Nguyen v. Colvin

Filing 42

Order Granting Plaintiff's Motion for Summary Judgment; Denying Defendant's Cross-Motion for Summary Judgment; and Granting Plaintiff's Motion for Judgment (ECF Nos. 26 , 34 , 40 ). The matter is remanded for further proceedings. Signed by Judge John A. Houston on 3/25/24.(All non-registered users served via U.S. Mail Service)(certified copy to Social Security Administration)(jmo)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AIHOA T. NGUYEN,

Case No.: 16cv1535 JAH-SBC
Plaintiff,

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v.

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MARTIN O’MALLEY, Commissioner of
Social Security,1

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT; DENYING
DEFENDANT’S CROSS-MOTION
FOR SUMMARY JUDGMENT; AND
GRANTING PLAINTIFF’S MOTION
FOR JUDGMENT
[ECF Nos. 26, 34, 40]

Defendant.

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INTRODUCTION

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Plaintiff seeks review of the Social Security Commissioner’s final decision denying

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benefits for disability insurance under Titles II and XVI of the Social Security Act. After

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a thorough review of the parties’ submissions and for the reasons set forth below, the Court

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GRANTS Plaintiff’s motion for summary judgment and DENIES Defendant’s cross-

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motion for summary judgment and REMANDS the matter for additional proceedings.

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//

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Martin O’Malley is named in place of Nancy A. Berryhill as Commissioner of Social Security
Administration pursuant to FED.R CIV.P. 25(d).
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BACKGROUND

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Plaintiff was 59 years of age at the time of the hearing before the Administrative

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Law Judge (“ALJ”). AR2 at 51 (ECF No. 21). She alleged a disability onset of December

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1, 2008. Id. at 34. She filed an application for supplemental security income on November

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26, 2012. Id. The Commissioner denied the claim on April 12, 2013, and denied the claim

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again upon reconsideration. Id. Plaintiff requested a hearing and testified at the hearing

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on November 7, 2014. Id. at 34, 49. The ALJ issued an unfavorable decision on February

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10, 2015. Id. at 31-42. Plaintiff filed a request for review of the ALJ’s decision and the

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Appeals Council denied the request. Id. at 2, 24.

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Plaintiff, appearing through counsel, filed a complaint seeking review of the

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Commissioner’s final decision denying benefits on June 18, 2016. See ECF No. 1.

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Defendant filed a motion to dismiss which Plaintiff opposed. See ECF Nos. 11, 13, 14.

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After converting the motion to dismiss to a motion for summary judgment to consider

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evidence submitted by the parties, the Court denied the motion. See ECF Nos. 18, 19.

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Defendant filed an answer and the administrative record on May 24, 2018. See ECF Nos.

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20, 21. On October 26, 2018, Plaintiff filed the pending motion for summary judgment

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and Defendant filed an opposition and cross-motion for summary judgment after numerous

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requests for an extension of time. See ECF Nos. 26, 34, 35. Plaintiff filed a reply. See

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ECF No. 37.

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DISCUSSION

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I. Legal Standards

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A. Qualifying for Disability Benefits

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To qualify for disability benefits under the Act, an applicant must show that: (1) she

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suffers from a medically determinable impairment that can be expected to result in death

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or that has lasted or can be expected to last for a continuous period of not less than twelve

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AR refers to the administrative record.
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months; and (2) the impairment renders the applicant incapable of performing the work

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that she previously performed or any other substantially gainful employment that exists in

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the national economy. See 42 U.S.C. § 423(d)(1)(A), 2(A). An applicant must meet both

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requirements to be “disabled.” Id.

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The Secretary of the Social Security Administration has established a five-step

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sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§

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404.1520, 416.920. Step one determines whether the claimant is engaged in “substantial

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gainful activity.” If she is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b),

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416.920(b). If she is not, the decision maker proceeds to step two, which determines

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whether the claimant has a medically severe impairment or combination of impairments.

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If the claimant does not have a severe impairment or combination of impairments, the

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disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is

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severe, the evaluation proceeds to the third step, which determines whether the impairment

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is equivalent to one of a number of listed impairments that the Secretary acknowledges are

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so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d); 20 C.F.R.

