Montalbo v. Colvin
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY TO DENY PLAINTIFF SUPPLEMENTAL SOCIAL SECURITY INCOME AND REMANDING FOR FURTHER PROCEEDINGS re 19 - Signed by JUDGE ALAN C. KAY on 2/1/2017. "For the foregoing reas ons, the Court REVERSES the Commissioner's decision denying Social Security disability benefits and REMANDS to the ALJ for further proceedings consistent with this Opinion." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
) Civ. No. 16-00306 ACK-RLP
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL
SECURITY TO DENY PLAINTIFF SUPPLEMENTAL SOCIAL SECURITY INCOME
AND REMANDING FOR FURTHER PROCEEDINGS
For the reasons set forth below, the Court REVERSES
the decision of the Commissioner and REMANDS to the ALJ for
further administrative proceedings consistent with this Order.
On March 13, 2013, Plaintiff Lawrence Montalbo
(“Montalbo”) protectively filed an application for Supplemental
Social Security Income (“SSI”), alleging disability beginning on
January 1, 2010. 1
The application was initially denied
on May 10, 2013, and denied again upon reconsideration on
December 20, 2013.
AR 88, 92.
Montalbo then requested a
At the hearing held before the ALJ, Montalbo amended his
disability onset date to December 1, 2012. AR 36; see also
Opening Br. at 6.
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hearing before an Administrative Law Judge (“ALJ”), which was
held on January 6, 2015.
On January 30, 2015, the ALJ issued his written
decision finding Montalbo was not disabled.
filed a request with the Appeals Council to review the ALJ’s
decision on March 18, 2015.
The Appeals Council denied
his request, finding no reason to review the ALJ’s decision, and
adopted the ALJ’s decision as the final decision of the
Commissioner on May 11, 2016.
Montalbo filed his complaint on June 10, 2016 seeking
a review of the denial of his application for SSI benefits.
On October 18, 2016, Montalbo filed his opening brief
ECF No. 14.
Defendant, the Acting
Commissioner of Social Security Carolyn W. Colvin
(“Commissioner”) filed her answering brief on December 5, 2016
ECF No. 15.
Montalbo filed his reply brief on
December 20, 2016 (“Reply Br.”).
ECF No. 16.
The Court held a hearing on Monday, January 30, 2017
regarding Montalbo’s requested review of the Commissioner’s
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A district court has jurisdiction pursuant to 42
U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security. 2
A final decision by the Commissioner denying Social
Security disability benefits will not be disturbed by the
reviewing district court if it is free of legal error and
supported by substantial evidence.
See 42 U.S.C. § 405(g);
Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016) (reviewing a
district court’s decision de novo).
Even if a decision is
supported by substantial evidence, it “will still be set aside
if the ALJ did not apply proper legal standards.”
v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014).
In determining the existence of substantial evidence,
the administrative record must be considered as a whole,
weighing the evidence that both supports and detracts from the
Commissioner’s factual conclusions.
evidence means more than a scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
evidence can reasonably support either affirming or reversing,
42 U.S.C. § 1383(c) (3) incorporates the judicial review
standards of 42 U.S.C. § 405(g), making them applicable to
claims for supplemental security income.
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the reviewing court may not substitute its judgment for that of
Id. (internal citation and quotation
Rather, courts “leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.”
Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“To establish a claimant’s eligibility for disability
benefits under the Social Security Act, it must be shown that:
(a) the claimant suffers from a medically determinable physical
or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous
period of not less than twelve months; and (b) the impairment
renders the claimant incapable of performing the work that the
claimant previously performed and incapable of performing any
other substantial gainful employment that exists in the national
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999); 42 U.S.C. § 423(d)(2)(A).
A claimant must satisfy both
requirements in order to qualify as “disabled” under the Social
Tackett, 180 F.3d at 1098.
The SSA’s Five-Step Process for Determining
The Social Security regulations set forth a five-step
sequential process for determining whether a claimant is
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Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir.
2014); see 20 C.F.R. § 416.920(a)(4).
“If a claimant is found
to be ‘disabled’ or ‘not disabled’ at any step in the sequence,
there is no need to consider subsequent steps.”
Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations omitted
in original); see 20 C.F.R. § 416.920(a)(4).
The claimant bears
the burden of proof as to steps one through four, whereas the
burden shifts to the Commissioner for step five.
F.3d at 1098.
At step one, the ALJ will consider a claimant’s work
activity, if any.
20 C.F.R. § 416.920(a)(4)(i).
If the ALJ
finds the claimant is engaged in substantial gainful activity,
it will determine that the claimant is not disabled, regardless
of the claimant’s medical condition, age, education, or work
20 C.F.R. § 416.920(b).
activity is work that is defined as both substantial – i.e. work
activity involving significant physical or mental activities –
and gainful – i.e. work activity done for pay or profit.
C.F.R. § 404.1572.
If the ALJ finds that the claimant is not
engaged in substantial gainful activity, the analysis proceeds
to step two.
Tackett, 180 F.3d at 1098.
Step two requires that the ALJ consider the medical
severity of the claimant’s impairments.
20 C.F.R. §
Only if the claimant has an impairment or
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combination of impairments that “significantly limits [his]
physical or mental ability to do basic work activities” will the
analysis proceed to step three.
20 C.F.R. § 416.920(c).
not, the ALJ will find the claimant is not disabled and the
20 C.F.R. § 416.920(a)(4)(ii).
The severity of the claimant’s impairments is also
considered at step three.
20 C.F.R. § 416.920(a)(4)(iii).
Here, the ALJ will determine whether the claimant’s impairments
meet or equal the criteria of an impairment specifically
described in the regulations.
