(SS) Heilman v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Dennis M. Cota on 7/29/2022 GRANTING 16 Motion for Summary Judgment, and DENYING 17 Cross Motion for Summary Judgment. The Commissioner's final decision is REVERSED and this matter is REMANDED for further proceedings consistent with this order, and the Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED(Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANNETTE KELLY HEILMAN,

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Plaintiff,

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No. 2:21-CV-0476-DMC

v.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff,1 who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pursuant to the written consent of all parties, ECF Nos. 7 and 12, this case is before the

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undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

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U.S.C. § 636(c); see also ECF No. 19 (minute order reassigning case to Magistrate Judge).

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Pending before the Court are the parties’ briefs on the merits, ECF Nos. 16 and 17.

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Plaintiff’s last name is spelled “Heilman” in her complaint and on the docket, and
“Heilmann” elsewhere in the record.
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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).

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For the reasons discussed below, the matter will 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

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

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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;

Step 5

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.

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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 May 24, 2016. See CAR, 26.2 In

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the application, Plaintiff claims disability began on April 28, 2014. See id. Plaintiff’s claim was

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initially denied. Following denial of reconsideration, Plaintiff requested an administrative

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hearing, which was held on October 25, 2018, before Administrative Law Judge (ALJ) Michael

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A. Cabotaje. In a November 27, 2018, 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 impairments: degenerative
disc disease (DDD); meniscus tear of the left knee status post
arthroscopy; degenerative joint disease (DJD) of the right shoulder;
carpal tunnel syndrome (CTS) of the right upper extremity; and
chronic obstructive pulmonary disorder (COPD).

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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.

3.

The claimant has the following residual functional capacity:
perform light work as defined in 20 CFR 404.1567(b) except she
can frequently push and pull with the right upper extremity;
occasionally climb ramps and stairs; never climb ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel, crouch, and crawl;
occasionally reach overhead with the right upper extremity; and
frequently reach otherwise with the right upper extremity. She
cannot work with concentrated exposure to fumes, dusts, gases, or
other pulmonary irritants; and cannot work with concentrated
exposure to heavy moving machinery or unprotected heights.

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony, the
claimant can perform past relevant work.

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See id. at 28-36.

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After the Appeals Council declined review on August 26, 2019, this appeal followed.

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Citations are to the Certified Administrative Record (CAR) lodged on October 29,
2021, ECF No. 9.
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III. DISCUSSION

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In their brief, Plaintiff makes the following arguments:

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1.
The ALJ erred at Step 2 in finding that Plaintiff had a nonsevere mental impairment, and therefore further erred in failing to
consider Plaintiff’s mental health impairments during the residual
functional capacity analysis at Step 4;

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At Step 4, the ALJ failed to give proper weight to the
medical opinion of Dr. Stanger, a treating physician; and

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The ALJ failed to give clear and convincing reasons for
rejecting Plaintiff’s testimony at Step 4.

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See ECF No. 16.

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The Court finds each of Plaintiff’s arguments persuasive for the reasons addressed

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below.

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A.

Severity Determination

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To qualify for benefits, the plaintiff must have an impairment severe enough to

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significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§

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404.1520(c), 416.920(c). In determining whether a claimant’s alleged impairment is sufficiently

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severe to limit the ability to work, the Commissioner must consider the combined effect of all

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impairments on the ability to function, without regard to whether each impairment alone would be

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sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42

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U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of

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impairments, can only be found to be non-severe if the evidence establishes a slight abnormality

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that has no more than a minimal effect on an individual’s ability to work. See Social Security

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Ruling (SSR) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting

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SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by

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providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20

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C.F.R. §§ 404.1508, 416.908. The plaintiff’s own statement of symptoms alone is insufficient.

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See id.

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At Step 2 of the sequential analysis, the ALJ considered the severity of Plaintiff’s

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various impairments. See CAR 28-31. In doing so, the ALJ identified a number of physical

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impairments which were found to be severe. See id. at 28-29. The ALJ, however, found

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Plaintiff’s mental impairments to be non-severe. See id. at 29-31. The ALJ concluded:

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The claimant's medically determinable mental impairments of adjustment
disorder and panic disorder, considered singly and in combination, do not
cause more than minimal limitation in the claimant's ability to perform
basic mental work activities and are therefore nonsevere.

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In making this finding, I considered the four broad areas of mental
functioning set out in the disability regulations for evaluating mental
disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart P,
Appendix I). These four areas of mental functioning are known as the
"paragraph B" criteria.

