Hines v. Colvin

Filing 20

ORDER by Magistrate Judge Jacqueline Scott Corley granting 13 Plaintiff's Motion for Summary Judgment; denying 18 Defendant's Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 7/31/2017)

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1 2 3 4 UNITED 5 STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 ANTHONY DAWAYNE HINES, 8 Case No. 16-cv-03078-JSC Plaintiff, 9 v. ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT 10 NANCY A. BERRYHILL, 11 Re: Dkt. Nos. 13, 18 United States District Court Northern District of California Defendant. 12 13 Plaintiff Anthony Dawayne Hines (“Plaintiff”) seeks social security benefits for a 14 15 combination of physical and mental impairments, including severe hip pain and depression. 16 Plaintiff brings this action pursuant to 42 U.S.C. Section 405(g), seeking judicial review of a final 17 decision by Defendant Nancy Berryhill, the Acting Commissioner of the Social Security 18 Administration, denying Plaintiff’s application for disability benefits.1 Now pending before the 19 Court is Plaintiff’s motion for summary judgment and Defendant’s cross-motion for summary 20 judgment.2 (Dkt. Nos. 13, 18.) Although the Court affirms much of the ALJ’s decision, because 21 the ALJ failed to consider Plaintiff’s use of cane and such failure was not harmless as a matter of 22 law, the Court GRANTS Plaintiff’s Motion for Summary Judgment in part and DENIES 23 Defendant’s Cross-Motion for Summary Judgment. 24 25 26 27 28 1 Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is therefore substituted for Carolyn W. Colvin as the Defendant in this action. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 3 & 9.) 1 2 3 LEGAL STANDARD A claimant is considered “disabled” under the Social Security Act if he or she meets two 4 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 5 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 6 reason of any medically determinable physical or mental impairment which can be expected to 7 result in death or which has lasted or can be expected to last for a continuous period of not less 8 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 9 severe enough that she is unable to do her previous work and cannot, based on his age, education, and work experience “engage in any other kind of substantial gainful work which exists in the 11 United States District Court Northern District of California 10 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 12 ALJ is required to employ a five-step sequential analysis, examining: 13 17 (1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant’s “residual functional capacity,” the claimant can still do his or her “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” 18 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a). 19 PROCEDURAL BACKGROUND 14 15 16 20 On October 4, 2011, Plaintiff filed an application for Social Security Disability benefits, 21 both Title II and Title XVI. (Administrative Record (“AR”) 280-290.) The Social Security 22 Administration (“SSA”) denied the application in an undated notice. (AR 137.) Plaintiff filed a 23 Request for Reconsideration which was denied on January 18, 2013. (AR 146.) Plaintiff 24 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 153.) The first hearing 25 was held on November 13, 2013 and a second hearing was held on July 9, 2014. (AR 30, 59.) On 26 August 5, 2014, the ALJ issued a written decision denying Plaintiff’s application. (AR 8.) 27 Plaintiff filed a request for review, which the Appeals Council denied on April 13, 2016. (AR 1.) 28 On June 6, 2016, Plaintiff initiated this action, seeking judicial review of the SSA’s disability 2 1 determination under 42 U.S.C. Section 405(g). (Dkt. No. 1.) The parties’ cross-motions for 2 summary judgment are now pending before the Court. (Dkt. Nos. 13, 18 & 19.) FACTUAL BACKGROUND 3 Plaintiff was born on February 14, 1966. (AR 66.) He is a veteran. (AR 409.) He worked 4 5 for the United States Postal Service from 1992 until 2004, and then did part-time landscaping 6 work from 2004 until 2008. (AR 347.) Since June 1, 2008, Plaintiff has not had “substantial 7 gainful” employment. (AR 13.) He has mild degenerative disc disease of the lumbar spine; 8 bilateral osteoarthritis of the hips; degenerative joint disease of the right foot; obesity; a depressive 9 disorder; an antisocial personality disorder; substance-induced psychosis; and polysubstance abuse. (AR 13.) 11 United States District Court Northern District of California 10 I. MEDICAL EVALUATIONS AND HISTORY At the time of Plaintiff’s disability onset date in 2008 he was incarcerated at California 12 13 State Prison Solano for strong-arm robbery. (AR 423-459, 595.) He saw various medical 14 providers while there and following his release. A discussion of the relevant medical evidence 15 follows. 16 A. 17 Medical History Plaintiff alleges that his disability began with left hip joint pain and depression on June 1, 18 2008. (AR 66, 70.) On September 1, 2009, Plaintiff was diagnosed with Schizoaffective Disorder 19 with depression, periodic suicidal ideation, and auditory hallucinations. (AR 426-427.) 20 In 2010, physicians continued to diagnose Plaintiff with Schizoaffective Disorder and 21 prescribed him medication accordingly. (AR 446, 460.) On March 7, 2011, a psychiatrist noted 22 that Plaintiff was responding to his medication and was neither suicidal nor homicidal, but was 23 experiencing some paranoia. (AR 444.) Two months later, a clinician reported that Plaintiff was 24 “mostly stable . . . possibly due to prescribed medications” and that his major depressive order was 25 recurrent, but in remission. (AR 443.) However, Plaintiff indicated that he still had mild paranoid 26 ideation. (Id.) 27 In July 2010, Plaintiff reported to Dr. John Casey that he could not walk without pain and 28 x-rays showed that he had severe avascular necrosis of the left hip with total joint collapse. (AR 3 1 440.) Dr. Casey recommended that Plaintiff lose weight, take pain medication, and eventually 2 have a hip replacement. (Id.) In July 2011, while in prison, Plaintiff was prescribed a wooden 3 cane and a special vest to indicate to others that he is mobility impaired, which is referred to as a 4 “mobility impaired vest.” (AR 439, 479.) A month later, a mental health clinician noted that 5 Plaintiff was using a cane. (AR 469.) A year later, Plaintiff was diagnosed with severe left and 6 moderate right hip osteoarthritis. (AR 589.) He was still using his cane in 2012 and 2013. (AR 7 557, 634, 827.) On January 9, 2012, while on parole, Plaintiff complained that he was having suicidal 8 9 thoughts, so he was sent to a psychiatric hospital via a 5150 involuntary hold. (AR 411.) At the hospital, Plaintiff reported that he was having command hallucinations to kill himself and he had a 11 United States District Court