Luu-Friday v. Berryhill

Filing 27

ORDER by Magistrate Judge Jacqueline Scott Corley granting 18 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 1/2/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
THYNANCY NGUYET LUU-FRIDAY,

7

Plaintiff,

8

ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.

9

NANCY A. BERRYHILL,

10

Re: Dkt. Nos. 18, 23

Defendant.

11
United States District Court
Northern District of California

Case No.17-cv-07182-JSC

12
Plaintiff Thynancy Nguyett Luu-Friday seeks social security benefits for a combination of

13
14

mental and physical impairments, including: lower back pain, arm and hand pain and numbness,

15

sleep disorder, chronic headaches, depression, and anxiety. (Administrative Record (“AR”) 231 &

16

254.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final

17

decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her

18

benefits claim. Now before the Court are Plaintiff’s and Defendant’s motions for summary

19

judgment.1 (Dkt. Nos. 18 & 23.)2 Because the Administrative Law Judge’s treatment of the

20

medical opinion evidence constitutes reversible legal error, the Court GRANTS Plaintiff’s motion,

21

DENIES Defendant’s cross-motion, and REMANDS for further proceedings.

22

LEGAL STANDARD

23

A claimant is considered “disabled” under the Social Security Act if she meets two

24

requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

25

First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by

26
1

27
28

Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 9 & 10.)
2
Record citations to “Dkt. No.” are to material in the Electric Case file (“ECF”); pinpoint citations
are to the ECF-generated page numbers at the top of the documents.

1

reason of any medically determinable physical or mental impairment which can be expected to

2

result in death or which has lasted or can be expected to last for a continuous period of not less

3

than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be

4

severe enough that she is unable to do her previous work and cannot, based on her age, education,

5

and work experience “engage in any other kind of substantial gainful work which exists in the

6

national economy.” 42 U.S.C. § 423(d)(2)(A).

7

To determine whether a claimant is disabled, an ALJ is required to employ a five-step
sequential analysis, examining: “(1) whether the claimant is ‘doing substantial gainful activity’;

9

(2) whether the claimant has a ‘severe medically determinable physical or mental impairment’ or

10

combination of impairments that has lasted for more than 12 months; (3) whether the impairment

11
United States District Court
Northern District of California

8

‘meets or equals’ one of the listings in the regulations; (4) whether, given the claimant’s ‘residual

12

functional capacity,’ the claimant can still do his or her ‘past relevant work’; and (5) whether the

13

claimant ‘can make an adjustment to other work.’” Molina v. Astrue, 674 F.3d 1104, 1110 (9th

14

Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).

15

An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by

16

substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

17

2005) (internal quotation marks and citation omitted). As explained by the Ninth Circuit,

18

“[s]ubstantial evidence means such relevant evidence as a reasonable mind might accept as

19

adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). “Where

20

evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that

21

must be upheld.” Id. In other words, if the record “can reasonably support either affirming or

22

reversing, the reviewing court may not substitute its judgment for that of the Commissioner.”

23

Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation marks and

24

citation omitted). However, “a decision supported by substantial evidence will still be set aside if

25

the ALJ did not apply proper legal standards.” Id.

26

A court “must consider the entire record as a whole, weighing both the evidence that

27

supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm

28

simply by isolating a specific quantum of supporting evidence.” Trevizo v. Berryhill, 871 F.3d
2

1

664, 675 (9th Cir. 2017).

2

PROCEDURAL HISTORY

3

In April 2014, Plaintiff filed an application for Social Security Disability Insurance

4

Benefits under Title II of the Social Security Act. (AR 21 & 203.) Plaintiff alleged disability

5

beginning November 4, 2013 caused by a fall resulting in chronic low back pain and headaches,

6

among other conditions. (AR 59, 203.) Her application was denied initially and on

7

reconsideration. (AR 21.) Plaintiff then filed a request for a hearing before an ALJ. (Id.) On July

8

26, 2016, a hearing was held before ALJ Mary P. Parnow, in San Francisco, California, during

9

which both Plaintiff and vocational expert (“VE”) Susan T. Moranda testified. (AR 55.)

10

I.

The ALJ’s Findings

United States District Court
Northern District of California

11

On November 2, 2016, the ALJ issued a written decision denying Plaintiff’s application

12

and finding that Plaintiff was not disabled within the meaning of the Social Security Act and its

13

regulations taking into consideration the testimony and evidence, and using the SSA’s five-step

14

sequential evaluation process for determining disability. (AR 21-30.)