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The first functional area is understanding, remembering, or applying
information. In this area, the claimant has no limitation. Treatment notes
generally reflect that the claimant exhibited a normal memory (Ex. 1F/12,
28; 12F/12). In addition, she could perform many activities of daily living
requiring some capacity to remember and apply information, such as
performing personal care, preparing meals, doing household chores, caring
for her dog, driving, and shopping (Testimony; Ex. 4E/6, 8; 11E/5).

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The next functional area is interacting with others. In this area, the
claimant has no limitation. Treatment notes generally reflect an
appropriate mood and affect without reference to difficulties interacting
with medical staff during office visits (Ex. 1F/28; 12F/9). In addition, she
could grocery shop in stores, go to the dog park, go to the library, spend
time with others, and live with others, which suggests an intact capacity
for basic social interaction (Testimony; Ex. 4E; 1F/24).

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The third functional area is concentrating, persisting, or maintaining pace.
In this area, the claimant has a mild limitation. The claimant reported
difficulties focusing (Testimony). However, the record generally reflects
that she was active, alert, and oriented with intact concentration upon
exam (Ex. 3F/22; 4F/6). In addition, she could prepare meals, do puzzles,
read, sew, drive, manage funds, and handle her own medical care, which
suggests some capacity to focus and persist (Testimony; Ex. 4E; 11E).

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The fourth functional area is adapting or managing oneself. In this area,
the claimant has no limitation. Treatment notes generally reflect an
appropriate mood and affect without reference to difficulties behaving
appropriately with medical staff during office visits (Ex. 1F/28; 12F/9). In
addition, she could perform many activities of daily living including
personal care, preparing meals, performing household chores, going out
alone, grocery shopping, driving, and attending medical appointments,
which indicates an ability to manage oneself (Testimony; Ex. 4E/7).

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Because the claimant's medically determinable mental impairments cause
no more than "mild" limitation in any of the functional areas, they are
nonsevere (20 CFR 404.1520a(d)(l)).

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CAR 29.

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In making this finding, the ALJ further noted:

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The limitations identified in the "paragraph B" criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual functional
capacity assessment reflects the degree of limitation I have found in the
"paragraph B" mental function analysis.

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CAR 30.
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The ALJ then evaluated medical opinion evidence discussed above from Sabrina

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Correa, Psy.D., John Kiefer, Psy.D., and state agency psychological consultants, Pamela Green,

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Ph.D., and Julie Bruno, Psy.D. See id. The ALJ afforded “partial weight” to Dr. Correa’s

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opinions and “little weight” to the other opinions. See id. at 30-31.

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Plaintiff argues that the ALJ erred in finding at Step 2 that Plaintiff only had a

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non-severe mental health impairment. See ECF No. 16, pg. 23. Specifically, she points to the

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medical opinions of Drs. Correa and Kiefer, as well as the two state agency psychologists, Drs.

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Green and Bruno. See id. at 23-36. According to Plaintiff, though each opinion indicates the

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existence of a mental impairment, the ALJ improperly rejected all these opinions at Step Two of

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the sequential analysis. See id. at 23-26; see also, CAR, 28-31. Plaintiff argues that all these

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doctors opined as to limitations that were more than minimal and that by rejecting the opinions,

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the ALJ improperly found Plaintiff’s mental impairments to be non-severe. See ECF No. 16, pg.

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24. For the reasons discussed below, the Court agrees.

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As to Dr. Correa, Plaintiff’s treating psychologist, The ALJ stated:

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. . . I accord partial weight to the opinion of treating psychologist, Sabrina
Correa, PsyD, provided on February 17, 2017 (Ex. 11F). Weight is given
because Dr. Correa is a specialist in her field and has a treating
relationship with the claimant. In addition, her findings that the claimant
could understand, remember, and carry out simple and complex

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instructions, as well as interact appropriately with others, are consistent
with the record, which generally showed a normal mood, affect, and
memory and an ability to perform many independent activities of daily
living (Testimony; Ex. 4E; 11E; 1F/12, 28; 12F/12). However, no more
than partial weight is given as she has a relatively short treating history
with the claimant and has only seen the claimant once per month since her
first exam in December 2016. Additionally, her findings that the claimant
would have fair limitations maintaining concentration, attention, and
persistence, maintaining a regular schedule and attendance, and
responding to changes in a work setting, as well as a poor ability to
complete a normal workday or workweek is not consistent with the
claimant's reported level of activity, which includes an ability to perform
personal care, prepare meals, perform household chores, shop, drive, and
care for her husband (Testimony; Ex. 4E; 11E). Dr. Correa also provides
little explanation to support these limitations. Accordingly, her opinion is
given no more than partial weight.

