was able to swim, and that she had a little dog that she
was caring for. The doctor noted no evidence of severe depression. The
doctor noted that the claimant still had a slightly slow speech, which was
deliberate, but she did not search for words. The doctor noted that the
claimant had marked spasms at the neck and a slightly decreased range of
motion of the shoulders [Exhibit 3F4-5]. Dr. Falkenburg noted on August
25, 2014, that the claimant had 4 out of 5 grip strength but full flexion and
extension strength at the neck [Exhibit 4F18-20]. Dr. Falkenburg noted on
December 17, 2014, that the claimant was feeling slightly better in relation
to her depression after having started Zoloft about a month prior [Exhibit
8F16-17]. Dr. Falkenburg noted on November 18, 2015, that the
claimant’s depression was improving [Exhibit 8F5-7].

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CAR 1137.

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Dr. Falkenburg

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Dr. Falkenburg’s records are contained in Exhibits 2F, 3F, 4F, and 8F. See CAR

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1482-1604, 1686-1709. On October 1, 2014, Dr. Falkenburg prepared a check-the-box Medical

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Source Statement concerning Plaintiff’s physical and neurological impairments and limitations.

4

See id. at 1577-81.

5

Regarding Plaintiff’s physical capacity, Dr. Falkenburg opined Plaintiff can lift

6

and carry 10 pounds occasionally and less than 10 pounds frequently. See id. at 1577. The

7

doctor also opined that Plaintiff can stand and walk less than 2 hours in an 8-hour workday. See

8

id. Dr. Falkenburg stated Plaintiff can sit less than 6 hours in an 8-hour day. See id. The doctor

9

also stated Plaintiff does not need to alternate between sitting and standing. See id. Dr.

10

Falkenburg opined that Plaintiff can never climb and balance, but can occasionally stoop, kneel,

11

crouch, and crawl. See id. at 1578. The doctor stated Plaintiff can frequently reach in any

12

direction bilaterally, but she can only occasionally handle, finger, and feel bilaterally. See id. Dr.

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Falkenburg opined Plaintiff should avoid moving machinery, heights, temperature extremes,

14

chemicals, and dust. See id.

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Regarding Plaintiff’s neurological capacity, Dr. Falkenburg opined that, while

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Plaintiff’s speech is disturbed, she can be understood by strangers. See id. at 1579. The doctor

17

noted no receptive aphasia or reflex abnormalities. See id.

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As to the weight of this evidence, the ALJ stated:

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. . .The undersigned accords little weight to the opinion of Dr. Falkenburg
because the opinion is not supported by the medical record taken as a
whole. The medical record supports a reduction in the claimant’s work
capacity to a wide range of light work based upon the claimant’s
subjective complaints, the third-party statements, and her treatment
history. The claimant’s degenerative disc disease of the cervical spine is
well-accommodated for by a reduction to light work with manipulative
limitations. The claimant’s migraine headaches and traumatic brain injury
is also well-accommodated for by a reduction to light work with postural
and environmental limitations. The claimant is found able to perform a
wide range of light work based upon diagnostic findings, including only
mild findings on MRI of the cervical spine, normal findings on x-rays of
the thoracic and lumbar spine, and normal findings on CT scans of the
head and cervical spine [Exhibit 1F]. In addition, she is found able to
perform a wide range of light work based upon essentially normal findings
on neurological evaluations, normal findings on a neuropsychological
evaluation and testing, and inconsistent subjective complaints with a postconcussion syndrome [Exhibits 1F; 2F9, 14, 29, and 68; 5F7-23; and
7F16-18]. Furthermore, the claimant is found to be able to perform a wide
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range of light work based upon the effectiveness of treatment in improving
her symptoms [Exhibits 2F9, 14, 29, 68, and 77-78 and 7F16-18]. Lastly,
while Dr. Falkenburg’s treatment notes show some limited positive
findings on physical examinations, the findings were generally mild or of
short duration and the doctor noted improvement in the claimant’s
condition with treatment [Exhibits 2F, 3F, 4F, and 8F]. Overall, the
claimant is found able to perform a wide range of light work based upon
her subjective complaints, treatment history, objective findings, and
activities of daily living.

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CAR 1138-39.

7

The Court finds no error in the ALJ’s analysis concerning opinions rendered by

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3
4

8

Dr. Falkenburg. As noted above, the doctor’s opinions are outlined in a check-the-box Medical

9

Source Statement. This statement does not, however, cite specific objective clinical findings to

10

support the conclusions reached. For this reason alone, the ALJ was entitled to discount Dr.

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Falkenburg’s Medical Source Statement. See Meanel, 172 F.3d at 1113; see also Magallanes,

12

881 F.2d at 751.

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B.

