Greene v. Berryhill

Filing 14

REPORT AND RECOMMENDATION re 13 MOTION for Summary Judgment Joint Motion for Judicial Review filed by Nancy A. Berryhill. Objections to R&R due within fourteen (14) days after being served with a copy of this Report and Recommendation. Replies due within fourteen (14) days after being served with a copy of the objections. Signed by Magistrate Judge Jill L. Burkhardt on 07/03/2019.(mme)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KATIE G.,

Case No.: 18-cv-00801-JLS (JLB)
Plaintiff,

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v.

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REPORT AND
RECOMMENDATION REGARDING
JOINT MOTION FOR JUDICIAL
REVIEW OF FINAL DECISION OF
THE COMMISSIONER OF SOCIAL
SECURITY

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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(ECF No. 13)

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This Report and Recommendation is submitted to the Honorable Janis L.

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Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local

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Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

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On April 25, 2018, Plaintiff Katie G. (“Plaintiff”) filed a Complaint pursuant to

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42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social

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Security denying her applications for a period of disability and disability insurance benefits

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and for Supplemental Security Income benefits (“SSI”). (ECF No. 1.)

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Now pending before the Court and ready for decision is the parties’ Joint Motion for

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Judicial Review of Final Decision of the Commissioner of Social Security. (ECF No. 13.)

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For the reasons set forth herein, the Court RECOMMENDS that Judgment be entered
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REVERSING the decision of the Commissioner denying benefits and REMANDING the

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matter to the Commissioner for further administrative action consistent with this decision.

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I.

PROCEDURAL BACKGROUND

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On June 30, 2014, Plaintiff filed applications for a period of disability and disability

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insurance benefits and SSI under Titles II and XVI, respectively, of the Social Security

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Act, alleging disability since August 13, 2013. (Certified Administrative Record [“AR”]

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268-74, 275-80.) After her applications were denied initially and upon reconsideration

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(AR 170-74, 180-86), Plaintiff requested an administrative hearing before an

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administrative law judge (“ALJ”) (AR 178-79). An administrative hearing was held on

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July 7, 2016 and a supplemental hearing was held on November 9, 2016. (AR 28-55, 56-

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92.) Plaintiff appeared at the initial hearing with counsel, and testimony was taken from

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her and a vocational expert (“VE”).

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supplemental hearing with the same counsel and testimony was taken from her, a different

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VE, and a medical expert. (AR 28-55.)

(AR 56-92.)

Plaintiff also appeared at the

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As reflected in his March 1, 2017 hearing decision, the ALJ found that Plaintiff had

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not been under a disability, as defined in the Social Security Act, from her alleged onset

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date through the date of the decision. (AR 6-27.) The ALJ’s decision became the final

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decision of the Commissioner on February 26, 2018, when the Appeals Council denied

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Plaintiff’s request for review. (AR 1-5.) This timely civil action followed.

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II.

SUMMARY OF THE ALJ’S FINDINGS

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In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

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evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At Step One, the ALJ found that

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Plaintiff had not engaged in substantial gainful activity since August 13, 2013, her alleged

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onset date. (AR 11.)

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At Step Two, the ALJ found that Plaintiff had the following severe impairments:

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cervical and lumbar degenerative disc disease (DDD) and related conditions, and

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osteoarthritis of the knee and hip. (AR 11.)

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At Step Three, the ALJ found that Plaintiff did not have an impairment or

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

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in the Commissioner’s Listing of Impairments. (AR 13.)

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Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”)

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to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (AR 13.)

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Specifically, the ALJ determined:

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[C]laimant could lift and/or carry ten pounds frequently, twenty pounds
occasionally; she can stand and/or walk for six hours out of an eight-hour
workday; she can sit for six hours out of an eight-hour workday; she can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl;
she is not to climb ladders, ropes or scaffolds; and she is to avoid all exposure
to hazards such as unprotected heights and moving machinery.

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(AR 13.)

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At Step Four, the ALJ determined that Plaintiff was capable of performing past

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relevant work as an information clerk, customer services representative, and sales

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attendant. (AR 18-19.) Based on the VE’s testimony, the ALJ determined that Plaintiff

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remained capable of performing this past relevant work “as actually performed.” (AR 18-

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19.)

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Alternatively, the ALJ made a determination at Step Five. Based on the VE’s

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testimony that a hypothetical person with Plaintiff’s vocational profile and RFC could

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perform the requirements of representative occupations such as a survey worker that

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existed in significant numbers in the national economy, the ALJ found that Plaintiff was

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not disabled. (AR 19-20.)

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III.

DISPUTED ISSUES

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As reflected in the Joint Motion for Judicial Review of Final Decision of the

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Commissioner of Social Security, the disputed issues that Plaintiff is raising as the grounds

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for reversal are:

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1.

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Whether the ALJ provided legally sufficient reasons to reject Plaintiff’s
testimony about her pain and symptoms.
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2.

Whether the ALJ’s decision to reject the opinions of Dr. Avery and Dr.

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Paniccia was justified by specific and legitimate reasons supported by

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substantial evidence.

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(ECF No. 13 at 12.)

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IV.

STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether the Commissioner’s findings are supported by substantial evidence and

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whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

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(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a

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preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of

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Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

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“such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

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and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

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30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,

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the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

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(9th Cir. 1984).

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V.

DISCUSSION

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A.

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In her motion, Plaintiff contends that the ALJ failed to make a proper adverse

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credibility determination with respect to Plaintiff’s subjective symptom testimony. (ECF

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No. 13 at 12-24.)

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The ALJ’s Adverse Credibility Determination

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Plaintiff’s Testimony
a.

Disability Reports (July, October, and December 2014)

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In a Disability Report dated July 2, 2014, Plaintiff states that she is unable to work

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due to chronic neck pain, carpal tunnel syndrome, back pain, major depression, and arthritis

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in her neck, back, and knees. (AR 325-34.) She also states the following:

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Can’t take meds—She has colitis—Stomach can’t handle meds because of old
ulcers in her – Low thyroid Has chronic neck pain which causes numbness
down her arms right hand surgery for carpel tunnel 1/2011 broke leg put 11
screws and plate in leg due to her right leg injuries she has compensated and
now has injuries on her left leg uses a cane to walk sometimes has to use
crutches doing physical therapy unable to bend over ruptured discs sitting 1015 min then legs going numb walk – 2 blocks standing – 15 min causes back
and legs to be in pain comfortable position is laying down – has to lay down
at least 5-6 times a day has mood swings and very irritable due to pain and
depression[.]
(AR 334; see also AR 340, 357.)
In a Disability Report dated October 3, 2014, Plaintiff provides the following update:
[Plaintiff is] unable to sleep from stress and pain all night long, always worried
and depressed about money, has pain using the phone holding the phone or
using a headset causes pain in shoulders and neck pain will be a 2 out of 10
from using the phone or tilting her head, shoulder pains, arm pains, stomach
hurts f[ro]m colitis and IBS are both extreme from stress, muscle pain in arms
and legs, wrists and hands both have pain, hips are both painful and sore since
injury on right shin has been hurting due to having to put most of her weight
on that side, sometimes she feels it’s going to break, feet hurt and swell with
walking, standing and even sitting, burning pains and numbness in legs and
feet, she cannot pay attention like she used to her mind wonders, she is also
uptight stressed and depressed all the time, hypothyroidism causes her to feel
tired all the time. Spondylosis sciatica pinched nerves on her back cause a lot
of pain, walks slow because of pain.
(AR 361.)
Plaintiff also reports the following changes to her daily activities:
[Plaintiff] now has problems with right leg now because of compensation of
the left leg, she has a pinched nerve in her neck from the before, she has carpal
tunnel on her hands, she still has numbness and tingling, she has difficulty
sleeping, she can’t lift heavy items, before she was able to lift 2-3 lbs and now
she can’t even do that, even if she gains a little bit of weight her legs start
feeling the stress, she can’t sit for too long, she has numbness going down the
legs if she sits too long, she can’t squat, and her back gets really bad, to get in
the shower she has difficulty, hips cause a lot of pain, can’t cook because she
can’t stand long enough. When her stress is bad, her colitis acts up.
Sometimes she feels dizzy and has to sit down. When pain gets really sharp
she can’t do anything, she is afraid that it will break. She has a shower chair
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to help out. Headaches from stress or neck discs from neck injury since 1993,
stress could cause the pain from grinding teeth pain runs a 6 out of 10.
(AR 361.)
In a Disability Report dated December 18, 2014, Plaintiff provides the following
update:
Client has back and neck pain, her carpal tunnel affects her ability to grasp
items, she is unable to opens jars. She cannot lift or even fold clothes. This
is another reason why she cannot even use the computer. Has tingling and
numbness that stem from her shoulder that radiate down to her finger tips.
Due to neck pain she is unable to lean forward or look down. Feels more
stressed and depressed due to her current situation. Feels hopeless especially
with combination of pain that she feels.