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Id.
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As to Dr. Kiefer, the state agency examining psychologist, the ALJ stated:

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I accord little weight to the opinion of psychological consultative
examiner, John Kiefer, PsyD, provided on July 26, 2016 (Ex. 4F). Little
weight is given as Dr. Kiefer is not a treating source and conducted only a
one-time exam. In addition, his limitations are vague and do not define his
use of the terms "good" and "fair." Furthermore, his indication that there is
a moderate likelihood of the claimant emotionally deteriorating in the
work environment is not consistent with the minimal evidence of mental
health treatment found in the record or her many reported activities of
daily living including performing household chores, driving, shopping,
and caring for her husband (Testimony; Ex. 4E; 11E). As such, this
opinion is given little weight.

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CAR 30-31.

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As to opinions from state agency non-examining psychological consultants, Drs.

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Green and Bruno, the ALJ stated:

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I accord little weight to the opinions of the State Agency psychological
consultants, Pamela D. Green, PhD at the initial level provided on August
16, 2016 and Julie Bruno, PsyD at the reconsideration level provided on
December 15, 2016 (Ex. 1A; 3A). Little weight is given as these
consultants are non-examining, non-treating sources. In addition, their
opinions are not consistent with the record, which showed minimal mental
health treatment, no hospitalizations or emergency care, and an ability to
perform many reported activities of daily living despite any symptoms
(Testimony; Ex. 4E; 11E). Furthermore, while they accorded great weight
to the opinion of the psychological consultative examiner, Dr. Kiefer, their
limitations to simple, routine tasks are not consistent with Dr. Kiefer's

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opinion that the claimant has a good capacity to understand, remember,
and carry out both simple, as well as detailed and complex, instructions
(Ex. 4F/7).

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CAR 30.

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Dr. Correa opined that Plaintiff has major depressive disorder and chronic pain.

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See CAR 539. She also indicated an anxious, depressed, and fearful mood, as well as auditory

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and visual hallucinations. See id. at 540. Finally, Dr. Correa concluded that Plaintiff had only

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fair ability to maintain concentration, to perform activities within a schedule and maintain regular

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attendance, and to respond appropriately to changes in a work setting. See id. at 542. “Fair” is

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defined in Dr. Correa’s opinion as an impaired capacity to perform the indicated activity, but that

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the extent of impairment would require further investigation. Id. Dr. Correa also stated that

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Plaintiff had a poor ability to complete a normal workday or workweek without interruptions

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from psychologically based symptoms. Se id. “Poor” is defined as not able to usefully perform

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or sustain the activity. Id. The ALJ gave these opinions “partial weight” because Dr. Correa’s

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treating relationship was short, they are inconsistent with Plaintiff’s daily activities, and Dr.

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Correa provided little explanation to support her conclusions. See CAR 30.

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Dr. Kiefer’s opinion indicates that Plaintiff has a fair ability to accept instruction

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from a supervisor, interact with co-workers, sustain a normal routine without supervision,

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complete a normal workday or workweek, and deal with changes in the workplace. See id. at

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503. Dr. Kiefer opined that there was a moderate likelihood that Plaintiff would emotionally

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deteriorate in the work environment. Id. The ALJ gave these opinions “little weight” because Dr.

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Kiefer was not a treating source, the doctor’s limitations are vague because terms such as “good”

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and “fair” are not defined, and the opinions are inconsistent with the scant mental health

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treatment record. See id. at 30-31.

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Dr. Green identified moderate limitations in the following areas: ability to carry

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out detailed instructions, ability to maintain attention and concentration for extended periods, and

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ability to complete a normal workday and workweek without interruptions from psychologically

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based symptoms at a consistent pace without unreasonable rest. See id. at 88-89. Dr. Bruno

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found that Plaintiff was moderately limited in their ability to carry out detailed instructions and to
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maintain attention and concentration for extended periods. See id. at 106. The ALJ gave these

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opinions “little weight” because Drs. Green and Bruno did not examine Plaintiff, the opinions are

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inconsistent with the record of minimal mental health treatment, and the opinions are inconsistent

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with Dr. Kiefer’s opinion. See id. at 30.

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Each of these opinions identified impairments limiting Plaintiff’s ability to

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maintain concentration and to function properly for the duration of a workday or workweek.