15

At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity

16

since November 4, 2013, the alleged onset date, through her date of last insured of March 31,

17

2015. (AR 23 (citing 20 C.F.R. 404.1571 et seq).)

18

At step two, the ALJ determined that the objective medical evidence indicated that

19

Plaintiff’s degenerative disc disease of the cervical and lumbar spine, history of migraine

20

headaches, and history of myofascial syndrome constitute “severe impairments” within the

21

meaning of the regulations. (AR 23 (citing 20 C.F.R. 404.1520(c)).) The ALJ determined that

22

Plaintiff’s endometriosis and allergic rhinitis were not severe because her treatment records did

23

not reflect ongoing issues. (Id.) Similarly, the ALJ found that Plaintiff’s “medically determinable

24

mental impairments of adjustment disorder NOS, depression and anxiety, considered singly and in

25

combination, did not cause more than minimal limitation in [Plaintiff’s] ability to perform basic

26

mental work activities and were therefore nonsevere.” (Id.)

27

At the third step, the ALJ concluded that Plaintiff “did not have an impairment or a

28

combination of impairments that met or medically equaled the severity of one of the listed
3

1

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AR 25 (citing 20 C.F.R.

2

404.1520(d), 404.1525 and 404.1526).) In reaching this conclusion, the ALJ considered

3

Plaintiff’s MRI scans and clinical findings, and determined that “[a]lthough [Plaintiff] has

4

impairments, which are considered to be ‘severe,’ they are not attended, singly or in combination,

5

with the specific clinical signs and diagnostic findings required to meet or equal the requirements

6

set forth in the Listing of Impairments.” (Id. (citing 20 C.F.R. Part 404, Subpart P, Appendix 1).)

7

In between steps three and four, the ALJ considered Plaintiff’s residual functional capacity

8

(“RFC”) and concluded that Plaintiff retained the RFC to perform light work with the following

9

limitations:

10

United States District Court
Northern District of California

11
12
13

Lift and carry 20 pounds occasionally and 10 pounds frequently;
stand/walk four hours in an eight-hour day; sit six hours in an eighthour day; never climb ladders, ropes or scaffolds; occasionally
climb ramps/stairs, balance, stoop, kneel, crouch and crawl; and
avoid moderate exposure to unprotected heights and hazardous
machinery.

14

(AR 25.) The ALJ found that Plaintiff’s “medically determinable impairments could reasonably

15

be expected to cause the alleged symptoms; however, the [Plaintiff’s] statements concerning the

16

intensity, persistence and limiting effects of these symptoms are not entirely credible for the

17

reasons explained in this decision.” (AR 26.) The ALJ noted that while “objective diagnostic

18

studies . . . substantiate severe musculoskeletal impairments” following Plaintiff’s claimed injury

19

in August 2012, “the record contains scant treatment notes for 2013, and in September 2012, she

20

had clinical findings of normal strength in the upper and lower extremities, normal range of

21

motion, normal gait, normal mood and appropriate affect.” (AR 26-27.) The ALJ discussed

22

subsequent treatment notes and found that they “document inconsistent clinical findings regarding

23

[Plaintiff’s] musculoskeletal impairments,” and “[c]ontrary to [Plaintiff’s] alleged symptoms and

24

limitations,” Plaintiff was able to perform physical activities and work after the date of alleged

25

onset. (AR 28.) The ALJ afforded “little weight” to the statements from Plaintiff’s spouse,

26

finding them “inconsistent with treatment notes, clinical findings, objective diagnostic studies and

27

[Plaintiff’s] activities.” (AR 29.)

28

As for the medical opinion evidence, the ALJ afforded “some weight” to the opinions of
4

1

the non-examining “State agency physicians and consultants who completed the disability

2

determination explanations . . . because the record supports their assessments.” (AR 28.) The

3

ALJ afforded little weight to the opinion of examining psychiatrist Dr. Janine Marinos “because

4

the record lacks mental health treatment notes, [Plaintiff] had normal clinical findings, [Plaintiff]

5

denied having depression or anxiety and [Plaintiff] subsequently worked.” (Id.) Similarly, the

6

ALJ gave little weight to the opinion of examining physician Dr. Todd Gravori regarding his

7

diagnosis of radiculopathy because “the MRI scan of the lumbar spine revealed no evidence of

8

nerve root impingement; [Plaintiff] previously denied radicular symptoms; [Plaintiff] was able to

