Susan Kefer v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | SUSAN K., Case No. CV 18-8096-SP 12 Plaintiff, V. MEMORANDUM OPINION AND 15 | Social Security Administration. 16 Defendant. 17 18 19 20 INTRODUCTION 21 On September 18, 2018, plaintiff Susan K. filed a complaint against 22 || defendant, the Commissioner of the Social Security Administration 23 || (‘Commissioner’), seeking a review of a denial of a period of disability and 24 || disability insurance benefits (“DIB”). The parties have fully briefed the issues in 25 || dispute, and the court deems the matter suitable for adjudication without oral 26 || argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 1 || Administrative Law Judge (“ALJ”) properly considered the opinion of plaintiff's 2 || treating physician; and (2) whether the ALJ improperly rejected plaintiff's 3 || subjective symptom testimony. Plaintiff's Memorandum in Support of Complaint 4} Mem.”) at 2-21; see Memorandum in Support of Defendant’s Answer (“D. 5 || Mem.”) at 3-12. 6 Having carefully studied the parties’ memoranda on the issues in dispute, the 7 || Administrative Record (“AR”), and the decision of the ALJ, the court concludes 8 || that, as detailed herein, the ALJ properly considered the opinion of plaintiff's 9 || treating physician with respect to her mental impairments, but erred in rejecting the 10 | opinion of plaintiff's treating physician as to her physical impairments, and erred 11 } in discounting plaintiff's subjective symptom testimony. The court therefore 12 || remands this matter to the Commissioner in accordance with the principles and 13 instructions enunciated in this Memorandum Opinion and Order. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was 32 years on the alleged disability onset date, has a college 17 | education. AR at 90, 127. Plaintiff has past relevant work experience as an urban 18 } planner. Jd. at 123. 19 On March 18, 2014, plaintiff filed an application for a period of disability 20 || and DIB, alleging an onset date of December 1, 2012 due to chronic pain 21 || syndrome, post-traumatic stress disorder (“PTSD”), anxiety, depression, and back 22 | injury. /d. at 127. The Commissioner denied plaintiff's application initially and 23 || upon reconsideration, after which she filed a request for a hearing. Jd. at 160-69. 24 On September 13, 2017, plaintiff, represented by counsel, appeared and 25 testified at a hearing before the ALJ. /d. at 83-126. The ALJ also heard testimony 26 |! from Alan Cummings, a vocational expert. Jd. at 122-26. On September 28, 2017, 27 || the ALJ denied plaintiffs claim for benefits. Jd. at 16-25. 28 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 || found, at step one, that plaintiff had not engaged in substantial gainful activity 3 || from December 1, 2012, the alleged onset date, through December 31, 2015, the 4 || date last insured. /d. at 18. 5 At step two, the ALJ found plaintiff suffered from the following severe 6 || impairments: a history of third degree burn injuries, status post multiple 7 || reconstructive surgeries; and residual chronic pain syndrome due to nerve damage. 8 || Id. 9 At step three, the ALJ found plaintiff's impairments, whether individually or 10 || in combination, did not meet or medically equal one of the listed impairments set 11 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 19. 12 The ALJ then assessed plaintiff's residual functional capacity (“RFC”),' and 13 | determined that through the date last insured she had the RFC to perform light 14 || work, with the limitations that she: must avoid concentrated exposure to fumes, 15 || odors, and other respiratory irritants; could not climb ladders, ropes, and scaffolds; 16 || and was limited to occasional climbing of stairs or ramps, stooping, kneeling, 17 || crouching, and crawling. Jd. at 19. 18 The ALJ found, at step four, that plaintiff could perform her past relevant 19 work as an urban planner. /d. at 25. Consequently, the ALJ concluded plaintiff 20 || did not suffer from a disability as defined by the Social Security Act. Id. 21 22 23 2400 ' Residual functional capacity is what a claimant can do despite existing 25 | exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 | 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 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 28 | n.2 (9th Cir. 2007). 1 Plaintiff filed a timely request for review of the ALJ’s decision, which was 2 || denied by the Appeals Council. /d. at 1-6. The ALJ’s decision stands as the final 3 || decision of the Commissioner. 4 Hl. 5 STANDARD OF REVIEW 6 This court is empowered to review decisions by the Commissioner to deny 7 || benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 8 || Administration must be upheld if they are free of legal error and supported by 9 | substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 10 || (as amended). But if the court determines the ALJ’s findings are based on legal 11 || error or are not supported by substantial evidence in the record, the court may 12 || reject the findings and set aside the decision to deny benefits. Aukland v. 13 || Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 14 } 1144, 1147 (9th Cir. 2001). 