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Regarding the Plaintiff’s ability to maintain pace, the ALJ stated:

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The third functional area is concentrating, persisting, or maintaining
pace. In this area, the claimant has a mild limitation. The claimant
reported difficulties focusing (Testimony). However, the record
generally reflects that she was active, alert, and oriented with intact
concentration upon exam (Ex. 3F/22; 4F/6). In addition, she could
prepare meals, do puzzles, read, sew, drive, manage funds, and
handle her own medical care, which suggests some capacity to
focus and persist (Testimony; Ex. 4E; 11E).
CAR 29.
First, the ALJ is incorrect in stating that exhibits 4E and 11E indicate that the

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Plaintiff could drive. See id. at 246, 287. Even ignoring that factual error, those exhibits indicate

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issues with concentration, and that Plaintiff’s cooking, shopping, and cleaning mostly happen in

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20-40-minute intervals. See id. at 286-289. This does not show an ability to persist or maintain

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concentration throughout a workday. See id. at 286-289. Additionally, that Plaintiff was active,

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alert, and oriented during isolated exams, is not evidence that contraindicates the finding of a

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severe impairment in the ability to complete a workweek or workday.

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It is apparent that significant evidence exists in the record that Plaintiff had more

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than a non-severe mental health impairment. In particular, the opinions discussed above indicate

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more than minimal mental health limitations affecting Plaintiff’s ability to work. At Step 2, the

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only question is whether Plaintiff has provided evidence of more than minimal limitations. Here,

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the Court finds she had. Whether the specific limitations opined by Drs. Correa, Kiefer, Green,

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and Bruno are to be afforded weight in determining Plaintiff’s residual functional capacity is a

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question for Step 4. Thus, the ALJ’s evaluation of the weight to be afforded these opinions at

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Step 2 is misplaced. Because Plaintiff has shown evidence of more than minimal limitations on
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her ability to perform the mental demands of work, the ALJ erred in determining Plaintiff’s

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mental impairments are non-severe. The matter must be remanded to the Commissioner to allow

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for a proper severity determination which takes into account the more-than-minimal limitations

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opined by Drs. Correa, Kiefer, Green, and Bruno.

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B.

Evaluation of 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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For all claims, as here, filed before March 27, 2017, ALJs are bound by

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regulations and case law requiring ALJs to give physicians’ opinions different weights, depending

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on the relationship between the physician and the claimant. See 20 C.F.R §§ 404.1527(c) &

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416.920(c); Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014). This rule is known as the

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treating physician rule. The weight given to medical opinions depends in part on whether they

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are proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81

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F.3d 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 in a claim filed before March 27, 2017, the Court considers

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whether: (1) contradictory opinions are in the record; and (2) clinical findings support the

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opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining

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medical professional only for “clear and convincing” reasons supported by substantial evidence in

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the record. See Lester, 81 F.3d at 831. While a treating professional’s opinion generally is

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accorded superior weight, if it is contradicted by an examining professional’s opinion which is

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supported by different independent clinical findings, the Commissioner may resolve the conflict.

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See Andrews v. Shalala, 53 F.3d 1035, 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

27

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

28

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,
12

1

without other evidence, is insufficient to reject the opinion of a treating or examining

2

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

3

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

4

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

5

also Magallanes, 881 F.2d at 751.

6
7
8

According to Plaintiff, the ALJ erred at Step 4 in evaluating the opinions offered
by her treating physician, Dr. Stanger. As to Dr. Stanger, the ALJ stated:

16

I accord little weight to the opinions of Jennifer K. Stanger, MD provided
on December 7, 2016 and February 27, 2017 (Ex. 10F; 13F). Little weight
is given as her extreme limitations are not consistent with the record.
Despite some pain, decreased range of motion, and an antalgic gait at
times, physical exams also generally showed intact strength, intact
sensation, normal reflexes, no edema, and little references to an inability
to ambulate effectively (Ex. 3F/18-19; 6F/6; 14F/1). Additionally, she
could perform a wide range of activities despite her symptoms including
household chores, grocery shopping, feeding and walking her dog, and
caring for her husband, which show a greater level of functioning than
opined by Dr. Stranger (Testimony; Ex. 4E; 11E). Furthermore, Dr.
Stranger does not provide any explanation for the differences and greater
limitations found in her February 2017 opinion in comparison to her other
opinion given just three months prior. Finally, opinions regarding issues of
disability are reserved for the Commissioner of the Social Security
Administration and are not considered medical opinions under the
regulations.

17

CAR 35.