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(AR 366.)

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In addition, Plaintiff adds the following update:

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Due to her condition she experiences numbness and pain in her lumbar area
that radiate from her lower back to bilateral legs. She cannot sit for more than
10-15 min, otherwise her legs start going numb. She is unable to walk uphill,
she can walk for about 5 minutes before she is in extreme pain. Her muscle
tense and the pain that radiates down her legs are intolerable. Pain in hip area
only allows her to stand for no more than 10 minutes. Very moody and
emotional due to her current situation. She is depressed and is short tempered.
Feels like [illegible] up and wants to just give up. She cries from the pain that
she feels physically and emotionally. [Illegible] time sleeping at night, pain
in her legs, lumbar, cervical area, as well as, the stress and anxiety from these
conditions prevent her from getting sleep.

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(AR 366-67.)

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Plaintiff also reports the following changes to her daily activities:

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It takes client 30-40 minutes to take a shower. It has taken her longer to get
dressed because she feels unbalanced and is afraid to fall. Experiences pain
when putting her clothes on. Putting on her pants causes stress and pain that
stem from below her knee downward, as well as, lower back and hip. She
cannot cook herself meals due to the carpal tunnel that prevents her from
chopping food and her inability to stand for long periods. She relies heavily
on instant foods. When going to the grocery store she needs assistance from

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other such as her roommate or her nephew. When she is out of groceries she
waits until someone can go with her, otherwise she cannot do it on her own.
...
Client has not been able to increase her activities. She is not able to enjoy
going to the movies because she cannot sit for long periods of time. She
isolates herself because she cannot engage in activities that she use[d] to enjoy
doing, for example walking at the swap meet. She tries to save her strength
for appointments such as physical therapy.
(AR 371.)

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b.

Function Report—Adult (July 14, 2014)

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In a “Function Report—Adult,” completed by Plaintiff’s case manager and signed

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by Plaintiff on July 14, 2014, Plaintiff claims that her illnesses, injuries, and/or conditions

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limit her ability to work in the following ways:

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Chronic neck pain gives headaches, can’t turn head, causes stress and
depression. Pain in mouth from grinding teeth. Carpal tunnel cannot use
hands a lot of writing or typing, any repetative hand movements gives
shooting pains in hand, drops items. Trouble sleeping. Depression causes
crying spells, cries from pain and financial stress. Crys frequently. Feels
down on life and always stressed. Arthritis causes pain. Bad memory from
her accident, forgets daily things she should know. Back and [remainder cut
off].
(AR 347.)

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In the Function Report, Plaintiff describes her daily activities from the time she

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wakes up until the time she goes to bed as follows: “wakes up, eats breakfast, trys to clean

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a little, then has to relax [and] watch tv cause after movement pain will increase as the day

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goes on, eats lunch and dinner – goes to bed.” (AR 348.) Plaintiff also claims the

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following: Before the onset of her illnesses, injuries, and/or conditions, Plaintiff was able

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to work, read, watch television, pay attention/focus, be active and social, volunteer, and go

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to the park. (AR 348, 351.) Now, Plaintiff’s daily hobbies and interests include watching

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television and napping. (AR 351.) Plaintiff cannot sleep because she is in too much pain.

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(AR 348.) She also finds it hard to bend her legs and stand while she dresses, to move into

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positions for shaving, and to sit and get up when using the toilet. (AR 348.) Plaintiff uses

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a shower chair for bathing. (AR 348.)

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Plaintiff has a cat and a roommate. (AR 348.) Sometimes she feeds the cat, but her

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roommate helps with feeding the cat and scooping the litter box. (AR 348.) Plaintiff

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prepares her own meals every day. (AR 349.) Preparation of these meals includes making

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cereal and sandwiches and warming TV dinners and soup. (AR 349.) The meals typically

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take her no more than ten minutes to prepare. (AR 349.) Plaintiff used to be able to stand

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and cook large meals, but now she cannot stand or use her hands very well. (AR 349.)

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Plaintiff also engages in light dusting, approximately five to ten minutes once a week. (AR

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349.) All remaining household chores cause her pain. (AR 349-50.)

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Plaintiff goes outside every day and can drive and ride in cars. (AR 350.) Plaintiff

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can go out alone. (AR 350-51.) Once a week, Plaintiff spends less than thirty minutes at

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the grocery store. (AR 350.) Plaintiff also regularly goes to doctor’s appointments,

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therapy, and other appointments. (AR 351) Plaintiff can count change, handle a savings

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account, and use checkbook/money orders, but she finds it difficult to maintain

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concentration and focus. (AR 350-51.) Plaintiff does not often spend time with others as

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she is too depressed, but she does not have any problems getting along with family, friends,

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neighbors, or others, and gets along very well with authority figures. (AR 351-53.)

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Plaintiff has constant pain all over her body which affects all her movements. (AR

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352.) She can only walk ten steps before needing to rest for forty-five minutes before she

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resumes walking. (AR 352.) Plaintiff uses crutches, a walker, a wheel chair, a cane, and/or

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a brace/splint. (AR 353.) She uses at least one of these aids all the time. (AR 353.)

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Plaintiff can only pay attention for fifteen to twenty minutes and cannot finish what she

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starts (e.g., a conversation, chores, reading, watching a movie). (AR 352.) In addition,

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Plaintiff does not follow spoken instructions well and must read written instructions many

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times to understand. (AR 352.)

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c.

Administrative Hearing (July 7, 2016)

At the initial hearing before the ALJ on July 7, 2016, Plaintiff testified that she could
not work for the following reasons:
Because of the pain that I’m going through. I have pain in my back and my
neck and my hands. I have arthritis in my hands and I have carpal tunnel, both
hands. I have the pinched nerves in my back and my neck make – the ones in
my neck make my hands and my arms go numb, and the ones in my back, if
I’m sitting more than 15-20 minutes, then I end up getting numbness from my
waist down.

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(AR 61-62.)

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Plaintiff attended the hearing with a walker. (AR 62.) She testified that it helps her

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when she has to walk distances. (AR 62.) Plaintiff noted that over the course of a day she

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could walk one or two blocks without the help of an assistive device. (AR 62.) Plaintiff

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also testified that she has limits on how much she can lift and carry. (AR 62.) Plaintiff

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stated that her carpal tunnel “sometimes is worse than others,” such that, on occasion, even

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a coffee mug is too heavy. (AR 62.) Plaintiff testified that sometimes she can only lift up

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to one or two pounds. (AR 62.) Plaintiff added that lifting five pounds takes a toll on her

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back. (AR 63.) Plaintiff noted that the more activity she does, the more pain she feels in

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her back. (AR 63.)

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Plaintiff described her daily activities as follows:

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Get up in the morning, get ready, which entails taking a shower, getting
dressed, combing my hair, brushing teeth. I normally get breakfast depending
on how I’m feeling, how my physical condition is how – I’m going to cook or
what I’m going to eat. Then I usually – by this time I’m already – my legs are
in pain, my leg is swollen. I go lay down, maybe, or sit down on a comfortable
seat and I can do that maybe one or two hours before I can go and get ready
to do maybe a load of laundry or go food shopping, which I usually try to do
myself.

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Normally I can do light things at home, but I have to take breaks in
between, I can’t finish them at one – at one – in one step basically. And that’s,
again, because of my back or the carpal tunnel or the arthritis in my hands.
And the injury that I have in my legs, if I lift anything it does take a toll on
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the bones and just, you know, sometimes it’s worse than others because of the
weather. I – I told the – the doctor that the arthritis, when it’s cloudy or rainy
it’s worse. So it just depends on how long I can stand and how long I can
tolerate the pain and the swelling in my legs, sir.
(AR 63.)

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Plaintiff also testified as follows: Plaintiff is staying at a friend’s house at the

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moment. (AR 60-61.) She sometimes drives. (AR 61.) She has problems using her hands,

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e.g., to button her clothes or zip things closed, about half the time, and has difficulty

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gripping things. (AR 67.) Plaintiff is unable to do any chores related to moving things that

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are twenty pounds or heavier. (AR. 67.) However, she could move something twenty

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pounds once, but not again. (AR 67-68.)

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Plaintiff is very stressed, which causes stomach pain and headaches that affect her

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ability to see and eat. (AR 68.) Plaintiff has problems concentrating. (AR 68.) For

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example, if she is watching a movie for fifteen or twenty minutes she has no idea what is

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going on. (AR 68.) Plaintiff has difficulties interacting with people because she is “not

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feeling very sociable now.” (AR 68.) She declines invitations to go places where she

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would have to be there more than two hours. (AR 68.) For example, she cannot go to a

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movie because her back is not well enough to sit through even half the movie. (AR 68.)