15 “Substantial evidence is more than a mere scintilla, but less than a 16 || preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 17 || “relevant evidence which a reasonable person might accept as adequate to support 18 || aconclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 19 || F.3d at 459. To determine whether substantial evidence supports the ALJ’s 20 || finding, the reviewing court must review the administrative record as a whole, 21 || “weighing both the evidence that supports and the evidence that detracts from the 22 | ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 23 || affirmed simply by isolating a specific quantum of supporting evidence.’” 24 || Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 25 || Cir. 1998)). If the evidence can reasonably support either affirming or reversing 26 || the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 27 || of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 28 1 |} 1992)). 2 IV. 3 DISCUSSION A. The ALJ Properly Considered the Opinion of the Treating Physician 5 Regarding Plaintiff's Mental Impairments, But Not Plaintiff’s Physical 6 Impairments 7 Plaintiff argues the ALJ failed to properly consider the opinion of her 8 || treating physician, Dr. Eric Dunlop. P. Mem. at 2-17. Specifically, plaintiff 9 || contends the ALJ’s reasons for rejecting Dr. Dunlop’s opinion were not specific, 10 || legitimate, and supported by substantial evidence. 11 In determining whether a claimant has a medically determinable impairment, 12 | among the evidence the ALJ considers is medical evidence. 20 C.F.R. § 13 || 404.1527(b).? In evaluating medical opinions, the regulations distinguish among 14 || three types of physicians: (1) treating physicians; (2) examining physicians; and 15 || (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 16 || F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 17 || opinion carries more weight than an examining physician’s, and an examining 18 || physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 19 || Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 20 || The opinion of the treating physician is generally given the greatest weight because 21 || the treating physician is employed to cure and has a greater opportunity to 22 || understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 23 || 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 24 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 25 || Smolen, 80 F.3d at 1285. “[T]he ALJ may only reject a treating or examining 26 27 All citations to the Code of Federal Regulations refer to regulations 28 || applicable to claims filed before March 27, 2017. 1 || physician’s uncontradicted medical opinion based on ‘clear and convincing 2 || reasons.’” Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citing 3 || Lester, 81 F.3d at 830-31). “Where such an opinion is contradicted, however, it 4 || may be rejected for ‘specific and legitimate reasons that are supported by 5 || substantial evidence in the record.’” Jd. (quoting Lester, 81 F.3d at 830-31). The 6 || opinion of a non-examining physician, standing alone, cannot constitute substantial 7 || evidence. Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); Lester, 81 F.3d 8 |] at 831. 9 1. Medical Opinions and Records 10 a. Treating Physicians 11 Dr. Eric Dunlop 12 Dr. Eric Dunlop, a family physician, treated plaintiff from December 2012 13 |] until at least June 2016. AR at 347-360, 455-69, 536-44, 601-06, 835-42, 847. Dr. 14 || Dunlop diagnosed plaintiff with complex regional pain syndrome, asthma, 15 | depression, PTSD, chronic pain syndrome, vitamin D deficiency, urinary tract 16 || infections, irritable bowel syndrome, and fibromyalgia. /d. Plaintiff was treated 17 || with medication, and recommended to try acupuncture and massage therapy. Id. 18 On August 8, 2014, Dr. Dunlop opined plaintiff had an overall poor 19 || functional capacity, and on days when her pain was exacerbated plaintiff could not 20 || stand or sit longer than 15 to 20 minutes at a time without changing positions, 21 could not walk for more than a few minutes, and could not lift, carry, or handle 22 || objects. Id. at 538,542. Dr. Dunlop further opined plaintiff had poor 23 || concentration and difficulty adapting to her environment due to her pain, 24 |i depression, and PTSD. Jd. at 538, 544. He explained plaintiff rarely used 25 || medication to control her pain because previous medications had caused significant 26 || side effects, were ineffective, or had addictive properties. Jd. 27 On March 17, 2015, Dr. Dunlop opined plaintiff could sit, stand, and walk 28 1 || for three hours total in an eight-hour workday and occasionally lift and carry 2 || objects up to five pounds. Jd. at 601. Dr. Dunlop further opined that plaintiff's 3 || symptoms were aggravated by sitting for extended periods, walking, running, 4 || carrying, and lifting, plaintiff's depression and PTSD contributed to her physical 5 || symptoms and limitations, plaintiff was unable to do full-time work, and her 6 || symptoms and related limitations applied as far back as December 2012. Id. 7 On June 15, 2016, Dr. Dunlop opined plaintiff could: sit for one hour in an 8 || eight-hour workday; stand or walk for three hours in an eight-hour workday; 9 || occasionally lift up to five pounds; and that emotional factors contributed to the 10 severity of plaintiff's symptoms and functional limitations. /d. at 835, 838, 840. 