Sandra Marie Wilhelm v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SANDRA W., ) Case No. ED CV 18-1092-SP ) 12 Plaintiff, ) ) MEMORANDUM OPINION AND 13 v. ) ORDER ) 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On May 23, 2018, plaintiff Sandra W. filed a complaint against defendant, 22 the Commissioner of Social Security Administration (“Commissioner”), seeking a 23 review of a denial of a period of disability, disability insurance benefits (“DIB”), 24 and supplemental security income (“SSI”). The parties have fully briefed the 25 matters in dispute, and the court deems the matter suitable for adjudication without 26 oral argument. 27 Under the overarching argument that the residual functional capacity 28 1 (“RFC”) assessment was not supported by substantial evidence, plaintiff presents 2 two disputed issues for decision: (1) whether the administrative law judge (“ALJ”) 3 properly considered the opinions of the treating physicians; and (2) whether the 4 ALJ properly developed the record and considered the opinion of the consultative 5 examiner. Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 17-25; 6 see Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 1-11. 7 Having carefully studied the parties’ memoranda on the issues in dispute, the 8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ properly considered the opinions of the treating 10 physicians but failed to properly develop the record. The court therefore remands 11 this matter to the Commissioner in accordance with the principles and instructions 12 enunciated in this Memorandum Opinion and Order. 13 II. 14 FACTUAL AND PROCEDURAL BACKGROUND 15 Plaintiff, who was 48 years old on the alleged disability onset date, attended 16 school through the twelfth grade but did not obtain a high school degree. AR at 17 45, 74. She has past relevant work as a screen printer and insurance clerk. Id. at 18 66. 19 On June 18, 2014, plaintiff filed applications for a period of disability, DIB, 20 and SSI due to physical problems, shoulder problems, hand and wrist problems, 21 and depression. Id. at 74, 87. The applications were denied initially and upon 22 reconsideration, after which plaintiff filed a request for a hearing. Id. at 132-44. 23 On December 16, 2016, the ALJ held a hearing. Id. at 40-73. Plaintiff, 24 represented by counsel, appeared and testified at the hearing. Id. The ALJ also 25 heard testimony from Sandra Fioretti, a vocational expert. See id. at 65-71. On 26 February 17, 2017, the ALJ denied plaintiff’s claims for benefits. Id. at 23-35. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 1 found, at step one, that plaintiff had not engaged in substantial gainful activity 2 since July 9, 2008, the alleged onset date. Id. at 25. 3 At step two, the ALJ found plaintiff suffered from the following severe 4 impairments: right wrist status post arthroscopic surgery; right shoulder 5 impingement; obesity; complex regional pain syndrome (“CRPS”), lumbar spine 6 degenerative disc disease; thoracic spine degenerative disc disease; and cervical 7 spine degenerative disc disease. Id. at 25-26. 8 At step three, the ALJ found plaintiff’s impairments, whether individually or 9 in combination, did not meet or medically equal one of the listed impairments set 10 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 27. 11 The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the 12 RFC to perform light work,2 with the limitations that plaintiff could: frequently 13 push and pull with the bilateral upper extremities; occasionally reach overhead 14 with the right upper extremity; and frequently handle and finger with the right 15 upper extremity. Id. at 28. The ALJ precluded plaintiff from climbing ladders, 16 ropes, or scaffolds, and from exposure to unprotected heights and moving 17 mechanical parts. Id. 18 The ALJ found, at step four, that plaintiff was capable of performing her 19 past relevant work as an insurance clerk. Id. at 34. Consequently, the ALJ 20 concluded plaintiff did not suffer from a disability as defined by the Social 21 22 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 23 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 24 the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 25 n.2 (9th Cir. 2007). 26 2 “Light work involves lifting no more than 20 pounds as a time with frequent 27 lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. 