9

heel and toe walk with no difficulty; [Plaintiff] had normal gait; and [Plaintiff] had 5/5 motor
strength in the lower extremities.” (Id.) The ALJ purportedly afforded “significant weight” to the

11
United States District Court
Northern District of California

10

opinions of Plaintiff’s treating sources, excepting the opinions of Dr. George David (treating

12

psychiatrist), Dr. C. Chin-Garcia (attending physician of treating Sutter Health physicians), and

13

Dr. Warren Strudwick (treating orthopedist).3 (AR 29.)
At step four, the ALJ found that “[t]hrough the date last insured, [Plaintiff] was capable of

14
15

performing past relevant work as a check cashier” because “this work did not require the

16

performance of work-related activities precluded by [Plaintiff’s] residual functional capacity.”

17

(AR 29-30 (citing 20 C.F.R. 404.1565).)
At step five, the ALJ found that Plaintiff “was not under a disability, as defined in the

18
19

Social Security Act, at any time from November 4, 2013, the alleged onset date, through March

20

31, 2015, the date last insured.” (Id. at 30 (citing 20 C.F.R. 404.1520(f)).)

21

II.

The Appeals Council

22

Plaintiff filed a request for review on December 27, 2016 arguing that the ALJ’s decision

23

was “based on legal error and not supported by substantial evidence.” (AR 200.) On November

24

7, 2017, the Appeals Council denied Plaintiff’s request for review making the ALJ’s decision

25

final. (AR 1-4.)

26

//

27
3

28

The ALJ did not identify the specific opinions of Plaintiff’s treating sources to which she
afforded “significant weight.”
5

1

III.

This Action
Plaintiff commenced this action for judicial review on December 18, 2017, pursuant to 42

2
3

U.S.C . § 405(g). (Dkt. No. 1.) Plaintiff then moved for summary judgment, (Dkt. No. 18), and

4

the Commissioner filed her cross-motion, (Dkt. No. 23).
DISCUSSION

5

Plaintiff raises five primary issues with the ALJ’s decision. First, Plaintiff insists that the

6
7

ALJ erred in evaluating the medical opinions. Second, Plaintiff argues that the ALJ erred in

8

assessing Plaintiff’s credibility. Third, Plaintiff insists that the ALJ’s assessment of Plaintiff’s

9

residual functional capacity was not supported by substantial evidence. Fourth, Plaintiff contends
that the ALJ failed to pose proper hypotheticals to the vocational expert that considered all of

11
United States District Court
Northern District of California

10

Plaintiff’s severe and non-severe impairments. Finally, Plaintiff maintains that the ALJ erred in

12

finding that Plaintiff’s mental health conditions were non-severe impairments.

13

I.

Evaluation of Medical Opinion Evidence

14

A.

Legal Standard

15

Courts must “distinguish among the opinions of three types of physicians: (1) those who

16

treat the claimant (treating physicians); (2) those who examine but do not treat the claimant

17

(examining physicians); and (3) those who neither examiner nor treat the claimant (nonexamining

18

physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the opinions of

19

examining physicians are afforded more weight than those of non-examining physicians, and the

20

opinions of examining non-treating physicians are afforded less weight than those of treating

21

physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Further, “[t]he medical opinion of

22

a claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported by

23

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

24

other substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664,

25

675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).

26

If a treating physician’s opinion is not afforded controlling weight, the ALJ must weigh the

27

opinion “according to factors such as the length of the treatment relationship and the frequency of

28

examination, the nature and extent of the treatment relationship, supportability, consistency with
6

1

the record, and specialization of the physician.” See Trevizo, 871 F.3d at 675 (citing 20 C.F.R. §

2

404.1527(c)(2)-(6)). Failure to consider the factors listed under 404.1527(c)(2)-(6) “alone

3

constitutes reversible legal error.” Id. at 676.

4

An ALJ may reject the “uncontradicted opinion of a treating or examining doctor” only by

5

stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v.

6

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation

7

omitted). And “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the

8

Commissioner may not reject this opinion without providing ‘specific and legitimate reasons’

9

supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (citation
omitted). “The ALJ can meet this burden by setting out a detailed and thorough summary of the

11
United States District Court
Northern District of California

10

facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”

12

Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986), superseded by statute on other grounds as

13

recognized in Bunnell v. Sullivan, 912 F.2d 1149, 1154 (9th Cir. 1990). Likewise, “the opinion of

14

an examining doctor, even if contradicted by another doctor, can only be rejected for specific and

15

legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at

16

830-31. The opinions of non-examining physicians may “serve as substantial evidence when the

17

opinions are consistent with independent clinical findings or other evidence in the record.”