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Part 404 Appendix 1 to Subpart P. If the impairment meets or equals one of the listed

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impairments, the claimant is conclusively presumed to be disabled. If a condition “falls

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short of the [listing] criterion” a multiple factor analysis is appropriate. Celaya v. Halter,

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332 F.3d 1177, 1181 (9th Cir. 2003). Of such analysis, “the Secretary shall consider the

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combined effect of all the individual’s impairments without regard to whether any such

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impairment, if considered separately, would be of such severity.” Id. at 1182 (quoting 42

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U.S.C. § 423(d)(2)(B)). If the impairment is not one that is conclusively presumed to be

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disabling, the evaluation proceeds to the fourth step, which determines whether the

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impairment prevents the claimant from performing work she has performed in the past. If

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the claimant cannot perform her previous work, the fifth and final step of the process

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determines whether she is able to perform other work in the national economy considering

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her age, education, and work experience. The claimant is entitled to disability benefits

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only if she is not able to perform other work. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
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B. Judicial Review of an ALJ’s Decision

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Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of

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a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial

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review is limited. The Commissioner’s denial of benefits “will be disturbed only if it is

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not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of

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Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803

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F.2d 528, 529 (9th Cir. 1986)).

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Substantial evidence means “more than a mere scintilla” but less than a

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preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).

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“[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The

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Court must consider the record as a whole, weighing both the evidence that supports and

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detracts from the Commissioner’s conclusions. Desrosiers v. Secretary of Health &

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Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993,

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995 (9th Cir. 1985)). If the evidence supports more than one rational interpretation, the

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Court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)

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(citing Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir.

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1984)). When the evidence is inconclusive, “questions of credibility and resolution of

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conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694

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F.2d 639, 642 (9th Cir. 1982).

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However, even if the reviewing court finds that substantial evidence supports the

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ALJ’s conclusions, the Court must set aside the decision if the ALJ failed to apply the

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proper legal standards in weighing the evidence and reaching a decision. See Benitez v.

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Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a

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judgment affirming, modifying, or reversing the Commissioner’s decision. 42 U.S.C. §

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405(g). The reviewing court may also remand the matter to the Social Security

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Administrator for further proceedings. Id. “If additional proceedings can remedy defects

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in the original administrative proceeding, a social security case should be remanded.”
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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654

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F.2d 631, 635 (9th Cir. 1981)).

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II. The ALJ’s Decision

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The ALJ found Plaintiff has not engaged in substantial gainful activity since

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November 26, 2012, and has severe impairments, including “somatoform disorder; anxiety

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disorder; posttraumatic stress; depressive disorder; pain in back, neck and knees; and

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headaches.” AR at 35. The ALJ determined Plaintiff’s carpal tunnel syndrome (“CTS”)

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and hypertension are not severe impairments. Id. The ALJ determined Plaintiff does not

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have an impairment or combination of impairments that meet or are medically equal in

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severity to one of the listed impairments in 20 CFR Part 404 Subpart P, Appendix 1. Id.

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The ALJ found Plaintiff has a residual functional capacity (“RFC”)

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to perform light work as defined in 20 CFR 416.967(b) except the claimant, who
does not read or write English and cannot read in English, can perform unskilled
simple repetitive tasks; the claimant can have no more than occasional contact with
the public, co-workers, and supervisors; and the claimant is limited to a non-time
contingent work setting.

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Id. at 36. Although the impairments could reasonably cause Plaintiff’s symptoms

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the ALJ found Plaintiff’s statements concerning the intensity, persistence and limiting

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effects of her symptoms were not entirely credible because they were greater than expected

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in light of the objective evidence of record including the clinical and diagnostic findings

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since the date of onset. Id. at 38.

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The ALJ gave less weight to the opinions of Plaintiff’s treating physicians James

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Grisolia, M.D., Harry Henderson, M.D.. Don Edward Miller, Ph.D., and Nadine Sidrick,

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M.D. and to the state agency reviewers, Jay Flocks, M.D., F. L. Williams, M.D. and B.

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Harris, M.D. Id. at 38, 39, 40. The ALJ gave great weight to the opinion of David

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Anderson, M.D., who testified at the hearing, reviewed the record and heard Plaintiff’s

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testimony. Id. at 40.

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The ALJ determined Plaintiff was able to perform her past relevant work, kitchen

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help, and, therefore, has not been under a disability as defined by the Act from February

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21, 2017. Id. at 41.