Subpart P, App. 1.
Id.; see also 20 C.F.R. Part 404,
If the impairments meet or equal these
criteria, the claimant is deemed disabled and the analysis ends.
20 C.F.R. § 416.920(a)(4)(iii).
to step four.
If not, the analysis proceeds
20 C.F.R. § 416.920(e).
Step four first requires that the ALJ determine the
claimant’s residual functional capacity.
functional capacity is defined as the most the claimant can
still do in a work setting despite his physical and mental
20 C.F.R. § 416.945(a)(1).
In assessing a
claimant’s residual functional capacity, the ALJ will consider
all of the relevant evidence in the claimant’s case record
regarding both severe and non-severe impairments.
20 C.F.R. §
This assessment is then used to determine whether the
claimant can still perform his past relevant work.
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20 C.F.R. §
Past relevant work is defined as “work that [the
claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for
[the claimant] to learn to do it.”
20 C.F.R. § 416.960(b)(1).
The ALJ will find that the claimant is not disabled if he can
still perform his past relevant work, at which point the
analysis will end.
Otherwise, the ALJ moves on to step five.
In the fifth and final step, the ALJ will once again
consider the claimant’s residual functional capacity, as well as
his age, education, and work experience, in order to determine
whether the claimant can perform other work.
20 C.F.R. §
Here, the Commissioner is responsible for
providing “evidence that demonstrates that other work exists in
significant numbers in the national economy that [the claimant]
20 C.F.R. § 416.960(c)(2).
If the claimant is unable
to perform other work, he is deemed disabled; if he can make an
adjustment to other available work, he is considered not
20 C.F.R. § 416.920(g)(1).
The ALJ’s Decision
a. Steps One, Two, and Three
The ALJ found that at step one, Montalbo had not
engaged in substantial gainful activity since the date of the
application, and at step two, that he suffered from three severe
impairments: degenerative disc disease of the lumbar spine,
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status post fusion, and Hepatitis C.
At the third step,
the ALJ found that these impairments did not meet one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Montalbo agrees with the findings the ALJ made at these
Opening Br. at 1.
b. Steps Four and Five
Moving to steps four and five, the ALJ determined
Montalbo’s residual functional capacity to be:
lift and carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk 4 hours
total in an 8-hour workday, but not more
than 30 minutes at a time, after which he
needs to get off his feet for 5 minutes,
after which he can the [sic] return to
ambulation of a city block or more; sit 6
hours in an 8-hour workday, but he needs to
make a brief body adjustment every 30
minutes while staying at his workstation;
push and pull on an unlimited basis aside
from as limited by lifting and carrying;
occasionally climb ramps and stairs but
never ladders, ropes, or scaffolds; and
occasionally balance, stoop and crouch but
never kneel or crawl.
Based on this RFC, the ALJ determined at step 4 that
Montalbo is unable to perform any past relevant work.
Montalbo agrees with the ALJ’s conclusion that he is unable to
perform past relevant work.
Opening Br. at 1.
asserts that the ALJ’s RFC finding is not grounded in
substantial evidence, and therefore the ALJ erred in concluding
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at step 5 that Montalbo is not disabled because there is other
work he can perform.
Opening Br. at 11.
In making its RFC finding, the ALJ summarized
Montalbo’s testimony regarding his symptoms.
particular, the ALJ noted that Montalbo appeared at the hearing
with a cane, which the ALJ stated Montalbo admitted was not
medically prescribed; and Montalbo could only stand on his feet
for 20-30 minutes and walk about 20 yards, and could only sit
for about 15 minutes.
According to the ALJ, Montalbo
testified that he needed help with dressing himself and had
difficulty bending down, but also that he could carry laundry
and shop twice a month for up to an hour.
credited Montalbo’s need for a cane, but did not find the
intensity and limiting effects of his symptoms entirely
The ALJ also gave “great weight” to the testimony of
Dr. Morse, a non-examining physician because it was “based on
the most recent medical evidence, including the claimant’s
testimony at the hearing.”
Dr. Morse testified that the
medical evidence did not describe significant motor limitations,
but rather just pain issues due to a prior surgery.
ALJ found that the State Agency medical consultants’ conclusion
that “the claimant could lift and/or carry 20 pounds
occasionally and up to 10 pounds frequently, with occasional
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postural limitations,” was consistent with Dr. Morse’s
testimony, and noted that the consultants had initially
determined Montalbo could stand and walk for 2 hours and upon
reconsideration concluded he could stand and walk for 6 hours.
Montalbo asserts that the ALJ erred in not discussing,
much less giving any weight to, the opinions of four treating or
examining physicians: Dr. Baclig, Dr. Chow, Dr. Lim, and Dr.
Opening Br. at 13.
Medical Opinion Evidence
a. Whether Evidence from Drs. Baclig, Lim, and
Chow Constitutes Medical Opinion Evidence
As an initial matter, the Commissioner argues that the
medical records Montalbo submitted from Drs. Baclig, Lim, and
Chow 3 do not constitute “medical opinion evidence” and therefore
the ALJ did not err by not discussing those records.
The ALJ did not explicitly state in his opinion
whether or not he considered these medical records to be medical
opinion evidence or not.
Under the agency’s regulations, “[m]edical opinions
are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the
nature and severity of [the claimant’s] impairment(s), including
The Commissioner apparently does not contest that evidence from
Dr. Lee constitutes a medical opinion.
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[the claimant’s] symptoms, diagnosis, and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.”