28 §§ 404.1567(b), 416.967(b). 1 Security Act. Id. at 35. 2 Plaintiff filed a timely request for review of the ALJ’s decision, but the 3 Appeals Council denied the request for review. Id. at 1-3. The ALJ’s decision 4 stands as the final decision of the Commissioner. 5 III. 6 STANDARD OF REVIEW 7 This court is empowered to review decisions by the Commissioner to deny 8 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 9 Administration must be upheld if they are free of legal error and supported by 10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 11 (as amended). But if the court determines the ALJ’s findings are based on legal 12 error or are not supported by substantial evidence in the record, the court may 13 reject the findings and set aside the decision to deny benefits. Aukland v. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 15 1144, 1147 (9th Cir. 2001). 16 “Substantial evidence is more than a mere scintilla, but less than a 17 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 18 “relevant evidence which a reasonable person might accept as adequate to support 19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 21 finding, the reviewing court must review the administrative record as a whole, 22 “weighing both the evidence that supports and the evidence that detracts from the 23 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 24 affirmed simply by isolating a specific quantum of supporting evidence.’” 25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 28 1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 A. The ALJ Properly Considered Dr. Griggs’s Opinion, and Her Failure to 6 Consider the Opinions of the Other Treating Physicians Was Harmless 7 Error 8 Plaintiff argues that the ALJ’s RFC determination was not supported by 9 substantial evidence because the ALJ failed to properly consider the opinions of 10 plaintiff’s treating physicians. P. Mem. at 17-22. Specifically, plaintiff argues that 11 the ALJ failed to provide specific and legitimate reasons for giving little weight to 12 the opinion of Dr. Sean Griggs and ignored the opinions of other treating 13 physicians. Id. 14 RFC is what one “can still do despite [his or her] limitations.” 20 C.F.R. 15 §§ 404.1545(a)(1), 416.945(a)(1). The Commissioner reaches an RFC 16 determination by reviewing and considering all of the relevant evidence. Id. 17 Among the evidence the ALJ considers is medical evidence. 20 C.F.R. 18 §§ 404.1527(b), 416.927(b).3 In evaluating medical opinions, the regulations 19 distinguish among three types of physicians: (1) treating physicians; (2) examining 20 physicians; and (3) non-examining physicians. 20 C.F.R. 21 §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 22 1996) (as amended). “Generally, a treating physician’s opinion carries more 23 weight than an examining physician’s, and an examining physician’s opinion 24 carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 25 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)- 26 27 3 All regulations cited in this opinion are applicable to claims filed before 28 March 27, 2017. 1 (2). The opinion of the treating physician is generally given the greatest weight 2 because the treating physician is employed to cure and has a greater opportunity to 3 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 4 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 5 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 6 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 7 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 8 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 9 opinions, the ALJ must provide specific and legitimate reasons supported by 10 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 11 specific and legitimate reasons supported by substantial evidence in rejecting the 12 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 13 non-examining physician, standing alone, cannot constitute substantial evidence. 14 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 15 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 16 813, 818 n.7 (9th Cir. 1993). 