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III. Analysis

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Plaintiff contends the ALJ erred by (1) adopting the testimony of a psychiatric expert

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in evaluating her physical impairments; (2) disregarding the opinions of Plaintiff’s treating

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physicians, Dr. Grisolia and Dr. Sidrick; (3) disregarding the opinions of treating

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physicians Dr. Henderson and Dr. Miller; (4) determining her CTS and fibromyalgia were

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not severe impairments; and (5) discrediting her testimony, all of which demonstrates the

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ALJ’s decision is not supported by substantial evidence of record.

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A. ALJ Reliance on Psychiatrist Expert

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Plaintiff argues the ALJ improperly relied on the medical expert, Dr. Anderson, a

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psychiatrist, to determine Plaintiff’s physical impairments. She contends the ALJ’s first

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reason for denying benefits was based upon the testimony of Dr. Anderson who opined

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Plaintiff was limited to simple repetitive tasks and the ALJ erroneously claimed Dr.

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Anderson opined on the totality of Plaintiff’s physical and mental impairments.

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Defendant argues the ALJ did not rely on the medical expert for his RFC assessment

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for light work. The medical expert opined as to Plaintiff’s mental limitations only. The

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ALJ based the light RFC assessment upon Plaintiff’s testimony, the function reports and

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treatment records.

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In the written decision, the ALJ noted Dr. Anderson opined, “from a psychiatric

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standpoint”, that there was sparse objective medical evidence, and conclusions contained

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in a particular medical source statement were not supported by medical evidence. AR at

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40. The ALJ noted Dr. Anderson “remarked” the record regarding Plaintiff’s physical

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issues were primarily statements and conclusions. However, the ALJ stated the light RFC

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determination was supported by Plaintiff’s testimony, the disability and function reports

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and the treatment records. Id. As such, the ALJ did not improperly rely on Dr. Anderson’s

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testimony regarding physical limitations.
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B. Rejecting Treating Physician Opinions

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Plaintiff argues the ALJ improperly rejected the opinions of her treating physicians,

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Drs. Grisolia, Sidrick, Henderson and Miller. “[A]s a general rule, more weight should be

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given to the opinion of a treating source than to the opinion of doctors who do not treat the

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claimant.” Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (quoting Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Where a treating doctor’s or examining doctor’s

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opinion is not contradicted by another doctor, it may be rejected only for “clear and

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convincing” reasons supported by substantial evidence in the record. Trevizo v. Berryhill,

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871 F.3d 664 (9th Cir. 2017) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198

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(9th Cir. 2008)). Even if the treating or examining doctor’s opinion is contradicted by

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another doctor, the ALJ may not reject the opinion without providing “specific and

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legitimate reasons” supported by substantial evidence in the record. Id. (quoting Bayliss v.

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Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). The ALJ can “meet this burden by setting

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out a detailed and thorough summary of the facts and conflicting clinical evidence, stating

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his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751

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(9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). “The ALJ

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must do more than offer his conclusions. He must set forth his own interpretations and

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explain why they, rather than the doctors’, are correct.” Reddick v. Chater, 157 F.3d 715,

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725 (9th Cir. 1998) (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). The

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ALJ need not accept the opinion of any physician, including a treating physician, if that

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opinion is brief, conclusory, and inadequately supported by clinical findings. Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

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1. Dr. Grisola

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Plaintiff contends the ALJ erroneously disregarded the opinion of Dr. Grisolia, a

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neurologist, who noted disabling CTS, bilateral knee pain and headaches by wrongfully

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claiming that Dr. Grisolia was a one-time examining physician whose opinion should not

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be given much weight. However, Plaintiff contends, Dr. Grisolia, was a treating physician

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who is entitled to deference as a specialist. Plaintiff argues the ALJ failed to provide
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specific and legitimate reasons based on substantial evidence in the record for rejecting Dr.

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Grisolia’s opinion.

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In opposition, Defendant maintains the fact Plaintiff was seen more than once by Dr.

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Grisolia does not alter the ALJ’s decision. He contends the ALJ explained that Dr.

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Grisolia’s opinion was inconsistent with the medical evidence and was made in a single

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evaluation. Defendant further contends the latter treatment record of January 2014 by Dr.

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Grisolia notes that Plaintiff had CTS but also reports Plaintiff had normal muscle strength

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and tone in all limbs, intact sensation in all limbs, normal reflexes in all limbs, and normal

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gait. Additionally, Defendant argues the ultimate question of permanent disability is for

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the agency not a doctor. As such, Defendant argues, the ALJ properly excluded any

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statements of Plaintiff’s alleged permanent disability by Dr. Grisolia.