Credibility

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The Commissioner determines whether a disability applicant is credible, and the

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Court defers to the Commissioner’s discretion if the Commissioner used the proper process and

16

provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

17

credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903

18

F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d

19

821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible

20

and what evidence undermines the testimony. See id. Moreover, unless there is affirmative

21

evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not

22

credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d

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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

24

and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

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If there is objective medical evidence of an underlying impairment, the

2

Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

3

because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

4

341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

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The Commissioner may, however, consider the nature of the symptoms alleged,

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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)

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physician and third-party testimony about the nature, severity, and effect of symptoms. See

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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

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claimant cooperated during physical examinations or provided conflicting statements concerning

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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

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claimant testifies as to symptoms greater than would normally be produced by a given

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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

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At Step 4, he ALJ assessed the credibility of Plaintiff’s statements and testimony.

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See CAR 1134-35, 1138. The ALJ summarized Plaintiff’s statements and testimony as follows:

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The claimant, born on August 24, 1975, is currently forty-one years old.
She alleges an onset date of disability of December 21, 2012. Her alleged
impairments include a traumatic brain injury and migraines. She claims
that she is unable to retain information or handle soft noises and that she
has balance issues and blurry vision [Exhibit 2E2]. The claimant alleges
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that she is not able to get out of bed or get dressed on some days due to
neck and back pain. She claims that she experiences debilitating
migraines and chronic fatigue. She claims that she has no sense of time
and problems with memory and concentration. The claimant alleges that
she is unable to find the right words to effectively express herself. She
claims that her conditions affect her ability to sleep, lift, squat, bend,
stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, remember,
complete tasks, concentrate, understand, follow instructions, use her
hands, and get along with others [Exhibit 6E]. In updated Disability
Reports, the claimant alleges that she still struggles with her memory and
activities of daily living. She also claims that she is experiencing
worsening depression [Exhibits 8E3 and 12E1]. The claimant testified
that she requires assistance from someone else two to three days per week.
She stated that on bad days she cannot coordinate her arms and legs. She
informed that she has fallen on a monthly basis.

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CAR 1134-35.

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After summarizing statements from three lay witnesses and the medical findings of

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the various doctors, discussed above, the ALJ provided the following boilerplate concluding

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statement:

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After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to produce the above alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence, and limiting effects of
these symptoms are not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in this decision.
Accordingly, these statements have been found to affect the claimant’s
ability to work only to the extent they can reasonably be accepted as
consistent with the objective medical and other evidence.

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CAR 1138.

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The Court finds that the ALJ’s boilerplate conclusion is precisely the kind of

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discussion disfavored in Bunnell v. Sullivan, 947 F.2d at 347-48, and Smolen v. Chater, 80 F.3d

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at 1282. Specifically, while the ALJ found that Plaintiff’s subjective complaints could reasonably

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be caused by her medically determinable impairments, the ALJ concludes they are not credible

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because they are “not entirely consistent with the medical evidence. . . .” The ALJ offered no

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additional analysis. The question, then, is whether the ALJ’s error can be considered harmless.

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The Ninth Circuit has applied harmless error analysis in social security cases in a

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number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050

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(9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness

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testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the
15

1

testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins

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v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at

3

1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004),

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the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s

5

testimony. Specifically, the court held:

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However, in light of all the other reasons given by the ALJ for Batson’s
lack of credibility and his residual functional capacity, and in light of the
objective medical evidence on which the ALJ relied, there was substantial
evidence supporting the ALJ’s decision. Any error the ALJ may have
committed in assuming that Batson was sitting while watching television,
to the extent that this bore on an assessment of ability to work, was in our
view harmless and does not negate the validity of the ALJ’s ultimate
conclusion that Batson’s testimony was not credible.
Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).
,

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In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the

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claimant’s age and education. The Ninth Circuit also considered harmless error in the context of

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the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a

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medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006).

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The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d

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1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court

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stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility

19

finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless

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error.” See id. at 1162. The court articulated the difference between harmless error standards set

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forth in Stout and Batson as follows:

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. . . [T]he relevant inquiry [under the Batson standard] is not whether the
ALJ would have made a different decision absent any error. . . it is whether
the ALJ’s decision remains legally valid, despite such error. In Batson, we
concluded that the ALJ erred in relying on one of several reasons in
support of an adverse credibility determination, but that such error did not
affect the ALJ’s decision, and therefore was harmless, because the ALJ’s
remaining reasons and ultimate credibility determination were adequately
supported by substantial evidence in the record. We never considered what
the ALJ would do if directed to reassess credibility on remand – we
focused on whether the error impacted the validity of the ALJ’s decision.
Likewise, in Stout, after surveying our precedent applying harmless error
on social security cases, we concluded that “in each case, the ALJ’s error
. . . was inconsequential to the ultimate nondisability determination.”
16

1
Our specific holding in Stout does require the court to consider whether the
ALJ would have made a different decision, but significantly, in that case
the ALJ failed to provide any reasons for rejecting the evidence at issue.
There was simply nothing in the record for the court to review to determine
whether the ALJ’s decision was adequately supported.

