(SS) Vilavong v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 KHAMPHET VILAVONG, 10 Case No. 1:19-cv-00607-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) 15 16 _____________________________________/ 17 18 I. INTRODUCTION 19 20 On May 6, 2019, Plaintiff Khamphet Vilavong (“Plaintiff”) filed a complaint under 21 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 22 Security (the “Commissioner” or “Defendant”) denying his application for disability insurance 23 benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The matter is currently 24 before the Court on the parties’ briefs, which were submitted, without oral argument, to the 25 Honorable Sheila K. Oberto, United States Magistrate Judge.1 26 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 8, 9.) 1 2 On January 21, 2015, Plaintiff protectively filed an application for DIB payments, alleging 3 he became disabled on January 1, 2012 due to high blood pressure, diabetes, high cholesterol, 4 back pain, leg weakness, stomach infection, dizziness, loss of appetite, and trouble sleeping. 5 (Administrative Record (“AR”) 61, 146–49.) Plaintiff was born on December 5, 1954 and was 57 6 years old as of the alleged onset date. (See AR 61.) Plaintiff graduated college in his native 7 country of Laos, has past work experience as a machine repairer, and last worked full-time in 8 approximately 2011. (AR 25.) 9 A. Summary of Relevant Medical Evidence 10 1. Hing Luong, M.D. 11 On June 6, 2014, Plaintiff established with care with family care physician Hing Luong, 12 M.D., for treatment of diabetes. (AR 312–14.) At the initial appointment, Dr. Luong noted that 13 Plaintiff had type 2 diabetes mellitus “for unknown time” and was not on medication, and 14 prescribed medications for Plaintiff to take. (AR 312–13.) On August 4, 2014, Dr. Luong noted 15 that Plaintiff had “no fatigue” and was “not taking meds as prescribed.” (AR 311.) On February 16 27, 2015, Dr. Luong again noted that Plaintiff was “not taking” his medication and had “no acute 17 distress” related to his diabetes. (AR 310.) On March 2, 2015, Dr. Luong administered blood 18 tests to Plaintiff which showed high blood sugar levels. (AR 373.) On September 15, 2015 and 19 on February 1, 2016, Dr. Luong noted Plaintiff’s blood sugar levels were still high. (AR 360, 20 371.) 21 2. Maximo Parayno, M.D. 22 On November 2, 2015, Plaintiff established care with psychiatrist Maximo Parayno, M.D. 23 for treatment of his psychological issues. (AR 409.) Dr. Parayno assessed that Plaintiff had 24 blunted affect, poor memory, poor concentration and attention span, and poor judgment and 25 insight. (AR 409.) Plaintiff reported feeling angry, sleeping poorly, and having recurrent 26 nightmares. (AR 409.) Dr. Parayno noted that Plaintiff did not know his own phone number and 27 routinely misplaces and loses important items like his car keys and identification. (AR 409.) Dr. 28 Parayno prescribed psychotropic medications to manage Plaintiff’s condition. (AR 409.) On 1 December 28, 2015, and February 22, 2016, Dr. Parayno again noted that Plaintiff had blunted 2 affect, poor memory, poor concentration and attention span, and poor judgment and insight. (AR 3 407–08.) On April 18, 2016, Plaintiff reported that he continued to have insomnia and recurrent 4 nightmares. (AR 406.) Plaintiff saw Dr. Parayno for further appointments on June 27, 2016, 5 August 22, 2016, February 8, 2017, June 5, 2017, July 31, 2017, October 16, 2017, November 27, 6 2017, and January 8, 2018, all with similar observations that Plaintiff continued to struggle with 7 his insomnia, memory, concentration, judgment, and other psychological issues. (See AR 398– 8 405.) 9 On August 22, 2016, Dr. Parayno submitted a physical medical source statement and a 10 mental medical source statement on behalf of Plaintiff. (AR 343–49.) Dr. Parayno stated that he 11 saw Plaintiff monthly from November 2015 until the date of the statement. (AR 343.) Dr. 12 Parayno diagnosed Plaintiff with severe, recurrent PTSD and major depressive disorder. (AR 13 343.) Dr. Parayno described Plaintiff’s symptoms as depression, anxiety, poor memory, 14 concentration and attention, poor sleep, recurrent nightmares and “flash backs.” (AR 343.) Dr. 15 Parayno opined that Plaintiff’s depression, anxiety, and nightmares affect his physical condition. 16 (AR 343.) Dr. Parayno opined that Plaintiff would be off task about 10% of the time, was capable 17 of only low stress work, could lift 10 pounds occasionally, never twist or climb ladders, rarely 18 stoop or crouch, and occasionally climb stairs, sit for 30 minutes, stand for one hour, needs 19 frequent breaks due to chronic fatigue, and would be absent from work two days per month. (AR 20 344–46.) 