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Defendant contends the ALJ reasonably concluded Plaintiff’s CTS was not severe because

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it was not supported by Dr. Grisolia’s treatment records or any other medical evidence.

Furthermore,

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In the written decision, the ALJ indicated he gave less weight to Dr. Grisolia’s

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“statements of disability” provided during the “one-time evaluation” conducted on July 27,

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2013, because it was inconsistent with the record and not supported by objective evidence.

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AR at 39. The ALJ noted that the July 27, 2013 evaluation contained “no objective physical

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examination findings and no tunnel conduction studies and the neurological exam indicated

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she had normal strength in the lower extremities, brisk reflexes with no evidence of

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polyneuropathy and intact gait and coordination.” Id. at 38-39.

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The record clearly demonstrates Dr. Grisolia treated Plaintiff more than once.

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Specifically, in a letter dated December 7, 2013, Dr. Grisolia notes, during an examination

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on November 20, 2013, Plaintiff’s “hands continue to be weak with reduced grip strength

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and loss of coordination” and opines that Plaintiff is “completely disabled from any regular

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use of the hands for any repetitive, forceful or skilled activities on either side” until she has

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surgery. Id. at 316. He also opines Plaintiff is disabled by her complaints of severe knee

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pain, daily headaches and right shoulder pain. Id. Additionally, in progress notes dated

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January 28, 2014, Dr. Grisolia assesses Plaintiff’s CTS and again discusses the need for
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surgery. Id. at 317. Dr. Grisolia reports “bulk is normal, giveaway weakness in all limbs,

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tone normal” as far as Plaintiff’s motor strength, that sensory is intact and normal gate. Id.

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The ALJ does not discuss these additional evaluations and opinions provided by Dr.

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Grisolia which appear to support the previous findings. Additionally, Dr. Sidrick, another

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treating physician, opines Plaintiff should avoid repetitive use of her right hand and reports

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“possible” CTS. Id. at 296. The Court finds, contrary to the ALJ’s findings, there is

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objective evidence of record to support Dr. Grisolia’s opinion. Accordingly, the ALJ fails

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to provide specific and legitimate reasons for giving minimal weight to Dr. Grisolia’s

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opinion.

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2. Dr. Sidrick

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Plaintiff maintains, Dr. Sidrick, who treated Plaintiff for low back and neck pain,

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hand pain, and headaches, opined that Plaintiff’s functional capacity was limited to

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sedentary type activities such as lifting and carrying 10 pounds on an occasional basis with

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a break of fifteen minutes every hour due to degenerative discogenic disease of the cervical

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and the lumbar spine. She further maintains Dr. Sidrick concurred with Dr. Grisolia’s

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finding that Plaintiff had such severe CTS causing hand pain and poor grasping that would

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prevent Plaintiff from using her right hand for any work-related activities.

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In opposition, Defendant argues there are very little treatment records supporting Dr.

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Sidrick’s assessment. He maintains Dr. Sidrick admitted Plaintiff’s pain was relieved,

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although minimally, by over-the-counter medication. Additionally, Defendant maintains

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the ALJ pointed to the findings of Plaintiff’s cervical spine x-ray. Defendant contends

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nothing supports Dr. Sidrick’s extreme limitations and Plaintiff fails to point to any medical

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records that support the limitations afforded by Dr. Sidrick.

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The ALJ explained he gave less weight to Dr. Sidrick’s medical source statement

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dated August 14, 2014, because Plaintiff’s cervical spine x-ray indicated no fracture,

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dislocation, normal disc spaces and vertebral bodies, and unremarkable soft tissue and

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normal posterior structure. AR at 39. The ALJ appears to substitute his interpretation of

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the MRI results over Dr. Sidrick’s. While an ALJ may weigh and resolve conflicting
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opinions or evidence, it is improper to substitute his judgment or make his own medical

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findings. See Rohan v. Chater, 98 F.3d 966, 970-71 (9th Cir.1996); Jenkins v. Astrue, 628

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F. Supp. 2d 1140, 1149 (C.D. Cal. 2009) (“It is axiomatic that as a treating physician and

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a specialist. . ., [the treating physician’s] interpretation of her objective and clinical findings

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trumps a contrary interpretation based on nothing more than the ALJ’s conflicting view of

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their significance”). The ALJ fails to provide sufficient reasons for rejecting Dr. Sidrick’s

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opinion.