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3
4

Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).
5
Thus, where the ALJ’s errs in not providing any reasons supporting a particular

6
7

determination (i.e., by failing to consider lay witness testimony), the Stout standard applies and

8

the error is harmless if no reasonable ALJ could have reached a different conclusion had the error

9

not occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is

10

flawed (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either

11

legally insufficient or unsupported by the record), the Batson standard applies and any error is

12

harmless if it is inconsequential to the ultimate decision because the ALJ’s disability

13

determination nonetheless remains valid.
Under either standard, the Court finds the ALJ’s error is not harmless. Applying

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15

Stout, the error is harmless if no reasonable ALJ could have reached a different conclusion had

16

the ALJ provided a more robust analysis of Plaintiff’s credibility. Under this standard, the Court

17

cannot say that no reasonable ALJ could have reached a different conclusion. To the point,

18

because the ALJ provided no substantive analysis, it is impossible to say one way or the other.

19

Applying Batson, the error is harmless if it is inconsequential to the ultimate conclusion of non-

20

disability. Again, the Court cannot find that the ALJ’s failure to provide a proper credibility

21

analysis is inconsequential here. It is entirely possible that, had the ALJ properly considered

22

Plaintiff’s credibility, the ALJ might have concluded Plaintiff’s statements were in fact credible

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and found Plaintiff disabled as a result.
The matter should be remanded for further administrative proceedings.

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1

C.

2

Vocational Findings
The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about

3

disability for various combinations of age, education, previous work experience, and residual

4

functional capacity. The Grids allow the Commissioner to streamline the administrative process

5

and encourage uniform treatment of claims based on the number of jobs in the national economy

6

for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458,

7

460-62 (1983) (discussing creation and purpose of the Grids).

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9

The Commissioner may apply the Grids in lieu of taking the testimony of a
vocational expert only when the Grids accurately and completely describe the claimant’s abilities

10

and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.

11

Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the

12

Grids if a claimant suffers from non-exertional limitations because the Grids are based on

13

exertional strength factors only.3 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b).

14

“If a claimant has an impairment that limits his or her ability to work without directly affecting

15

his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered

16

by the Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404,

17

Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids

18

even when a claimant has combined exertional and non-exertional limitations, if non-exertional

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Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§
404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§
404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than 100
pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. See 20
C.F.R. §§ 404.1567(e) and 416.967(e). Non-exertional activities include mental, sensory,
postural, manipulative, and environmental matters which do not directly affect the primary
strength activities. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e).
18
3

1

limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d

2

1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

3

In cases where the Grids are not fully applicable, the ALJ may meet his burden

4

under step five of the sequential analysis by propounding to a vocational expert hypothetical

5

questions based on medical assumptions, supported by substantial evidence, that reflect all the

6

plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,

7

where the Medical-Vocational Guidelines are inapplicable because the plaintiff has sufficient

8

non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See

9

Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988).

10

Hypothetical questions posed to a vocational expert must set out all the substantial,

11

supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881

12

F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the

13

expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary

14

value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to

15

the expert a range of hypothetical questions based on alternate interpretations of the evidence, the

16

hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by

17

substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th

18

Cir. 1988).

19

Plaintiff contends the ALJ erred in concluding she can perform her past relevant

20

work as actually performed because the job is a “composite” job. Plaintiff misstates the ALJ’s

21

vocational finding. At Step 5, the ALJ concluded Plaintiff cannot perform her past relevant work.

22

See CAR 1140-41. Relying on vocational expert testimony which the ALJ found consistent with

23

the Dictionary of Occupational Titles, the ALJ concluded Plaintiff can perform other work that

24

exists in the national economy. See id. Plaintiff’s argument concerning past relevant work is,

25

therefore, unpersuasive.

26

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27

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19

1

IV. CONCLUSION

2

Based on the foregoing, the undersigned recommends that:

3

1.

Defendant’s cross-motion for summary judgment, ECF No. 29, be denied;

2.

The Commissioner’s final decision be reversed and this matter be

4
5
6

and

remanded for further proceedings consistent with these findings and recommendations.

7

These findings and recommendations are submitted to the United States District

8

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

9

after being served with these findings and recommendations, any party may file written

10

objections with the court. Responses to objections shall be filed within 14 days after service of

11

objections. Failure to file objections within the specified time may waive the right to appeal. See

12

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

13
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17

Dated: February 25, 2021
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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