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Plaintiff is very depressed and feels very frustrated by her situation. (AR 68.) If she is not

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crying, she just feels really bummed out and does not want to talk to anyone. (AR 69.)

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In addition to carpal tunnel issues, the arthritis in Plaintiff’s hands also prevents her

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from doing her past work. (AR 71.) She has pinched nerves in her neck which causes her

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arms to hurt and get weak and numb. (AR 71.) She also has pinched nerves in her back

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that make her legs go numb after she has been sitting for 15 to 30 minutes. (AR 71.)

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Plaintiff has pain in her left tibia, which she previously fractured, as well as her right one

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because she has been using it so much, and in her hips. (AR 71-72.)

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Moving her arms affects the pinched nerves in her neck and bothers her when she is

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folding laundry and when she raises her arms above a certain level. (AR 72.) The

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numbness in her arms gets worse when she raises them above chest height. (AR 72.)
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However, Plaintiff can comfortably raise her arms to chest height. (AR 72.) Plaintiff feels

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cervical pain with and without activity. (AR 72.) Without activity, Plaintiff’s pain level

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ranges from a three to seven, depending on the day. (AR 72-73.) Plaintiff keeps her

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activity low so that she can function. (AR 73.) When her neck is stiff, she cannot really

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turn or drive. (AR 73.) Plaintiff doesn’t feel well enough to drive a car a couple of times

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a week. (AR 73.)

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There is very little time Plaintiff is not in pain. (AR 73.) Plaintiff takes five different

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medications. (AR 73.) She mainly takes Norco for the pain, but also takes Tylenol and

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some over-the-counter ointment. (AR 74.)

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Plaintiff can get up and groom herself and get dressed daily, although she has

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difficulty sometimes. (AR 74.) She was getting more help before, but recently has been

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trying to do things on her own. (AR 74.) After breakfast, Plaintiff lays down for two or

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three hours because her leg is swollen, unless she has an appointment she needs to attend.

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(AR 74.)

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2.

Applicable Law

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It is well established in the Ninth Circuit that if the claimant has produced objective

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medical evidence of impairments that could reasonably be expected to produce some

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degree of pain and/or other symptoms and the record is devoid of any affirmative evidence

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of malingering, the ALJ may reject the claimant’s testimony regarding the severity of the

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claimant’s pain and/or other symptoms only if the ALJ makes specific findings stating clear

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and convincing reasons for doing so. See Smolen v. Chater, 80 F. 3d 1273, 1281-92 (9th

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Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947

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F. 2d 341, 343 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).

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It is incumbent on the ALJ to specify which statements of Plaintiff concerning her

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symptoms and functional limitations were not credible and in what respect the statements

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lacked credibility. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); see also

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Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996) (“General

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findings are insufficient; rather, the ALJ must identify what testimony is not credible and
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what evidence undermines the claimant’s complaints.”). The ALJ is guided by “ordinary

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techniques of credibility evaluation,” and may consider inconsistencies with the medical

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record or in the claimant’s testimony, unexplained failures to seek treatment, and whether

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the claimant engages in activities of daily living that are inconsistent with the alleged

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symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (citations

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omitted).

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An ALJ’s assessment of pain severity and claimant credibility is entitled to “great

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weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); see also Nyman v. Heckler,

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779 F.2d 528, 531 (9th Cir. 1986). “When evidence reasonably supports either confirming

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or reversing the ALJ’s decision, [courts] may not substitute [their] judgment for that of the

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ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).

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3.

Analysis

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The ALJ made the following statement regarding Plaintiff’s credibility:

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

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(AR 14.)

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Because the Commissioner has not argued affirmative evidence of malingering, the

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Court will apply the “clear and convincing” standard to the ALJ’s adverse credibility

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determination. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (applying “clear

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and convincing” standard where the government did not argue that a lesser standard should

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apply based on evidence of malingering); see also Ghanim v. Colvin, 763 F.3d 1154, 1163

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n.9 (9th Cir. 2014) (same).

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The Court discerns the following three reasons in the ALJ’s decision for his adverse

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credibility determination: (1) “despite her impairment, [Plaintiff] has engaged in somewhat

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normal level of daily activity and interaction”; (2) “[t]he treatment records reveal [Plaintiff]

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received routine, conservative and non-emergency treatment since the alleged onset date”;

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and (3) “the objective findings in this case fail to provide strong support for [Plaintiff’s]

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allegations of disabling symptoms and limitations.” (AR 14-15.) The Court will address

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each reason below.

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a.

Activities of Daily Living

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The first reason cited by the ALJ in support of his adverse credibility determination

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is Plaintiff’s daily activities and interactions, which, according to the ALJ, “bear at least

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some similarity to those . . . necessary for obtaining and maintaining employment.” (AR

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14.) The ALJ notes in this regard that Plaintiff indicated she “drives, does laundry, shops,

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and handles her hygiene.” (AR 14.) Moreover, the ALJ points to Plaintiff’s Function

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Report where Plaintiff acknowledges that she “lives with friends, cleans, watches

15

television, takes care of a cat, prepares meals, dusts, goes outside every day, drives, can go

16

out alone, handles her finances, and has no problem getting along with family, friends,

17

neighbors or others.”

18

interactions as “somewhat normal.” (AR 14.)

(AR 14.)

The ALJ characterized these daily activities and

19

The Ninth Circuit has set forth “two grounds for using daily activities to form the

20

basis of an adverse credibility determination”: evidence that the claimant’s daily activities

21

either (1) contradict the claimant’s other testimony, or (2) meet the threshold for

22

transferable work skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here,

23

neither of these grounds apply.

24

As an initial matter, the ALJ erred by mischaracterizing Plaintiff’s testimony. See

25

Garrison v. Colvin, 759 F.3d 995, 1015-16 (9th Cir. 2014) (finding that the ALJ committed

26

an error when she mischaracterized the plaintiff’s testimony regarding her daily activities).

27

Although Plaintiff testified that she sometimes feeds the cat, her roommate heavily assists

28

with most other cat-related tasks, such as cleaning the litter box. (AR 348.) Plaintiff also
13
18-cv-00801-JLS (JLB)

1

indicated that while she prepares meals, she is limited to foods that take her ten minutes

2

“max” to prepare, like cereal, TV dinners, and soup. (AR 349.) Plaintiff testified that she

3

can clean, but emphasized that she is limited to “light dusting” for five to ten minutes per

4

week because “everything else causes pain.” (AR 349.) Plaintiff acknowledged that she

5

watches television, but she can only watch for about fifteen minutes before her focus is lost

6

due to her medical impairments. (AR 351.) Plaintiff testified that after performing such

7

activities she often must lie down and rest for a couple hours between each task because of

8

the pain. (AR 63.)

9

In regard to her mental impairments, the ALJ notes that Plaintiff “has no problem

10

getting along with family, friends, neighbors or others.” (AR 14.) However, when Plaintiff

11

testified to interacting with others outside her home, she stated, “I don’t feel like talking to

12

. . . people sometimes []. I’m just like so depressed and if I’m not crying I just feel like

13

really bummed out and I don’t even want to talk to anybody.” (AR 69.) Plaintiff also

14

testified that she has difficulties interacting with people because she is “not feeling very

15

sociable now.” (AR 68.)

16

Had the ALJ properly characterized Plaintiff’s testimony, there would be no

17

apparent inconsistencies between Plaintiff’s ability to engage in her daily activities and her

18

testimony regarding her physical and mental impairments. See e.g., Diedrich v. Berryhill,

19

874 F.3d 634, 642-43 (9th Cir. 2017) (finding the claimant’s ability to perform daily

20

activities including personal hygiene, cooking, taking care of a cat, household chores, and

21

shopping not a clear and convincing reason to find her less than fully credible in light of

22

her other limitations); Garrison, 759 F.3d at 1016 (finding the claimant’s ability to talk on

23

the phone, prepare meals once or twice a day, occasionally clean one’s room, and, with

24

significant assistance, care for one’s daughter, all while taking frequent hours-long rests,

25

avoiding any heavy lifting, and lying in bed most of the day, to be consistent with her pain

26

testimony and consistent with an inability to function in a workplace environment).