18

The ALJ gave “little weight” to Dr. Stanger’s opinion for four reasons: (1) the

9
10
11
12
13
14
15

19

limitations described by Dr. Stanger are not consistent with the record, (2) Plaintiff’s daily

20

activities showed a greater level of function than indicated by Dr. Stanger, (3) Dr. Stanger did not

21

explain the inconsistencies between her own opinions, and (4) opinions regarding issues of

22

disability are reserved for the commissioner. See id.

23

1.

Inconsistencies with Medical Record

24

As to purported inconsistencies with the medical record, the ALJ cites to three

25

exhibits: 3F, 6F, and 14F. See CAR 35. Exhibit 3F at pages 18 and 19 indicates normal range of

26

motion and strength of Plaintiff’s extremities, but also indicates pain elicited by head and neck

27

motion, and fluid in some of Plaintiff’s joints. See id. at 452-53. This also appears be a shoulder

28

and neck exam, and it is unclear how it shows that Plaintiff was able “to ambulate effectively.”
13

1

Id. at 35. Exhibit 6F includes foot and ankle exam results, which do not seem to address

2

Plaintiff’s mobility. See id. at 519. Exhibit 14F is a study of Plaintiff’s nerve system responses

3

in her hands. See id. at 603-604. It references symmetrical 5/5 hand strength, but otherwise does

4

not address Plaintiff’s reflexes, edema, or mobility. See id. None of the cited exhibits seems to

5

indicate the kind of inconsistency with the objective record that would constitute legitimate

6

evidence sufficient to give “little weight” to the medical opinion of a treating physician.

7

2.

8

The ALJ considered Plaintiff’s daily activities in rejecting Dr. Stanger’s opinion,

9

Daily Activities

citing exhibits 4E and 11E which are both reports filled out by Plaintiff’s husband. See id.

10

Exhibits 4E and 11E do indicate that Plaintiff can perform some daily tasks, including cooking,

11

shopping, cleaning, caring for a pet, and personal hygiene. See CAR, 243-250, 284-290.

12

However, these exhibits also indicate limitations on Plaintiff’s ability to function in a workplace.

13

Exhibit 4E states that Plaintiff has difficulty climbing stairs, requires help donning socks and

14

shoes, can only walk 100 yards before needing a 1-2-minute rest, and uses a cane. See id. at 243-

15

250. Exhibit 11E states that she cannot sit longer than 10-15 minutes, stand longer than 20

16

minutes, cook meals taking longer than 20 or 30 minutes to prepare, read or color for more than

17

10-15 minutes at a time, and that she can only walk 2-3 blocks without rest. See id. at 284-290.

18

Exhibit 11 also states that she has difficulty following spoken instructions, is anxious about going

19

to new places by herself, that changes in routine make her anxious, and that stress induces

20

migraine headaches and loss of appetite. See id. Because this is not consistent with the ability to

21

spend a substantial part of the day engaged in physical functions in a work setting, reference to

22

Plaintiff’s daily activities is an inadequate reason to reject Dr. Stanger’s opinion.
Internal Inconsistencies within the Doctor’s Opinions

23

3.

24

The ALJ rejected Dr. Stanger’s opinions because they are inconsistent with each

25

other. The ALJ refers to exhibits 10F and 13F in making this claim, which are both evaluation

26

questionnaires filled out by Dr. Stanger. Id. at 35. There are two identifiable inconsistencies

27

between the exhibits. First, in 13F, Dr. Stanger placed greater restrictions on Plaintiff’s ability to

28

use her hands. See id. at 601-602, 536-537. These greater restrictions are accompanied by a
14

1

positive Phalen’s test as objective evidence that Plaintiff has carpal tunnel syndrome. Id. at 601.

2

Second, Dr. Stanger also opines that Plaintiff would need to lie down during the workday in 13F,

3

while answering that question in the negative in 10F. On their face, neither of these differences

4

between Dr. Stanger’s opinions seem to be so inexplicably inconsistent that the opinion evidence

5

should be discredited.

6

4.

Determination of Ultimate Issue of Disability

7

While the “administrative law judge is not bound by the uncontroverted opinions

8

of the claimant’s physicians on the ultimate issue of disability, [] he cannot reject them without

9

presenting clear and convincing reasons for doing so.” Matthews v. Shalala, 10 F.3d 678, 680

10

(9th Cir. 1993) (quoting Montijo v. Sec’y of Health and Hum. Servs., 729 F.2d 599, 601 (9th Cir.

11

1984)). Here, the ALJ has specified no reason for rejecting Dr. Stanger’s opinion on the issue of

12

disability beyond the inadequate reasons enumerated above. While the Commissioner is certainly

13

correct that the ALJ properly rejected Dr. Stanger’s opinion on the ultimate question of disability,

14

as discussed above the Court finds the ALJ’s other reasons for rejecting Dr. Stanger’s opinions to

15

not be supported by the record as a whole or correct analysis.