18

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

19

Ultimately, “[t]he ALJ must do more than offer his conclusions. He must set forth his own

20

interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849

21

F.2d 418, 421-22 (9th Cir. 1988). Thus, “an ALJ errs when he rejects a medical opinion or assigns

22

it little weight while doing nothing more than ignoring it, asserting without explanation that

23

another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to

24

offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir.

25

2014). In conducting its review, the ALJ must consider the entire record and cannot rely only on

26

portions of the record while ignoring conflicting evidence. See Holohan v. Massanari, 246 F.3d

27

1195, 1207-08 (9th Cir. 2001) (finding error where “ALJ selectively relied on some entries in

28

[plaintiff’s] records from San Francisco General Hospital and ignored the many others that
7

1
2
3

indicated continued, severe impairment.”).
B.

The ALJ Erred in Evaluating Medical Opinions of Treating Physicians
1.

Dr. Chin-Garcia

4

The ALJ failed to follow the required methodology for weighing the opinion of treating

5

physician Dr. C. Chin-Garcia, who opined that Plaintiff had functional limitations due to severe

6

back pain and chronic migraines “that precluded the performance of full-time, sedentary work.”

7

(AR 29 (citing AR 639-41).) The ALJ stipulated at the July 2016 hearing that if she accepted Dr.

8

Chin-Garcia’s opinion, “there’d be no work [in the national economy]” for Plaintiff. (AR 76

9

(referencing Dr. Chin-Garcia’s medical source statement at AR 639, Ex. 16F).)

10

As previously discussed, if a treating physician’s opinion is not afforded controlling

United States District Court
Northern District of California

11

weight, the ALJ must weigh the opinion “according to factors such as the length of the treatment

12

relationship and the frequency of examination, the nature and extent of the treatment relationship,

13

supportability, consistency with the record, and specialization of the physician.” See Trevizo, 871

14

F.3d at 675 (citing 20 C.F.R. § 404.1527(c)(2)-(6)). Here, the ALJ’s rejection of Dr. Chin-

15

Garcia’s opinion consists of one paragraph, stating, in its entirety:

16
17
18
19
20

In July 2016, C. Chin-Garcia, M.D., the claimant’s treating source,
completed a medical source statement and opined that the claimant
had limitations that precluded the performance of full-time,
sedentary work. The opinion of Dr. Chin-Garcia is given little
weight for the following reasons: treatment notes and clinical
findings, as discussed [previously], do not support her opinion;
objective diagnostic studies are inconsistent with the claimant’s
reported radiculopathy; and the claimant’s activities contradict her
opinion.

21

(AR 29 (internal citations omitted).) The ALJ’s decision contains no further discussion of Dr.

22

Chin-Garcia’s treatment of Plaintiff regarding “the length of the treating relationship, the

23

frequency of examination, the nature and extent of the treatment relationship, or the supportability

24

of [her] opinion.” See Trevizo, 871 F.3d at 676. This is especially troubling given the extensive

25

treatment records from Sutter Health treating physicians between 2013 to 2015 showing treatment

26

for chronic migraines and back pain, among other issues. (See AR Exs. 11F, 12F, 14F, 15F.)

27

Thus, in assigning “little weight” to Dr. Chin-Garcia’s opinion, the ALJ failed to “apply

28

the appropriate factors in determining the extent to which the opinion should be credited.” See
8

1

Trevizo, 871 F.3d at 675. As in Trevizo, “[t]his failure alone constitutes reversible legal error.”

2

See id. at 676. Further, the ALJ failed to offer “specific and legitimate reasons” for rejecting Dr.

3

Chin-Garcia’s opinion. See Lester, 81 F.3d at 830 (citation omitted).

4
5

2.