17 1. Treating Physicians 18 a. Dr. Sean M. Griggs 19 Dr. Sean Griggs, an orthopedic surgeon, treated plaintiff’s right wrist in 20 connection with her workers’ compensation claim from approximately September 21 2008 through June 2009, when he left the practice. See AR at 304-34, 365. On 22 January 2, 2009, Dr. Griggs performed arthroscopic surgery on plaintiff’s right 23 wrist and made a postoperative diagnosis of right wrist ulnar abutment syndrome 24 with lunate osteoarthritis and grade III chondromalacia. See id. at 323-24. Five 25 months after the surgery, plaintiff continued to complain of pain and stiffness in 26 her right hand despite physical therapy and pain medication. See id. at 308. Dr. 27 Griggs observed plaintiff had limited range of motion in her right shoulder and 28 1 fingers, limited supination and pronation, and flexion contracture in two fingers. 2 See id. Dr. Griggs also noted that plaintiff had been tested for CRPS. See id. 3 Based on the June 2009 examination and complaints, Dr. Griggs opined plaintiff 4 should not use her right upper extremity. See id. 5 b. Dr. Peter C. Janes 6 Dr. Janes, an orthopedic surgeon, treated plaintiff three times between May 7 2009 and January 2010 in connection with her workers’ compensation claim. See 8 id. at 363-66. At the initial visit, Dr. Janes observed, among other things, plaintiff 9 had pain in the right upper extremity when manipulated, her wrist motion was 10 poor, and her fingers were in a flexed posture. See id. at 365. Dr. Janes referred 11 plaintiff to Dr. Ross Dickstein, an anesthesiologist, to test for CRPS.4 See id. At 12 the second visit in June 2009, Dr. Janes observed that plaintiff’s fingers, other than 13 the pinky, had a bit better extension but she still had incomplete flexion and could 14 not make a fist. See id. at 364. In addition, plaintiff had prominence of the ulna 15 and withdrew her hand when offered in a handshake. See id. Dr. Janes limited 16 plaintiff to lifting one to two-pounds with the right upper extremity. See id. 17 Finally, in January 2010, after the synthetic blocks with Dr. Dickstein were 18 unsuccessful, Dr. Janes again observed plaintiff was in pain, had clawed fingers, 19 and a bony prominence. See id. at 363. Dr. Janes explained that plaintiff should 20 see a CRPS specialist instead. See id. 21 c. Dr. Robert Stroheker 22 Dr. Stroheker, a family medicine physician, treated plaintiff in connection 23 with her workers’ compensation claim from July 2008 through at least March 24 2012. See id. at 426-94. Dr. Stroheker observed, among other things, plaintiff 25 continued to have pain after her surgery, she had limited range of motion in her 26 shoulders, and her right hand was in a claw shape. See, e.g., id. at 470, 475, 477. 27 28 4 Dr. Dickstein’s treatment notes are not included in the administrative record. 1 In August 2009, plaintiff reported to Dr. Stroheker that she had been diagnosed 2 with CRPS. Id. at 468. In December 2009, plaintiff informed Dr. Stroheker a 3 nerve block had not helped and although she felt somewhat better, she still had 4 pain in her right upper extremity. Id. at 451. Dr. Stroheker observed plaintiff had 5 pain with movement in her right upper extremity, a firm cyst ventral mid wrist, 6 persistent finger flexures, sharp pain in the right wrist, and limited range of motion 7 in the right shoulder, and advised to her seek treatment from specialists. Id. Dr. 8 Stroheker opined plaintiff could not lift, carry, push, or pull over five pounds. Id. 9 at 452. By March 2010, however, Dr. Stroheker listed her limitations “as 10 tolerated” and did not list any limitations from August 2011 forward. See id. at 11 426-33, 442. 12 d. Dr. Larry H. Couture 13 Dr. Couture, a family physician, treated plaintiff from December 2014 14 through at least April 2016. See id. at 682-90. At the initial visit, plaintiff 15 informed Dr. Couture she developed CRPS as a result of her hand surgery and 16 suffered from migrating arthralgias and numbness in her legs. See id. at 687. Dr. 17 Couture observed plaintiff had severe pain in her right wrist with light pressure and 18 passive bending/flexing, mild diffuse pain in her arms and legs at specific points 19 midway between joints, and ordered imaging. See id. at 687, 690. The MRIs and 20 x-rays showed, among other things: mild-to moderate central canal narrowing in 21 the cervical spine; mild multilevel degenerative changes in the lumbar spine; and 22 mild chronic compressions deformity in the thoracic spine. See id. at 666-81. 