16

C.

Evaluation of Plaintiff’s Statements and Testimony
The Commissioner determines the weight to be given to a claimant’s own

17
18

statements and testimony, and the court defers to the Commissioner’s discretion if the

19

Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94

20

F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons.

21

See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient.

22

See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify

23

what testimony is not afforded weight and what evidence undermines the testimony. See id.

24

Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s

25

reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also

26

Carmickle v. Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504

27

F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

28

///
15

1

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:

5

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.

6
7
8
9
10

80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

11

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

12

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

13

947 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may

14

also consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other

15

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

16

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

17

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

18

Smolen, 80 F.3d at 1284 (citations omitted).
In this case, the ALJ considered Plaintiff’s statements and testimony at Step 4 in

19
20

evaluating Plaintiff’s residual functional capacity. See CAR 32-34. The ALJ began by

21

summarizing Plaintiff’s statements and testimony as follows:

22

The claimant alleges disability due to the combined effects of multiple
physical impairments. At the hearing, the claimant testified that she
experiences constant neck, back, and left knee pain. She also indicated
swelling in her left knee, as well as difficulties grasping, writing, and
using her right hand (Testimony). Due to her impairments, the claimant
reported that she could only sit for 10 to 15 minutes, stand up to 30
minutes with a non-prescribed cane, walk two to three blocks, and lift up
to eight pounds (Testimony; Ex. 13E/7).

23
24
25
26

CAR 32.

27
28

///

16

The ALJ then addressed Plaintiff’s statements and testimony in the context of specific

1
2

impairments:

3

With regard to her musculoskeletal impairments, the record supports that
the claimant could perform a range of light exertional work. The claimant
reported that she underwent lumbar decompression surgery in 2004 before
the period of adjudication (Ex. 12F/18). Consistent with these reports, an
x-ray of the lumbar spine in September 2015 showed an anterior fusion at
L4-L5 and mild multilevel degenerative changes of the lumbar spine (Ex.
12F/54). Similarly, an x-ray of the lumbar spine in May 2016 showed
stable postoperative changes, as well as unchanged moderately advanced
degenerative disc and bone disease at L3-4 and, to a much lesser degree, at
LS-SI (Ex. 12F/48). However, a CT scan of the lumbar spine in June 2016
revealed marked narrowing of the L3-4 lumbar disc space and screws at
L4 extending beyond the vertebral body into the lumbar spinal canal (Ex.
SF/4).

4
5
6
7
8
9
10

With respect to her cervical DDD, an x-ray of the cervical spine in April
2016 showed mild to moderate narrowing confined to the C4-5 and CS-6
disc space and minor hypertropic spur formation at C4, CS, and C6 (Ex.
12F/51). An MRI of the cervical spine in June 2016 also showed mild
spondylitic changes primarily at C4-5 and CS-6; mild spinal and
neuroforaminal narrowing at C4-5 and CS-6; small to moderate-sized
bilateral neuroforaminal disc herniation protrusion and osteophyte
complexes at C4-5 and CS-6; and a tiny right paracentral disc
protrusion at C6-7, as well as a tiny left neuroforaminal disc protrusion at
C7-Tl (Ex. 5F/7-8).

11
12
13
14
15

In terms of her left knee, an x-ray in March 2016 showed mild symmetric
narrowing at all three left knee joint compartments, minor hypertropic
spur formation confined to the patellofemoral compartment, and a small
left knee joint effusion (Ex. 3F/60). However, an MRI in April 2016
showed a tear of the junction of the posterior horn and body of the medial
meniscus; grade two or three chondral thinning involving the
weightbearing aspect of the left medial femoral condyle; grade three
chondral thinning and delamination involving the articular cartilage of the
central portion of the left patella; grade three chondral fissuring involving
the central portion of the left trochlea, left quadriceps enthesopathy; and
moderate left knee joint effusion (Ex. 5F/9-I0). In addition, the record
shows that the claimant subsequently underwent a left knee arthroscopy
with loose body removal, partial medial meniscectomy, and extensive
synovectomy in May 2016 (Ex. 3F/36).