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3. Dr. Henderson

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Plaintiff contends she was treated by Dr. Henderson, psychiatrist, beginning in 2012.

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She maintains Dr. Henderson concluded that she is significantly impaired from a mental

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viewpoint and assigned her a global assessment of function (“GAF”) score of 40. Plaintiff

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argues the ALJ’s stated reason for rejecting Dr. Henderson’s opinion, absence of objective

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treatment records, fails because Dr. Henderson provided a report which described the

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Plaintiff’s mental impairment and the course of psychiatric treatment. She further argues

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the ALJ’s other reason for rejecting the opinion, that it is inadequately supported by clinical

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findings, is not persuasive because Dr. Henderson relied on the psychological profile

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developed by psychologist Dr. Miller who provided detailed clinical findings, such as a

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mental status examination. Additionally, Plaintiff argues the ALJ’s statement that Dr.

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Henderson’s opinion lacks objective medical evidence is belied by the record and, if his

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opinion is credited, it supports a finding of disabling mental impairments.

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In opposition, Defendant argues the ALJ afforded less weight to Dr. Henderson’s

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assessment because there were no significant objective treatment records that would

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support Dr. Henderson’s assessment besides the one-time mental examination letter relied

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upon by Plaintiff.

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The ALJ explains he gives less weight to Dr. Henderson’s medial source statement

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and GAF dated June 7, 2013, because there are no significant objective treatment records

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to support the assertions of disability. AR at 39. He further explains GAF scores are of

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limited evidentiary value. Id. The ALJ also states a mental status exam was not completed
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and the treatment plan appeared conservative and limited to medication management. Id.

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at 38.

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In his evaluation date June 7, 2013, Dr. Henderson explains he saw Plaintiff for the

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last year every other month for medication monitoring. Id. at 313. He indicates she showed

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some improvement “but continues to have symptoms of auditory hallucinations and

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problems with depression.” Id. He notes there has been very little improvement in her

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basic mental condition. Id. at 314. He opines that Plaintiff:

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has a moderate inability to comprehend and follow instructions. She has a moderate
inability to perform simple and repetitive tasks. She has a severe inability toꞏ'
maintain a work pace appropriate to a given work load. She has a severe inability
to perform complex and varied tasks. She has a severe inability to relate to other
people beyond giving and receiving instructions. She has a severe inability to
influence people. She has a severe inability to make generalizations, evaluations
and decisions without immediate supervision. She has a severe inability to accept
and carry out responsibility for direction, control and planning.

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Id. Dr. Henderson diagnosed Plaintiff with major depression, recurrent type with

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psychotic features and post traumatic stress disorder. He notes there has been no change

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in her mental status since June 1, 2013, when she was last seen. Id.

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As noted by the ALJ, there is a lack of treatment records to support the opinion.

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Contrary to Plaintiff’s assertion, Dr. Henderson’s report does not indicate he relied on Dr.

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Miller’s psychological profile. The Court notes, in support of her claim that Dr. Henderson

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relied upon a psychological profile provided by Dr. Miller, Plaintiff cites to Dr. Miller’s

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psychological evaluation dated July 25, 2014. It is impossible for Dr. Henderson to rely

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on an evaluation conducted after the date of his evaluation. The Court finds the ALJ did

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not err by giving Dr. Henderson’s opinions less weight. See Batson v. Comm’r of Soc. Sec.

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Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (Finding an ALJ may discredit a treating

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physician’s opinion that are unsupported by objective medical findings).

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4. Dr. Miller

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Plaintiff contends the ALJ summarily dismissed Dr. Miller’s report as lacking

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objective evidence but, she argues, Dr. Miller, a clinical psychologist, conducted objective
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clinical tests on Plaintiff and concluded that Plaintiff was suffering from severe depressive

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disorder and psychosis. Additionally, Plaintiff maintains Dr. Miller reviewed her medical

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records and conducted an interview when diagnosing Plaintiff with major depressive

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disorder and assigned the claimant a GAF score of 50, indicative of severe psychiatric

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impairment. Additionally, Plaintiff argues the ALJ’s statement that Dr. Miller’s opinions

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lack objective medical evidence is belied by the record. Plaintiff contends if Dr. Miller’s

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report is credited, it would support a finding of disabling mental impairments.

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In opposition, Defendant argues there were no objective treatment records that

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would support Dr. Miller’s extreme assessment. Therefore, the ALJ properly rejected the

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unsupported and conclusory statements.