11 Dr. Brian Buchanan 12 Dr. Brian Buchanan, a chiropractor, treated plaintiff from September 2012 to 13 || May 2013. Id. at 343-46, 361-411. Plaintiff complained of headaches, right 14 shoulder pain, right arm pain, neck discomfort, mid-back pain, low back pain, left 15 } hip pain, and left leg pain. /d. at 343-46. Dr. Buchanan noted plaintiff's treatment 16 || was “conservative” and involved gentle adjustments of plaintiffs cervical, 17 || thoracic, and sacral iliac joints, as well as manual cervical traction, stretching, 18 || myofascial release, and trigger point therapy. Jd. at 345. Dr. Buchanan diagnosed 19 || plaintiff with possible neurological impingement, and possible Lyme Disease or 20 |] Reflex Sympathetic Dystrophy. 7d. Dr. Buchanan did not provide an opinion 21 || about plaintiff's functional limitations, but noted that although plaintiff had 22 || initially “improved greatly” with adjustments, he believed plaintiff was “in serious 23 || pain, and she really needs help.” Id. 24 Dr. Zoe Wells 25 Dr. Zoe Wells, a practitioner of natural health medicine, treated plaintiff 26 || from December 2012 to August 2017 for chronic pain. /d. at 412-34, 470-99, 532- 27 |} 35, 560-93, 599-600, 843-46, 942-44. Dr. Wells recommended plaintiff take 28 1 || natural supplements and Chinese herbal medicine, and use acupuncture, 2 || chiropractic manipulation, yoga, meditation, and massage therapy to manage her 3 | pain. Jd. On August 4, 2014, Dr. Wells opined that plaintiff could: lift and carry 4 | 10 pounds occasionally and less than 10 pounds frequently; stand and walk for at 5 || least two hours but less than six hours in an eight-hour workday; sit less than six 6 || hours in an eight-hour day; had various limitations with climbing, stooping, 7 || kneeling, crouching, and crawling, but not with reaching, handling, fingering, or 8 || feeling; and could not work around heights, moving machinery, or excessive noise. 9 || Id. at 532-35. On August 11, 2014, Dr. Wells opined plaintiff could: lift 5 to 10 10 || pounds frequently and carry 5 to 10 pounds occasionally; could sit, stand, or walk 11 || for one to two hours in an eight-hour workday; would frequently have pain, 12 || fatigue, or other symptoms severe enough to interfere with attention and 13 || concentration; and would be likely to be absent from work more than three times a 14 || month because of her impairments or treatments. Jd. at 567-71. On August 12, 15 | 2017, Dr. Wells opined plaintiff would not be able to work full-time in any 16 | competitive work environment, but would be able to work part-time in an 17 || environment where she can change her position frequently from sitting to standing 18 and have periods of walking and stretching. Id. at 942-44. 19 Brittany Bell, PA-C 20 Brittany Bell, a physician’s assistant at Central Coast Family Health, saw 21 || plaintiff from March to August 2017 for her pain. Jd. at 868-901. Plaintiff 22 || reported medication did not ease her pain and one medication — cyclobenzaprine — 23 || did help but she did not want to take it while breastfeeding. See, e.g., id. at 871-72. 24 || Plaintiff was referred for a pelvic and abdominal ultrasound for her abdominal 25 || pain, as well as blood testing. Id. at 886-90, 945-57, 972-77. The ultrasound 26 || concluded that “no explanation for symptoms [was] demonstrated.” Jd. at 889. On 27 || August 29, 2017, PA-C Bell opined plaintiff was disabled. Jd. at 981-82. 28 1 R.N. Linda Mainhart 2 Linda Sleeter Mainhart, an R.N., treated plaintiff for persistent anxiety and 3 || chronic pain in 2012 and 2013. Id. at 546-53, 595-98. The treatment provided 4 || included education on chronic pain cycles and relaxation techniques such as 5 || meditation, mindfulness, deep breathing, imagery, walking, yoga, and using 6 || recorded meditations. Id. at 546-47. R.N. Mainhart noted plaintiff was too fearful 7 || to take medication prescribed by Dr. Dunlop, and opined on August 6, 2014 that 8 || plaintiff could not maintain a job in her present state. Jd. R.N. Mainhart also noted 9 || that she had not seen plaintiff in-person after 2013, and only spoke to her on the 10 | phone in 2014. Jd. 11 Other Medical Treatment 12 Plaintiff received physical therapy treatment from various medical providers 13 || from May 2014 to June 2016. Id. at 501-24, 800-34, 848-51, 856-62, 902-31. 