23 Handwritten notes on the MRI results indicate plaintiff was advised to treat her 24 lumbar spine with RICE (rest, ice, compression, and elevation), over the counter 25 pain medication, and physical therapy, and was referred to an orthopedic surgeon 26 about her cervical spine. See id. at 667, 671, 679. Based on the examinations and 27 imaging, Dr. Couture diagnosed plaintiff with spinal stenosis in the cervical region 28 1 and fibromyalgia and treated her with pain medication. See id. at 683. 2 e. Dr. Hamilton Chen 3 Dr. Chen, a physicatrist, treated plaintiff twice in October and November 4 2016 for her neck and back pain. See id. at 701-11. Dr. Chen reviewed plaintiff’s 5 imaging and observed plaintiff: ambulated with a walker; had tenderness, pain, 6 and reduced range of motion in the neck; had normal movement in her joints, 7 bones, and muscles in all extremities; had pain upon rotation in the lumbar spine; 8 tenderness over lumbar facet joints; and had an irregular gait. See id. at 710-11. 9 Dr. Chen diagnosed plaintiff with spinal stenosis in the cervical region and 10 degeneration of cervical intervertebral disc, and treated her with physical therapy 11 and opioids. See id. at 702, 711. 12 2. Examining Physicians 13 a. Dr. Kathy Fine McCranie 14 Dr. McCranie, a physiatrist, examined plaintiff on August 12, 2009 in 15 connection with her workers’ compensation claim. Id. at 355-61. Plaintiff 16 reported pain in her right upper extremity, which increased with writing, sleeping 17 on the right side, and lifting. Id. at 358. Plaintiff informed Dr. McCranie that she 18 quilted, scrapbooked, bowled, gardened, and was able to ambulate independently. 19 See id. at 359. Dr. McCranie observed plaintiff had: full motor strength; decreased 20 sensation in the right upper extremity except the palm had increased sensation; 21 decreased range of motion in the right shoulder and wrist; and swelling and 22 contractures in the right fingers. See id. at 359-60. Dr. McCranie diagnosed 23 plaintiff with CRPS type I in the right upper extremity and status post arthroscopic 24 surgery of the right wrist, showing lunate osteoarthritis and grade III 25 chondromalcia. Id. at 360. Dr. McCranie recommended plaintiff repeat the stellate 26 ganglion block followed by physical therapy. Id. at 360-61. 27 b. Dr. Vincent R. Bernabe 28 1 Dr. Bernabe, an orthopedic surgeon, examined plaintiff on September 26, 2 2014. Id. at 600-04. Dr. Bernabe did not review any medical records. Id. at 600. 3 Plaintiff told Dr. Bernabe that she continued to have sharp, throbbing, burning pain 4 in her right wrist and upper extremity following her surgery and the pain was 5 exacerbated by prolonged lifting, standing, and walking. Id. At the time of the 6 examination, plaintiff was no longer receiving physical therapy and took only 7 aspirin for pain. Id. at 601. Dr. Bernabe observed plaintiff: could do a 50% squat; 8 had no tenderness along her cervical and lumbar spine; had normal range of motion 9 in the cervical and lumbar spine; had normal range of motion in her shoulders but 10 positive impingement in the right; had tenderness to palpation in the right wrist 11 along the dorsum; had normal range of motion in her hands and fingers; and had 12 full motor strength. See id. at 602-03. Dr. Bernabe also observed that although 13 plaintiff entered the examination room with a cane, it was not medically necessary 14 because she could ambulate unassisted and do a toe and heel walk. Id. at 602. 15 Based on the examination, Dr. Bernabe opined plaintiff had the RFC to: lift/carry 16 fifty pounds occasionally and twenty-five pounds frequently; push and pull 17 frequently; and perform manipulative activities frequently on the right upper 18 extremity. Id. at 604. 19 3. State Agency Physicians 20 Dr. A. Wong and Dr. Alicia V. Blando, State Agency physicians, reviewed 21 plaintiff’s medical records through September 2014 and determined plaintiff had 22 the RFC to: lift/carry 50 pounds occasionally and 25 pounds frequently; stand/walk 23 six hours in an eight-hour work day; sit six hours in an eight-hour work day; 24 occasionally reach overhead with the right upper extremity; and frequently handle 25 and finger with the right upper extremity. See id. at 79-84, 92-97, 108-12, 121-25. 26 4. The ALJ’s Findings 27 In reaching her RFC determination, the ALJ considered all of the medical 28 1 evidence, as well as plaintiff’s testimony and behavior at the hearing. See id. at 33. 