Dr. Strudwick

The ALJ similarly failed to follow the required methodology for weighing the opinion of

6

treating physician Dr. Strudwick, who “opined that Plaintiff was unable to perform full-time,

7

sedentary work” due to her low back condition. (AR 29; Ex. 18F.) Again, the ALJ stipulated at

8

the July 2016 hearing that if she accepted Dr. Strudwick’s opinion “there would be no work in the

9

national economy.” (AR 76 (referencing Dr. Strudwick’s medical source statement at AR 648,

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19

Ex. 18F).) The ALJ ultimately assigned “little weight” to Dr. Strudwick’s opinion, stating:
In March 2014, Dr. Strudwick opined that the claimant was limited
to lifting 10 pounds and that she was unable to lift, pull, or reach.
(Exhibit 1F) In October 2014, Dr. Strudwick opined that it was
unlikely that the claimant would be able to bend, stoop, squat and
perform any sort of heavy lifting because of her back symptoms.
(Exhibit 6F) In July 2016, Dr. Strudwick completed a medical
source statement, in which he opined that the claimant was unable to
perform full-time, sedentary work. (Exhibit 18F) Similarly, the
opinion of Dr. Strudwick is given little weight for the following
reasons: treatment notes, objective diagnostic studies and clinical
findings do not support his opinion; the claimant received
conservative treatment; his opinion is based on the claimant’s
subjective complaints; his recommendation that the claimant should
continue performing core strengthening exercises is inconsistent
with the drastic limitations set forth in the medical source statement;
and the claimant’s activities contradict his opinion.

20

(AR 29.) The ALJ’s opinion, however, selectively discusses or ignores the following treatment

21

notes from Dr. Strudwick that appear to support his opinion:

22

February 10, 2014: Plaintiff reported “daily and almost constant” pain in her neck

23

following her fall in August 2012. (AR 375, Ex. 1F.) Plaintiff also complained of

24

“intermittent pain” in her lower back “with bending, stooping and squatting.” (Id.)

25

Further, Plaintiff reported “headaches occur[ring] every other day . . . last[ing] four

26

to five hours in duration.” (Id.) On examination, Dr. Strudwick noted muscular pain and

27

tenderness in Plaintiff’s neck, and “loss of lumbar lordosis” and “positive straight leg

28

raising tests on the left, both sitting and standing, and bilateral straight leg raising tests
9

sitting.” (AR 376, Ex. 1F.) Dr. Strudwick noted an MRI on December 27, 2013 of

2

Plaintiff’s cervical spine indicating “disc bulges at C5-6, C6-7 and C7-T1 with

3

degenerative disk space narrowing at C5-6 with a midline disk protrusion at C7-T1.”

4

Further, Dr. Strudwick noted x-rays of the lumbar spine taken November 8, 2013, that

5

“demonstrate[d] L5-S1 grade 1 spondylolisthesis with L4-5 disk space narrowing.” (Id.)

6

Neck x-rays taken the same day “demonstrate[d] a reverse of [Plaintiff’s] cervical lordosis

7

with decreased disk height and degenerative change at C5-6 and C6-7.” (AR 377, Ex. 1F.)

8

Dr. Strudwick diagnosed Plaintiff with “[m]yofascial syndrome, upper trapezius,”

9

“[c]ervical spine degenerative joint disease with overlying myofascial syndrome,”

10

“degenerative joint disease, lumbar spine, with overlying myofascial syndrome, no

11
United States District Court
Northern District of California

1

radiculopathy,” and “[c]hronic headaches associated with degenerative joint disease,

12

cervical spine, and neck spasm.” (Id.)

13
14
15
16

March 31, 2014: Plaintiff “continue[d] to complain of neck pain and decreased range of
motion of her neck.” (AR 373, Ex. 1F.) Further, Dr. Strudwick noted Plaintiff’s
complaints of “ongoing symptoms with tenderness and pain,” as well as “severe chronic
and repetitive headaches.” (Id.) On examination, Dr. Strudwick noted “mild limitation of

17
range of motion of her cervical spine with persistent C2 to C7 paraspinous muscular
18
19
20

tenderness and upper trapezial tenderness bilaterally.” (Id.) An MRI of Plaintiff’s lumbar
spine “demonstrate[d] multilevel degenerative disk disease.” (AR 374, Ex. 1F.) Dr.
Strudwick opined that Plaintiff was “unable to perform her full and customary duties as a

21
manager at Circle K, which requires her to do lifting, bending, stooping, prolonged
22

standing and prolonged walking.” (Id. (emphasis added).)