14 || Plaintiff was admitted to the emergency room at Arroyo Grande Community 15 || Hospital on August 4, 2017 complaining of chronic pain and was discharged later 16 || that day with prescriptions for anxiety and pain medication. /d. at 932-35. 17 || Plaintiff was seen by a physician at Pacific Central Coast Health Centers on 18 August 8, 2017, and referred to specialists for her PTSD and complex regional pain 19 || syndrome. Jd. at 936-41. Plaintiff was also treated by Dr. Thomas Rosplock, a 20 || chiropractor, from August 2016 to August 2017. Id. at 960-71. 21 Plaintiff received acupuncture and other naturopathic treatments from 22 || various medical providers from June 2012 to February 2017 (id. at 320-42, 436-54, 23 || 791-95, 863-67, 978-80), as well as marriage and family counseling from October 24 || 2016 to August 2017 (id. at 958-59). 25 Various medical providers at the Center for Pain and Supportive Care treated 26 || plaintiff from February 2012 to February 2016 for her pain. Id. at 607-790. 27 || Plaintiff was diagnosed with complex regional pain syndrome, myositis, 28 1 || radiculopathy in the thoracolumbar region, thoracic or lumbosacral neuritis, and 2 || insomnia, and was prescribed medication, physical therapy, and exercise. Id. No 3 || opinion was provided on plaintiffs functional limitations. 4 b. Examining Physicians 5 Dr. Lucia McPhee?’ 6 Dr. Lucia McPhee, a physiatrist, evaluated plaintiff on August 12, 2014 for a 7 || state disability claim, and opined plaintiff could: lift or carry 20 pounds 8 || occasionally and 10 pounds frequently; stand or walk for at least two hours but less 9 || than six hours in an eight-hour day; sit for six to eight hours in an eight-hour day; 10 || occasionally climb, stoop, kneel, crouch, crawl, and reach overhead; frequently 11 || handle, finger, and reach; and had no limitations in feeling or environmental 12 || restrictions. Id. at 554-59. Dr. McPhee also noted that plaintiff had been 13 || prescribed Tylenol and Flexeril but had stopped these medications during her 2014 14 pregnancy. Id. at 555. 15 Dr. Janeen DeMarte 16 Dr. Janeen DeMarte conducted a consultative psychiatric examination of 17 plaintiff on July 19, 2014. 7d. at 525-31. Plaintiff alleged she suffered from 18 || chronic pain syndrome, PTSD, anxiety, depression, and back injury. Jd. at 525. 19 | Dr. DeMarte diagnosed plaintiff with PTSD, but noted that “her level of 20 || functioning does not appear to be drastically impacted with this disorder” and that 21 || plaintiff's pain was “her biggest barrier.” Jd. at 529. Dr. DeMarte opined plaintiff 22 || did not have any impairment in the following areas: understanding and memory; 23 || sustained concentration and persistence; social interaction; and adapting to change. 24 |i Id. at 530. 25 26, © > Although the ALJ refers to the opinion of Dr. Neil McPhee (AR at 23) — and other agency records do the same (see, e.g., id. at 128, 144) — the exhibit the ALJ 28 || cites to, Exhibit 17F, contains the opinion of Dr. Lucia McPhee. 10 1 c. State Agency Physicians 2 State agency physician Dr. Nadine Keer and state agency psychologist Dr. 3 || David Yandell evaluated and diagnosed plaintiff with severe spine disorder and 4 || severe affective disorder. Jd. at 134. Drs. Keer and Yandell opined plaintiff had 5 || no restriction of activities of daily living, difficulties in maintaining social 6 || functioning, or difficulties in maintaining concentration, persistence, or pace, and 7 || found insufficient evidence of repeated episodes of decompensation of extended 8 || duration. /d. at 134. They opined plaintiff could: lift or carry up to 20 pounds 9 || occasionally and 10 pounds frequently; sit, stand, or walk for about six hours in an 10 || eight-hour workday; and occasionally climb ramps or stairs, stoop, kneel, crouch, 11 | and crawl. /d. at 136-37. Drs. Keer and Yandell further opined plaintiff was 12 || precluded from climbing ladders, ropes, or scaffolds. Jd. at 137. 13 State agency physician Dr. Thomas Disney and state agency psychologist 14 || Dr. Mary Downs evaluated and diagnosed plaintiff with severe spine disorder, non- 15 | severe affective disorder, and non-severe anxiety disorder. /d. at 149. Drs. Disney 16 and Downs opined plaintiff had mild restrictions in activities of daily living and 17 || difficulties in maintaining concentration, persistence, or pace, and no difficulties in 18 || maintaining social functioning and repeated episodes of decompensation of 19 || extended duration. Jd. at 149-50. Drs. Disney and Downs opined plaintiff could: 20 lift or carry up to 20 pounds occasionally and 10 pounds frequently; sit, stand, or 21 || walk for about six hours in an eight-hour workday; and occasionally stoop, kneel, 22 || crouch, crawl, and climb ramps and stairs; but could never climb ladders, ropes, or 23 || scaffolds. Id. at 152-53. 