2 The ALJ did not give significant weight to any physician’s opinion, but instead 3 considered all the opinions in light of the evidence as a whole. The ALJ gave 4 partial weight to Dr. Bernabe’s and the State Agency physicians’ opinions, noting 5 that although she agreed with their assessment that plaintiff was capable of 6 working, greater weight could not be given for several reasons. See id. Dr. 7 Bernabe’s opinion was based on a one-time examination and did not have the 8 opportunity to consider plaintiff’s subsequent neck and back impairments. See id. 9 And the State Agency physicians did not review the entire medical record, did not 10 examine plaintiff, did not account for plaintiff’s recent back and neck pain, and did 11 not adequately consider plaintiff’ subjective complaints. See id. The ALJ also 12 gave little weight to Dr. Griggs’s October 2008 opinion that plaintiff be limited to 13 lifting and carrying five pounds because it was made shortly after her injury and 14 before surgical intervention. See id. The ALJ found there was no evidence 15 plaintiff required this limitation long term. See id. at 33-34. 16 The regulations state that an ALJ must consider the opinions of treating, 17 examining, and State Agency physicians. See 20 C.F.R. §§ 404.1527(c), (e), 18 416.927(c), (e); Lester, 81 F.3d at 830. Here, the ALJ considered the treatment 19 notes of Dr. Griggs, Dr. Stroheker, and Dr. Janes, but only expressly discounted 20 Dr. Griggs’s October 2008 opinion that plaintiff be limited to lifting and carrying 21 five pounds. See AR at 33, 334. Although neither Dr. Stroheker nor Dr. Janes 22 completed a formal functional capacity opinion, both offered opinions in their 23 treatment notes. In December 2009, Dr. Stroheker opined plaintiff was unable to 24 return to work and should engage in minimal use of her right upper extremity with 25 a limitation of five pounds for lifting, carrying, pushing, and pulling. See id. at 26 452. Four months later, Dr. Stroheker again opined plaintiff was unable to return 27 to work until an unspecified time, and determined she had reached maximum 28 1 medical improvement,5 but he did not specify any specific limitations other than 2 “as tolerated” and “minimal use of [right upper extremity]”. See id. at 442. As for 3 Dr. Janes, in a January 2010 treatment note, he opined plaintiff should not lift 4 anything exceeding two pounds with her right upper extremity. Id. at 363. 5 Regarding, the ALJ’s rejection of Dr. Griggs’s October 2008 opinion, the 6 ALJ provided specific and legitimate reasons for giving it less weight. The ALJ 7 explained that she gave little weight to Dr. Griggs’s October 2008 opinion that 8 plaintiff should be limited to lifting and carrying five pounds because it was made 9 prior to surgical intervention and there was no evidence that the limitations 10 persisted for a sustained period of time, or throughout the adjudication period. See 11 AR at 33-34. First, the ALJ’s rejection of Dr. Grigg’s pre-surgery opinion is 12 specific and legitimate. As Dr. Griggs’s treatment note of the same date clearly 13 indicated, the limitation was only temporary until plaintiff underwent and 14 recovered from surgery.6 See id. at 313, 334. The ALJ’s second reason for 15 discounting Dr. Griggs’s October 208 opinion was also supported by substantial 16 evidence. Although the medical records indicate plaintiff continued to suffer from 17 pain in her right upper extremity, plaintiff ceased seeking treatment for her right 18 upper extremity in January 2011 and was able to manage the pain with aspirin for 19 several years.7 See id. at 435, 601, 687-90. Finally, as the ALJ discussed 20 21 5 In workers’ compensation parlance, maximum medical improvement means 22 a condition is stabilized and unlikely to change, and not that the person is or is not 23 disabled under the Social Security Act. See Cal. Code Regs. tit. 8, § 10152 (2013). 