27

The daily activities identified by the ALJ are also not readily “transferable to a work

28

environment.” See Ghanim, 763 F.3d at 1165 (internal quotation marks omitted). “House
14
18-cv-00801-JLS (JLB)

1

chores, cooking simple meals, self-grooming, paying bills, writing checks, and caring for

2

a cat in one’s own home, as well as occasional shopping outside the home, are not similar

3

to typical work responsibilities.” Diedrich, 874 F.3d at 643. However, even if the Court

4

were to accept the ALJ’s conclusory statement that Plaintiff’s daily activities and

5

interactions “bear at least some similarity to those . . . necessary for obtaining and

6

maintaining employment,” the ALJ does not identify any evidence or make specific

7

findings to suggest that Plaintiff was performing these tasks “with the consistency and

8

persistence that a work environment requires.” Id.; see also Fair v. Bowen, 885 F.2d 597,

9

603 (9th Cir. 1996) (finding that “if a claimant is able to spend a substantial part of his day

10

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

11

to a work setting,” an adverse credibility finding may be warranted); Burch v. Barnhart,

12

400 F.3d 676, 681 (9th Cir. 2005) (“[I]f a claimant engages in numerous daily activities

13

involving skills that could be transferred to the workplace, the ALJ may discredit the

14

claimant’s allegations upon making specific findings relating to those activities.”).

15

The Court therefore finds that the first reason cited by the ALJ does not constitute a

16

clear and convincing reason for not crediting Plaintiff’s subjective pain and symptom

17

testimony.

18

b.

Routine, Conservative, and Non-Emergency Treatment

19

The next reason cited by the ALJ in support of his adverse credibility determination

20

is that Plaintiff had received “routine, conservative and non-emergency treatment since the

21

alleged onset date.” (AR 15.) “[E]vidence of ‘conservative treatment’ is sufficient to

22

discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue,

23

481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th

24

Cir. 1995)); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (finding the ALJ

25

properly rejected the plaintiff’s “claim that she experienced pain approaching the highest

26

level imaginable” as it was inconsistent with the “minimal, conservative treatment” that

27

she received). For the following reasons, the Court finds that this does not constitute a

28

clear and convincing reason for the ALJ’s adverse credibility determination.
15
18-cv-00801-JLS (JLB)

1

First, the ALJ fails to specifically identify the portions of the record that support his

2

determination that Plaintiff only received “routine, conservative and non-emergency

3

treatment since the alleged onset date.” The Ninth Circuit is clear that an ALJ must make

4

specific findings justifying his decision. See Connett v. Barnhart, 340 F.3d 871, 873 (9th

5

Cir. 2003) (citing Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir. 1993)). A finding that a

6

claimant’s testimony is not credible “must be sufficiently specific to allow a reviewing

7

court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds

8

and did not arbitrarily discredit a claimant’s testimony regarding pain.” Bunnell, 947 F.2d

9

at 345-46 (internal quotation marks and citations omitted). Here, the ALJ does not discuss

10

Plaintiff’s treatment in his decision, except for the statement that Plaintiff “attended only

11

two therapy sessions of the six that were approved due to physical pain she reportedly was

12

experiencing in pain therapy sessions.” (AR 16-17 (citing AR 893).) As this statement is

13

insufficient to adequately identify the portions of the record that support a finding of

14

routine, conservative, and non-emergency treatment, the Court finds that this is not a clear

15

and convincing reason for rejecting Plaintiff’s testimony.

16

Second, the objective evidence the ALJ does discuss in his decision and the

17

underlying record do not suggest that Plaintiff’s treatment was routine and conservative.

18

In his decision, the ALJ cites the numerous magnetic resonance imaging (“MRI”) tests, x-

19

rays and/or computerized tomography (“CT”) scans of Plaintiff’s left knee, pelvis, spine,

20

left tibia and fibula, and/or lower extremity conducted between November 3, 2012 and

21

May 16, 2016. (AR 15-16.)1 This does not suggest a conservative course of treatment.

22

Rather, it suggests an individual with an ongoing condition for whom treatment is not

23
24
25
26
27
28

1

In this same section of his decision, the ALJ also notes that Plaintiff was
diagnosed with “left knee posttraumatic chronic pain, slowly improving, with no evidence
of derangement; and right hip and lateral thigh pain, most consistent with iliotibial band
syndrome,” “left knee posttraumatic pain, likely secondary to osteoarthritis,” “degenerative
disc disease C4-C6,” “mild lower lumbar spondylosis,” “cervical and lumbar disc disease
[with] neck pain and low back pain,” and osteoporosis. (Id.)
16
18-cv-00801-JLS (JLB)

1

working (i.e., alleviating her pain) and doctors who find her complaints credible enough to

2

continue to order testing. Moreover, as noted by the ALJ, an October 2015 MRI indicated

3

a “suspected reinjury of a proximal tibial metaphysis fracture mostly involving the lateral

4

plateau,” and “suspected partial separation of the lateral head of the gastrocnemius muscle

5

from its anterior sheath at the level of the knee joint with gastrocnemius myositis,” thus

6

suggesting that the continued testing was warranted. (AR 16 (citing 685).)

7

Lastly, Plaintiff testified during the administrative hearing that she was taking five

8

medications, including Norco, Tylenol, and an over-the-counter ointment for the pain. (AR

9

74; see also AR 398, 395, 400.) Her underlying medical records indicate that she had also

10

been prescribed Gabapentin, Cyclobenzaprine Hydrochloride, and Tramadol for the pain

11

but found that the Tramadol and other nonsteroidal anti-inflammatory drugs (“NSAIDS”)

12

did not alleviate her symptoms. (See AR 398-99, 402, 403, 409, 430.) In addition, Plaintiff

13

underwent frequent physical therapy, but only occasionally found it helpful. (See AR 398,

14

430, 439, 441, 450-75, 477-515, 588-600, 700-08, 718-40, 879-89.) Therefore, although

15

“[i]mpairments that can be controlled effectively with medication are not disabling for the

16

purpose of determining eligibility for [social security] benefits,” Warre v. Comm’r of Soc.

17

Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006), nothing in the record suggests that

18

Plaintiff’s pain was effectively controlled by medication.

19

Accordingly, the Court finds that the second reason cited by the ALJ does not

20

constitute a clear and convincing reason for not crediting Plaintiff’s subjective pain and

21

symptom testimony.

22

c.

Lack of Objective Medical Evidence

23

The final reason cited by the ALJ in support of his adverse credibility determination

24

is the lack of objective medical evidence to support Plaintiff’s allegations. (AR 15.)

25

However, since the ALJ’s other stated reasons were legally insufficient to support his

26

adverse credibility determination, this remaining reason (i.e., the lack of objective medical

27

support) cannot be legally sufficient by itself. See Robbins v. Soc. Sec. Admin., 466 F.3d

28

880, 883-85 (9th Cir. 2006) (where the ALJ’s initial reason for his adverse credibility
17
18-cv-00801-JLS (JLB)

1

determination was legally insufficient, his sole remaining reason premised on lack of

2

medical support for claimant’s testimony was legally insufficient); Light v. Soc. Sec.

3

Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the claimant lacks credibility

4

cannot be premised wholly on a lack of medical support for the severity of his pain.”); cf.

5

Burch 400 F.3d at 681 (noting that “lack of medical evidence cannot form the sole basis

6

for discounting pain testimony”).

7
8
9

Accordingly, the Court finds that the ALJ erred in rejecting Plaintiff’s subjective
symptom and pain testimony.
B.

Treating Physicians

10

Plaintiff’s second and third claims of error address whether the ALJ, in determining

11

that Plaintiff was capable of working, failed to properly consider the opinions of Dr. Avery

12

and Dr. Paniccia, Plaintiff’s treating physicians. (ECF No. 13 at 25-35.)

13
14

1.

Applicable Law

Medical opinions are among the evidence that the ALJ considers when assessing a

15

claimant’s ability to work.

16

distinguishes among the opinions of three types of physicians: (1) those who directly

17

treated the claimant (treating physicians), (2) those who examined but did not treat the

18

claimant (examining physicians), and (3) those who did neither (nonexamining

19

physicians). Lester, 81 F.3d at 830. The medical opinion of a claimant’s treating physician

20

is given “controlling weight” so long as it “is well-supported by medically acceptable

21

clinical and laboratory diagnostic techniques and is not inconsistent with the other

22

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

23

675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). “When a treating physician’s

24

opinion is not controlling, it is weighted according to factors such as the length of the

25

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

26

treatment relationship, supportability, consistency with the record, and specialization of the

27

physician.” Id. (citing 20 C.F.R. § 404.1527(c)(2)-(6)). Greater weight is also given to

See 20 C.F.R. §§ 404.1527(b), 416.927(b).

Case law

28
18
18-cv-00801-JLS (JLB)

1

the “opinion of a specialist about medical issues related to his or her area of specialty.”

2

Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(5)).

3

“If a treating or examining doctor’s opinion is contradicted by another doctor’s

4

opinion, an ALJ may only reject it by providing specific and legitimate reasons that are

5

supported by substantial evidence.” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216

6

(9th Cir. 2005)); see also Reddick, 157 F.3d at 725 (“[The] reasons for rejecting a treating

7

doctor’s credible opinion on disability are comparable to those required for rejecting a

8

treating doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a

9

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

10

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

11

(9th Cir. 1989) (quoting Cotton, 799 F.2d at 1408).