24 2. The ALJ’s Findings 25 In reaching his physical RFC determination, the ALJ did not expressly state 26 || which opinions he gave the most weight, but his discussion suggests he gave the 27 || greatest weight to the opinions of the state agency physicians because he adopted 28 11 1 || their opinions in their entirety, apart from an additional limitation the ALJ imposed 2 || for plaintiff's environmental limitations. See id. at 19,24. The ALJ also gave 3 || weight to the findings of Dr. DeMarte, Dr. McPhee, and medical providers 4 | including Dr. Lisa Stearns at the Center for Pain and Supportive Care, all of whose 5 || findings the ALJ explicitly found “persuasive” or “convincing.” Jd. at 23-24. The 6 || ALJ rejected the opinion of R.N. Mainhart, and found the opinions of Dr. Dunlop 7 || and Dr. Wells “not persuasive” or “not convincing.” Jd. at 22. 8 The ALJ gave one reasons for rejecting Dr. Dunlop’s opinion as to 9 | plaintiff's physical limitations, that Dr. Dunlop concluded plaintiff had poor 10 || functioning and could not perform even sedentary work, but his physical 11 | examination findings were unremarkable and did not contain significant objective 12 || findings that would have supported such a conclusion. Jd. The ALJ gave multiple 13 || reasons for rejecting Dr. Dunlop’s opinion as to plaintiff's mental limitations: (1) 14 | Dr. Dunlop opined on plaintiff's mental disorders but is not a psychologist or 15 || psychiatrist; (2) Dr. Dunlop did not report any substantial mental health findings; 16 |] (3) plaintiff denied any disabling mental disorder at the hearing; and (4) no medical 17 || source reported significant mental health findings, and there is no evidence in the 18 || record of significant mental health treatment. Id. 19 The ALJ determined plaintiff suffered from severe physical impairments, 20 |] namely, a history of third degree burn injuries, status post multiple reconstructive 21 | surgeries, and residual chronic pain syndrome due to nerve damage. AR at 18. 22 || But he did not accept the functional limitations opined by Dr. Dunlop because his 23 || physical examination findings were unremarkable and there were no significant 24 || objective findings that supported his conclusions. Jd. at 22. Dr. Dunlop largely 25 || acknowledged this himself, noting his laboratory findings were normal, but “there 26 |i are really no labs that can identify pain syndromes, depression, PTSD, and IBS.” 27 || Id. at 540. He later noted that while “[t]here are no labs to evaluation these 28 12 1 | diagnoses,” plaintiff did have “12/18 tender points necessary to diagnose 2 || fibromyalgia.” Jd. at 836. 3 The Commissioner has recognized that some impairments do not manifest in 4 || a standard way and cannot easily be diagnosed or evaluated using standard 5 || diagnostic tools. Complex regional pain syndrome is such an impairment. Social 6 || Security guidance on Reflex Sympathetic Dystrophy Syndrome (“RSDS”) and 7 || Complex Regional Pain Syndrome (“CRPS”) explains: 8 RSDS/CRPS is a chronic pain syndrome . .. . It may be noted in the 9 treatment records that these signs are not present continuously, or the signs 10 may be present at one examination and not appear at another. Transient 11 findings are characteristic of RSDS/CRPS . . . . It should be noted that 12 conflicting evidence in the medical record is not unusual in cases of RSDS 13 due to the transitory nature of its objective findings and the complicated 14 diagnostic process involved. Clarification of any such conflicts in the 15 medical evidence should be sought first from the individual’s treating or 16 other medical sources. 17 || Social Security Ruling (“SSR’’) 03-02p. 18 Where, as here, plaintiff was diagnosed with complex regional pain 19 | syndrome and chronic pain by multiple medical providers, the ALJ erred by 20 || discounting Dr. Dunlop’s opinion on the sole ground that his physical examination 21 || findings were unremarkable and did not contain any other significant objective 22 || findings. See Hunt v. Astrue, 2009 WL 1519543, at *5 (C.D. Cal. May 29, 2009) 23 || (noting that “RSDS/CRPS is a disease diagnosed primarily based on subjective 24 || complaints” and may not necessarily be supported by evidence such as x-rays or 25 || laboratory tests). 26 Contrary to defendant’s argument, the ALJ gave no other reason to reject Dr. 27 || Dunlop’s opinion as to plaintiff's physical functional limitations. Although the 28 13 1 || ALJ characterized Dr. Dunlop’s treatment of plaintiff as conservative (see AR at 2 || 21), this was not a reason the ALJ gave for finding Dr. Dunlop’s conclusions 3 || unpersuasive. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review 4 || only the reasons provided by the ALJ in the disability determination and may not 5 || affirm the ALJ on a ground upon which he did not rely.” (citation omitted)). And 6 || in any event, as discussed below, this was not a legitimate reason to discount Dr. 7 || Dunlop’s opinion in any event. Likewise, the ALJ did not cite plaintiffs activities 8 || or any other basis for rejecting Dr. Dunlop’s opinion as to plaintiff's physical 9 || limitations. The ALJ gave only one reason to reject Dr. Dunlop’s opinion as to 10 } plaintiff's physical limitations, and that reason was not specific and legitimate. 