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The ALJ gave less weight to Dr. Miller’s July 25, 2014 medical source statement

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which he described as a one-time psychological evaluation. AR at 39. The ALJ explained

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the objective treatment records did not support the findings contained therein. Id. Plaintiff

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does not dispute there is a lack of medical treatment records to support the one-time

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evaluation. As such, the Court finds the ALJ did not err in rejecting Dr. Miller’s opinion.

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C. Fibromyalgia

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Plaintiff maintains she suffers from both CTS and fibromyalgia which prevent her

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from using her hands for work. Because Plaintiff did not raise fibromyalgia as a disabling

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impairment at the hearing, Defendant contends it is waived. Defendant argues Plaintiff’s

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attempt to rely on a record containing an MRI for cervical spasms suggested she had

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fibromyalgia, with Plaintiff never having alleged disability based on fibromyalgia before

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or at the hearing, improperly shifts the burden on the ALJ to prove and discuss all

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impairments. In reply, Plaintiff argues she was not diagnosed with fibromyalgia until

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January 28, 2014, after she filed her application, and the ALJ had access to Dr. Grisolia’s

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records which included a diagnosis for fibromyalgia.

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The Ninth Circuit has held that, “at least when claimants are represented by counsel,

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they must raise all issues and evidence at their administrative hearing in order to preserve

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them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Plaintiff was
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represented by counsel at the hearing held in November 2014, after she says Dr. Grisolia

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diagnosed her with fibromyalgia. Plaintiff suggests Meanel was overruled by the Supreme

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Court in Sims v. Apfel, 530 U.S. 103 (2000) that held claimants need not exhaust issues

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before the Appeals Counsel to preserve judicial review. However, the Ninth Circuit

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subsequently determined Meanel remains binding precedent for proceedings before an

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ALJ, reasoning that the Court in Sims limited the holding to failure to exhaust before the

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Appeals Counsel, when it “specifically noted that ‘[w]hether a claimant must exhaust

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issues before the ALJ” was not before the Court. Shaibi v. Berryhill, 883 F.3d 1102, 1109

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(9th Cir. 2017). Accordingly, Meanel is binding precedent here, where Plaintiff failed to

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raise fibromyalgia as an impairment at the hearing before the ALJ. As such, fibromyalgia

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will not be considered by this Court.

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D. Carpal Tunnel

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Plaintiff maintains her records demonstrate she suffers from disabling CTS. She

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contends the ALJ disregarded Dr. Grisolia’s treating records and ignored the fact Drs.

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Grisolia and Sidrick recommended hand surgery but Plaintiff was unable to afford to pay

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for surgery. Plaintiff maintains this demonstrates the ALJ’s reliance on a lack of evidence

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of more aggressive treatment to demonstrate Plaintiff’s symptoms were not severe was

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erroneous.

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Additionally, Plaintiff contends the ALJ stated reasons for concluding Plaintiff’s

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CTS is not severe are not substantiated by the record. She maintains the evidence

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demonstrates Dr. Grisolia recommended wrist splints, possible surgery, and other tests to

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evaluate the severity of Plaintiff’s CTS and there was no improvement after six months of

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splinting. She also points to Dr. Sidrick’s treatment plan for her right hand pain and wrist

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splint. Additionally, Plaintiff contends she was referred to an orthopedist for consideration

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of surgical intervention.

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In opposition, Defendant contends the ALJ noted Dr. Sidrick’s records provided

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very limited information and no objective findings. Specifically, Defendant contends the

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ALJ noted Dr. Sidrick provided very scarce information besides a list of problems in a
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progress note dated January 2013 and on June 27, 2013, Dr. Sidrick reported Plaintiff

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complained she could not work because of hand pain and the only treatment regimen was

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limited medication therapy. Defendant further contends Dr. Grisolia evaluated Plaintiff

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for possible bilateral CTS and headaches on July 27, 2013, but there were no objective

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physical examination findings, no nerve conduction studies, and the neurological exam

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indicated she had normal strength in the lower extremities, brisk reflexes with no evidence

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of polyneuropathy, and intact gait and coordination.

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In the written decision, the ALJ noted Plaintiff had been evaluated for CTS but states

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her testimony and the objective evidence demonstrates the condition “should be amendable

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to proper control by adherence to recommended medical management and medication

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compliance.” AR at 35. The ALJ further notes there is no evidence of functional

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limitations related to her CTS and finds it is not a severe impairment.