Northern District of California 10 rash all over his body. (AR 537.) The following day, he was further assessed and found to have a 12 recurrent major depressive disorder with a severe psychotic feature and the doctor rated his Global 13 Assessment of Functioning Scale (“GAF”) score at 35.3 (AR 538.) Plaintiff appeared withdrawn, 14 anxious, and had some underlying psychomotor retardation, but was polite and able to follow 15 directions. (Id.) Plaintiff was discharged that same day because he told doctors that he never 16 actually had a plan to kill himself and he was found to no longer be depressed, suicidal, or to be 17 hearing voices, though he still felt dysphoric. (AR 539.) Additionally, while Plaintiff was at the 18 hospital, he was limping because of his hip problem, but there was no acute distress and he 19 indicated that he preferred to stand. (Id.) The next month, Plaintiff was incarcerated for 25 days for violating his parole by using 20 21 cocaine. (AR 595.) Approximately two months later, during an examination with Dr. Lee, a 22 psychiatrist, Plaintiff indicated a depressed mood, but thanks to his medications he had no 23 3 24 25 26 27 28 A Global Assessment of Functioning Scale score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment. Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1165 n.1 (9th Cir. 2012). The score ranges from zero to 100, and serves as a subjective determination that represents the clinician’s judgment of the individual’s overall level of functioning. See Sigmon v. Kernan, No. 06-5807AHM(JWJ), 2009 WL 1514700, at *9 n.3 (C.D. Cal. May 27, 2009). “A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social occupational, or school functioning (e.g., no friends, unable to keep a job).” Quiana La Nay Chase v. Colvin, No. 13-1816-KAW, 2014 WL 4544096, at *10 (N.D. Cal. Sept. 12, 2014) (internal citation and quotation marks omitted). 4 1 psychotic symptoms or suicidal thoughts. (AR 597.) Plaintiff also indicated suffering from 2 chronic moderate-severe hip pain. (Id.) Dr. Lee rated Plaintiff’s GAF score at 55. (Id.) In June 2012, Plaintiff ran out of medication and started feeling paranoid and having 3 4 auditory hallucinations again (at this time, a psychiatrist renewed his medication.) (AR 408.) 5 That month, Plaintiff had x-rays of his pelvis, hips, and spine lumbosacral. (AR 665-668.) The x- 6 rays showed that Plaintiff has mild L5-S1 degenerative disc disease, anterior subluxation of S1 on 7 S2, severe left and moderate right hip osteoarthritis, and osteophyte formation and subchondral 8 cysts. (Id.) The next month, Plaintiff saw a nurse practitioner and indicated that he was depressed, but 9 the nurse practitioner reported that he had no mental health condition that required further 11 United States District Court Northern District of California 10 intervention. (AR 594.) Plaintiff also had an x-ray to evaluate his bilateral hip pain which found 12 that he had severe left and moderate right hip osteoarthritis. (AR 666.) In September 2012, he 13 had a CT of the lumbar spine which found moderate degenerative disc disease at L5-S1 with 14 moderate left neural foraminal narrowing. (AR 664.) 15 Plaintiff was still hearing voices in March 2013, but was attending Laney College to 16 receive a welding certificate. (AR 631.) Dr. James, a psychiatrist, reported that Plaintiff appeared 17 upbeat about getting back into the job market. (Id.) However, a few months later, Plaintiff 18 indicated feeling very limited by his hip and back pain—he had significant pain when standing 19 after sitting or lying down—so the doctor encouraged him to continue physical therapy. (AR 860- 20 861.) 21 Six months later, Plaintiff’s psychiatric condition was generally stable and his response to 22 treatment was fair. (AR 629.) Plaintiff was assigned a GAF score of 45. (Id.) Plaintiff was still 23 depressed in May 2014 and also reported being irritable, though he was 46 days clean. (AR 761.) 24 He still suffered from hip pain. (Id.) The next month, he was seen by Dr. Sylvana Reisland and 25 again diagnosed with Schizoaffective Disorder Depressive Type, but he felt his condition was 26 stable and he did not need an adjustment to his medication. (AR 393.) Two days later, however, 27 he was seen by Dr. Howard and reported hearing voices every other day and felt angry and 28 5 1 paranoid around people. (AR 724.) Dr. Howard diagnosed him with psychotic disorder NOS. 2 (Id.) At that same time, Plaintiff was suffering from right shoulder pain, which was eventually 3 4 diagnosed in June 2014 with x-rays and found to be because of moderate to severe degenerative 5 changes of the glenohumeral joint. (AR 652.) He also had bilateral hand/wrist tingling pain 6 because of moderate degenerative changes of the cervical spine. (AR 653.) In September 2013, Plaintiff had x-rays of his shoulder and foot, which only showed minor 8 abnormalities. (AR 661-663.) That same month, Plaintiff had an examination of his spine and the 9 examining physician noted that Plaintiff was using a cane because of his left hip pain. (AR 832.) 10 That physician also noted that Plaintiff’s back condition does not impact his ability to work. (AR 11 United States District Court Northern District of California 7 840.) Plaintiff had more x-rays in October 2013 of his wrist and hands, which showed soft tissue 12 13 swelling of the wrist. (AR 659-660.) Finally, in November 2013, Plaintiff had x-rays of his knees, wrists, hands, and spine. (AR 14 15 653-657.) These x-rays showed that he has slight narrowing of some of his discs, anterior 16 osteophytes, reversal of lordotic curvature of the cervical spine, small calcifications in his wrist, 17 asymmetric mild right medial femoral tibial osteoarthritis, right tibial spine spurring, bilateral 18 patellar enthesopathy, and trace bilateral joint effusions. (Id.) 19 B. 20 21 Medical Evaluations Plaintiff underwent two examinations at the direction of the SSA to determine whether his impairments were disabling. Below is a summary of these evaluations. 