21 As to Dr. Parayno’s mental medical source statement, he again diagnosed Plaintiff with 22 severe, recurrent PTSD and major depressive disorder and described Plaintiff’s symptoms as 23 depression, anxiety, poor memory, concentration and attention, poor sleep, recurrent nightmares 24 and “flash backs.” (AR 348.) Dr. Parayno also opined that Plaintiff would be absent from work 25 about two days per month due to his mental impairments. (AR 349.) Dr. Parayno opined that 26 Plaintiff had limitations that would preclude performance for 15% or more of the day in 27 completing a normal workday and workweek without interruptions from psychologically based 28 symptoms, dealing with normal work stress, and traveling in unfamiliar places, and limitations 1 that would preclude performance for 10% or more of the day in all other functional areas. (AR 2 348–49.) 3 3. Roger Wagner, M.D. 4 On August 30, 2017, Plaintiff underwent a consultative examination with internist Roger 5 Wagner, M.D. (AR 337–41.) Dr. Wagner noted Plaintiff’s chief complaints as diabetes mellitus 6 type 2 and low back pain. (AR 337.) Dr. Wagner noted Plaintiff was currently prescribed 7 Metformin, insulin, Apidra, Meclizine, Lovastatin, Aspirin, and Enalopril. (AR 338.) Dr. Wagner 8 opined Plaintiff could stand and walk up to six hours, had no sitting limitation, could carry 50 9 pounds occasionally, 25 pounds frequently, and 10 pounds continuously, could frequently climb 10 stairs and ramps, stoop and crouch, and could occasionally climb ladders and scaffolds. (AR 340– 11 41.) 12 4. State Agency Physicians 13 On May 6, 2015, A. Nasrabedi, M.D., a Disability Determinations Service medical 14 consultant, found Plaintiff’s physical impairments non severe. (AR 53–59.) Upon 15 reconsideration, on September 20, 2015, another Disability Determinations Service medical 16 consultant, B. Young, M.D., affirmed Dr. Nasrabedi’s findings as to Plaintiff’s impairments. (AR 17 61–69.) 18 B. Administrative Proceedings 19 The Commissioner denied Plaintiff’s application for benefits initially on May 7, 2015, 20 and again on reconsideration on September 21, 2015. (AR 60, 70–74, 77–81.) On November 21 19, 2015, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 84– 22 85.) 23 On February 28, 2018, Plaintiff appeared with counsel and testified before an ALJ as to 24 his alleged disabling conditions, with the assistance of a Laotian interpreter. (AR 32–51.) 25 Plaintiff testified he was unable to work because of low back pain, diabetes, leg weakness, 26 sleeping problems, and forgetfulness. (AR 39–40.) Plaintiff stated that he is on insulin for the 27 diabetes, and he gets dizzy from the diabetes every day. (AR 40–41.) Plaintiff testified that he 28 needs to lay down at least twice a day for an hour each time. (AR 42.) Plaintiff stated that he 1 goes to see Dr. Parayno for his sleeping problems because he has nightmares and then cannot fall 2 back asleep. (AR 42–43.) Plaintiff stated he is prescribed sleeping pills and pain pills. (AR 44.) 3 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a 4 machine repairer, Dictionary of Occupational Titles (DOT) code 638.281-014, which was medium 5 to heavy work with a specific vocational preparation (SVP)2 of 7. (AR 49.) The ALJ asked the 6 VE to consider a person of Plaintiff’s age, education, and with his work background. (AR 49.) 7 The VE was also to assume this person was able to lift and carry 25 pounds frequently and 50 8 pounds occasionally, stand, walk, and sit for 6 hours out of an 8-hour workday, never climb 9 ladders, ropes and scaffolds, must rest every 2 hours for 15 minutes, can perform non-complex, 10 routine tasks in a static work environment, can have occasional contact with the public, occasional 11 tasks that require teamwork, and can have no exposure to work hazards. (AR 49.) The VE 12 testified that such a person not perform Plaintiff’s past relevant work, but could perform the job 13 of industrial cleaner, DOT code 381.687-013, which is medium work with a SVP of 2 and 13,700 14 jobs available; furnace cleaner, DOT code 891.687-014, which is medium work with a SVP of 2 15 and 91,000 jobs; and automobile detailer, DOT code 915.687-034, which is medium work with a 16 SVP of 2 and 53,000 jobs. (AR 50.) 