23
24

March 31, 2014: Dr. Strudwick signed an “Unable Spouse Medical Form,” which was

25

submitted to the City and County of San Francisco Department of Human Services,

26

regarding Plaintiff’s duties as a caregiver to her disabled spouse, Perry Friday. (AR 378,

27

Ex. 1F.) The form indicates that Plaintiff was “unable to perform some of the household

28

tasks required by [her] disabled spouse[,]” including: “ordinary housekeeping, changing
10

1

bed linen, preparing light and main meals, dishwashing and meal cleanup, routine laundry

2

and mending, incontinence laundry, grocery shopping, running errands, and escorting [her]

3

spouse to medical appointments.” (Id.) The form includes Dr. Strudwick’s diagnosis of

4

Plaintiff’s “lumbar degenerative joint disease,” and notes further limitations caused by pain

5

associated with “headaches [and] low back pain,” and bilateral “upper trapezial pain.”

6

(Id.) Dr. Strudwick opined that Plaintiff would be unable to “lift, pull, [or] reach” for a

7

duration of “3-6 months.” (Id.)

8
April 2, 2014: Plaintiff received physical therapy on referral from Dr. Strudwick, who
9

had diagnosed Plaintiff with “myofascial cervical and lumbar spine pain.” (AR 380, Ex.

10
1F.) After examination, the physical therapist offered the following assessment:

United States District Court
Northern District of California

11
[Patient] presents with limited [range of motion], pain, LE
weakness, impaired posture, and joint hypomobility of the lumbar
spine. [Patient] with signs and symptoms consistent with possible
disc involvement and possible facet joint pathology. She will benefit
from core and proximal strengthening/stabilization, improved
flexibility of the hams and quads, and postural/body mechanics
education.

12
13
14
15
(Id.)
16

April 25, 2014: Plaintiff completed physical therapy the day before. (AR 372, Ex. 1F.)
17
18
19
20
21

On examination, Dr. Strudwick noted: “The range of motion of her cervical spine has
improved,” and “[s]he has full range of motion with no pain with range of motion.”
(Id.) However, “[p]hysical therapy has not really helped her headaches.” (Id.) Dr.
Strudwick noted that Plaintiff was “going to continue with her physical therapy for her
cervical spine.” (Id.)

22
23

May 5, 2014: On referral to neurologist Dr. Brian Richardson by Dr. Strudwick,

24

Plaintiff reported migraine headaches occurring “3-6 times each week,” with a duration

25

“between 4 hours and all day.” (AR 385, Ex. 1F.) Plaintiff complained of

26

insomnia caused by her headaches. (Id.) Dr. Richardson diagnosed Plaintiff with migraine

27

headaches and prescribed daily medication. (Id. at 387.)

28
11

1

May 19, 2014: Dr. Strudwick examined Plaintiff and diagnosed her with cervical and low

2

back pain, lumbar spine disk herniation, and “persistent cephalgia with resolving migraine

3

headaches.” (AR 472, Ex. 8F.) Dr. Strudwick’s treatment plan noted that “[i]t is difficult

4

to treat chronic headache symptoms and it is likely that the patient will have neurological

5

residuals from her fall [in August 2012] for the rest of her life.” Dr. Strudwick further

6

noted that Plaintiff’s “low back symptoms are associated with her mechanical problems

7

including her disk herniations in the lumbar spine. She may require lumbar epidural

8

steroid injections or selective facet injections.” (Id. at 473.)

9

July 2, 2014: Plaintiff reported continued “pain in her low back” and migraines. (AR 467,

10

Ex. 6F.) On examination, Plaintiff showed “tenderness in her paraspinous musculature

United States District Court
Northern District of California

11

with decreased range of motion in her low back.” (Id.) Dr. Strudwick opined:

12
It is not quite clear how we can help her. Her MRI is not indicative
of any significant disk pathology at this time. I may recommend that
she see Dr. Chan and see if there is any advice with respect to
ongoing soft tissue issues.

13
14
15

(Id.)

16

October 1, 2014: Plaintiff continued to report “low back pain” and her MRI demonstrated

17

“an L3-4 3-mm broad-based disk herniation and a posterolateral disk herniation at L5-S1

18

on the right side with a right paracentral disk herniation at L2-3.” (AR 465, Ex. 6F.) Dr.

19

Strudwick notes that Plaintiff underwent an “epidural injection” and “a selective facet

20

block in anticipation of a radiofrequency ablation,” neither of which were “effective in

21

relieving her symptoms.” (Id.) Dr. Strudwick’s treatment plan, states:

22
23
24
25
26
27
28

From a surgical perspective, there is nothing I can offer her at this
time, but I suggest that when she is ready to have surgery, she
should consult a spine surgeon. It is not likely that she will be able
to bend, stoop, squat and do any sort of heavy lifting as a result of
her low back symptomatology. She should, however, continue with
independent core strengthening exercises.
She has had some benefit from the trigger point injections in her
upper trapezius region with respect to her cervical spine. There
should be some reservation for her to have further treatment for her
cervical spine in case there are flares. She is not having any
radicular upper extremity symptoms.
12

1

(Id. at 465-66.)