22 1) Examining Clinical Psychologist Dr. Ute Kollath 23 Dr. Kollath performed a Mental Status Evaluation at the request of the Department of 24 Social Services in February 2012. (AR 564-568.) In addition to talking to Plaintiff, Dr. Kollath 25 reviewed form SSA-3368, records from the Doctors Hospital of Manteca, and interdisciplinary 26 progress notes. (AR 564.) Plaintiff told Dr. Kollath that he suffered from depression and auditory 27 hallucinations. (Id.) Dr. Kollath concluded that Plaintiff’s ability to follow complex/detailed 28 instructions, his ability to withstand the stress of a routine workday, and the ability to interact with 6 1 others on a regular basis, were unimpaired. (AR 567.) The only thing that was mildly impaired 2 was his ability to maintain adequate pace or persistence when performing complex tasks (though 3 his ability to do so for simple repetitive tasks was unimpaired.) (Id.) Dr. Kollath rated Plaintiff’s 4 GAF score at 70. (Id.) 5 2) Examining Physician Dr. Kemesha Delisser 6 That same month, Dr. Delisser reviewed the evidence in Plaintiff’s file and conducted a comprehensive orthopedic evaluation for Plaintiff’s left hip pain. (AR 569.) Plaintiff was able to 8 walk to the examination room without assistance and sit comfortably. (AR 570.) Dr. Delisser 9 diagnosed Plaintiff with left hip avascular necrosis and found that the conditions would impose 10 limitations for twelve months without surgery. (AR 571.) Dr. Delisser concluded that Plaintiff 11 United States District Court Northern District of California 7 had no limitations on his sitting capacity, could frequently lift 25 pounds, and there were no 12 limitations on his workplace environmental activities; however, he could only stand for two hours 13 and could occasionally lift up to 50 pounds. (AR 571-572.) Plaintiff did not have an assistive 14 device at that time. (AR 571.) 15 II. PLAINTIFF’S ALJ HEARINGS 16 A. Plaintiff’s Testimony 17 1) November 13, 2013 Hearing 18 Plaintiff was treated at the VA clinic in Martinez. (AR 62.) Plaintiff also received medical 19 treatment and mental health treatment at the parole outpatient clinic every other month. (Id.) At 20 the time of the hearing, Plaintiff had gone over a month without using any street drugs. (AR 63.) 21 The hearing was continued to allow Plaintiff’s attorney to obtain Plaintiff’s medical records from 22 the parole outpatient clinic. (Id.) 23 2) Plaintiff’s July 9, 2014 Supplemental Hearing Testimony 24 Plaintiff did three years of active duty in the army with an honorable discharge, no 25 disciplinary actions, and no mental health treatment. (AR 49.) Thereafter, Plaintiff worked for the 26 post office for 13 years as a material handler. (AR 33.) In the late 1990s, Plaintiff spoke to 27 someone in the post office’s employee assistance program about his mental health problem, but 28 did not mention that he heard voices. (AR 38, 50.) While working at the post office, Plaintiff 7 1 worked part-time for his brother-in-law’s landscaping company. (AR 40, 53.) Plaintiff stopped 2 working at the post-office in 2005 when he was incarcerated. (AR 33.) Plaintiff was incarcerated 3 for 11 months then went on parole. (AR 34.) While on parole, Plaintiff held odd jobs but could 4 not get a full-time job. (Id.) Plaintiff was arrested again in 2008 for strong-arm robbery and 5 served 38 months. (AR 35.) After Plaintiff was released, he could not work because of the 6 arthritis in his hip and because of his mental condition at the time. (AR 35-36.) Plaintiff’s 7 arthritis had spread to his back, wrists, and shoulders. (AR 36.) Plaintiff could not have his hip 8 replaced until he lost weight, which he indicated had been difficult because he could not exercise. 9 (Id.) 10 Plaintiff started using drugs in 2001. (AR 39.) At the time of the hearing, Plaintiff had not United States District Court Northern District of California 11 used drugs in four months and had not had alcohol in six months. (AR 37-38.) Plaintiff was 12 studying welding, but was having trouble doing so because of his body, so he changed his major to 13 drug and alcohol counseling. (AR 39.) Plaintiff indicated that he missed classes sometimes 14 because of his limitations and paranoia. (Id.) 15 Plaintiff cannot presently work because of his physical and mental limitations. (AR 41.) 16 He cannot sit for a long time without his hip and back hurting, and cannot walk for too long 17 without his hip hurting. (Id.) Plaintiff had been taking classes at the VA hospital for his mental 18 health. (AR 41-42.) He also took classes at the parole office to learn how to use a computer and 19 get help with his school work. (AR 42.) Plaintiff uses public transportation, but riding the bus 20 hurts his hip and back and makes him paranoid when it is crowded. (AR 46.) 21 Plaintiff took Oxycontin and received a cortisone shot in his shoulder, but indicated that it 22 did not help his pain. (Id.) Plaintiff was prescribed Geodon for his mental health issues, but he 23 still hears voices several times a week or when he is around a lot of people. (AR 43.) Plaintiff has 24 been hearing voices since the late 1970s. (AR 49.) The voices tell Plaintiff that he is worthless, 25 but they no longer tell him to hurt himself or others. (AR 44.) Plaintiff also experiences paranoia 26 and flashbacks. (AR 45.) Plaintiff has a hard time sleeping because of bad dreams and the voices 27 he heard. (AR 46.) Consequently, Plaintiff would fall asleep in class or on the bus. (AR 48.) 28 8 1 2 B. Vocational Expert’s Testimony The ALJ presented Vocational Expert (“VE”) JoAnn Yoshioka with a hypothetical of an individual of Plaintiff’s age, education, work experience, and physical and mental capacity. (AR 4 54-55.) The individual can perform sedentary work for standing and walking and sitting, limited 5 to two hours a day standing and walking and up to six hours a day sitting. (Id.) The VE testified 6 that such an individual could perform the job of a patcher of electrical equipment (DOT code 7 723.687-010, SVP 2, of which there are 18,000 positions in California and 218,000 throughout the 8 United States), a weight tester (DOT code 539.485-010, SVP 2, of which there are 47,000 9 positions in California and 454,000 throughout the United States), or a telephone quotation clerk 10 (DOT code 237.367-046, SVP 2, of which there are 100,000 positions in California and 966,000 11 United States District Court Northern District of California 3 throughout the United States). (AR 55-56.) The ALJ eliminated the telephone quotation clerk 12 position because it involves public interaction. (AR 56.) 13 The ALJ then asked a second hypothetical regarding a person who is limited to simple 14 occasional public contact and with a change of position, from sitting to standing and vice versa, 15 five minutes every hour. (Id.) The VE testified that it would not eliminate the first two positions. 16 (AR 57.) 17 Plaintiff’s attorney asked the VE if either of the first two jobs would be in an office setting 18 or whether they would require occasional travel. (Id.) The VE testified that they would be in a 19 factory or warehouse setting and would not require travel. (Id.) 20 III. THE ALJ’S FINDINGS 21 In an August 5, 2014 written decision, the ALJ found Plaintiff not disabled under Sections 22 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act, taking into consideration the 23 testimony and evidence, and using the SSA’s five-step sequential evaluation process for 24 determining disability. (AR 11-23.) 