17 In a second hypothetical, the ALJ asked the VE to consider an individual with the 18 limitations described in the first hypothetical except that the person had limited understanding of 19 English. (AR 50.) The VE testified that such a person could perform the jobs of industrial 20 cleaner, automobile detailer, and kitchen helper, DOT code 318.687-010, which is medium work 21 with a SVP of 2 and 271,900 jobs available. (AR 50.) In a third hypothetical, the ALJ asked the 22 VE to consider an individual with the limitations described in the first two hypotheticals except 23 that would only be productive six hours of the day because of chronic pain and inability to 24 concentrate. (AR 50.) The VE testified that the person could not perform any work. (AR 51.) 25 Plaintiff’s counsel asked the VE a fourth hypothetical, which consisted of an individual with the 26 2 Specific vocational preparation (SVP), as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the 1 limitations in the third hypothetical but that would also miss work four hours a week. (AR 51.) 2 The VE testified that that person could not perform any work. (AR 51.) 3 C. The ALJ’s Decision 4 In a decision dated May 25, 2018, the ALJ found that Plaintiff was not disabled, as defined 5 by the Act. (AR 15–27.) The ALJ conducted the five-step disability analysis set forth in 20 6 C.F.R. § 404.1520. (AR 17–27.) The ALJ decided that Plaintiff had not engaged in substantial 7 gainful activity since January 1, 2012, the alleged onset date (step one). (AR 17.) At step two, the 8 ALJ found that Plaintiff had the following severe impairments: diabetes; depression; and post- 9 traumatic stress disorder (“PTSD”). (AR 17.) The ALJ found that Plaintiff did not have an 10 impairment or combination of impairments that met or medically equaled one of the Listings (step 11 three). (AR 17.) 12 The ALJ assessed Plaintiff’s RFC and applied the RFC assessment at steps four and five. 13 See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your 14 residual functional capacity … We use this residual functional capacity assessment at both step 15 four and step five when we evaluate your claim at these steps.”). The ALJ determined that 16 Plaintiff retained the RFC: 17 to perform medium work as defined in 20 CFR 404.1567(c) except lifting and carrying no more than 24 pounds frequently and 50 pounds occasionally; pushing 18 and pulling within those weight limits; standing, and walking and sitting no more 19 than six out of eight hours; no ladders, ropes or scaffolds; the ability to rest every two hours for fifteen minutes falling within the normal breaks and lunch periods; 20 non-complex routine tasks in a static work environment; occasional contact with the public and occasional tasks that would require teamwork; no work hazards, 21 such as working at unprotected heights, operating dangerous or fast machinery, or driving commercial vehicles; and limited English, understanding, and no writing or 22 reading more than very simple words. 23 (AR 19.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 24 expected to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not 25 entirely consistent with the medical evidence and other evidence in the record[.]” (AR 20–21.) At 26 step five, the ALJ found that Plaintiff could not perform his past relevant work, but there were 27 other jobs that existed in significant numbers in the national economy that Plaintiff could perform. 28 1 (AR 25–26.) 2 Plaintiff sought review of this decision before the Appeals Council, which denied review 3 on March 1, 2019. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 4 Commissioner. 20 C.F.R. § 404.981. 5 III. LEGAL STANDARD 6 A. Applicable Law 7 An individual is considered “disabled” for purposes of disability benefits if he or she is 8 unable “to engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which has lasted or can 10 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 11 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 12 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 13 previous work but cannot, considering [her] age, education, and work experience, engage in any 14 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 15 “The Social Security Regulations set out a five-step sequential process for determining 16 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 17 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has 18 provided the following description of the sequential evaluation analysis: 19 In step one, the ALJ determines whether a claimant is currently engaged in substantial 20 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and 21 evaluates whether the claimant has a medically severe impairment or combination of impairments. 