12

“The opinion of a nonexamining physician cannot by itself constitute substantial

13

evidence that justifies the rejection of the opinion of either an examining physician or a

14

treating physician.” Lester, 81 F.3d at 831 (emphasis in original). However, “[o]pinions

15

of a nonexamining, testifying medical advisor may serve as substantial evidence when they

16

are supported by other evidence in the record and are consistent with it.” Morgan v.

17

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citing Andrews v. Shalala,

18

53 F.3d 1035, 1041 (9th Cir. 1986)).

19
20
21
22

2.

Dr. Avery

Plaintiff contends that the ALJ improperly rejected Dr. Avery’s opinion in
determining Plaintiff’s ability to work. (ECF No. 13 at 25-35.)
a.

Background

23

Dr. Avery began seeing Plaintiff at Scripps in March 2014. (AR 891, 409-13.) He

24

saw her approximately every three months through at least April 2016. (See AR 891, 745.)

25

During her first visit, Dr. Avery noted that Plaintiff had fractured her left tibia in 2011,

26

with subsequent hardware removal. (AR 409.) Plaintiff’s earlier medical records indicate

27

that Plaintiff experienced a left tibia plateau complex fracture on January 21, 2011. (AR

28

626.) She subsequently underwent a left tibial plateau open reduction and internal fixation
19
18-cv-00801-JLS (JLB)

1

on January 23, 2011. (AR 626.) She was also subsequently found to have left foot third

2

and fourth metatarsal fractures, which were treated with closed treatment. (AR 626.)

3

Plaintiff developed posttraumatic symptomatic below-knee DVT. (AR 626.) On January

4

18, 2013, Plaintiff underwent a left knee surgery and proximal tibia hardware removal.

5

(AR 613.) Her surgeon was Dr. Bongiovanni. (AR 613.) Post-operation, Plaintiff was

6

diagnosed with left knee pain, posttraumatic, hardware irritation; left knee medial meniscus

7

tear; left knee lateral meniscus tear; and left knee chondromalacia of the patella. (AR 613.)

8

Plaintiff also had carpal tunnel surgery on her right wrist in or around 1996. (AR 400, 478,

9

611.)

10

As Plaintiff’s primary care provider, based on Plaintiff’s medical history and

11

complaints of ongoing pain, Dr. Avery ordered x-rays, physical therapy, and orthopedic

12

consultations on her behalf. (See, e.g., AR 416, 419, 421, 440-41, 483, 581-82, 798.)2 Dr.

13

Avery also examined Plaintiff himself. (See, e.g., AR 409-13, 398-401, 779-82, 775-78,

14

767-70, 837-41, 751-55, 756-60, 746-50, 741-45.) During his examinations, Dr. Avery

15

noted that Plaintiff had decreased range of motion in her neck and spine, and consistently

16

observed that she had difficulty walking and needed a cane. (See AR 413, 401, 782, 778,

17

770, 840, 755, 759, 750, 744; see also AR 402-04, 765.) Dr. Avery also noted on one

18

occasion that Plaintiff had decreased range of motion with flexion in her right wrist and

19

could not perform Phalen’s test. (AR 778.)

20

///

21

///

22

///

23
24
25
26
27
28

2

A May 6, 2014 x-ray of Plaintiff’s cervical spine ordered by Dr. Avery
concluded that she had moderate degenerative disc disease C4-C5 and mild degenerative
disc disease C5-C6. (AR 416.) The x-ray did not indicate a fracture or destructive osseous
lesion. (AR 416.) In his April 20, 2016 Progress Note, Dr. Avery notes that Plaintiff
“[w]as seen by ortho in Riverside last year, CT with poorly healing fxr still evident.” (AR
741; see also AR 747 (“CT scan that showed improved healing not full recovery”).)
20
18-cv-00801-JLS (JLB)

1
2
3

In his progress notes on March 15, 2015, Dr. Avery states the following after
examining Plaintiff:

12

Musculoskeletal: Digits and nails: Normal. Inspection/palpation of joints,
bones, and muscles. Loss lumbar lordosis, left paraspinal muscle +2
involuntary spasm, right= +1 voluntary paraspinous muscle spasm. left knee
with scaring medial inferior knee, mild edema over anterior shin, prominent
tibial tubercle which patient localizes as the epicenter of her pain[.] The tibial
tubercle is non TTP but very tender to light percussion with a reflex hammer.
The infrapatellar tendon is normal and not TTP or tension. Valgus deformity,
compression test reveal marked crepitus but no pain. no joint line TTP line
tenderness left knee, no ligamentous laxity noted. Crepitus noted on flexion
extension left knee. Patella compression test negative. Range of motion:
Normal. Stability: Normal. Knee ligaments are intact and stable. Muscle
strength/tone: Marked atrophy of L quadriceps, especially L vastus medialis.
Patient can stand without using her arms to help, but it is painful. Patient
walks with a L antalgic gait. Otherwise full strength 5/5 upper and lower ext.

13

...

14

Neurologic: Gait and station: Antalgic gait, decreased weight bearing left leg.
Cranial nerves II-XII intact. Deep tendon reflexes 2+ and bilaterally equal.
Sensation intact to light touch. Alert and oriented x3.

4
5
6
7
8
9
10
11

15
16
17

Psychiatric: Judgment and insight: Normal. Recent and remote memory:
Normal. Mood and affect: Tearful on exam.

18

(AR 755.) Dr. Avery also states in these notes that Plaintiff needed a repeat x-ray of her

19

left knee, especially the tibial tubercle area, a repeat orthopedic evaluation, and quad

20

exercises for her left quad atrophy. (AR 755.) He concludes by stating that “Patient is

21

having real pain, and deserves at least temporary medical disability and more formal

22

physical therapy.” (AR 755.)

23

Dr. Avery also referred Plaintiff to Dr. Bongiovanni, her orthopedic surgeon at

24

Scripps Mercy, for follow up. (See AR 398, 402, 746, 761, 779, 827.) In May 2014, Dr.

25

Bongiovanni concluded that Plaintiff had “[l]eft knee episodic pain, posttraumatic likely

26

representative of mild posttraumatic degenerative joint disease, no acute fracture[,] chronic

27

pain syndrome[, and] hypothyroidism.” (AR 441.) During a subsequent visit in July 2014,

28

Dr. Bongiovanni concluded that Plaintiff had “[l]eft knee posttraumatic pain, likely
21
18-cv-00801-JLS (JLB)

1

secondary to osteoarthritis as seen on previous imaging studies.” (AR 439.) During his

2

examinations, Dr. Bongiovanni generally found Plaintiff’s range of motion to be smooth

3

and full and noted mild tenderness, pain, and swelling in her left knee. (AR 438, 440-41.)

4

In May 2014, Dr. Bongiovanni determined that no further orthopedic surgery was advised

5

at that time, and recommended physical therapy for range of motion, strengthening, gait

6

training, and pain-relieving modalities. (AR 441.) He also offered Plaintiff a Synvisc

7

injection for her left knee. (AR 441, 779.) This recommendation did not change in July

8

2014. (AR 439.)

9

Dr. Bongiovanni also ordered various CT scans, x-rays, and MRI tests, some of

10

which pre-date Dr. Avery’s treatment. On March 29, 2013, a CT examination showed that

11

Plaintiff had “[n]ear-complete healed fractures of proximal tibia in anatomic alignment and

12

early degenerative chances of the lateral tibial plateau.” (AR 609.) On April 16, 2013, an

13

MRI of Plaintiff’s pelvis concluded that it was a “normal examination,” and an MRI of

14

Plaintiff’s lumbar indicated, “Mild lower lumbar spondylosis. No central stenosis or

15

evidence of nerve impingement. Right central annular tear L5-S1.” (AR 519-20, 607-08.)

16

On May 16, 2014, an x-ray of Plaintiff’s left knee showed progressive sclerosis at the

17

fracture site in the lateral tibial plateau and “[c]ontinued healing of lateral tibial plateau

18

fracture.” (AR 417-18, 442.)

19

b.