2

Although the ALJ is not required to discuss every treatment record in detail, she cannot

3

rely on portions of a treatment record while ignoring conflicting evidence contained within the

4

same record. See Holohan, 246 F.3d at 1207-08. Here, the ALJ afforded Dr. Strudwick’s opinion

5

“little weight” despite the fact that his treatment notes during the relevant adjudicatory period

6

appear consistent with the findings in his medical source statement. Dr. Strudwick’s opinion is

7

also consistent with his previous opinions regarding Plaintiff’s ability to work. In March 2014,

8

Dr. Strudwick opined that Plaintiff’s condition precluded her from performing her duties as a

9

manager at Circle K. Dr. Strudwick further opined in March 2014 that Plaintiff would be unable
to perform basic household chores, care for her disabled husband, or lift more than 10 pounds for a

11
United States District Court
Northern District of California

10

period of “3-6 months.” In October 2014, Dr. Strudwick opined that “[i]t is not likely that

12

[Plaintiff] will be able to bend, stoop, squat and do any sort of heavy lifting as a result of her low

13

back symptomatology.” (AR 465, Ex. 6F.)

14

The ALJ noted Dr. Strudwick’s March 2014 and October 2014 opinions but asserted that

15

they were unsupported by “treatment notes, objective diagnostic studies and clinical findings.”

16

(AR 29.) As detailed above, however, Dr. Strudwick’s opinions are supported by his own

17

treatment notes, objective diagnostic studies, and clinical findings regarding Plaintiff’s cervical

18

and low back conditions. Further, “[t]o say that medical opinions are not supported by objective

19

findings or are contrary to the preponderant conclusions mandated by the objective findings does

20

not achieve the level of specificity” required by the Ninth Circuit, “even when the objective

21

factors are listed seriatim.” Embrey, 849 F.2d at 421. The ALJ must instead “set forth his own

22

interpretations and explain why they, rather than the doctor[’]s are correct.” Id. Here, the ALJ

23

failed to do so.

24

The ALJ further erred by failing to offer any substantive basis for her conclusion that

25

Plaintiff’s “conservative treatment,” which treatment records indicate included steroid and block

26

injections, daily pain medication, acupuncture, and physical therapy, undercuts Dr. Strudwick’s

27

medical source statement. See Trevizo, 871 F.3d at 677 (noting that “[t]he failure of a treating

28

physician to recommend a more aggressive course of treatment, absent more, is not a legitimate
13

1

reason to discount the physician’s subsequent medical opinion about the extent of disability.”).

2

Given Dr. Strudwick’s assertion in October 2014 that Plaintiff was not a good candidate for

3

surgery,4 it is unclear whether more aggressive treatment options were appropriate or even

4

available to Plaintiff. See Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (noting

5

that “[a] claimant cannot be discredited for failing to pursue non-conservative treatment options

6

where none exist.”).
Similarly, the ALJ asserts that Dr. Strudwick’s “recommendation that the claimant should

7
8

continue performing core-strengthening exercises is inconsistent with the drastic limitations set

9

forth in the medical source statement,” but fails to explain how that recommendation is
inconsistent. In other words, the ALJ does not explain how Dr. Strudwick’s recommendation

11
United States District Court
Northern District of California

10

regarding exercise conflicts with any of the specific limitations noted in Dr. Strudwick’s source

12

statement. See Embrey, 849 F.2d at 421 (noting that “it is incumbent on the ALJ to provide

13

detailed, reasoned, and legitimate rationales for disregarding the physician[’s] findings.”).
The ALJ also rejected Dr. Strudwick’s opinion because “the claimant’s activities contradict

14
15

his opinion.” (AR 29.) Earlier in her opinion the ALJ noted that “[c]ontrary to the alleged

16

symptoms and limitations, the claimant was able to drive, exercise by walking 1 mile, three times

17

a week for about 30 minutes and work as an in home care provider.” (AR 28.) However, the ALJ

18

again selectively picks from the record. The July 2014 mental status examination report cited by

19

the ALJ notes: “[Claimant] indicated that she is able to drive and prepare simple meals, but needs