22 If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the 23 impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. 24 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 25 proceeds to step four and assesses whether the claimant is capable of performing her past relevant 26 work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines 27 whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the 28 national economy. If so, the claimant is not disabled. If not, the claimant is disabled. Burch v. 1 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not 2 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 3 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 4 “The claimant carries the initial burden of proving a disability in steps one through four of 5 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 6 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 7 shifts to the Commissioner in step five to show that the claimant can perform other substantial 8 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 9 B. Scope of Review 10 “This court may set aside the Commissioner’s denial of disability insurance benefits [only] 11 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 12 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 14 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, 15 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 16 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 17 “This is a highly deferential standard of review …” Valentine v. Comm’r of Soc. Sec. 18 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 19 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 20 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 21 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 22 F.3d at 1156 (citations omitted) (“If the evidence is susceptible to more than one rational 23 interpretation, the court may not substitute its judgment for that of the Commissioner.”). 24 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 25 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 26 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 27 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 28 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 1 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 3 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 4 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 5 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 6 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 7 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 8 IV. DISCUSSION Plaintiff contends that the ALJ erred (1) in her evaluation of Dr. Parayno’s opinion and (2) 9 10 in relying on VE testimony at step five that Plaintiff could perform jobs which require English 11 literacy at a level beyond Plaintiff’s capability. (See Doc. 16 at 2.) For the reasons stated below, 12 the Court agrees with Plaintiff that the ALJ erred in her evaluation of Dr. Parayno’s opinion 13 regarding Plaintiff’s mental functional limitations, and will remand the case on that basis. 14 A. The ALJ Erred in Her Evaluation of Dr. Parayno’s Opinion Regarding Plaintiff’s 15 Mental Limitations. 16 1. Legal Standard 17 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. § 18 404.1527(b) and (c) (applying to claims filed before March 27, 2017); Mora v. Berryhill, No. 19 1:16–cv–01279–SKO, 2018 WL 636923, at *10 (E.D. Cal. Jan. 31, 2018). In doing so, 20 21 the ALJ “cannot reject [medical] evidence for no reason or the wrong reason.” Mora, 2018 WL 22 636923, at *10. 23 Cases in this circuit distinguish between three types of medical opinions: (1) those given 24 by a physician who treated the claimant (treating physician); (2) those given by a physician who 25 examined but did not treat the claimant (examining physician); and (3) those given by a physician 26 who neither examined nor treated the claimant (non-examining physician). Fatheree v. Colvin, 27 No. 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015). “Generally, a 28 1 2 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 3 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see also Orn v. Astrue, 495 F.3d 625, 631 4 (9th Cir. 2007) (“By rule, the Social Security Administration favors the opinion of a treating 5 physician over non-treating physicians.” (citing 20 C.F.R. § 404.1527)). The opinions of treating 6 physicians “are given greater weight than the opinions of other physicians” because “treating 7 physicians are employed to cure and thus have a greater opportunity to know and observe the 8 patient as an individual.