25 At the first step, the ALJ concluded that Plaintiff has not engaged in substantial gainful 26 activity since June 1, 2008. (AR 13.) The ALJ found that Plaintiff may have had temporary jobs, 27 but there is insufficient evidence that any activities after the alleged disability onset date rose to 28 the level of substantial gainful activity. (Id.) 9 1 At the second step, the ALJ concluded that Plaintiff possessed the following severe 2 impairments: mild degenerative disc disease of the lumbar spine; bilateral osteoarthritis of the 3 hips; degenerative joint disease of the right foot; obesity; a depressive disorder; an antisocial 4 personality disorder; substance-induced psychosis; and polysubstance abuse (active). (Id.) The 5 medical records indicate that the above impairments are severe and have more than a minimal 6 effect on Plaintiff’s ability to work. (AR 14.) However, other impairments such as knee and 7 shoulder pain and schizoaffective disorder are nonsevere impairments. (Id.) 8 9 At the third step, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 11 United States District Court Northern District of California 10 404.1526, 416.920(d), 416.925 416.926). (AR 15.) The ALJ considered the listings of 1.02 – 12 major dysfunction of a joint, 104 – disorder of the spine, 12.02 – organic mental disorder, and 13 12.04 – affective disorder, 12.09 – substance addiction disorders. (AR 16.) The ALJ found 14 insufficient evidence to satisfy the requisite criteria enumerated under the listings. (AR 15.) 15 Because Plaintiff’s mental impairments do not cause at least two “marked” limitations or one 16 “marked” limitation and “repeated” episodes of decompensation, each of extended duration, the 17 “paragraph B” criteria are not satisfied. (Id.) The evidence also does not satisfy the “paragraph 18 C” criteria. (AR 16.) 19 At the fourth step, the ALJ concluded that Plaintiff has the residual functional capacity to 20 perform sedentary work within specific parameters: Plaintiff “can lift 10 pounds frequently and 20 21 pounds occasionally, perform no climbing of ladders, ropes or scaffolds, perform all other postural 22 activities occasionally, requires a change of position (sit/stand) for 5 minutes every hour, and 23 cannot have contact with the public.” (Id.) The ALJ found that no treating physician or mental 24 health practitioner opined that Plaintiff is unable to perform any work. (AR 20.) As to the 25 opinion evidence, the ALJ assigned “great weight” to the GAF scores assigned to Plaintiff by 26 various mental health practitioners, which “indicated transient or mild symptoms only.” (Id.) The 27 ALJ placed “great weight” on Dr. Kollath’s conclusions because they are uncontroverted. (Id.) 28 The ALJ also placed “limited weight” on Dr. Delisser’s conclusions to the extent that they match 10 1 the residual functional capacity assessment. (Id.) The ALJ concluded that Plaintiff’s statements 2 concerning the intensity, persistence, and limiting effects of his alleged symptoms were not 3 entirely credible. (AR 21.) 4 At the fifth step, the ALJ found that there was other work in the national economy that 5 Plaintiff could perform, such as the job of patcher, of which there exists 18,000 jobs in California, 6 and the job of weight tester, of which there exists 47,000 jobs in California. (AR 22.) The ALJ 7 therefore concluded that Plaintiff was not disabled under the Social Security Act. (Id.) 8 IV. APPEALS COUNCIL 9 Plaintiff filed a request for review on October 3, 2014, arguing that the ALJ’s decision was not supported by accurate evidence. (AR 7.) The Appeals Council denied Plaintiff’s appeal on 11 United States District Court Northern District of California 10 April 13, 2016, concluding there was no reason to grant review on the basis of abuse of discretion, 12 or any other reason. (AR 1.) The Appeals Council’s decision rendered the ALJ’s opinion final. STANDARD OF REVIEW 13 14 Pursuant to 42 U.S.C. § 405(g), the Court has authority to review an ALJ’s decision to 15 deny benefits. When exercising this authority, however, the “Social Security Administration’s 16 disability determination should be upheld unless it contains legal error or is not supported by 17 substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 18 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”; it 19 is “more than a mere scintilla, but may be less than a preponderance.” Molina v. Astrue, 674 F.3d 20 1104, 1110-11 (9th Cir. 2012) (internal citations and quotation marks omitted). To determine 21 whether the ALJ’s decision is supported by substantial evidence, the reviewing court “must 22 consider the entire record as a whole and may not affirm simply by isolating a specific quantum of 23 supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (internal citations and 24 quotation marks omitted). 25 Determinations of credibility, resolution of conflicts in medical testimony, and all other 26 ambiguities are roles reserved for the ALJ. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 27 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “The ALJ’s findings will be 28 upheld if supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 11 1 F.3d 1035, 1038 (9th Cir. 2008) (internal citations and quotation marks omitted); see also Batson 2 v. Comm’r of Soc. Sec., 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ 3 is subject to more than one rational interpretation, we must defer to the ALJ’s conclusion.”) “The 4 court may not engage in second-guessing.” Tommasetti, 533 F.3d at 1039. “It is immaterial that 5 the evidence would support a finding contrary to that reached by the Commissioner; the 6 Commissioner’s determination as to a factual matter will stand if supported by substantial 7 evidence because it is the Commissioner’s job, not the Court’s, to resolve conflicts in the 8 evidence.” Bertrand v. Astrue, No. 08-00147, 2009 WL 3112321, at *4 (E.D. Cal. Sept. 23, 9 2009). Similarly, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court can only affirm the 11 United States District Court Northern District of California 10 ALJ’s findings based on reasoning that the ALJ herself asserted. See Connett v. Barnhart, 340 12 F.3d 871, 874 (9th Cir. 2003). In other words, the Court’s consideration is limited to “the grounds 13 articulated by the agency[.]” Cequerra v. Sec’y, 933 F.2d 735, 738 (9th Cir. 1991). DISCUSSION 14 Plaintiff contends that the ALJ erred as a matter of law by (1) improperly weighing the 15 16 medical opinion evidence; (2) incorrectly evaluating Plaintiff’s credibility; (3) not fully 17 developing the record; (4) drawing an improper conclusion at the step two finding; and (5) finding 18 Plaintiff capable of performing work. Plaintiff urges the Court to grant summary judgment and 19 remand for payment of benefits, or in the alternative, further proceedings. 