11 As to plaintiffs mental limitations, the ALJ gave several reasons to discount 12 | Dr. Dunlop’s opinion. Dr. Dunlop opined plaintiff suffered from depression and 13 || PTSD, and that plaintiff had poor concentration and difficulty adapting to her 14 || environment in part due to these conditions. Id. at 538-44, 601, 835-40. Dr. 15 Dunlop also opined plaintiff's depression and PTSD contributed to her physical 16 | symptoms and limitations. Jd. 17 The first reason the ALJ gave to reject this opinion was Dr. Dunlop’s lack of 18 || expertise in psychology or psychiatry. Because Dr. Dunlop was plaintiff's treating 19 || physician, the ALJ must consider his opinion regardless of speciality. See 20 20 || C.F.R. §§ 404.1527(b)-(c), 416.927(b)-(c); Lester, 81 F.3d at 830. Nevertheless, 21 || the ALJ may give greater weight to the opinion of a specialist than to the opinion 22 || of anon-specialist. See Orn, 495 F.3d at 631 (“Additional factors relevant to 23 || evaluating any medical opinion... include . . . the specialty of the physician 24 || providing the opinion.”); Reed v. Massanari, 270 F.3d 838, 845 (9th Cir. 2001). 25 | The fact that Dr. Dunlop, a family physician, is not a specialist in psychology or 26 || psychiatry was a valid basis for giving his opinion less weight. 27 The other reasons the ALJ gave for rejecting Dr. Dunlop’s opinion as to 28 14 1 || plaintiff's mental limitations — Dr. Dunlop and did not report any substantial 2 || mental health findings, plaintiff denied any disabling mental disorder at the 3 || hearing, no other medical source reported significant mental health findings, and 4 || there is no evidence in the record of significant mental health treatment — are 5 || related. In essence, Dr. Dunlop’s findings were not supported by the record, 6 || including his own treatment records. Dr. Dunlop’s treatment records include no 7 || findings that would serve as the basis for his diagnoses of depression and PTSD. 8 || See, e.g., AR at 602, 604, 841 (finding plaintiff easily tearful but otherwise with 9 || normal or intact insight, judgment, memory, mood, and affect). It is not entirely 10 || fair to say, as the ALJ did, that plaintiff denied any disabling mental disorder at the 11 || hearing; rather, she testified her mental health problem “comes and goes,” and was 12 || worse when she was working. Id. at 97. Nonetheless, her testimony emphasized 13 | that her pain was the focus of her problems. Jd. at 94-98. Likewise, as recounted 14 | above, although plaintiff received some limited treatment for anxiety such as 15 || learning relaxation techniques, this was largely related to her chronic pain, and not 16 || significant mental health treatment. Dr. DeMarte diagnosed plaintiff with PTSD, 17 || but found it did not impact her functioning. Jd. at 529-30. 18 Accordingly, the ALJ provided specific and legitimate reasons supported by 19 || substantial evidence for rejecting Dr. Dunlop’s opinion on plaintiff's mental 20 || impairments. But the ALJ did not provide a specific and legitimate reason for 21 || rejecting Dr. Dunlop’s opinion on plaintiff's physical impairments. The ALJ Failed to Properly Consider Plaintiff's Subjective Complaints 23 Plaintiff also argues the ALJ failed to provide clear and convincing reasons 24 || to discount her subjective symptom testimony. P. Mem. at 17-21. 25 The ALJ must clearly articulate specific reasons for the weight given to a 26 || claimant’s alleged symptoms, supported by the record. SSR 16-3p. To determine 27 || whether testimony concerning symptoms is credible, the ALJ engages in a two-step 28 15 1 || analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the 2 || ALJ must determine whether a claimant produced objective medical evidence of an 3 || underlying impairment “‘which could reasonably be expected to produce the pain 4 | or other symptoms alleged.’” Jd. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 5 | 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 6 || malingering, an “ALJ can reject the claimant’s testimony about the severity of her 7 || symptoms only by offering specific, clear and convincing reasons for doing so.” 8 || Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 9 || The ALJ may consider several factors in weighing a claimant’s testimony, 10 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 11 }| reputation for lying; (2) the failure to seek treatment or follow a prescribed course 12 || of treatment; and (3) a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 13 || 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 14 At the first step, the ALJ found that plaintiff's medically determinable 15 || impairments could reasonably be expected to cause the symptoms alleged. AR at 16 | 25. At the second step, because the ALJ did not find any evidence of malingering, 17 | the ALJ was required to provide clear and convincing reasons for discounting 18 || plaintiff's testimony. Here, the ALJ discounted plaintiff's testimony because: (1) 19 || her allegations were not supported by the “mild medical evidence”; and (2) the 20 || extent of plaintiffs activities since the alleged onset date were inconsistent with 21 | her subjective symptom testimony. /d. at 20. 