20 C.F.R. §
The Commissioner focuses on the latter part of
the regulation’s language and argues that medical opinion
evidence must “explain what a claimant can do despite his or
her impairments and physical and mental restrictions.”
However, the Commissioner provides no case law in
support of this contention, nor has the Court been able to
Indeed, “the regulations simply state that medical
opinions may include statements regarding a claimant’s
limitations or restrictions,” not that they must.
See Parvon v.
Colvin, Civ. No. 15-00110 ACK-BMK, 2016 WL 1047992, at *10 (D.
Haw. Mar. 11, 2016) (finding a doctor’s statement, based on an
in-person examination, constituted a medical opinion because it
included judgments about the nature and severity of the
claimant’s impairments) (emphasis added).
Many parts of the record appear to reflect judgments
about the nature and severity of Montalbo’s impairments, e.g.,
AR 327 (Dr. Baclig’s finding of decreased lumbar spine range of
motion); his symptoms, e.g., AR 327 (Dr. Baclig’s note that gait
was moderately antalgic), AR 309, (Dr. Chow’s note that gait was
antalgic); and his diagnosis and progress, e.g., AR 413-16 (Dr.
Lim’s evaluation and treatment plan for low back pain), AR 296
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(Dr. Chow’s diagnosis), AR 327 (Dr. Baclig’s observation that
condition was worsening despite treatment).
The Court therefore
finds that the medical records of Drs. Baclig, Lim, and Chow
constitute medical opinion evidence. 4
See Parvon, 2016 WL
104799, at *10-11.
b. Whether the ALJ Improperly Rejected the
Medical Opinions of Montalbo’s Doctors
Montalbo’s first objection to the ALJ’s decision is
that the ALJ failed to discuss, much less give specific and
legitimate reasons for rejecting the opinions of Montalbo’s
treating and examining physicians: Drs. Baclig, Chow, Lim, and
Opening Br. at 2, 13.
The Commissioner has also argued that the statute explicitly
excludes opinions about issues reserved for the Commissioner,
such as whether a claimant is disabled or unable to work, from
being medical opinions. Ans. Br. at 15. Under the regulations,
statements such as Dr. Baclig’s opinion that “[p]atient is not
able to engage in any gainful employment because of radicular
back pain,” AR 330, do not qualify as a medical opinion
evidence. See 20 C.F.R. § 416.927(d); Ans. Br. at 16. However,
in determining whether Montalbo is disabled, the ALJ may still
consider such evidence, as the regulations provide the ALJ
“should review all of the medical findings and other evidence
that support a medical source’s statement that [the claimant is]
disabled. Id. § 416.927(d)(1); see also id. § 416.913(b)(6)
(ALJ may consider medical reports containing “[a] statement
about what [the claimant can still do despite [the claimant’s]
impairments based on the acceptable medical source’s findings”).
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i. Standards for Weighing Medical Opinion
In assessing whether or not a claimant is disabled,
the ALJ must “develop the record and interpret the medical
evidence,” considering the “combined effect” of all of
claimant’s impairments, regardless of whether any one
impairment, considered alone, would be of sufficient severity.
Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
Ultimately, “it is the responsibility of the ALJ, not the
claimant’s physician, to determine residual functional
Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir.
2001) (citing 20 C.F.R. § 404.1545).
The ALJ is not obligated
to “discuss every piece of evidence,” as long as it is neither
significant nor probative.
Howard, 341 F.3d at 1012.
“Although a treating physician’s opinion is generally
afforded the greatest weight in disability cases, it is not
binding on an ALJ with respect to the existence of an impairment
or the ultimate determination of disability.”
at 1004 (quotation marks omitted).
Ukolov, 430 F.3d
A treating physician’s
opinion should be given controlling weight when it is “supported
by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial
evidence in [the] case record.”
Ghanim v. Colvin, 763 F.3d
1154, 1160 (9th Cir. 2014) (alteration in original).
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an uncontradicted opinion of a treating physician, the ALJ must
provide clear and convincing reasons that are supported by
Id. at 1160-61 (internal quotation and
“Even if a treating physician’s opinion is
contradicted, the ALJ may not simply disregard it.”
Rather, in determining how much weight to afford the
treating physician’s medical opinion, the ALJ is required to
consider factors such as the treatment relationship, the length
of the treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship, the
supportability of the opinion with medical evidence, and
consistency with the record as a whole.
Id.; see also 20 C.F.R.
An ALJ may only reject a contradicted treating
physician’s opinion by providing “specific and legitimate
reasons that are supported by substantial evidence.”
ALJ can meet his burden “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating
[its] interpretation thereof, and making findings.”
v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding specific
and legitimate reasons for rejecting treating physician’s
opinion where the ALJ stated that the assessment largely
reflected the claimant’s self-reported pain, which the ALJ found
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was not credible).
“[A]n ALJ errs when he rejects a medical
opinion or assigns it little weight while doing nothing more
than ignoring it, asserting without explanation that another
medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for
Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th
Cir. 2014) (affirming that ALJ failed to offer specific and
legitimate reasons where he largely ignored medical treatment
and opinion evidence).
Similarly, “[t]he opinion of an examining physician
is, in turn, entitled to greater weight than the opinion of a
Lester v. Chater, 81 F.3d 821, 830
There must be “clear and convincing reasons
for rejecting the uncontradicted opinion of an examining
physician” and even if contradicted, the opinion of an examining
doctor “can only be rejected for specific and legitimate reasons
that are supported by substantial evidence in the record.”
ii. Application to the Facts
The Ninth Circuit has plainly held that an ALJ may not
ignore a treating or examining doctor without even mentioning
See Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir.