20 I. THE ALJ’S CONSIDERATION OF MEDICAL OPINION EVIDENCE 21 A. 22 Legal Standard In the Ninth Circuit, courts must “distinguish among the opinions of three types of 23 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do 24 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 25 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as 26 amended (Apr. 9, 1996)). “A treating physician’s opinion is entitled to more weight than that of 27 an examining physician, and an examining physician’s opinion is entitled to more weight than that 28 of a nonexamining physician.” Orn, 495 F.3d at 631. If a treating doctor’s opinion is not 12 1 contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Baxter 2 v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). And “even if the treating doctor’s opinion is 3 contradicted by another doctor, the Commissioner may not reject this opinion without providing 4 ‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.” 5 Lester, 81 F.3d at 830 (internal citations and quotations omitted). Likewise, “the opinion of an 6 examining doctor, even if contradicted by another doctor, can only be rejected for specific and 7 legitimate reasons that are supported by substantial evidence in the record.” Id. at 830–31. “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 8 and conflicting medical evidence, stating his interpretation thereof, and making findings.” Cotton 10 v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). “The opinion of a nonexamining physician cannot 11 United States District Court Northern District of California 9 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 12 examining physician or a treating physician.” Lester, 81 F.3d at 831 (internal citation omitted). 13 Ultimately, “the ALJ must do more than offer his conclusions. He must set forth his own 14 interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 15 F.2d 418, 421–22 (9th Cir. 1988). 16 Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs. In other words, an ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion. 17 18 19 20 Garrison v. Colvin, 759 F.3d 995, 1012-1013 (9th Cir. 2014) (internal citation omitted). In 21 conducting its review, the ALJ “must consider the entire record as a whole and may not affirm 22 simply by isolating a ‘specific quantum of supporting evidence.’” Hill, 698 F.3d at 1159 (internal 23 citations omitted). 24 B. 25 Analysis Plaintiff insists that the ALJ erred in weighing the medical evidence when formulating 26 Plaintiff’s residual functional capacity (“RFC”). In particular, Plaintiff argues that the ALJ (1) 27 failed to consider medical evidence suggesting that he uses a cane for ambulation, and (2) failed to 28 include any cognitive limitations despite findings by examining physicians that he should be 13 1 limited to simple repetitive tasks and that he was moderately limited in pace and concentration. 2 The Commissioner maintains that any such errors were harmless because while the RFC does not 3 explicitly include these limitations, they are inherent in his findings. 4 1) Plaintiff’s Use of a Cane for Ambulation 5 A claimant’s RFC is “the most [he] can still do” despite the impairments and related 6 symptoms that “may cause physical and mental limitations that affect what [he] can do in a work 7 setting.” 20 C.F.R. § 404.1545(a)(1). The court must defer to the ALJ’s RFC determination “if 8 the ALJ applied the proper legal standard and his decision is supported by substantial evidence. 9 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ must consider all the medical opinions “together with the rest of the relevant evidence [on record].” 20 C.F.R. § 404.1527(b); 11 United States District Court Northern District of California 10 see also § 404.1545(a)(1) (“We will assess your residual functional capacity based on all the 12 relevant evidence in your case record.”). The ALJ’s decision does not refer to Plaintiff’s use of a cane even though the 13 14 administrative record shows he used one. In July 2011, Plaintiff’s treating physician, Dr. Pfile, 15 prescribed Plaintiff a cane and mobility vest because of his left hip pain. (AR 439, 479.) Dr. Pfile 16 wrote in her assessment of Plaintiff: “continue cane and mobility impaired vest” and Plaintiff was 17 noted in all subsequent medical visits except one to use a cane for ambulation.4 (AR 439, 469, 18 479, 557, 634, 827, 832.) The medical visit during which Plaintiff was not using a cane was Dr. 19 Delisser’s examination in 2012, in which she noted that Plaintiff was not using a cane for 20 ambulation or any other assistive device. (AR 571.) However, throughout 2012 and 2013, other 21 physicians noted that Plaintiff was still using a cane. (AR 557, 634, 827, 832.) 22 Because the ALJ did not discuss Plaintiff’s use of a cane, the Court cannot discern whether 23 the ALJ found it was not necessary or simply did not consider it. As the Court “review[s] only the 24 reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a 25 ground upon which he did not rely,” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), the Court 26 4 27 28 “To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed.” SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). 14 1 cannot conclude that substantial evidence supports the ALJ’s failure to include Plaintiff’s cane use 2 in the RFC determination. The Commissioner’s insistence that the ALJ’s failure to consider the cane is harmless error 3 4 is unpersuasive. Use of a “medically required hand-held assistive device” may “significantly 5 erode” the occupational base for an individual who must use such a device. Social Security 6 Ruling (SSR) 96-9p at *7; Cano v. Colvin, No. 14-4397, 2015 WL 10945616, at *4 (C.D. Cal. Jan. 7 26, 2015).5 Thus, “[i]f a claimant has a genuine medical need for a cane, such a limitation should 8 be included in any hypothetical questioning of the VE.” Blanket v. Berryhill, No. 2:16-00001- 9 LRS, 2017 WL 2234184, at *4 (E.D. Wash. May 22, 2017); see also Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) (“A hypothetical question posed to a vocational expert must include all of 11 United States District Court Northern District of California 10 the claimant’s functional limitations, both physical and mental.”). “The vocational effect of a cane 12 restriction may vary as to each function an individual can perform. It may limit standing, walking, 13 lifting, carrying, pushing or pulling.” Blanket, 2017 WL 2234184 at *4. In Blanket, for example, the plaintiff was prescribed a cane, which the ALJ considered in 14 15 the RFC assessment. However, at the ALJ hearing, the ALJ did not ask the VE to consider the 16 plaintiff’s use of a cane; rather, “the ALJ considered that limitation to be inherent in the sit/stand 17 option she included as a limitation in the hypothetical questions she asked the VE.” 2017 WL 18 2234184, at *3. The court disagreed and held that because a cane can be restrictive in certain 19 vocational functions, on remand the ALJ had to determine when the plaintiff’s use of a cane is 20 necessary. Id. at *4. The court instructed that this finding must then be presented to the VE so the 21 ALJ could accurately conclude if there were other jobs available that the plaintiff is capable of 22 performing. Id. Similarly, here, if Plaintiff’s use of a cane is medically required, the cane could affect 23 24 Plaintiff’s ability to perform certain jobs, including those identified by the VE. The inclusion of a 25 26 27 28 5 The sedentary occupational base is not significantly eroded if the hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base, but it may be significantly eroded if the individual needs the device for balance because of significant involvement of both lower extremities. SSR 96-9p at *7. 