Opinion

20

On May 5, 2016, Dr. Avery, a physician who specializes in internal medicine,

21

completed a “Medical Source Statement – Physical” for Plaintiff. (AR 890-92.) Dr. Avery

22

opined on Plaintiff’s ability to do work-related activities on a day-to-day basis in a regular,

23

forty-hour work week setting. (See AR 890.) Dr. Avery opined that Plaintiff: (1) could

24

lift and/or carry less than ten pounds; (2) could stand and/or walk less than two hours in an

25

eight hour workday; (3) needed a cane for walking which he found medically necessary;

26

(4) could sit for two to three hours with normal breaks in an eight-hour workday; (5) needed

27

to alternate between sitting and standing and that breaks and lunch periods would not

28

provide sufficient relief; and (6) required a change in position every five to fifteen minutes.
22
18-cv-00801-JLS (JLB)

1

(AR 890-91.) Dr. Avery also opined that Plaintiff could occasionally climb, balance, stoop,

2

kneel, crouch, crawl, reach, and handle (gross manipulation). (AR 891.) He further opined

3

that Plaintiff could finger (fine manipulation) occasionally/rarely, had restrictions in

4

feeling, and could not move machinery. (AR 891.) Dr. Avery added that Plaintiff could

5

care for herself. (AR 892.)

6

Next, Dr. Avery opined that Plaintiff had no capacity to lift, push, or pull over 10

7

pounds, and could not engage in continuous sitting or standing, overhead work, and

8

squatting or kneeling. (AR 892.) He further opined that Plaintiff had partial capacity to

9

lift, push, or pull 10 pounds or less and to use her hands. (AR 892.) Based on his findings,

10

Dr. Avery concluded that Plaintiff could perform limited part-time work and could not

11

perform sedentary/clerical work. (AR 892.) Dr. Avery identified Plaintiff’s prognosis as

12

“To be Determined” as she needed an orthopedic evaluation. (AR 891.)

13

In determining what Plaintiff could lift and/or carry, Dr. Avery stated that he relied

14

on her weakness on examination, her patient history, and her history of “left tibia fxr and

15

DJD cervical spine.” (AR 890.) In determining Plaintiff’s ability to stand and/or walk, Dr.

16

Avery stated that he relied on weakness in Plaintiff’s left leg and her chronic pain and

17

“tib/fib fracture.” (AR 890.) In determining Plaintiff’s ability to sit and alternate standing

18

and sitting, Dr. Avery stated that he relied on Plaintiff’s neuropathy, the degeneration of

19

her cervical spine, and her patient history. (AR 890.) Lastly, in determining Plaintiff’s

20

additional physical and environmental restrictions, including manipulations, Dr. Avery

21

stated that he relied the Plaintiff’s “DJD cervical spine,” her carpal tunnel syndrome, her

22

patient history, and her abnormal gait secondary to pain. (AR 891.)

23

c.

Analysis

24

The ALJ gave Dr. Avery’s opinion little weight for the following reasons:

25

[Dr. Avery’s opinion] is not well supported by objective evidence and it is
inconsistent with the record as a whole. Dr. Avery primarily summarized in
the treatment notes the claimant’s subjective complaints, diagnoses, and
treatment, but he provided few specific objective clinical or diagnostic
findings to support the functional assessment. More importantly, his opinion

26
27
28

23
18-cv-00801-JLS (JLB)

1
2
3
4
5

is inconsistent with the record as a whole, including the objective findings
already discussed above in this decision, which show mild and moderate
findings. [Dr. Avery’s] opinion is also inconsistent with the claimant’s
admitted activities of daily living that have already been described above in
this decision.
(AR 17.)

6

Because Dr. Avery’s opinion was contradicted by medical expert Dr. Sklaroff (AR

7

36-39) and state agency review physicians Dr. Wong (AR 126-28, 137-39) and Dr. Vu (AR

8

150-53, 161-64), who opined that Plaintiff had only light limitations, the ALJ was required

9

to provide specific and legitimate reasons for rejecting Dr. Avery’s opinion. Bayliss, 427

10

F.3d at 1216. The Court will address each of these reasons in turn.

11

i.

12

Not Supported By Objective Medical Record and
Inconsistent with the Record as a Whole

13

The first reason proffered by the ALJ for rejecting Dr. Avery’s opinion was that it

14

“is not well supported by objective evidence and it is inconsistent with the record as a

15

whole.”

16

conclusory, brief, and unsupported by the record as a whole, . . . or by objective medical

17

findings.” Batson, 359 F.3d at 1195 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149

18

(9th Cir. 2001)); see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

19

(finding that an inconsistency or “incongruity” between a treating physician’s opinion and

20

her underlying medical records is a specific and legitimate reason for rejecting the

21

physician’s opinion); Bayliss, 427 F.3d at 1216 (finding that a contradiction or

22

“discrepancy” between a treating physician’s opinion and his underlying notes is a clear

23

and convincing reason for not relying on the doctor’s opinion); 20 C.F.R. §§

24

404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a

25

whole, the more weight we will give to that medical opinion.”), 416.927(c)(4) (same). “An

26

ALJ may also reject a treating physician’s opinion if it is based ‘to a large extent’ on a

27

claimant’s self-reports that have been properly discounted as incredible.” Tommasetti, 533

28

F.3d at 1041 (citing Morgan, 169 F.3d at 602).

(AR 17.)

“[A]n ALJ may discredit treating physicians’ opinions that are

24
18-cv-00801-JLS (JLB)

1

Here, the ALJ set forth a detailed and thorough summary of the facts and conflicting

2

clinical evidence in his decision. See Magallanes, 881 F.2d at 751. The ALJ summarized

3

the results of Plaintiff’s x-rays, MRI tests, and CT scans, which primarily showed

4

continued healing of her left tibia, no fracture or dislocation of her left knee, “normal” or

5

“mild” results from scans on her pelvis and lumbar spine, and normal strength in her lower

6

extremities, with “no limp,” and reflexes, sensation, and pulses within “normal limits.”

7

(AR 15-16.) Based on the foregoing, the ALJ concluded that Dr. Avery’s opinions were

8

not “well supported by objective evidence” and were “inconsistent with the record as a

9

whole.” (AR 17.) The ALJ added that “Dr. Avery primarily summarized in his treatment

10

notes the claimant’s subjective complaints, diagnoses, and treatment, but he provided few

11

specific objective clinical or diagnostic findings to support the functional assessment.”

12

(AR 17.) In conclusion, the ALJ stated that, “More importantly, [Dr. Avery’s] opinion is

13

inconsistent with the record as a whole, including the objective findings discussed above

14

in this decision, which show mild and moderate findings.” (AR 17.) The Court finds that

15

these are specific and legitimate reasons that are supported by substantial evidence for

16

rejecting Dr. Avery’s opinions. Although Dr. Avery stated that he relied on objective

17

evidence and clinical findings in reaching his opinions, his opinions are generally

18

inconsistent with the mild to moderate findings of the underlying objective evidence.3

19

Plaintiff argues that substantial evidence that the ALJ “either omitted or

20

mischaracterized” supports the opinions of Dr. Avery. (ECF No. 13 at 27.) Plaintiff points

21

to the various times Dr. Avery noted that Plaintiff’s left knee was swollen or tender or that

22

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24
25
26
27
28

3

In July 2013, Dr. Bongiovanni re-reviewed Plaintiff’s MRI studies on her Lspine, pelvis, hips, and right knee, and noted that they “have been really unremarkable.”
(AR 603-04; see also AR 605.) In May 2014, Dr. Bongiovanni reviewed Plaintiff’s left
knee x-ray and stated that it reveals “no retained hardware” and “no obvious acute fracture”
with only “mild degenerative changes.” (AR 441.) See 20 C.F.R. §§ 404.1527(c)(5) (“We
generally give more weight to the medical opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.”), 404.927(c)(5) (same).
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1

Plaintiff had decreased range of motion in her left knee, spine, and/or neck. (Id. at 4-7.)

2

However, as noted by the ALJ, Dr. Avery’s examinations also revealed “no active

3

synovitis, joint deformity or effusions,” a normal range of motion, and “5/5 strength in the

4

upper and lower extremities.” (AR 15 (citing AR 770); see also 401, 413, 744, 755, 759,

5

770, 778, 782, 840.) Dr. Avery’s notes indicated decreased range of motion in Plaintiff’s

6

neck on only two occasions and in her wrist on only one occasion. (See AR 401 (decreased

7

ROM left rotation cervical), 413 (decreased ROM cervical rotation to the right and

8

decreased ROM L spine), 778 (right wrist with decreased ROM with flexion, cannot

9

perform Phalen’s test and Tinnel’s test elicits tingling throughout all digits).) In addition,

10

Dr. Avery’s notes frequently did not mention a swollen or tender knee. (See AR 413, 744,

11

755, 759, 770, 778, 782, 840; but see AR 401 (unable to fully extend left knee without

12

pain), 750 (swelling left knee and pain with extension of knee), 744 (mild swelling left

13

below knee with TTP).)