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations 9 10 omitted). 11 To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering 12 its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical 13 findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or 14 examining medical professional only for “clear and convincing” reasons. Lester v. Chater, 81 15 F.3d 821, 830–31 (9th Cir. 1995). In contrast, a contradicted opinion of a treating or examining 16 professional may be rejected for “specific and legitimate reasons that are supported by substantial 17 18 evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 F.3d at 19 1198); see also Lester, 81 F.3d at 830–31. “The ALJ can meet this burden by setting out a 20 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 21 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 22 1989). While a treating professional’s opinion generally is accorded superior weight, if it is 23 contradicted by a supported examining professional’s opinion (supported by different independent 24 25 clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 26 Cir. 1995) (citing Magallanes, 881 F.2d at 751). The regulations require the ALJ to weigh the 27 contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 28 1 2 supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 3 (treating physician’s conclusory, minimally supported opinion rejected); see also Magallanes, 881 4 F.2d at 751. The opinion of a non-examining professional, by itself, is insufficient to reject the 5 opinion of a treating or examining professional. Lester, 81 F.3d at 831. 6 2. Analysis 7 Plaintiff alleges—and the record reflects—that Dr. Parayno was Plaintiff’s treating 8 psychiatrist. (See, e.g., AR 398–409.) “If . . . a treating [physician’s] opinion . . . is well- 9 supported by medically acceptable clinical and laboratory diagnostic techniques and is not 10 inconsistent with the other substantial evidence in [the] record, [the Commissioner] will give it 11 controlling weight.” 20 C.F.R. § 404.1527(c)(2); cf. Reddick, 157 F.3d at 725 (“Where the 12 treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for clear 13 and convincing reasons supported by substantial evidence in the record.” (citation omitted)). “If 14 there is ‘substantial evidence’ in the record contradicting the opinion of the treating physician, the 15 opinion of the treating physician is no longer entitled to ‘controlling weight.’” Orn, 495 F.3d at 16 632 (quoting 20 C.F.R. § 404.1527(d)(2)). 17 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 18 supported’ or because it is inconsistent with other substantial evidence in the record, the 19 [Commissioner] considers specified factors in determining the weight it will be given.” Id. at 631. 20 These factors include (1) the “[l]ength of the treatment relationship and the frequency of 21 examination;” (2) the “[n]ature and extent of the treatment relationship;” (3) the “[s]upportability” 22 of the opinion;” (4) the “[c]onsistency” of the opinion “with the record as a whole;” (5) whether 23 the opinion is from “a specialist about medical issues related to his or her area of specialty;” and 24 (6) “any other factors [the claimant] or others bring to [the ALJ’s] attention, or of which [the ALJ 25 is] aware, which tend to support or contradict the opinion.” 20 C.F.R. § 404.1527(c)(2)–(6). 26 27 3 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 28 the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 1 Further, “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the ALJ 2 may not reject this opinion without providing ‘specific and legitimate reasons’ supported by 3 substantial evidence in the record.” Reddick, 157 F.3d at 725 (quoting Lester, 81 F.3d at 830). 4 See also Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan v. Comm’r of Soc. 5 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “This can be done by setting out a detailed and 6 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 7 and making findings.” Id. (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see, 8 e.g., Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (“The ALJ need not accept the opinion 9 of any physician, including a treating physician, if that opinion is brief, conclusory, and 10 inadequately supported by clinical findings.” (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 11 F.3d 1219, 1228 (9th Cir. 2009))); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 12 Cir. 1999) (“Opinions of a nonexamining, testifying medical advisor may serve as substantial 13 evidence when they are supported by other evidence in the record and are consistent with it.” 14 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))); Matney on Behalf of Matney v. 15 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (noting that “inconsistencies and ambiguities” in a 16 treating physician’s opinion “represent specific and legitimate reasons for” rejecting the opinion). 