16
17
18
19
20
21
22
23

As for her DJD and CTS, an x-ray of the right shoulder in March 2016
was unremarkable (Ex. 12F/52). However, an MRI of the right shoulder in
June 2016 revealed subchondral cysts in the humeral head, which were
likely sequelae of an old injury; mild acromioclavicular joint arthritis
and bursitis; and mild insertional tendinosis and a small articular surface
insertional partial tear supraspinatus and infraspinatus (Ex. 5F/5-6). A
nerve conduction study of the right upper extremity in April 2017 also
revealed evidence of median neuropathy at the carpal tunnel, which
was classified as mild demyelinating neuropathy preferentially affecting

24
25
26
27
28

///
17

1

sensory fibers (Ex. 14F/2). It also showed a suggestion of mild ulnar
sensory nerve irritation distally at the wrist at Guyon's canal (Ex. 14F/2).

2
CAR 32-33.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The ALJ added:
While the claimant's allegations find some support in her diagnostic
imaging tests, the record does not support the intensity, persistence, and
limiting effects of the claimant's symptoms as alleged based on her
physical examinations, treatment history, activities of daily living, and the
longitudinal record as a whole. As such, I find that the claimant is able to
perform work related activities at the aforementioned residual functional
capacity.
Physical examinations during the period of adjudication generally showed
intact strength, intact sensation, normal reflexes, and no edema despite
some tenderness and decreased range of motion at times (Ex. 3F/18-19;
6F/6; 14F/1). Although she testified to difficulties using her right hand,
she also demonstrated 5/5 strength in her arms with normal muscle tone,
no atrophy, and intact sensation at her fingertips (Ex. 14F/l). While she
demonstrated an antalgic gait and limp with use of a non-prescribed cane
at times, treatment notes also often do not reference gait abnormalities
during office visits, consistent use of an assistive device for ambulation, or
indications of an inability to ambulate effectively even with her cane (Ex.
1F/22; 12F/5).
In terms of therapy, the record generally reflects little treatment after early
April 2017. Prior to that time, progress notes generally show conservative
treatment for her DDD, DJD, and CTS including use of medication and a
wrist brace with some improvement in pain (Ex. 1F/24; 12F/2). While it is
noted that the claimant underwent left knee arthroscopic surgery in May
2016, by July 2016, she reported doing well since her surgery (Ex. 12F/12,
18). Likewise, subsequent progress notes reflect little evidence of ongoing
left knee related symptoms (Ex. 6F/6; 12F/5, 12). Furthermore, despite
reporting debilitating pain, it is noted that the record generally reflects
little evidence of frequent emergency care, regular physical or chiropractic
therapy, or other forms of alternative treatment for her pain during the
relevant period, which suggests that her symptoms are manageable under
her current conservative regimen.
Therefore, based on the medical evidence of record, the evidence does not
reveal limitations beyond those outlined in the residual functional capacity
finding above. However, in consideration of her DDD, DJD of the right
shoulder, CTS of the right upper extremity, and meniscus tear of the left
knee, I have limited the claimant to a range of light work with additional
postural and environmental limitations. Additionally, to further
accommodate symptoms from her DJD of the right shoulder and CTS of
the right upper extremity, she has also been given pushing, pulling, and
reaching limitations. It is noted that while I have found the claimant's CTS
of the right upper extremity to be severe when viewing the evidence in the
light most favorable to the claimant, the record reflects that she
nevertheless maintained 5/5 strength in her arms with normal muscle tone,
no atrophy, and intact sensation at her fingertips. Additionally, she could
18

1

perform a wide range of activities including driving, cleaning, preparing
meals, sewing, and coloring in books, which indicates a substantial level
of functioning in the hands and wrists (Ex. 4E; 11E; 14F/1). Accordingly,
while I have accommodated symptoms from her CTS of the right upper
extremity by providing additional pushing, pulling, and reaching
limitations, I find that no additional manipulative limitations are
warranted.

2
3
4
5

As for her COPD, the claimant generally made little complaints of
symptoms with any consistency during the period at issue. While she
reported a cough and exhibited decreased breath sounds on occasion, her
respiratory exams were generally normal and showed normal breath
sounds and lungs clear to auscultation (Ex. 1F/22; 3F/22; 12F/15).
Additionally, she reported an improvement with medication (Ex. 1F/27).
Furthermore, it is noted that the claimant continued to smoke, which does
not support the severity of symptoms as alleged (Ex. 1F/11; 12F/14).
Accordingly, while symptoms from her COPD have been considered, they
have been adequately accommodated by restricting her exposure to fumes,
dusts, gases, or other pulmonary irritants.