24 6 Plaintiff does not discuss Dr. Griggs’s June 2009 post-surgery opinion that she should not use her right upper extremity. See AR at 308. Similar to the 25 October 2008 opinion, Dr. Griggs’s treatment notes indicate the limitation was 26 temporary while plaintiff sought treatment. See id. 27 7 Plaintiff was later treated with opioids, but the record suggests this pain 28 treatment was primarily for her subsequently developed neck and back pain. See, 1 elsewhere in her decision, plaintiff’s activities reflect she was capable of activities 2 greater than the opined limitations. Plaintiff took care of dogs and horses, 3 including their feedings.8 See id. at 272, 696; Shephard v. Berryhill, 722 Fed. 4 Appx. 641, 643 (9th Cir. 2018) (ALJ properly discounted physician’s opinion 5 when the opined restrictions were inconsistent with the claimant’s activities); 6 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (conflict between opined 7 functional limitations and daily activities is a valid reason for rejecting a 8 physician’s opinion). 9 As for Dr. Janes and Dr. Stroheker, the ALJ discussed their findings but 10 failed to consider their opinions. The ALJ’s failure to consider their opinions was 11 harmless error. With respect to Dr. Janes, his opinion was a temporary assessment. 12 In the same treatment note in which Dr. Janes opined a one-two pound lifting 13 restriction for the right upper extremity, Dr. Janes also indicated that the plan was 14 for the treatment to result in a functional extremity. See AR at 363-64. Regarding 15 Dr. Stroheker, notwithstanding the fact that his opinions lacked specificity, 16 plaintiff’s subsequent treatment and activities undermined his opinion that plaintiff 17 had severe restrictions and her condition was unlikely to change. See id. at 29, 33. 18 See also Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may 19 discredit [] opinions that are conclusory, brief, and unsupported by the record as a 20 whole”). After her initial treatment with opioids, plaintiff was able to manage her 21 right upper extremity pain with aspirin. See AR at 442, 601. More important, Dr. 22 Stroheker’s limitations were inconsistent with plaintiff’s demonstrated activities. 23 24 e.g., AR at 711 (although plaintiff reported a history of wrist pain, she went to physician for evaluation of her neck and back pain) 25 26 8 Although plaintiff testified her husband cleaned up after and fed the horses on their property, this was inconsistent with his statement that she brushed and 27 watered the horses, and with her medical records, which documented she fractured 28 her ankle while feeding the horses in 2016. See AR at 272, 696. 1 See Shephard, 722 Fed. Appx. at 643; Ghanim, 763 F.3d at 1162. 2 In sum, the ALJ provided specific and legitimate reasons supported by 3 substantial evidence for discounting Dr. Griggs’s opinion, and her failure to 4 consider Dr. Stroheker’s and Dr. Janes’s opinions was harmless error. 5 B. The ALJ Failed to Properly Develop the Record 6 Plaintiff contends the ALJ’s RFC determination was not supported by 7 substantial evidence because she failed to properly develop the record. P. Mem. at 8 22-25. Specifically, plaintiff argues the ALJ had a duty to fully and fairly develop 9 the record by retaining a consultative examiner or having a State Agency physician 10 review her medical records and offer an opinion concerning any limitations 11 relating to her neck and back impairments. Id. 12 When the record is ambiguous or inadequate for proper evaluation, the 13 Commissioner has a duty to develop the record. See Webb v. Barnhart, 433 F.3d 14 683, 687 (9th Cir. 2005); see also Mayes, 276 F.3d at 459-60 (ALJ has a duty to 15 develop the record further only “when there is ambiguous evidence or when the 16 record is inadequate to allow for proper evaluation of the evidence”); Smolen, 80 17 F.3d at 1288 (“If the ALJ thought he needed to know the basis of [a doctor’s] 18 opinion[ ] in order to evaluate [it], he had a duty to conduct an appropriate inquiry, 19 for example, by subpoenaing the physician[ ] or submitting further questions to 20 [him or her].”). This may include retaining a medical expert or ordering a 21 consultative examination. 20 C.F.R. §§ 404.1519a(a), 416.919a(a). The 22 Commissioner may order a consultative examination when trying to resolve an 23 inconsistency in evidence or when the evidence is insufficient to make a 24 determination. 20 C.F.R. §§ 404.1519a(b), 416.919a(b). 