14

Plaintiff also points to Dr. Avery’s observations that Plaintiff walks with a limp or

15

an unsteady gait and needs an assistive device as information ignored by the ALJ. (ECF

16

No. 13 at 4-7.) However, as stated by the ALJ, Plaintiff was also observed without a limp

17

in September 2015. (AR 15 (citing AR 676).) She was further observed without a limp

18

and able to walk normally in October and November 2015. (See AR 679, 690.) The Court

19

further observes that Plaintiff’s physical therapy notes also include such statements as:

20

“Despite patients reports of severe radicular symptoms I find no advanced neurological

21

symptoms including diminished reflex or weakness” (AR 701); and “Walks slowly without

22

cane, for no obvious reason, except lack of confidence” (AR 462). As these statements are

23

in line with the mild to moderate findings of the underlying objective evidence, the Court

24

finds that the ALJ has provided a specific and legitimate reason for rejecting the opinions

25

of Dr. Avery.

26

In any event, to the extent the medical records raise ambiguities, “the ALJ is the final

27

arbiter with respect to resolving ambiguities in the medical evidence.” Tommasetti, 533

28

F.3d at 1041; see also Batson, 359 F.3d at 1195 (“When presented with conflicting medical
26
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1

opinions, the ALJ must determine credibility and resolve the conflict.”); Andrews, 53 F.3d

2

at 1039 (“The ALJ is responsible for determining credibility, resolving conflicts in medical

3

testimony, and for resolving ambiguities.”).

4

ii.

Activities of Daily Living

5

The second reason proffered by the ALJ for giving little weight to the opinion of Dr.

6

Avery was that the opinion is “inconsistent with the claimant’s admitted activities of daily

7

living.” (AR 17.) Inconsistency between a physician’s opinion and a plaintiff’s daily

8

activities suffices as a specific and legitimate reason for discounting a physician’s opinion

9

if supported by substantial evidence from the record as a whole. See Morgan, 169 F.3d at

10

600-02.

11

Here, as set forth above, the Court has already determined that the ALJ

12

mischaracterized Plaintiff’s daily activities in his decision. Therefore, the ALJ does not

13

adequately identify any inconsistencies between Plaintiff’s testimony regarding her

14

activities of daily living and Dr. Avery’s opinion. Accordingly, the Court finds that this

15

was not a specific and legitimate reason supported by substantial evidence in the record for

16

rejecting Dr. Avery’s opinion.

17

determination that a treating physician’s findings were inconsistent with the claimant’s

18

daily activities to be insufficient where the ALJ omitted highly relevant qualifications to

19

the claimant’s daily activities); see also Trevizo, 871 F.3d at 675-76 (finding the ALJ

20

improperly relied on the claimant’s daily activities to reject the treating physician’s opinion

21

where the ALJ had not adequately developed the record regarding the claimant’s daily

22

activities).

See Revels, 874 F.3d at 664 (finding the ALJ’s

23

As the ALJ has provided at least one specific and legitimate reason for rejecting Dr.

24

Avery’s opinion, however, the Court finds that he did not err in affording Dr. Avery’s

25

opinion little weight.

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27
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3.

Dr. Paniccia

Plaintiff also contends that the ALJ improperly rejected the opinion of Dr. Paniccia,
Plaintiff’s treating physician, in determining her ability to work. (ECF No. 13 at 27.)
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a.

Background

2

Dr. Paniccia first conducted a mental health exam of Plaintiff on July 13, 2016. (AR

3

1001-02.) At the time Plaintiff was referred to Dr. Paniccia, she was already on Paxil (40

4

mg). (AR 1001.) Upon conducting his exam, Dr. Paniccia noted that Plaintiff was

5

cooperative with a “logical/coherent and normal” thought process, as well as “normal”

6

insight, orientation, streams of thought, judgment, intellectual functioning, sensory

7

perception, general body movement, posture, and psychomotor activities. (AR 1001.) She

8

was also alert, able to maintain, hold, and attend to conversation, and was oriented to

9

person, place, and time. (AR 1001.) However, Dr. Paniccia also noted that Plaintiff made

10

intermittent eye contact, her mood was depressed, her affect was consistent with her mood,

11

her facial expression suggested sadness and depression, and she had suicidal ideation. (AR

12

1001.) Dr. Paniccia further noted that Plaintiff had impaired recall memory (immediate,

13

recent, remote) and difficulty concentrating. (AR 1001.)

14

Dr. Paniccia diagnosed Plaintiff with “major depressive disorder, recurrent severe

15

without psychotic features,” and gave her a Global Assessment of Functioning (“GAF”)

16

rating of 49, which indicates “serious symptoms or serious impair[ment] in social,

17

occupational, or school functioning.” (AR 1002.) Dr. Paniccia increased Plaintiff’s Paxil

18

prescription to 60 mg. (AR 1002.) Dr. Paniccia also prescribed Trazodone for sleep as

19

Plaintiff stated that she had insomnia. (AR 1001-02.)

20

Dr. Paniccia saw Plaintiff again on August 12, 2016. (AR 999-1000.) His notes

21

reflect that Plaintiff was largely the same, except that she had no suicidal ideation, and her

22

mood and affect were “unremarkable (euthymic)” and her facial expression suggested “no

23

abnormalities.” (AR 999.) Plaintiff reported sleeping better on the Trazadone and “feeling

24

tired from exertion.” (AR 999.)

25

Dr. Paniccia next saw Plaintiff on August 25, 2016. (AR 997-98.) Her mood was

26

“anxious and depressed” and her facial expression suggested anxiety, sadness, and

27

depression. (AR 997.) In addition to continuing the Paxil and Trazodone, Dr. Paniccia

28

prescribed Buspar and gave Plaintiff a number for the County Access Line for one-on-one
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1

therapy. (AR 998.) Plaintiff reported sleeping better and feeling tired from exertion. (AR

2

997.) Dr. Paniccia noted that Plaintiff was also anxious and depressed when he saw her on

3

September 8, 2016 and October 6, 2016, but it was “overall less.” (AR 993, 995.) Plaintiff

4

again reported sleeping better and feeling tired from exertion and the pain. (AR 993, 995.)

5

b.

Opinion

6

In a psychiatric review, dated July 20, 2016, Dr. Paniccia diagnosed Plaintiff with

7

major depressive disorder which was “recurrent, severe [and] without psychotic features.”

8

(AR 900.) Dr. Paniccia indicated Plaintiff’s signs and symptoms included the following:

9

appetite disturbance with weight change, sleep disturbance, mood disturbance, memory

10

impairment, anhedonia or pervasive loss of interests, feelings of guilt/worthlessness,

11

difficulty thinking or concentrating, suicidal ideation, emotional withdrawal or isolation,

12

decreased energy, and intrusive memories of traumatic experience. (AR 900.) Dr. Paniccia

13

described his findings as “[consistent with] major depression.” (AR 901.)

14

Dr. Paniccia noted that he increased Plaintiff’s Paxil prescription on July 13, 2016

15

to 60 mg and added a Trazodone prescription of 50-150 mg at bedtime for sleep. (AR 901.)

16

Dr. Paniccia described Plaintiff’s prognosis as “fair at best” and found that Plaintiff’s

17

impairment had lasted or was expected to last at least twelve months. (AR 901.)

18

When asked to describe which impairments and symptoms would cause absence

19

from work, Dr. Paniccia noted “problems with energy, focus, concentration, memory,

20

stamina, anhedonia, [and] insomnia.” (AR 902.)

21

anticipated that Plaintiff would be absent from work more than three times a month and

22

would be off task more than twenty percent of the work day. (AR 902.)

Based on his findings, Dr. Paniccia

23

When filling out a survey of what degree Plaintiff’s mental impairments affect her

24

ability to perform work-related activities on a full-time, day-to-day basis in a regular work

25

setting, Dr. Paniccia marked “moderate limitations” on Plaintiff’s ability to: (1) understand,

26

remember, and carry out simple one or two step job instructions; (2) relate and interact

27

with co-workers and the public; (3) accept instructions from supervisors; and (4) perform

28

work activities without special or additional supervision. (AR 903.) Dr. Paniccia indicated
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18-cv-00801-JLS (JLB)

1

that Plaintiff would have “marked limitations” in: (1) performing detailed and complex

2

instructions; (2) maintaining concentration, attention, persistence, and pace; and (3)

3

maintaining regular attendance and performing work activities on a consistent basis. (AR

4

903.) Regarding Plaintiff’s functional limitations, Dr. Paniccia indicated that Plaintiff

5

would be moderately limited in her activities of daily living. (AR 903.) Dr. Paniccia

6

further indicated that Plaintiff would have marked difficulties in maintaining

7

concentration, persistence, or pace and marked difficulties maintaining social functioning.