22 The lack of supporting objective medical evidence is a factor that may be 23 || considered when evaluating the credibility of a claimant’s subjective complaints. 24 || See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative 25 || objective medicine may be one factor in evaluating credibility); Bunnell, 947 F.2d 26 || at 345 (an ALJ “may not reject a claimant’s subjective complaints based solely on 27 || a lack of objective medical evidence to fully corroborate the alleged severity of 28 16 1 || pain”). But as discussed above, because plaintiff suffers from chronic pain that 2 || may not be evident from laboratory tests or other clinical findings, it was error for 3 || the ALJ to discount plaintiff's subjective symptom testimony because of the lack 4 || of significant medical findings. See Hunt, 2009 WL 1519543, at *5-6 (legal error 5 || where an ALJ relied on an absence of objective medical findings as a basis for 6 || discrediting plaintiffs testimony to the pain caused by her complex regional pain 7 || syndrome). 8 The ALJ’s reference to “mild medical evidence” is somewhat vague, and 9 || arguably could be read to include his later references to plaintiff's conservative 10 || treatment. “[E]vidence of ‘conservative treatment’ is sufficient to discount a 11 claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 12 || F.3d 742, 751 (9th Cir. 2007) (citation omitted). As discussed above, plaintiff's 13 treatment was largely conservative, including chiropractic treatment, alternative 14 || medicine, and little in the way of narcotic or other prescription pain relief. See 15 | Tommasetti, 533 F.3d at 1040 (characterizing physical therapy and anti- 16 || inflammatories as conservative); Lane v. Colvin, 2013 WL 3449631, at *2 (C.D. 17 | Cal. Jul. 9, 2013) (chiropractic treatment is conservative). But plaintiff's treatment 18 || was extensive, and contrary to plaintiff's contention (see P. Mem. at 20), the ALJ 19 explicitly recognized that plaintiff tried multiple pain medications over the years 20 || with no relief, and also tried acupuncture, physical therapy, yoga, chiropractic 21 || manipulation, massage therapy, a TENS unit, and herbal supplements. AR at 21- 22 || 24. To the extent the ALJ’s reference to “mild medical evidence” encompassed 23 || this extensive treatment, it was not a clear and convincing reason to discount 24 | plaintiffs testimony. Although this treatment was largely conservative, defendant 25 || does not point to any less conservative treatment one would expect to see for 26 || someone with complex regional pain syndrome, apart from stronger pain 27 || medication. The lack of prescription pain medication would be a good basis to 28 17 1 || discount plaintiff's testimony were there no explanation for it, but there was. As 2 || recounted above, Dr. Dunlop explained the lack of prescription pain medication 3 || was due to plaintiff's poor prior experiences with such medications, including side 4 || effects and ineffectiveness. Jd. at 538, 544; see Carmickle, 533 F.3d at 1162 5 || (citing Orn, 495 F.3d at 638) (“[A]lthough a conservative course of treatment can 6 || undermine allegations of debilitating pain, such fact is not a proper basis for 7 || rejecting the claimant’s credibility where the claimant has a good reason for not 8 || seeking more aggressive treatment.”). 9 The second main reason the ALJ gave for discounting plaintiff's testimony 10 || was her activities of daily living. Plaintiff testified at the hearing that she suffers 11 || from constant pain that is widespread throughout her body, and that her limitations 12 || include being unable to do anything two to three days a month because of her pain, 13 || standing for more than 15 minutes without taking a break, and sitting for more than 14 || 10 minutes before having to change positions. Jd. at 94-101. Plaintiff also testified 15 } that she takes care of her two young children, goes grocery shopping, does light 16 || cleaning, cooks simple meals, goes out to eat approximately once a week, goes to 17 || the gym about two to three times per week, reads, rarely entertains friends, traveled 18 || to Europe for a month in 2013, and visited Portland and Arizona. Id. at 106-15. 19 Inconsistency between a claimant’s daily activities and alleged symptoms 20 || may be a clear and convincing reason for finding her less than fully credible. See 21 || Tommasetti, 533 F.3d at 1039. That plaintiff is capable of performing some 22 || household chores and taking care of her children was not a clear and convincing 23 || reason to find her testimony less credible, particularly given that plaintiff explained 24 || she modifies her activities to accommodate her pain, such as by limiting herself to 25 || preparing simple meals and doing light cleaning. Similarly, that plaintiff exercises 26 || to alleviate her pain, per the recommendation of her medical providers, was not a 27 || clear and convincing reason to find plaintiff’s testimony less credible. 