6
7
8
9
10
11

19

In addition to the medical evidence, other factors in the claimant's file are
inconsistent with her allegations of disability and suggest a greater level of
functioning than claimed. The claimant could perform many activities of
daily living despite her impairments. While she reported requiring some
assistance at times, she could nevertheless perform personal care, do
household chores, and grocery shop (Ex. 4F/5). In addition, she could
independently prepare meals, feed and walk her dog, drive, and care for
her husband (Testimony; Ex. 4E; 1 1E; 1F/17). The physical and mental
abilities required in order to perform these activities are not fully
consistent with the claimant's allegations of disability and indicate that she
could perform activities consistent with a range of light work despite her
symptoms. Furthermore, it is noted that the claimant testified to applying
and interviewing for jobs since her alleged onset date, which demonstrates
her own belief that she retains the capacity for some work related
activities. As such, I find that the residual functional capacity adequately
encompasses the claimant's functional limitations based on the medical
and other evidence of record and the claimant's reports.

20

CAR 33-34.

21

Plaintiff argues that the ALJ wrongfully rejected her statements testimony with

12
13
14
15
16
17
18

22

regard to her ability to sit, stand, work, lift, and focus. See ECF No. 16, pgs. 26-27. Plaintiff

23

points to two main issues with the ALJ’s rejection of Plaintiff’s testimony: (1) the ALJ’s

24

consideration of Plaintiff’s daily activities, and (2) the ALJ’s consideration of the fact that

25

Plaintiff searched for a job after their initial application for disability benefits. See id. at 26-28.

26

As discussed below, the Court agrees and will remand for further proceedings to evaluate

27

Plaintiff’s statements and testimony.

28

///
19

1

1.

Attempts to Find Employment

2

Addressing the second claim first, the ALJ erred in using the Plaintiff’s job

3

applications as evidence that she was not more than minimally impaired. According to the ALJ,

4

Plaintiff applied for jobs since the alleged onset date. The ALJ does not, however, state that

5

Plaintiff applied for full-time employment, which would suggest that Plaintiff herself believed her

6

impairments to not be disabling. To the extent Plaintiff sought only limited work at less than a

7

full-time competitive basis, reference to employment efforts do not necessarily undermine

8

Plaintiff’s statements and testimony as to disabling limitations.

9

2.

Daily Activities

10

Regarding reliance on a claimant’s daily activities to discount testimony of

11

disabling pain, the Social Security Act does not require that disability claimants be utterly

12

incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has

13

repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . .

14

does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.

15

Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th

16

Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a

17

claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic

18

restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the

19

claimant was entitled to benefits based on constant leg and back pain despite the claimant’s

20

ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home

21

activities are not easily transferable to what may be the more grueling environment of the

22

workplace, where it might be impossible to periodically rest or take medication”). Daily

23

activities must be such that they show that the claimant is “. . .able to spend a substantial part of

24

his day engaged in pursuits involving the performance of physical functions that are transferable

25

to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard

26

before relying on daily activities to discount a claimant’s pain testimony. See Burch v. Barnhart,

27

400 F.3d 676, 681 (9th Cir. 2005).

28

///
20

1

In this case, the ALJ does not tie any of Plaintiff’s daily activities to an ability to

2

spend a substantial part of the day working. See CAR 34. To the contrary, it appears that

3

Plaintiff’s ability to engage in daily activities is limited. For example, Exhibits 4E and 11E

4

indicate that Plaintiff cannot drive, in direct opposition to the ALJ’s finding here. See id. at 246,

5

287. Exhibits 4E and 11E also indicate that Plaintiff is substantially limited in their ability to

6

perform the activities indicated by the ALJ as evidence of her non-disability. She can only pay

7

attention for 20 minutes, can only walk 2-3 blocks at a time, only shops for 30-45 minutes, and

8

she only prepares meals that take less than 30 minutes to make. Id. at 286-289. She only cleans

9

in intervals of 20-30 minutes as well. Id. at 286. Because this intermittent activity does not

10

comport with the ability to perform work throughout the day on a full-time competitive basis, the

11

ALJ has erred in citing daily activities as a reason to reject Plaintiff’s testimony and statements.

12
13
14

IV. CONCLUSION
For the foregoing reasons, this matter will be remanded under sentence four of 42

15

U.S.C. § 405(g) for further development of the record and/or further findings addressing the

16

deficiencies noted above.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1.

Plaintiff’s motion for summary judgment (ECF No. 16) is granted;

19

2.

Defendant’s motion for summary judgment (ECF No. 17) is denied;

20

3.

The Commissioner’s final decision is reversed and this matter is remanded

21
22

for further proceedings consistent with this order; and
4.

The Clerk of the Court is directed to enter judgment and close this file.

23
24
25
26

Dated: July 29, 2022
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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21