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As noted above, the ALJ failed to consider additional treatment records from Dr.

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Grisolia which discuss Plaintiff’s CTS. See AR at 316, 334. There are additional treatment

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records indicating ongoing treatment for CTS by Dr. Sidrick. See Id. at 296, 329, 330. The

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Court finds the ALJ’s determination that Plaintiff’s CTS is not severe is not supported by

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the evidence of record. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)

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(Explaining “[a]n impairment or combination of impairments can be found ‘not severe’

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only if the evidence establishes a slight abnormality that has no more than a minimal effect

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on an individuals [sic] ability to work.”).

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E. Plaintiff’s Credibility

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Plaintiff argues the ALJ erred in finding her testimony was not credible. She

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maintains she testified about her daily activity due to the effects of her mental problems.

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She contends her treating physicians noted that she had severe cognitive impairments and

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memory loss. She also argues the fact that she can engage in certain activities does not

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contradict an assertion of disability.

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In opposition, Defendant argues the ALJ properly discounted Plaintiff’s testimony.

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Specifically, Defendant contends the ALJ noted Plaintiff’s allegations of severity of her
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impairments were not supported by the treatment records and the records do not contain

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findings that would support additional restrictions beyond the ALJ’s RFC finding.

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Defendant further contends the ALJ noted there was very little support to corroborate

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Plaintiff’s allegations absent the conclusory letters from Plaintiff’s doctors.

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The ALJ’s credibility finding must be properly supported by the record and

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“sufficiently specific to assure a reviewing court that the ALJ did not arbitrarily discredit

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a claimant’s subjective testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)

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(citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). An ALJ may consider

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a claimant’s “reputation for truthfulness, inconsistencies either in [her] testimony or

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between [her] testimony and [her] conduct, [her] daily activities, [her] work record, and

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

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the symptoms of which [she] complains.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792

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(9th Cir. 1997). “While an ALJ may find testimony not credible in part or in whole, he or

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she may not disregard it solely because it is not substantiated affirmatively by objective

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medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Unless

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an ALJ makes a finding of malingering based on confirming evidence, the ALJ may only

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find an applicant not credible by making specific findings as to credibility and stating clear

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and convincing reasons for each. Id. at 883.

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The ALJ determined Plaintiff’s statements concerning the intensity, persistence and

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limiting effects of her symptoms are not entirely credible. AR at 38. The ALJ explained

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her allegations regarding the severity of her symptoms and limitations are not supported

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by the objective evidence of record. Id. at 39 The ALJ’s explanation for discrediting

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Plaintiff’s statements regarding her symptoms and limitations lacks the required

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specificity.

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F. Request to Award Benefits

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In the event, the Court finds error, Plaintiff requests the Court reverse the decision

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and remand with instruction to award benefits. Plaintiff contends the case presents a full

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record that supports the conclusion she is disabled. Defendant contends the proper remedy

2

is remand for further administrative proceedings.

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In certain circumstances, under the credit-as-true rule, a court may award benefits

4

rather than remand a matter for additional proceedings. Garrison v. Colvin, 759 F.3d 995,

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1020 (9th Cir. 2014). The credit-as-true rule is appropriate only when “(1) the record has

6

been fully developed and further administrative proceedings would serve no useful

7

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

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(3) if the improperly discredited evidence were credited as true, the ALJ would be required

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to find the claimant disabled on remand.” Id. Even if all conditions are met, a court should

10

remand if the “record as a whole creates serious doubt that a claimant is, in fact, disabled.”

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Id. at 1021. In light of Plaintiff’s failure to raise fibromyalgia before the ALJ, the Court

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finds the record is not fully developed and may be further developed on remand.

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Additionally, it is unclear, based on the record, whether Plaintiff is disabled. Accordingly,

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Plaintiff’s request for an immediate award of benefits is DENIED.

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CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED:

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1. Plaintiff’s motion for judgment (ECF No. 40) is GRANTED.

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2. Plaintiff’s motion for summary judgment (ECF No. 11) is GRANTED. The

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matter is REMANDED for further proceedings.

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3. Defendant’s cross-motion for summary judgment (ECF No. 14) is DENIED.

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4. The Clerk of Court shall enter judgment accordingly.

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DATED:

March 25, 2024

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____________________________________
JOHN A. HOUSTON
United States District Judge

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