2015) (“Because a court must give ‘specific and legitimate
reasons’ for rejecting a treating doctor’s opinions, it follows
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even more strongly that an ALJ cannot in its decision totally
ignore a treating doctor and his or her notes, without even
mentioning them.”); see also Parvon v. Colvin, Civ. No. 15-00110
ACK-BMK, 2016 WL 1047992, at *11 (D. Haw. Mar. 11, 2016)
(finding ALJ committed legal error by ignoring the majority of a
doctor’s medical opinion without explicitly rejecting or
Here, the ALJ did not mention the opinions of
Drs. Baclig, Chow, Lim, or Lee, much less discuss any of their
opinions or findings or provide reasons for rejecting or
discrediting those opinions. 5
The ALJ thus erred in ignoring the
opinions of these treating and examining physicians.
Even where an ALJ gives reasons for rejecting a
treating or examining physician’s opinion, the Ninth Circuit has
held that such reasons must be sufficiently specific.
v. Bowen, the Ninth Circuit found that the ALJ failed to provide
sufficiently specific reasons for rejecting the conclusions of
the claimants’ doctors regarding his disability and limitations
where the ALJ merely “[s]tated that the objective factors
point[ed] toward an adverse conclusion and ma[de] no effort to
relate any of these objective factors to any of the specific
Though the ALJ specifically rejected a mental health treatment
note indicating Montalbo had a slow gait because that
observation was not made in an orthopedic or musculoskeletal
context, AR 25, that note was not made by any of the doctors
whose opinions are at issue here.
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medical opinions and findings he reject[ed].”
849 F.2d 418, 422
(9th Cir. 1988); see also Aukland v. Massanari, 257 F.3d 1033,
1037 (9th Cir. 2001) (holding that ALJ erred where he did not
explain his conclusion that evidence did not support a
significant restriction where the treating physician’s opinion,
if considered, would have required restrictions).
Here, the ALJ gave great weight to Dr. Morse’s
testimony solely because it was “based on the most recent
medical evidence, including the claimant’s testimony at the
In doing so, the ALJ failed to identify with
any specificity what, if any, evidence the other doctors did not
have the opportunity to consider and why that justified
discrediting or rejecting their opinions. 6
Thus, even if the
ALJ’s brief comment can be construed as the reason the ALJ
silently rejected all other medical opinion evidence, it is not
sufficiently specific as it fails to explicitly link this reason
to any other piece of evidence in the record.
See Embrey, 849
F.2d at 422.
The Commissioner argues that the ALJ did not err
because he implicitly resolved conflicts in the evidence in
forming his opinion.
However this Court is “constrained to
Indeed, from this Court’s review of the record, it is not
readily apparent how Montalbo’s testimony at the hearing
differed in a significant way from his prior statements in the
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review the reasons the ALJ asserts;” otherwise “a reviewing
court will be unable to review those reasons and without
improperly substituting [its] conclusions for the ALJ’s or
speculating as to the grounds for the ALJ’s conclusions.”
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.
2009) (“Long-standing principles of administrative law require
us to review the ALJ’s decision based on the reasoning and
factual findings offered by the ALJ – not post hoc
rationalizations that attempt to intuit what the adjudicator may
have been thinking.”).
Though the ALJ might have resolved
conflicts in the evidence as the Commissioner suggests, the
ALJ’s opinion does not discuss any substantive conflicts in the
evidence, and this Court may not speculate as to how he resolved
any such conflicts.
Similarly, the Commissioner asserts that the opinions
of non-treating or non-examining physicians may serve as
substantial evidence when they are consistent with independent
clinical findings or other evidence in the record.
Ans. Br. at
However, regardless of whether there is substantial
evidence in the record and even assuming the Commissioner’s
characterization of the record is accurate, see Ans. Br. at 12,
the Court has found no authority relieving the ALJ of his burden
to explicitly set forth specific and legitimate reasons for
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rejecting the opinions of treating and examining physicians.
Even the cases the Commissioner cites require that the ALJ set
forth specific, legitimate reasons for rejecting the opinions of
treating physicians, regardless of whether there is substantial
evidence in the record to support the opinions of Dr. Morse and
the State Agency medical consultants. 7
See Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir. 2002) (affirming ALJ’s rejection of
opinion of treating physician where its detailed interpretation
of medical evidence was supported by substantial evidence); see
also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)
(finding ALJ gave sufficient reasons for rejecting medical
The Court therefore finds that the ALJ erred by
improperly rejecting the opinions of Montalbo’s treating and
The parties also dispute whether the ALJ relied solely on Dr.
Morse’s testimony or on the opinions of Dr. Morse and the two
State Agency medical consultants. See Opening Br. at 14; Ans.
Br. at 11-12. However, assuming that the ALJ did rely on the
State Agency medical consultants’ opinions raises another issue.
The only apparent reason why the ALJ appears to have rejected
the opinions of Montalbo’s doctors is because they were not as
recent as Dr. Morse’s opinion. However, the two State Agency
medical consultants evaluated Montalbo in May and December of
2013, AR 72, 87, and neither heard Montalbo’s testimony at the
hearing before the ALJ. The same recency concern could thus be
applied to the opinions of the medical consultants, and it would
be unreasonable for the ALJ to apply that concern to certain
medical opinions and not others, at least without further
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examining physicians without providing specific or legitimate
reasons for doing so.