20

help with household chores, shopping, and laundry because of pain.” (AR 443, Ex. 3F (emphasis

21

added).) Further, the other records cited by the ALJ contain no mention of Plaintiff “walking 1

22

mile, three times a week for about 30 minutes.”5 There is also no indication from the records cited

23

by the ALJ that Plaintiff continued working as an in-home care provider for her disabled husband

24

after Dr. Strudwick submitted the “Unable Spouse Medical Form” to the City and County of San

25
26
27
28

4

A treatment record from Dr. David Smolins dated August 28, 2014 notes that he also discussed
with Plaintiff “the possibility of surgical referral due to her age and multilevel disc disease,” but
“[s]he may not be an ideal candidate.” (AR 463, 5F.)
5
Plaintiff testified at the July 2016 hearing that she is able to “drive short distance[s]” for “[a]bout
15, 20 minutes,” and can walk “[a]bout two blocks.” (AR 62.)
14

1

Francisco Department of Human Services in March 2014. (See AR 378, Ex. 1F.)

2

Finally, in assigning “little weight” to Dr. Strudwick’s opinion, the ALJ failed to “consider

3

factors such as the length of the treating relationship, the frequency of examination, the nature and

4

extent of the treatment relationship, or the supportability of the opinion” as required under 20

5

C.F.R. § 404.1527(c)(2)-(6). See Trevizo, 871 F.3d at 676. Again, “[t]his failure alone constitutes

6

reversible legal error.” See id.
***

7

Given the Court’s conclusion that the ALJ’s evaluation of the medical opinion evidence

9

constitutes reversible legal error, the Court declines to consider Plaintiff’s additional arguments.

10

The ALJ’s errors in evaluating the opinion evidence of Dr. Chin-Garcia and Dr. Strudwick were

11
United States District Court
Northern District of California

8

not harmless and thus the ALJ’s decision must be reversed. See Molina, 674 F.3d at 1122 (an

12

error is harmless if it is “inconsequential to the ultimate nondisability determination”).

13

II.

14

Remand or Credit-As-True
Plaintiff insists that remanding for “further development of the record would serve no

15

useful purpose” and the “Court should remand for an immediate award of benefits.” (Dkt. No. 18

16

at 24.) The Court disagrees.

17

When courts reverse an ALJ’s decision, “the proper course, except in rare circumstances, is

18

to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379

19

F.3d 587, 595 (9th Cir. 2004). A remand for an award of benefits is proper, however, “where (1)

20

the record has been fully developed and further administrative proceedings would serve no useful

21

purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence,

22

whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence

23

were credited as true, the ALJ would be required to find the claimant disabled on remand.” Revels

24

v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (internal quotation marks and citation omitted).

25

Here, there are outstanding issues that must be resolved before a final determination can be

26

made because the ALJ failed to provide legally sufficient reasons for rejecting the medical

27

opinions of treating physicians Dr. Chin-Garcia and Dr. Strudwick, both of whom opined that

28

Plaintiff was unable to work due to disability. If those opinions are accepted, they establish that
15

1

Plaintiff is disabled for two reasons: (1) the ALJ stipulated during the July 2016 hearing that if she

2

agreed with either opinion, then “there would be no work in the national economy”; and (2) the

3

VE testified regarding the inability of an individual with Plaintiff’s specific limitations—as

4

described by Dr. Strudwick’s medical source statement—to sustain work.6 (AR 76, 79-80.) Thus,

5

the ALJ must reassess the medical opinion evidence as a whole, explain the weight afforded to

6

each opinion, and provide legally adequate reasons for any portion of an opinion that the ALJ

7

discounts or rejects, including a legally sufficient explanation for crediting some doctors’ opinions

8

over others.
CONCLUSION

9

For the reasons set forth above, the Court GRANTS Plaintiff’s motion, DENIES

10

United States District Court
Northern District of California

11

Defendant’s cross-motion, and REMANDS for further proceedings consistent with this order.

12

This order disposes of Docket Nos. 18 and 23.

13

IT IS SO ORDERED.

14

Dated: January 2, 2019

15
16
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

17
18
19
20
21
22
23
24
25
26
6

27
28

During the July 2016 hearing, the ALJ proposed a hypothetical to the VE based on the
limitations set forth in Dr. Strudwick’s medical source statement. (See AR 79-80.) The VE
testified that based on those limitations, Plaintiff would be unable to perform her past work and
there was no other work in the national economy that Plaintiff could perform. (Id.)
16