17 “The ALJ must do more than offer his conclusions.” Reddick, 157 F.3d at 725. “He must set forth 18 his own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citing 19 Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 20 Dr. Parayno treated Plaintiff at least once a month from approximately November 2015 21 through at least January 2018. (See AR 343–49, 398–409.) As stated above, on August 22, 2016, 22 Dr. Parayno submitted a physical medical source statement and a mental medical source statement 23 on behalf of Plaintiff. (AR 343–49.) In the mental medical source statement, Dr. Parayno opined 24 that Plaintiff’s psychological impairments precluded performance for 15% or more of the day in 25 completing a normal workday and workweek without interruptions from psychologically based 26 symptoms, dealing with normal work stress, and traveling in unfamiliar places, and precluded 27 performance for 10% or more of the day in all other functional areas. (AR 348–49.) Dr. Parayno 28 also opined that Plaintiff’s mental limitations would cause him to be absent from work two days 1 per month. (AR 349.) 2 In weighing Dr. Parayno’s opinion as to Plaintiff’s mental limitations, after summarizing 3 Dr. Parayno’s findings, (see AR 24–25), the ALJ stated: 4 It should be noted that parts of the medical source statement were handwritten and 5 illegible; however, his opinion was inconsistent with the record as whole [sic]. For example, during a medical appointment in January 2015, where [Plaintiff] was 6 observed to be oriented to person, place and time, he had a normal mood and affect and his judgment and thought content were both normal. Therefore, the 7 undersigned gives little weight to the opinion of Dr. Parayno. 8 (AR 25.) 9 Although not explicitly stated by the ALJ, portions of Dr. Parayno’s opinion were 10 inconsistent with the opinions of the state agency physicians. (Compare AR 398–409 with AR 11 53–59, 61–69.) Thus, the ALJ was required to state “specific and legitimate” reasons, supported 12 13 by substantial evidence, for discounting Dr. Parayno’s opinion. Trevizo, 871 F.3d at 675 (citing 14 Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. 15 The Court finds the ALJ failed to offer “specific and legitimate” reasons for rejecting Dr. 16 Parayno’s opinion. The ALJ’s first offered reason—the alleged illegibility of Dr. Parayno’s 17 treatment notes—is insufficient. As an initial matter, the Court has reviewed Dr. Parayno’s 18 treatment notes and most of them are legible, (see AR 343–49, 398–409), and they are certainly 19 sufficiently legible for the ALJ to ascertain the medical basis for Dr. Parayno’s opinion. However, 20 21 even if the treatment notes were illegible, “where a ‘physician’s documentation is illegible and, 22 therefore, inadequate to allow for proper evaluation of medical evidence, the ambiguity triggers 23 the ALJ’s duty to develop the record.” Latrice M. v. Commissioner of Social Security, No. CV 19- 24 5377-KS, 2020 WL 1676380, at *11 (C.D. Cal. Apr. 6, 2020) (citing Burch, 400 F.3d at 679; 25 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). Thus, if the ALJ believed Dr. 26 Parayno’s treatment notes were too illegible to decipher, she had a duty to “recontact the treating 27 28 physician to determine the basis of his opinion.” Mansour v. Astrue, No. ED CV 07-851-PLA, 1 2 determines that Dr. Parayno’s treatment notes are too illegible to determine the basis of his 3 opinions, she should recontact Dr. Parayno to resolve any remaining questions. See 20 C.F.R. § 4 404.1519a(b)(4). 5 The ALJ’s second reason—that Dr. Parayno’s opinion is inconsistent with the medical 6 evidence—is also insufficient. The only specific treatment note the ALJ cited to support 7 discounting Dr. Parayno’s opinion was a single notation during a physical examination that 8 Plaintiff appeared “oriented to person, place, and time,” and had normal mood and affect. (AR 25) 9 10 (citing AR 267). However, the ALJ failed to discuss this single treatment note in contrast with the 11 many treatment notes showing that Plaintiff had blunted affect, poor memory, poor concentration 12 and attention span, and poor judgment and insight. (See, e.g., AR 409.) 