28 18 1 Whether plaintiff's travel history was a valid basis for discounting the 2 || credibility of her symptom testimony presents a closer question. Plaintiff testified 3 || she traveled to Switzerland, Italy, and Hungary for a month in 2013, and that she 4 | also visited Portland when she and her husband were considering moving there. Jd. 5 || at 108-10. That a plaintiff is capable of going on vacation is not necessarily a clear 6 || and convincing basis for discounting the credibility of his testimony. See Wilson v. 7 || Comm’r, 303 Fed. Appx. 565, 566 (9th Cir. 2008) (evidence that plaintiff 8 || occasionally drove to Phoenix and took a vacation to Hawaii was not inconsistent 9 || with plaintiffs testimony because these activities were “sporadic and punctuated 10 || with rest”); but see Tommasetti, 533 F.3d at 1040 (plaintiff's ability to travel to 11 || Venezuela to care for her ailing sister for an extended period of time was a clear 12 || and convincing reason to discount the credibility of her testimony). Although 13 || plaintiff here traveled for an extended period of time in Europe, she testified that 14 || she had to arrive a week before the rest of her family so that she could recuperate, 15 || and also stayed at her friend’s home in Hungary afterward so that she could 16 || recuperate before traveling home. AR at 109-10. Plaintiffs international travel in 17 || 2013 was thus “sporadic and punctuated with rest,” much like the travel at issue in 18 Wilson. As for plaintiff's trip to Portland, plaintiff did not explain if she modified 19 || her activities to account for her pain, but stated that the reason for her trip was 20 || because she and her husband were considering moving there. This trip too is not 21 || indicative of regular travel or activities that would suggest plaintiffs abilities are 22 || greater than alleged. See Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) 23 || (the capacity to engage in periodic, restricted travel was not a clear and convincing 24 || reason to find plaintiffs testimony less credible). 25 Accordingly, the ALJ failed to cite a clear and convincing reason supported 26 || by substantial evidence to find plaintiff's subjective complaints less than fully 27 || credible. 28 19 1 V. 2 REMAND IS APPROPRIATE 3 The decision whether to remand for further proceedings or reverse and 4 || award benefits is within the discretion of the district court. McAllister v. Sullivan, 5 || 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 6 || discretion to direct an immediate award of benefits where: “(1) the record has been 7 || fully developed and further administrative proceedings would serve no useful 8 || purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 9 || evidence, whether claimant testimony or medical opinions; and (3) if the 10 | improperly discredited evidence were credited as true, the ALJ would be required 11 }| to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 12 || (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 13 || instructions to calculate and award benefits). But where there are outstanding 14 |] issues that must be resolved before a determination can be made, or it is not clear 15 || from the record that the ALJ would be required to find a plaintiff disabled if all the 16 || evidence were properly evaluated, remand for further proceedings is appropriate. 17 || See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 18 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 19 | further proceedings when, even though all conditions of the credit-as-true rule are 20 || satisfied, an evaluation of the record as a whole creates serious doubt that a 21 || claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 22 Here, there are outstanding issues to be resolved and remand is required. On 23 || remand, the ALJ shall reconsider Dr. Dunlop’s opinion concerning plaintiffs 24 || physical impairments, and either credit his opinion or provide specific and 25 || legitimate reasons supported by substantial evidence for rejecting it. The ALJ shall 26 || also reconsider plaintiffs testimony, and either credit her subjective complaints or 27 || provide clear and convincing reasons for rejecting them. The ALJ shall then 28 20 1 || reassess plaintiff's RFC, and proceed through steps four and five to determine what 2 || work, if any, plaintiff was capable of performing during the relevant period. 3 VI. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment shall be entered 6 || REVERSING the decision of the Commissioner denying benefits, and 7 || REMANDING the matter to the Commissioner for further administrative action 8 || consistent with this decision. 9 10 | DATED: May 19, 2020 11 12 SHERIPYM 3 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21