15 1 sit/stand option in the ALJ’s hypothetical to the VE did not sufficiently address this issue because, 2 as the regulations and caselaw recognize, the need for a cane may limit the available jobs 3 notwithstanding a sit/stand option. See Blanket, 2017 WL 2234184 at *4 (reviewing cases). 4 2) Plaintiff’s Cognitive Limitations 5 Plaintiff also argues that the ALJ erred in failing to incorporate into the RFC or the 6 hypothetical questions to the VE his moderate limitations in certain functional areas and his ability 7 to perform simple routine repetitive tasks for two-hour intervals. In support of this argument 8 Plaintiff relies on a review of his records from state psychiatrist Dr. Gregg. (Dkt. No. 13 at 15.) 9 Dr. Gregg found that Plaintiff’s concentration and persistence were moderately limited in certain areas. (AR 128.) Dr. Gregg concluded that Plaintiff can understand simple instructions, can carry 11 United States District Court Northern District of California 10 out simple routine repetitive tasks for two-hour periods, can accept supervision and can interact 12 with coworkers. (AR 129.) The ALJ’s opinion does not reference Dr. Gregg’s findings and 13 instead focuses on the findings of state agency examining physician Dr. Kollath who concluded 14 that Plaintiff’s ability to follow complex/detailed instructions, his ability to withstand the stress of 15 a routine workday, and the ability to interact with others on a regular basis, were unimpaired. (AR 16 567.) Dr. Kollath found only that Plaintiff’s ability to maintain adequate pace or persistence when 17 performing complex tasks was mildly impaired (though his ability to do so for simple repetitive 18 tasks was unimpaired.) (Id.) 19 As with Plaintiff’s use of a cane, the ALJ did not explicitly discount Dr. Gregg’s findings 20 regarding Plaintiff’s cognitive limitations—he simply failed to discuss them. However, the ALJ’s 21 failure to consider Dr. Gregg’s assessment is harmless because the jobs the ALJ considered at step 22 five were all unskilled and thus included only simple tasks. See McGarrah v. Colvin, 650 F. 23 App’x 480, 481 (9th Cir. 2016) (“Unskilled work is defined as work which needs little or no 24 judgment to do simple duties that can be learned on the job in a short period of time.”) (internal 25 citations omitted). Thus, Dr. Gregg’s finding that Plaintiff can perform simple tasks for two-hour 26 periods does not contradict the ALJ’s findings. In fact, Dr. Gregg and Dr. Jessee, a physician who 27 conducted a Mental Residual Functional Capacity Assessment in 2011, both found that Plaintiff 28 16 1 retains the ability to perform simple, repetitive, routine tasks for two-hour periods, understand 2 simple instructions, and interact with coworkers and supervisors. (AR 77-78, 110-111.) 3 Dr. Gregg and Dr. Jessee also found that Plaintiff has sustained concentration and 4 persistence limitations and is moderately limited in completing a normal workday and performing 5 at a consistent pace. (Id.) However, the ALJ did not need to specifically mention these 6 limitations; instead, the ALJ’s assessment of Plaintiff has to be consistent with the restrictions 7 found in these and other medical testimonies. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 8 1174 (9th Cir. 2008) (holding that an ALJ’s assessment does not need to specifically mention 9 restrictions related to concentration, persistence, or pace “where the assessment is consistent with 10 restrictions identified in the medical testimony.”). In Stubbs-Danielson, for example, the court held that the ALJ’s RFC finding that the United States District Court Northern District of California 11 12 claimant “‘retains the residual functional capacity to perform simple, routine, repetitive sedentary 13 work, requiring no interaction with the public,’” was sufficient to capture the claimant’s 14 concentration, persistence, and pace limitations. Here, the Court finds that Dr. Gregg and Dr. 15 Jessee’s findings were included in and consistent with the limitations the ALJ posed to the VE, 16 which narrowed available jobs to unskilled, sedentary work. (AR 54-55.) Further, nothing in the 17 record shows that the ALJ discounted Dr. Gregg’s opinion; rather, the ALJ noted that he 18 considered all the opinion evidence. (AR 20.) 19 II. THE ALJ’S CREDIBILITY FINDING 20 A. 21 Standard for Assessing Credibility Plaintiff asserts that the ALJ erred by discrediting his testimony. If the claimant has 22 presented objective medical evidence of an underlying impairment which could reasonably be 23 expected to produce the pain or other symptoms alleged, and there is no evidence of malingering, 24 the ALJ can only reject the claimant’s testimony about the severity of the symptoms if he gives 25 “specific, clear and convincing reasons” for the rejection. See Vasquez v. Astrue, 572 F.3d 586, 26 591 (9th Cir. 2009). An ALJ’s findings concerning credibility must be “grounded in evidence” 27 and articulated with “sufficient[ ] specific[ity] [so as] to make clear to the individual and to any 28 subsequent reviews the weight the adjudicator gave to the individual’s statements and the reasons 17 for that weight.” SSR 96–7p, 1996 WL 374186 (July 2, 1996). In making such a determination, 2 the ALJ may consider at least the following: claimant’s reputation for truthfulness, inconsistencies 3 in claimant’s testimony, claimant’s daily activities, work record, and testimony from physicians 4 and third parties concerning the nature, severity, and effect of the symptoms of which the claimant 5 complains. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ is not “required 6 to believe every allegation of disabling pain, or else disability benefits would be available for the 7 asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603 8 (9th Cir.1989). Further, when evaluating credibility, an ALJ may consider “the claimant’s daily 9 activities” and work history. See 20 C.F.R. §§ 404.1529(c)(3)(i),416.929(c)(3)(i); ; Fair, 885 F.2d 10 at 603 (stating that the claimant’s daily activities may be evidence upon which an “ALJ can rely to 11 United States District Court Northern District of California 1 find a pain allegation incredible.”); see also Thomas, 278 F.3d at 959 (holding that claimant’s poor 12 work history “negatively affected her credibility regarding her inability to work.”). 