8

(AR 903.) Finally, Dr. Paniccia indicated that Plaintiff would have four or more repeated

9

episodes of decompensation, each of an extended duration. (AR 903.) Based on his

10

findings, Dr. Paniccia stated that, “Due to [a] 23 year history of depression, I feel she is

11

permanently disabled.” (AR 904.)

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13
14
15
16
17
18
19
20

c.

Analysis

The ALJ did not accord Dr. Paniccia’s opinion substantial weight for the following
reasons:
[Dr. Paniccia’s mental residual functional capacity] questionnaire is not
supported by specific objective findings and signs. In fact, the opinion is
inconsistent with the objective findings already discussed above in this
decision, which show normal findings. [Dr. Paniccia’s] opinion is also
inconsistent with the claimant’s admitted activities of daily living that have
already been described above in this decision.
(AR 17-18.)

21

Because Dr. Paniccia’s opinion was contradicted by state agency physicians Dr.

22

Loomis (AR 125-26, 136-37) and Dr. Paxton (AR 149-50, 160-61), who opined no

23

limitations, the ALJ was required to provide specific and legitimate reasons for rejecting

24

Dr. Paniccia’s opinion. See Bayliss, 427 F.3d at 1216. The Court will address each of

25

these reasons below.

26

i.

Not Supported by Objective Medical Record

27

The first reason proffered by the ALJ for giving little weight to the opinion of Dr.

28

Paniccia was that “the opinion is not supported by specific objective findings and signs”
30
18-cv-00801-JLS (JLB)

1

and is “inconsistent with the objective findings” discussed in the ALJ’s decision, “which

2

show normal findings.” (AR 17-18.) As set forth above, “an ALJ may discredit treating

3

physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole,

4

. . . or by objective medical findings.” Batson, 359 F.3d at 1195. An ALJ may also reject

5

a treating physician’s opinion where it is inconsistent with his underlying medical records.

6

See Tommasetti, 533 F.3d at 1041; Bayliss, 427 F.3d at 1216. Cf. Revels, 874 F.3d at 663

7

(finding the ALJ failed to provide a specific and legitimate reason where the treating

8

physician’s opinion was consistent with his underlying treatment notes).

9

In his decision, the ALJ concludes that Dr. Paniccia’s restrictions are “inconsistent

10

with the objective findings” he discussed in his decision which show “normal findings.”

11

(AR 17-18.) However, the objective findings discussed in the ALJ’s decision which

12

purportedly show that Plaintiff’s mental status examinations were within normal limits

13

included, among others, Dr. Paniccia’s own examinations. (AR 17 (citing AR 993, 995,

14

997, 999, 1001).) Upon review, the Court does not find that Dr. Paniccia’s opinions are

15

inconsistent with the objective findings in his mental status examinations.

16

The ALJ also relies on the notes of Tobias Desjardins, a licensed clinical social

17

worker, for the proposition that Plaintiff’s mental status examinations were within normal

18

limits and therefore inconsistent with Dr. Paniccia’s opinions. (AR 17 (citing AR 937-

19

78).)

20

January 5, 2016. (AR 937-78.) At each appointment, Mr. Desjardins noted that Plaintiff

21

was cooperative and alert with insight intact and no abnormal thought content or suicidal

22

ideation. (See id.) However, Mr. Desjardins also noted at each appointment that Plaintiff’s

23

mood was sad, depressed, and anxious, and her GAF score was 50, which indicates serious

24

symptoms or serious impairment in social, occupational, or school functioning. (See AR

25

1002.)

Mr. Desjardins saw Plaintiff sixteen times between August 13, 2015 and

26

During these sessions, Plaintiff reported having anxiety attacks 1-2 times per week

27

and periods of crying or being teary and feeling helpless. (AR 956, 963, 965, 966, 970,

28

972.) Plaintiff occasionally cried or was teary throughout the session. (AR 956, 964, 967.)
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18-cv-00801-JLS (JLB)

1

Plaintiff also reported difficulty sleeping because of her anxiety and back pain, and lack of

2

energy. (AR 956, 958, 960, 966.) In addition, Plaintiff reported memory problems, not

3

feeling social, and losing weight. (AR 937, 947, 966.) Plaintiff frequently mentioned her

4

physical leg, back, and hand pain and how hard it had been to manage. (AR 937, 939, 942,

5

945, 947, 950, 953, 958, 970, 966, 972, 976.) Based on the foregoing, the Court does not

6

find that the Dr. Paniccia’s opinions are inconsistent with Mr. Desjardins’ treatment notes.

7

The ALJ also relies on notations in four of Plaintiff’s medical records from Scripps

8

stating that Plaintiff’s judgment and insight were normal, her mood euthymic with

9

appropriate affect, and that she was alert and oriented times three and had normal recent

10

and remote memory. (AR 16 (citing AR 401, 413, 831, 854).) However, three of these

11

visits took place in 2014 (1) to establish care, (2) to follow up to address Plaintiff’s

12

degenerative joint disease, chronic low back pain, and hypothyroidism, and (3) for a PAP

13

smear. (See AR 398, 410, 852.) The fourth visit was a follow up examination with Dr.

14

Avery on February 26, 2016. (AR 827-31.) Although Dr. Avery noted during Plaintiff’s

15

physical exam that Plaintiff’s judgment and insight were normal, her recent and remote

16

memory were normal, and her mood euthymic and affect appropriate, he also noted that

17

Plaintiff had depression that was “poorly controlled.” (AR 828.)

18

Lastly, the ALJ relies on an April 20, 2016 notation in Plaintiff’s Scripps records,

19

stating that Plaintiff was “improved on medication” and had “no suicidal and homicidal

20

ideation,” in addition to having normal insight and judgment, euthymic mood, and

21

appropriate affect. (AR 16 (citing AR 741, 744).) However, the physician’s note reads:

22

“No [suicidal ideation/homicidal ideation] but tearful on exam. Overall improved on paxil

23

but persistent. Prior seen by psychiatry and psychology. Refer to mental health psychiatry

24

and psychology. Continue paxil.” (AR 741.)

25

Based on the foregoing, the Court finds that the ALJ’s statement that Dr. Paniccia’s

26

questionnaire is “not supported by specific objective findings and signs” and is

27

“inconsistent with objective findings . . . which show normal findings” is not a specific and

28

legitimate reason for rejecting Dr. Paniccia’s opinion as it is not supported by the record
32
18-cv-00801-JLS (JLB)

1

as a whole. With the limited exception of Plaintiff’s memory, the various notes are not

2

inconsistent with Dr. Paniccia’s opinions. Moreover, given that the only inconsistent

3

statements regarding Plaintiff’s memory came during routine physical exams and there is

4

no indication if or how the physicians tested Plaintiff’s memory, the Court does not find

5

that to be a specific and legitimate reason that is supported by substantial evidence.

6

ii.

Activities of Daily Living

7

The second reason proffered by the ALJ for giving little weight to the opinion of Dr.

8

Paniccia is that the opinion is “inconsistent with the claimant’s admitted activities of daily

9

living” that were described in the ALJ’s opinion. (AR 17.) As set forth above, the Court

10

has already determined that the ALJ mischaracterized Plaintiff’s daily activities in his

11

decision and therefore this does not constitute a specific and legitimate reason supported

12

by substantial evidence in the record for rejecting Dr. Paniccia’s opinion.

13

Based on the foregoing, the Court finds that the ALJ erred in rejecting Dr. Paniccia’s

14

opinion.

15

VI.

CONCLUSION AND RECOMMENDATION

16

The law is well established that the decision whether to remand for further

17

proceedings or simply to award benefits is within the discretion of the Court. See, e.g.,

18

Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599,

19

603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is

20

warranted where additional administrative proceedings could remedy defects in the

21

decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d

22

at 635. Remand for the payment of benefits is appropriate where no useful purpose would

23

be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th

24

Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423,

25

1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits,

26

Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).

27
28
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18-cv-00801-JLS (JLB)

1

Here, the Court has concluded that this is not an instance where no useful purpose

2

would be served by further administrative proceedings; rather, additional administrative

3

proceedings still could remedy the defects in the ALJ’s decision.

4

For the foregoing reasons, this Court RECOMMENDS that Judgment be entered

5

REVERSING the decision of the Commissioner denying benefits and REMANDING the

6

matter to the Commissioner for further administrative action consistent with this decision.

7

Any party having objections to the Court’s proposed findings and recommendations

8

shall serve and file specific written objections within fourteen (14) days after being served

9

with a copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The

10

objections should be captioned “Objections to Report and Recommendation.” A party may

11

respond to the other party’s objections within fourteen (14) days after being served with

12

a copy of the objections. See Fed. R. Civ. P. 72(b)(2). See id.

13
14

IT IS SO ORDERED.
Dated: July 3, 2019

15
16
17

ited States Magistrate Judge

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18-cv-00801-JLS (JLB)