Whether the ALJ Improperly Discredited Montalbo’s
Montalbo also asserts the ALJ improperly found his
testimony regarding his symptoms not credible.
the credibility of a claimant’s testimony regarding subjective
pain or the intensity of symptoms, the ALJ engages in a two-step
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
“First, the ALJ must determine whether there is
objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other
“If the claimant has presented such
evidence, and there is no evidence of malingering, then the ALJ
must give specific, clear and convincing reasons in order to
reject the claimant’s testimony about the severity of the
“The ALJ must specifically identify what testimony is
credible and what testimony undermines the claimant’s
Vertigan, 260 F.3d at 1049.
“The fact that a
claimant’s testimony is not fully corroborated by the objective
medical findings, in and of itself, is not a clear and
convincing reason for rejecting it.”
In addition, “[a]
finding that a claimant’s testimony is not credible must be
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sufficiently specific to allow a reviewing court to conclude the
adjudicator rejected the claimant’s testimony on permissible
grounds and did not arbitrarily discredit a claimant’s testimony
Brown-Hunter, 806 F.3d at 493.
Here, the ALJ determined that the “the claimant’s
medically determinable impairments could reasonably be expected
to cause the alleged symptoms,” which satisfies the first step
of the analysis.
However, the ALJ concluded that
Montalbo’s testimony regarding the “intensity, persistence and
limiting effects of these symptoms are not entirely credible”.
In doing so, the ALJ summarized Montalbo’s testimony, and
noted in particular that Montalbo appeared at the hearing with a
cane, which Montalbo admitted was not medically prescribed;
Montalbo said he could only stand for 20-30 minutes and walk 20
yards; he could only sit for about 15 minutes; Montalbo stated
he needed help with dressing himself and had difficulty bending
to put on pants or wash his feet, but he could carry laundry and
shop twice a month for up to an hour.
The ALJ found that Montalbo’s “activities of daily
living are not consistent with his allegations of disabling pain
and symptoms,” and appears to have relied on the fact that
Montalbo supposedly said he could carry laundry and grocery
However, while Montalbo reported on his
disability application that he could do laundry, he also stated
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that he needed help carrying it.
AR 223, 240.
Montalbo confirmed at the hearing that he does go shopping
occasionally, he clarified that he does not usually go by
himself anymore because he experiences pain while walking.
Because the ALJ’s apparent stated reason for
discrediting Montalbo’s testimony is based on an incorrectly
summarized version of the record, it does not constitute a
convincing reason. 8
See Petty v. Astrue, 550 F. Supp. 2d 1089,
1100 (D. Ariz. 2008) (finding ALJ did not provide clear and
convincing reasons for adverse credibility finding where he
relied on incorrect facts).
In addition, the reason the ALJ discredited Montalbo’s
testimony that he can only sit for about 15 minutes is that
“there were no nerve conduction studies or other medical
evidence supporting this fact.”
Even if Montalbo’s
testimony was not fully corroborated by objective medical
In addition, the Ninth Circuit has repeatedly held that “the
mere fact that a plaintiff has carried on certain daily
activities, such as grocery shopping...does not in any way
detract from her credibility as to her overall disability.”
Vertigan, 260 F.3d at 1050. Indeed, in Vertigan, the court
found that the claimant’s “physical activities did not consume a
substantial part” of her day, the activities were “not
necessarily transferable to the work setting with regard to the
impact of pain,” and the claimant’s “constant quest for medical
treatment pain refuted” a finding that she lacked credibility.
Id. Similarly here, the Court has doubts that being able to
shop twice a month and do laundry with help necessarily
indicates an activity level transferable to a work setting.
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findings, that would not constitute a clear and convincing
reason for rejecting it.
See Vertigan, 260 F.3d at 1049.
Furthermore, evidence in the record actually supports Montalbo’s
Even one of the State Agency medical consultants
noted that Montalbo was only able to sit for 15 minutes and had
to stand up at intervals during the 45 minute interview.
This is also consistent with what Dr. Baclig observed.
Thus, the reason that the ALJ provided for discrediting
Montalbo’s testimony is not clear and convincing.
Finally, the ALJ did not clearly reject Montalbo’s
testimony regarding his limitations regarding how long he can
stand and sit, how far he can walk, and whether he needs to use
Rather, the ALJ felt that the RFC he adopted fully
addressed all of these issues.
The RFC requires
Montalbo to be able to stand and/or walk 4 hours in total and to
be able to sit 6 hours total in a workday.
Montalbo testified that he spends half the day lying down,
interspersed with periods of sitting and standing and/or
Montalbo also testified that he could not
stand for six hours; at most he would be able to stand for 20-30
He could sit for about 15 minutes, unless he
had been active before sitting, in which case he felt he would
only be able to sit for 5 minutes.
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The ALJ silently
disregarded this testimony without giving a reason why it was
The Commissioner argues that the ALJ found that the
medical evidence did not corroborate Plaintiffs’ allegations
about the nature and severity of his symptoms and physical
limitations, which constitutes a sufficiently specific reason.
Ans. Br. at 21-22.
The Court disagrees; this generic blanket
statement does not sufficiently explain what specific testimony
the ALJ found not credible such that this Court can adequately
review the ALJ’s findings.
See Brown-Hunter, 806 F.3d at 493-94
(finding legal error where “ALJ failed to identify the testimony
she found not credible [and] did not link it to particular parts
of the record supporting her non-credibility determination.”);
Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2008) (finding
ALJ did not provide specific, clear and convincing reasons for
finding claimant not credible where it vaguely concluded that
the claims were “not consistent with the objective medical
Nor do the cases that the Commissioner cites support
See Morgan v. Comm’r of the Soc. Sec.
Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The ALJ pointed to
specific evidence in the record – including reports by [named
doctors] – in identifying what testimony was not credible and
what evidence undermined [the claimant’s] complaints.”); Rollins
- 24 -
v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (finding the ALJ
stated sufficiently specific reasons where he cited to a
specific doctor’s report that contradicted Plaintiffs’ claims).