25 Here, in her decision and RFC determination, the ALJ found plaintiff’s 26 degenerative disc disease in the lumbar, thoracic, and cervical spines were severe 27 impairments. AR at 25-26. The ALJ reviewed 2015 MRIs and x-rays which 28 1 reflected that, in addition to degenerative disc disease, plaintiff had, among other 2 things, foraminal endplate spurring, foraminal stenosis, scoliosis, and 3 atherosclerotic disease. See id. at 31-32. The ALJ also noted examination findings 4 that showed tenderness and pain in the lumbar, an irregular gait, and abnormal 5 sensation in the lower extremities. See id. at 32. But no physician submitted an 6 opinion as to the extent plaintiff’s back and neck impairments affected her ability 7 to function because, as the ALJ acknowledges, plaintiff’s neck and back 8 impairments manifested after Dr. Bernabe and the State Agency physicians 9 submitted their opinions. See id. at 33. Consequently, the ALJ relied on her own 10 lay interpretation of the medical evidence to determine that the mild to moderate 11 degenerative changes in plaintiff’s spine did not affect her functional capacity. See 12 id. 13 This was improper. Although an ALJ interprets the medical records to reach 14 an RFC determination, the RFC determination must be supported by substantial 15 evidence. Here, there was no medical evidence of how the neck and back 16 impairments affected plaintiff’s functioning. An ALJ may not act as her own 17 medical expert because an ALJ is “simply not qualified to interpret raw medical 18 data in functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); see 19 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not make his 20 “own exploration and assessment” as to a claimant’s impairments); Rohan v. 21 Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the 22 temptation to play doctor and make their own independent medical findings.”); 23 Hamasyan v. Berryhill, 2018 WL 6025596, at *5 (C.D. Cal. Nov. 16, 2018) (the 24 ALJ could not properly rely on his own lay understanding of medical records and 25 exams to gauge the functional limitations); Miller v. Astrue, 695 F. Supp. 2d 1042, 26 1048 (C.D. Cal. 2010) (it is improper for the ALJ to act as the medical expert); 27 Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (ALJ is not 28 1 qualified to extrapolate functional limitations from raw medical data). The ALJ 2 should have retained a consultative examiner or medical expert in order for her to 3 make an informed determination supported by substantial evidence regarding the 4 extent to which plaintiff’s back and neck impairments limited her ability to 5 function. 6 Accordingly, the ALJ erred in failing to further develop the record. 7 V. 8 REMAND IS APPROPRIATE 9 The decision whether to remand for further proceedings or reverse and 10 award benefits is within the discretion of the district court. McAllister v. Sullivan, 11 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 12 discretion to direct an immediate award of benefits where: “(1) the record has been 13 fully developed and further administrative proceedings would serve no useful 14 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 15 evidence, whether claimant testimony or medical opinions; and (3) if the 16 improperly discredited evidence were credited as true, the ALJ would be required 17 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 18 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 19 instructions to calculate and award benefits). But where there are outstanding 20 issues that must be resolved before a determination can be made, or it is not clear 21 from the record that the ALJ would be required to find a plaintiff disabled if all the 22 evidence were properly evaluated, remand for further proceedings is appropriate. 23 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 24 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 25 further proceedings when, even though all conditions of the credit-as-true rule are 26 satisfied, an evaluation of the record as a whole creates serious doubt that a 27 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 28 1 Here, remand is required to further develop the record. On remand, the ALJ 2 || shall retain a consultative examiner or medical expert to help her inquiry. The ALJ 3 || shall then reassess plaintiff's RFC, and proceed through steps four and five to 4 || determine what work, if any, plaintiff is capable of performing. 5 VI. 6 RECOMMENDATION 7 IT IS THEREFORE ORDERED that Judgment shall be entered 8 || REVERSING the decision of the Commissioner denying benefits, and 9 || REMANDING the matter to the Commissioner for further administrative action 10 || consistent with this decision. 11 12 || DATED: September 27, 2019 Cp 13 OOO 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17