13 An ALJ may properly discount a treating physician’s opinion that is inconsistent with the 14 medical record, including his own treatment notes. See Valentine, 574 F.3d at 692–93. However, 15 an ALJ may not consider only evidence that supports a non-disability determination and disregard 16 evidence that supports a finding of disability. See, e.g., Holohan, 246 F.3d at 1207 (finding that 17 18 “the ALJ’s specific reason for rejecting [a physician’s] medical opinion [was] not supported by 19 substantial evidence” because, in part, “the ALJ selectively relied on some entries in [the 20 plaintiff’s] records . . . and ignored the many others that indicated continued, severe impairment”); 21 see also Reddick, 157 F.3d at 722–23 (the ALJ may not “cherry pick” notes from the medical 22 record to support a particular conclusion, but rather must evaluate the entire record in its proper 23 context). Here, the ALJ “cherry pick[ed]” one note in the record, which was entered in the context 24 25 of an emergency room visit for Plaintiff’s physical diabetes symptoms, stating that Plaintiff was 26 oriented to person, place and time, while insufficiently contrasting that single note with the 27 multiple treatment notes stating that Plaintiff was functioning poorly in other areas. See id. Thus, 28 1 2 B. The ALJ’s Error Was Not Harmless 3 The Court now turns to the analysis of whether this error by the ALJ was harmless. The 4 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act 5 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. 6 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Garcia v. Comm’r of Soc. Sec., 768 7 F.3d 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies where the ALJ 8 errs by not discharging their duty to develop the record). As such, “the court will not reverse an 9 ALJ’s decision for harmless error.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 10 (citing Robbins, 466 F.3d at 885). 11 An error is harmless “where it is inconsequential to the ultimate nondisability 12 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of 13 Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if 14 the agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less 15 than ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 16 (2004)). “In other words, in each case [courts] look at the record as a whole to determine whether 17 the error alters the outcome of the case.” Molina, 674 F.3d at 1115. “[T]he nature of [the] 18 application” of the “harmless error analysis to social security cases” is “fact-intensive―‘no 19 presumptions operate’ and ‘[courts] must analyze harmlessness in light of the circumstances of the 20 case.’” March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121). 21 “[T]he burden of showing that an error is harmful normally falls upon the party attacking the 22 agency’s determination.” Shinseki, 556 U.S. at 409 (citations omitted). 23 Here, the Commissioner does not contend that any error by the ALJ in evaluating Dr. 24 Parayno’s opinion was harmless, and the record establishes that the ALJ’s error was not harmless. 25 If the ALJ had properly evaluated Dr. Parayno’s opinion and credited any part of it, including 26 appropriate limitations in the RFC, that may have changed the disability determination. This is 27 especially true here, where Dr. Parayno opined significant limitations, including that Plaintiff’s 28 mental impairments would result in him being absent from work at least two days per month. (See 1 AR 349.) Thus, the error was not “inconsequential to the ultimate nondisability determination,” 2 see Molina, 674 F.3d at 1115, and was not harmless. 3 C. The ALJ’s Error Warrants Remand for Further Proceedings 4 Plaintiff requests that if the Court reverses the ALJ’s decision, the Court remand the case 5 for further proceedings as opposed to awarding benefits. (Doc. 16 at 20–21.) The Court agrees 6 with Plaintiff that “additional proceedings are necessary in order to properly evaluate Dr. 7 8 Parayno’s medical opinion” and will remand the case to the Commissioner. (See id.) 9 Where the ALJ commits an error and that error is not harmless, the “ordinary … rule” is 10 “to remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 11 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 12 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 13 (citations omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the 14 ‘credit-as-true’ rule”). In determining whether to apply this exception to the “ordinary remand 15 16 rule,” the court must determine, in part, whether (1) “the record has