13 B. Analysis 14 The ALJ concluded that Plaintiff’s testimony regarding the severity and functional 15 consequences of his disability was not fully credible because: (1) Plaintiff stopped working for the 16 post office because of a parole violation, not because of his “allegedly disabling pain and other 17 symptoms”; (2) Plaintiff has been able to work and take college classes since his alleged disability 18 onset date; (3) Plaintiff’s statements to various treatment providers regarding his symptom and 19 treatment compliance undermine his allegations of disabling pain; and (4) Plaintiff made 20 inconsistent statements regarding his drug and alcohol use. (AR 20-21.) 21 First, an ALJ may consider the fact that Plaintiff left work for non-medical reasons. See 22 Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as amended (Nov. 9, 2001). Here, the 23 ALJ considered the fact that Plaintiff initially stopped work at the post office because he was 24 incarcerated, not because he was too disabled to work. The ALJ likewise attributed his ongoing 25 unemployment to his criminal history and parole violations as opposed to the allegations of 26 disability. Indeed, the record shows that Plaintiff has been in and out of custody since his alleged 27 disability onset date. (AR 423-459, 595). An ALJ may properly consider a claimant’s “spotty” 28 18 1 work history before and after the alleged disability onset date in evaluating credibility. See 2 Thomas, 278 F.3d at 959. 3 Second, the ALJ properly considered Plaintiff’s ability to work and take college classes in 4 determining whether Plaintiff’s subjective allegations of pain supported an inability to work. 5 “Engaging in daily activities that are incompatible with the severity of symptoms alleged can 6 support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 7 2014). Here, Plaintiff is able to take public transportation and interact sufficiently with his 8 professors and other students to continue his educational pursuits, which supports the ALJ’s 9 finding that Plaintiff is able to work. See e.g., Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (recognizing that although claimant’s daily activities did not suggest that 11 United States District Court Northern District of California 10 he could return to prior work, they did suggest that the alleged severity of limitations were 12 exaggerated); Jin Liu v. Berryhill, No. 16-01553, 2017 WL 1739105, at *3 (N.D. Cal. May 4, 13 2017) (concluding that the ALJ had not erred in finding Plaintiff was not fully credible based in 14 part on the fact that “Plaintiff attended school during the period during which he alleges he was 15 completely disabled, and engaged in daily activities that are inconsistent with his claims of total 16 disability”); Chappelle v. Berryhill, No. 6:16-CV-00444-SB, 2017 WL 2399581, at *8 (D. Or. 17 June 2, 2017) (concluding that it was reasonable “for the ALJ to find that [plaintiff’s] reported 18 activities, which included earning an associate’s degree during the alleged period of disability, 19 caring for his nine-year-old daughter, walking up to a mile per day, hiking, assisting with 20 household chores, participating in “various after school activities,” and applying for jobs and 21 reportedly being willing to accept a job offer post-alleged onset date, were incompatible with his 22 reported limitations.”). 23 Third, the ALJ properly considered the inconsistencies in Plaintiff’s statements about his 24 symptom and treatment compliance and Plaintiff’s allegations of disabling pain. Plaintiff asserts 25 that he was not taking medication despite his alleged pain because “doctors were unsure if they 26 could prescribe him narcotic medication given his status as a parolee.” (Dkt. No. 13 at 16.) This 27 explanation is not true. Rather, in 2011, Dr. Pfile wrote that Plaintiff needed an increased dose of 28 his pain medication and she would take it up with the pain management committee. (AR 47919 1 480.) Then in 2012, Plaintiff’s psychiatrist and social worker both noted that Plaintiff was not on 2 any pain medication, but had an upcoming appointment regarding his hip. (AR 909.) The ALJ is 3 not contesting that Plaintiff ever took pain medications, rather, that when Plaintiff said he was in 4 pain, he was not always taking pain medication. See SSR 96-7p (finding that an “individual’s 5 statements may be less credible if the level or frequency of treatment is inconsistent with the level 6 of complaints”). Finally, the ALJ’s reliance on inconsistencies in Plaintiff’s statements regarding his drug 7 8 and alcohol use is problematic. The ALJ misstated the record: Plaintiff’s statement on April 9, 9 2014 that he was clean and sober that day although he had relapsed two weeks prior is not inconsistent with his subsequent statement, on June 16, 2014—over 90 days from March 26—that 11 United States District Court Northern District of California 10 he had been clean for 90 days. (AR 894, 897.) However, any such error is harmless in light of the 12 cumulative evidence supporting the ALJ’s adverse credibility finding. See Carmickle v. Comm’r, 13 Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (stating that an ALJ’s citation to erroneous 14 reasons is harmless so long as the “ALJ’s remaining reasoning and ultimate credibility 15 determination were adequately supported by substantial evidence in the record[ ]”). On balance, Plaintiff’s work history and the other reasons which may have contributed to 16 17 his inability to hold down a job, his ability to attend school, and his inconsistent reports regarding 18 his pain and use of medication constitute substantial evidence supporting the ALJ’s adverse 19 credibility finding. 20 III. WHETHER THE ALJ SHOULD HAVE DEVELOPED THE RECORD FURTHER 21 A. 22 23 Legal Standard Plaintiff argues that the ALJ did not fulfill his duty to develop the record because he failed to obtain a current orthopedic examination or medical expert testimony. 24 Only if evidence in the record is inadequate or ambiguous to allow proper evaluation of an 25 impairment, does “[t]he ALJ ... [have] an independent duty to fully and fairly develop the record . 26 . . .” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001) (holding that the ALJ failed to 27 develop the record when he relied heavily on the opinion of a non-examining medical expert to 28 find that the claimant suffered from a mild mental impairment, but ignored the same expert’s 20 1 opinion that conflicting treating physicians reports rendered the record ambiguous as to the 2 possibility of more serious mental impairments such as chronic schizophrenia or depressive 3 disorder); see also Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998) 4 (holding that where the record is ambiguous the ALJ must “assist the claimant in creating a 5 complete record”). The ALJ can discharge this duty in several ways, including by: (1) making a 6 reasonable attempt to obtain medical evidence from the claimant’s physician(s); (2) ordering a 7 consultative examination when the medical evidence is incomplete or unclear; (3) subpoenaing or 8 submitting questions to the claimant’s physicians; (4) continuing the hearing; or (5) keeping the 9 record open for more supplementation. See Tonapetyan, 242 F.3d at 1150; 20 C.F.R. §§ 404.1512, 10 United States District Court Northern District of California 11 404.1517. Here, there is no indication in the ALJ’s written opinion or in the transcript that he denied 12 Plaintiff benefits based on his belief that the record was inadequate or ambiguous. Plaintiff’s 13 record is replete with treatment notes, examination reports, and x-ray analyses. Plaintiff’s 14 arguments to the contrary are unavailing. 15 First, Plaintiff contends that “[a]t the hearing, the ALJ pointed out that there were no recent 16 medical opinions regarding the limitations Mr. Hines experiences from his orthopedic 17 complaints.” (Dkt. No. 13 at 17.) Not so. At the hearing, the ALJ summarized the medical 18 evidence, noted that there was an orthopedic CE and that “there was definitely evidence of 19 orthopedic impairments.” (AR 51.) Thus, there is nothing to suggest that the ALJ found the 20 medical evidence with respect to Plaintiff’s orthopedic limitations insufficient. 21 Second, Plaintiff seems to suggest that the duty to develop the record arose because Dr. 22 Delisser’s report did not mention Plaintiff’s use of a cane and thus Dr. Delisser’s report is less 23 credible. However, there is no reason to believe that Dr. Delisser’s failure to mention Plaintiff’s 24 use of a cane was a negligent omission on Dr. Delisser’s part as opposed to the fact that Plaintiff 25 was not in fact using a cane during his exam with Dr. Delisser. (AR 571.) (Dr. Delisser wrote: 26 “there are no assistive devices”). Even if this were not the case, the ALJ gave less weight to the 27 opinion of Dr. Delisser because he found Dr. Delisser’s limitations inconsistent with the ALJ’s 28 more restrictive assessment of Plaintiff’s RFC. (AR 20.) In formulating this more restrictive 21 1 RFC, the ALJ relied on the objective medical evidence regarding Plaintiff’s orthopedic conditions, 2 including numerous x-rays. (AR 16-17, 652-669.) In any event, as discussed above, the matter is 3 being remanded so that the ALJ can make a finding as to whether the use of a cane is medically 4 necessary. 5 Third, Plaintiff maintains that the ALJ erred in finding that his shoulder condition was not severe because he relies on Dr. Delisser’s out-dated and internally inconsistent report which was 7 inconsistent with the medical evidence. In fact, the ALJ relied upon a 2013 x-ray of Plaintiff’s 8 shoulder (a year after Dr. Delisser’s exam) which noted that “with the exception of slightly 9 decreased range of motion, findings were normal and the examiner opined that there were not 10 functional or work limitations.” (AR 17 (citing Exhibits 18F/195-202 (AR 840-848)).) Thus, 11 United States District Court Northern District of California 6 there is nothing to suggest that the ALJ found the medical evidence regarding Plaintiff’s shoulder 12 condition inadequate or ambiguous. 13 Finally, Plaintiff highlights that the ALJ mischaracterized his condition as osteoarthritis, 14 although he was actually diagnosed with severe avascular necrosis with total collapse of his hip 15 point. Plaintiff maintains that a medical expert could have “helped the ALJ distinguish the 16 differences between the functional limitations of those two separate conditions.” (Dkt. No. 13 at 17 17-18.) However, Plaintiff’s statement is incorrect. The ALJ accurately recited that “x-rays of the 18 claimant’s pelvis . . . confirmed severe left hip osteoarthritis with bone on bone contact and 19 moderate right him osteoarthritis.” (AR 16.) This finding is confirmed by the record, including a 20 radiology report that states “severe left and moderate right hip osteoarthritis.” (AR 589.) Plaintiff 21 on the other hand cites to a medical report which only concluded that “the possibility of a 22 developing avascular necrosis should be considered.” (AR 476.) Thus, the ALJ did not 23 mischaracterize Plaintiff’s condition as osteoarthritis. 24 Plaintiff bears the burden of proving that he suffers from “any impairment or combination 25 of impairments which significantly limits his physical or mental ability to do basic work 26 activities.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quoting 20 C.F.R. §§ 404.1520(c), 27 416.920(c)). Unlike in Tonapetyan, where the ALJ’s duty to develop the record was triggered by 28 an expert’s uncertainty regarding conflicting diagnoses of mental disorders, here there is an 22 1 absence of evidence suggesting that Plaintiff’s orthopedic impairments were more severe than 2 noted by the ALJ. See Tonapetyan, 242 F.3d at 1149–1151. There is nothing to suggest that the 3 ALJ viewed the record as inadequate or insufficient to allow him to formulate Plaintiff’s RFC and 4 as such he was under no duty to develop the record. See McLeod v. Astrue, 640 F.3d 881, 884-85 5 (9th Cir. 2011) (holding that the ALJ did not have a duty to request additional information from 6 two of plaintiff’s treating physicians about the kind of work he could perform, because 7 “substantially all of their medical records throughout the time they treated [him] were before the 8 ALJ” and there “was nothing unclear or ambiguous about what they said”). 9 IV. REMAND IS WARRANTED When “’the record before the agency does not support the agency action, . . . the agency 10 United States District Court Northern District of California 11 has not considered all relevant factors, or . . . the reviewing court simply cannot evaluate the 12 challenged agency action on the basis of the record before it, the proper course, except in rare 13 circumstances, is to remand to the agency for additional investigation or explanation.’” Treichler 14 v. Comm. of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light 15 Co. v. Lorion, 470 U.S. 729, 744 (1985)). While the Court affirms much of the ALJ’s decision, in 16 light of the ALJ’s failure to consider Plaintiff’s use of a cane, remand is warranted. CONCLUSION 17 For the reasons described above, the Court GRANTS Plaintiff’s Motion for Summary 18 19 Judgment in part (Dkt. No. 13) and DENIES Defendant’s Cross-Motion for Summary Judgment 20 (Dkt. No. 18) and remands the matter to the Agency for further proceedings consistent with this 21 Order. 22 This Order disposes of Docket Nos. 13 and 18. 23 IT IS SO ORDERED. 24 25 26 Dated: July 31, 2017 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 27 28 23

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