The Court thus concludes that the ALJ improperly discredited
Montalbo’s testimony by failing to provide sufficiently
specific, clear, and convincing reasons, tied to the record, for
The Court next considers whether the ALJ’s errors were
See Molina, 674 F.3d at 1111 (stating that a court
“may not reverse an ALJ’s decision on account of an error that
“A reviewing court may not make independent
findings based on the evidence before the ALJ to conclude that
the ALJ’s error was harmless.”
Brown-Hunter, 806 F.3d at 492.
“The burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.”
674 F.3d at 1111 (quotation marks, citation, and brackets
“An error is harmless only if it is ‘inconsequential
to the ultimate nondisability determination’” “or if despite the
legal error, ‘the agency’s path may reasonably be discerned.’”
Brown-Hunter, 806 F.3d at 494 (quoting Molina, 675 F.3d at 1115
and Treichler, 775 F.3d at 1099) (finding that because the ALJ
did not provide any reasons upon which her conclusion was based,
- 25 -
the agency’s path could not be reasonably discerned).
Circuit has indicated that in order to consider an error
harmless, the reviewing court must be able to “confidently
conclude that no reasonable ALJ, when fully crediting the
testimony, could have reached a different disability
Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir.
2015) (finding failure to even mention physician’s opinion not
Montalbo asserts that the ALJ ignored medical opinion
evidence supporting his limited functional abilities due to
Opening Br. at 15-16.
The Commissioner argues
that the observations of these physicians are not probative, so
the ALJ did not err by not discussing them.
Ans. Br. at 18-19.
Medical opinions that conflict with the ALJ’s findings are
considered significant and probative. 9
See Stewart v. Astrue,
The Commissioner also argues that Dr. Baclig’s and Dr. Lim’s
statements are not probative because they do not indicate the
duration of Montalbo’s limitations, and thus fail to show that
Montalbo’s impairment would be “expected to last at least twelve
months or result in death,” as required for a qualified
disability. Ans. Br. at 19. Montalbo filed for SSI benefits on
March 15, 2013. See AR 20, 63; Ans. Br. at 1 n.1. The record
shows that Dr. Baclig noted pain, an antalgic gait and decreased
range of motion, aggravated by lifting, bending, and prolonged
sitting as early as December, 2012, AR 326-27, and these issues
continued through 2013, see, e.g., AR 334 (Dr. Baclig’s July 12,
2013 report), and into the fall of 2014, see, e.g., AR 369 (Dr.
Baclig’s Sept. 12, 2014 report), AR 376-77 (Dr. Baclig’s May 23,
2014 report), AR 413-15 (Dr. Lim’s July 12, 2014 report).
Because this evidence, read in light of the record as a whole,
- 26 -
No. C12-99, 2012 WL 4089650, at *7 (W.D. Wash. Aug. 27, 2012)
(finding that where treating physicians’ opinions directly
conflicted with ALJ’s findings, they constituted significant and
probative evidence that could only be rejected by specific and
The Commissioner appears to concede that there may
be a conflict in the medical evidence.
See Ans. Br. at 20
(discussing deference to ALJ’s resolution of conflicts in the
The Court also finds that parts of the record, if
credited, could suggest a more restrictive RFC than the ALJ
Several of Dr. Chow’s reports note that Montalbo’s pain
is worsened by sitting, standing, and walking, and improved by
AR 295, 308.
Dr. Baclig also concluded that
Montalbo’s pain is aggravated by lifting, bending, and prolonged
sitting, AR 326, and that he is unable to sit longer than 5-10
AR 369, 395.
Because at least some of the opinions of
Montalbo’s doctors conflict with the ALJ’s findings, the Court
concludes that they are significant and probative, and the ALJ
was required to set forth specific and legitimate reasons for
Furthermore, because this Court cannot
reasonably discern the path the ALJ followed in weighing the
supports that Montalbo’s impairments have existed for at least
twelve months after he filed his application for disability
benefits, it is probative.
- 27 -
evidence and cannot confidently state that no reasonable ALJ
would reach a different conclusion, this Court finds the ALJ’s
implicit rejection of the opinions of Drs. Baclig, Lim, Lee, and
Chow not harmless.
Similarly, the Court does not find harmless the ALJ’s
failure to provide specific, clear, and convincing reasons to
discredit Montalbo’s testimony.
Because the ALJ’s understanding
of the facts was incorrect and because the ALJ failed to
sufficiently explain why it found significant portions of
Montalbo’s testimony not credible, this Court cannot confidently
conclude that no ALJ could have reached a different conclusion.
If credited, Montalbo’s testimony about how much of each day he
spends lying down and his limited ability to shop and do laundry
could suggest a more restrictive RFC.
Nor does the fact that the RFC the ALJ gave was more
restrictive than the ones Dr. Morse and the State Agency medical
consultants recommended, Ans. Br. at 14, render the ALJ’s errors
Had the ALJ considered some or all of the evidence
from Montalbo’s doctors or credited Montalbo’s own testimony,
the ALJ might have given an RFC even more restrictive than the
one given in his decision, which may have led to a finding that
Montalbo was disabled because there is no other work he can
- 28 -
See, e.g., Crose v. Colvin, No. C12-5590, 2014 WL
118937, at *6 (W.D. Wash. Jan. 13, 2014) (holding that failure
to provide specific and legitimate reasons for rejecting
physician’s opinion not harmless where crediting opinion would
have led to a more restrictive RFC); Brumfield v. Astrue, No. CV
10-6690, 2011 WL 1898305, at *4 (C.D. Cal. May 19, 2011)
(finding failure to properly discount claimant’s testimony not
harmless where ALJ could reasonably have reached a more
restrictive RFC assessment if testimony could not be
Whether the ALJ Improperly Determined Significant
Numbers of Jobs Exist at Step 5
Montalbo additionally argues that the ALJ incorrectly
determined that the jobs Montalbo is allegedly able to perform
exist in significant numbers.