been fully developed;” (2) 17 “there are outstanding issues that must be resolved before a determination of disability can be 18 made;” and (3) “further administrative proceedings would be useful.” Id. at 1101 (citations 19 omitted). As to the last inquiry, additional “[a]dministrative proceedings are generally useful 20 where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, 21 or the presentation of further evidence . . . may well prove enlightening in light of the passage of 22 23 time.” Id. (citations omitted). Ultimately, “[t]he decision whether to remand a case for additional 24 evidence or simply to award benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 25 (citation omitted). 26 Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 27 inapplicable because additional administrative proceedings would be useful. If the ALJ changes 28 1 2 limitations in the RFC. Conversely, there may be specific and legitimate reasons the ALJ can 3 offer for discounting the opinion. See, e.g., Vaughn v. Berryhill, 242 F. Supp. 3d 998, 1010 (E.D. 4 Cal. Mar. 17, 2017) (remanding case for further proceedings where the ALJ erred in her evaluation 5 of the medical opinions of plaintiff’s treating physicians, “for the ALJ to properly consider and 6 discuss the treating physicians’ opinions,” direct any “further medical evaluation . . . necessary,” 7 and re-formulate plaintiff’s RFC). Cf. Voisard v. Berryhill, No. 2:17-CV-1023-EFB, 2018 WL 8 4488474, at *5 (E.D. Cal. Sept. 19, 2018) (“That the ALJ failed to provide sufficient reasons for 9 10 discounting plaintiff’s subjective testimony in this instance does not compel a finding that he is 11 unable to do so.”). 12 Even if the ALJ decides to credit as true some or all of Dr. Parayno’s opinion and adjust 13 the RFC determination for Plaintiff, the ALJ may still conclude that Plaintiff is not disabled-- 14 either because he has the RFC to perform the requirements of his past relevant work or because he 15 has the RFC to perform the requirements of other work that exists in significant numbers in the 16 national economy. The ALJ may also elect to further develop the record, if deemed necessary, 17 18 and should further develop the record if she determines that Dr. Parayno’s opinion is illegible and 19 she cannot decipher the bases for his opinions. Further proceedings would therefore be useful to 20 allow the ALJ to resolve this “outstanding issue[]” before a proper disability determination can be 21 made. See Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). On 22 remand, the ALJ should reevaluate the opinions of Dr. Parayno, and address any necessary 23 changes to the RFC determination. The ALJ must also reevaluate her conclusions at Steps Four 24 25 and Five of the disability determination in light of any changes to Plaintiff’s RFC, and should 26 evaluate the alleged conflict between Plaintiff’s English-speaking capability “as assessed by the 27 ALJ and the language capability required by the jobs proffered by the vocational expert.” (See 28 1 2 D. The Court Declines to Determine Plaintiff’s Remaining Assertions of Error 3 As the Court finds that remand is appropriate for the ALJ to reconsider Dr. Parayno’s 4 opinion as to Plaintiff’s mental limitations, the Court does not determine Plaintiff’s additional 5 assertions of error regarding Dr. Parayno’s opinion as to Plaintiff’s physical limitations and the 6 alleged inconsistency between the ALJ’s finding regarding Plaintiff’s English-speaking capability 7 and the jobs offered by the VE. (See Doc. 16 at 16–21); cf. Newton v. Colvin, No. 2:13-cv-2458- 8 GEB-EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must be 9 10 remanded for further consideration of the medical evidence, the court declines to address 11 plaintiff’s remaining arguments”); Willmett ex rel. A.P. v. Astrue, No. 2:10-cv-01201 KJN, 2011 12 WL 3816284, at *1 (E.D. Cal. Aug. 25, 2011) (“Because this legal error warrants remanding this 13 matter for further proceedings, the undersigned does not reach the remainder of [the] plaintiff’s 14 arguments seeking reversal of the ALJ’s and Appeals Council’s decisions.”). 15 16 V. CONCLUSION AND ORDER 17 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 18 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for 19 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 20 judgment in favor of Plaintiff Khamphet Vilavong and against Defendant Andrew Saul, 21 Commissioner of Social Security. 22 IT IS SO ORDERED. 23 Sheila K. Oberto Dated: August 20, 2020 /s/ . 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28