Opening Br. at 23.
Montalbo argues that the hypothetical posed to the vocational
expert did not include all of his restrictions, and second that
the jobs identified do not exist in sufficiently significant
Montalbo also asserts that the ALJ mischaracterized Dr.
Morse’s recommended RFC and that the RFC was only based on
Montalbo’s hepatitis condition and not on any spine-based
restrictions, and thus the ALJ erred in giving Dr. Morse’s
recommended RFC weight. Opening Br. at 13-14. Although
Montalbo’s assertions appear to be correct, see AR 49, the ALJ
adopted a more restrictive RFC than the one Dr. Morse
recommended. The ALJ’s error in this respect is therefore
- 29 -
numbers for the ALJ to be able to find Montalbo disabled at step
a. Whether the Hypothetical Posed to the
Vocational Expert Was Proper
At step five, the Commissioner has the burden “to
demonstrate that the claimant is not disabled and can engage in
work that exists in significant numbers in the national
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
“The ALJ may meet his burden at step five by asking a vocational
expert a hypothetical question based on medical assumptions
supported by substantial evidence in the record and reflecting
all the claimant’s limitations, both physical and mental,
supported by the record.”
“If a vocational expert’s
hypothetical does not reflect all the claimant’s limitations,
then the expert’s testimony has no evidentiary value to support
a finding that the claimant can perform jobs in the national
Id. at 1162.
“Unless the record indicates that the
ALJ had specific and legitimate reasons for disbelieving a
claimant’s testimony as to subjective limitations such as pain,
those limitations must be included in the hypothetical in order
for the vocational expert’s testimony to have any evidentiary
Embrey, 849 F.2d at 422.
Here, the ALJ asked the vocational expert about a
hypothetical 49 year old worker with a 12th grade education who
- 30 -
could lift and carry 20 pounds occasionally and 10 pounds
The worker could stand and walk for four
hours in an eight-hour period, but only for 30 minutes at a
time, at which point the person had to be off his feet for 5
The worker could sit for six hours in an
eight hour period, with adjustments every 30 minutes.
The worker required the use of a cane and could occasionally
balance, stoop, and use stairs, but could not crouch, crawl, or
use ladders, ropes, or scaffolds.
As discussed above, the ALJ did not provide specific
and legitimate reasons for discrediting Montalbo’s testimony
regarding his pain and limitations, such as how much of the day
he must spend lying down and for how long he can sit.
Therefore, those limitations should have been included in the
hypothetical; because they were not, the vocational expert’s
testimony does not have any evidentiary value.
See Embrey, 849
F.2d at 423 (finding vocational expert’s opinion had no value
where ALJ did not set forth specific and legitimate reasons for
rejecting claimant’s testimony and did not include limitations
The ALJ’s finding that there are jobs which
Montalbo could perform lacks substantial evidence.
- 31 -
b. Whether the Jobs Montalbo Could Perform
Exist in Significant Numbers
In the alternative, Montalbo asserts that even if the
hypothetical was proper, the numbers of jobs the vocational
expert concluded he could perform were not significant enough to
conclude he is not disabled.
Opening Br. at 23-24.
vocational expert concluded that Montalbo could perform three
types of jobs, totaling 12,300 jobs nationally: electric parts
assembler (5,500 jobs); small parts assembler (1,300 jobs); and
solderer, assembler (5,000 jobs).
The regulations provide that “work exists in the
national economy when it exists in significant numbers either in
the region where [the claimant] live[s] or in several other
regions in the country.”
20 C.F.R. § 416.966(a).
regulations specifically provide that it does not matter whether
“[w]ork exists in the immediate area in which you live,” but
also note that “[i]solated jobs that exist only in very limited
numbers in relatively few locations outside of the region where
you live are not considered work which exists in the national
Id. § 416.966(a)(1), (b).
If there are a significant
number of jobs either in the region where the claimant resides
or in several regions of the country, then an ALJ’s finding that
the claimant is not disabled must be upheld.
F.3d at 523-24.
See Gutierrez, 740
In addition, a reviewing could should “defer
- 32 -
to an ALJ’s supported finding that a particular number of jobs
in the claimant’s region was significant.”
Id. at 527-28.
The Ninth Circuit has specifically declined to set a
bright-line rule for what constitutes a significant number of
Id. at 528.
In Gutierrez, the Ninth Circuit concluded
that 25,000 nationwide jobs constituted a “close call” but was
In doing so, the court noted that the Ninth
Circuit had previously held 1,680 jobs to be insignificant, see
Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012), and that
the Eighth Circuit had found 10,000 nationwide jobs to be
significant, see Johnson v. Chater, 108 F.3d 178, 180 (8th Cir.
Gutierrez, 740 F.3d at 529.
When the jobs available to a claimant number less than
25,000, the conclusions of district courts appear to vary
somewhat widely regarding how many jobs need to exist to be
Compare, e.g., Baker v. Comm’r of Soc. Sec., 2014
WL 3615497, at *8 (E.D. Cal. July 21, 2014) (finding 14,500
national jobs insignificant) and Valencia v. Astrue, No. C 1106223, 2013 WL 1209353 at *18 (N.D. Cal. Mar. 25, 2013) (finding
14,082 national jobs insignificant) with Aguilar v. Colvin, No.
1:13-cv-01350, 2016 WL 3660296 (C.D. Cal. July 8, 2016) (finding
11,850 national jobs significant) and Evans v. Colvin, No. ED CV
13-01500, 2014 WL 3845046, at *2-3 (C.D. Cal. Aug. 4, 2014)
(finding 6,200 national jobs significant).
- 33 -
As the 12,300 jobs
the vocational expert found available to Montalbo falls squarely
within the ranges of the foregoing cases, and in light of the
discretion afforded to the ALJ in determining whether the number
of jobs available is significant, this Court declines to find
that the ALJ erred on this ground. 11
Whether the Claim Should Be Remanded
Finally, Montalbo asks that if this Court agrees that
the ALJ erred in rejecting evidence, it should credit such
evidence as true, find that Montalbo is disabled, and remand for
an immediate award of benefits, or in the alternative to remand
to the agency to properly consider the evidence.
Opening Br. at
The Ninth Circuit has cautioned that “[a] remand for
an immediate award of benefits is appropriate...only in rare
Brown-Hunter, 806 F.3d at 495 (internal
The ALJ also noted that the vocational expert had found that
there were less than 10 jobs total in the region of the State of
Hawaii available to Montalbo and concluded that such number
would not be significant. AR 27; see also AR 58-59. This Court
agrees that such a small number of jobs in Hawaii would not be
significant. See Beltran, 700 F.3d at 389 (finding 135 regional
jobs not significant). However, even if a court concludes that
work available in the claimant’s region is not significant, it
must still consider whether work exists in significant numbers
at the national level. See Gutierrez, 740 F.3d at 524 (“If we
find either of the two numbers ‘significant,’ then we must
uphold the ALJ’s decision) (citing Beltran, 700 F.3d at 389-90)
(emphasis in original); see also 20 C.F.R. § 416.966(a). Thus,
in light of the ALJ’s findings regarding the number of national
jobs available, the number of jobs available in Hawaii does not
affect the Court’s conclusions.
- 34 -
In order to award benefits, this Court must
conclude: (1) that “the ALJ has failed to provide legally
sufficient reasons for rejecting evidence”; (2) that “the record
has been fully developed and further administrative proceedings
would serve no useful purpose”; and (3) “if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.”
when all three requirements are met, the court retains
flexibility in determining the appropriate remedy and may remand
if “the record as a whole creates serious doubt as to whether
the claimant is, in fact, disabled within the meaning of the
Social Security Act.”
Id. (refusing to remand for award of
benefits where “the record raise[d] crucial questions about the
extent to which [the claimant’s] pain and accompany symptoms
render her disabled.”).
On the other hand, where “a hearing
would simply delay receipt of benefits, reversal [and an award
of benefits] is appropriate.”
McAllister v. Sullivan, 888 F.2d
599, 603 (9th Cir. 1989) (alteration in original).
As discussed above, the ALJ failed to provide legally
sufficient reasons for rejecting medical opinion evidence and
Montalbo’s own testimony regarding his pain and functional
However, the Court is not satisfied that further
administrative proceedings would serve no useful purpose.
improperly rejected medical opinion evidence still raises
- 35 -
questions about how Montalbo’s pain impacts his functional
Dr. Baclig noted on several different occasions that
Montalbo appeared to display exaggerated pain behavior.
e.g., AR 326, 382; but see AR 324 (noting no evidence of the
In addition, although the record evidences that Montalbo
has at times demonstrated a decreased range of motion, AR 327,
other doctors have noted that he has a normal range of lumbar
motion, AR 415, and, the cause of Montalbo’s pain also appears
to be “unclear.”
Some doctors also found a positive
straight leg raise test, AR 327, which indicates lower back
issues, while others have noted a negative straight leg raise.
Montalbo’s doctors have also at times noted an antalgic
or slow gait, while at other times noted he can walk without
Compare AR 332 and AR 372 (“ambulating without
difficulty”) with AR 334 (noting moderately antalgic gait).
record suggests that surgery would not alleviate Montalbo’s
pain, see AR 335, 400, but his pain appears to be adequately
controlled with medication at times, see AR 305 (improvement by
taking Medrol), and not at others, see AR 327 (worsened
condition despite medication).
Even if this evidence is
credited, these reports are inconsistent and conflict to a
certain extent with Montalbo’s own testimony about how
debilitating his pain is.
- 36 -
Thus, while the record may support a finding that
Montalbo is not disabled, it also may not.
It is for the ALJ,
not the Court, to weigh the inconsistencies in the record in the
See McAllister, 888 F.2d at 603.
thus finds that it is appropriate to remand to the ALJ for
further proceedings, rather than for payment of benefits.
Brown-Hunter, 806 F.3d at 496 (“Where there is conflicting
evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is inappropriate.”;
see also Dominguez, 808 F.3d at 409-10 (remanding in light of
“inconsistencies, conflicts, and gaps in the record”).
For the foregoing reasons, the Court REVERSES the
Commissioner’s decision denying Social Security disability
benefits and REMANDS to the ALJ for further proceedings
consistent with this Opinion.
IT IS SO ORDERED.
Honolulu, Hawaii, February 1, 2017.
Alan C. Kay
Sr. United States District Judge
Montalbo v. Colvin, Civ. No. 16-00306 ACK-RLP, Order Reversing the Decision
of the Commissioner of Social Security to Deny Plaintiff Supplemental Social
Security Income and Remanding for Further Proceedings.
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