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

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOANN BASTO, No. 2:18-CV-3140-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, see ECF Nos. 7 and 12, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment, see 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits. See ECF Nos. 18 23 and 19. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the matter will be remanded for further 15 proceedings. 16 17 I. THE DISABILITY EVALUATION PROCESS 18 To achieve uniformity of decisions, the Commissioner employs a five-step 19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. 20 §§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 21 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 22 not disabled and the claim is denied; 23 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 24 impairment; if not, the claimant is presumed not disabled and the claim is denied; 25 Step 3 If the claimant has one or more severe impairments, 26 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 27 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 28 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on December 1, 2015. See CAR 15.1 3 In the application, plaintiff claims disability began on November 2, 2015. See id. Plaintiff’s 4 claim was initially denied. Following denial of reconsideration, plaintiff requested an 5 administrative hearing, which was held on August 2, 2017, before Administrative Law Judge 6 (ALJ) Arthur Zeidman. In a December 20, 2017, decision, the ALJ concluded plaintiff is not 7 disabled based on the following relevant findings: 8 1. The claimant has the following severe impairment(s): degenerative disc disease of the lumbar spine; 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; 11 3. The claimant has the following residual functional capacity: the 12 claimant can perform light work; the claimant can push and pull ten pounds frequently and 20 pounds occasionally; the claimant 13 can balance, stoop, kneel, crouch, and crawl frequently; the claimant can work at unprotected heights occasionally; 14 4. Considering the claimant’s age, education, work experience, 15 residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy 16 that the claimant can perform. 17 See id. at 18-29. 18 After the Appeals Council declined review on October 26, 2018, this appeal followed. 19 20 III. DISCUSSION 21 In her opening brief, plaintiff argues: (1) the ALJ failed to properly evaluate 22 plaintiff’s headaches at Step 2; (2) the ALJ failed to include non-exertional limitations in his 23 residual functional capacity assessment; (3) the ALJ failed to provide adequate reasons for 24 finding plaintiff’s subjective statements and testimony not credible; (4) the ALJ failed to properly 25 evaluate the opinions of Drs. Sequeira and Chen; and (5) the ALJ’s residual functional capacity 26 determination is not supported by substantial evidence. 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on June 4, 28 2019. See ECF No. 15. 1 A. Headaches 2 To qualify for benefits, the plaintiff must have an impairment severe enough to 3 significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 4 404.1520(c), 416.920(c).2 In determining whether a claimant’s alleged impairment is sufficiently 5 severe to limit the ability to work, the Commissioner must consider the combined effect of all 6 impairments on the ability to function, without regard to whether each impairment alone would be 7 sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 8 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of 9 impairments, can only be found to be non-severe if the evidence establishes a slight abnormality 10 that has no more than a minimal effect on an individual’s ability to work. See Social Security 11 Ruling (SSR) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting 12 SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by 13 providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 14 C.F.R. §§ 404.1508, 416.908. The plaintiff’s own statement of symptoms alone is insufficient. 15 See id. 16 At Step 2, the ALJ determined plaintiff’s degenerative disc disease of the lumbar 17 spine is plaintiff’s only severe impairment. See CAR 18. The ALJ concluded plaintiff’s 18 headaches are not a medically determinable impairment and, as a result, did not conduct a 19 severity analysis. See id. Regarding plaintiff’s headaches, the ALJ stated: 20 . . .[T]he undersigned has determined that the claimant’s alleged migraine headaches are non- MDI [medically determinable impairment] because 21 they are not demonstrable by medically acceptable clinical or laboratory findings. A head CT was normal with “no evidence of acute intercranial 22 process” (5F/2). A treating provider, Thanh Tran M.D., characterized the claimant’s head CT as “unremarkable” (14F/2). An x-ray of the cervical 23 spine was unremarkable and only showed loss of lordosis with no disc degeneration or foraminal stenosis (5F/1). The undersigned places great 24 weight on an MRI of the claimant’s brain that showed “no acute 25 / / / 26 2 Basic work activities include: (1) walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; (3) understanding, 27 carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes 28 in a routine work setting. See 20 C.F.R. §§ 404.1521, 416.921. 1 intercranial pathology” (10F/1). As a result, the undersigned finds this condition not medically determinable. 2 CAR 18. 3 4 According to plaintiff, this determination is flawed because, contrary to the ALJ’s 5 finding, “Plaintiff’s migraine headaches have been diagnosed by a medical doctor which is an 6 acceptable medical source under the SSA regulations.” ECF No. 18, pg. 10. According to 7 plaintiff, Dr. Kuluva, a neurologist, diagnosed “Migraine equivalent” on December 30, 2015. See 8 id. (citing CAR 375). Plaintiff also notes that Dr. Tran also diagnosed “Headache” on March 5, 9 2016. See id. at 11 (citing CAR 290). Plaintiff states that Dr. Sequeira also noted “chronic 10 migraine” in support of his opinions. See id. (citing CAR 519-26). Finally, regarding the 11 negative diagnostic testing referenced by the ALJ, plaintiff states: The negative EEG and CT 12 scans the ALJ points to are a red herring – the lack of positive findings does not indicate a lack of 13 headache severity or that headache is incorrectly diagnosed.” Id. at 13. 14 Defendant argues any error was harmless. According to defendant: 15 At most, the ALJ’s evaluation of Plaintiff’s headaches presented a harmless error at step two. Step two is a de minimis screening tool to 16 determine whether to proceed to subsequent steps in the sequential disability analysis, including the RFC finding. As was the case here, if 17 there is a single medically determinable impairment that is severe at step two, the ALJ continues the analysis considering all symptoms (AR 20 18 [ALJ explaining that he “has considered all symptoms”]). Thus, in order to show reversible error, Plaintiff must prove that 19 migraines required greater functional limitation than the ALJ already accommodated in the RFC finding, which she does not do (Pl.’s Br. at 10). 20 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding that ALJ’s error at step two was harmless in light of the RFC analysis); Burch v. 21 Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (claimant failed to establish error at step two because she failed to identify any functional limitations). 22 ECF No. 19, pg. 4. 23 24 The Ninth Circuit has applied harmless error analysis in social security cases in a 25 number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050 26 (9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness 27 testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the 28 testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins 1 v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at 2 1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004), 3 the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s 4 testimony. Specifically, the court held: 5 However, in light of all the other reasons given by the ALJ for Batson’s lack of credibility and his residual functional capacity, and in light of the 6 objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ’s decision. Any error the ALJ may have 7 committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our 8 view harmless and does not negate the validity of the ALJ’s ultimate conclusion that Batson’s testimony was not credible. 9 Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)). 10 11 In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the 12 claimant’s age and education. The Ninth Circuit also considered harmless error in the context of 13 the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a 14 medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006). 15 The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d 16 1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court 17 stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility 18 finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless 19 error.” See id. at 1162. The court articulated the difference between harmless error standards set 20 forth in Stout and Batson as follows: 21 . . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether 22 the ALJ’s decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in 23 support of an adverse credibility determination, but that such error did not affect the ALJ’s decision, and therefore was harmless, because the ALJ’s 24 remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what 25 the ALJ would do if directed to reassess credibility on remand – we focused on whether the error impacted the validity of the ALJ’s decision. 26 Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that “in each case, the ALJ’s 27 error . . . was inconsequential to the ultimate nondisability determination.” 28 1 Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, in that case 2 the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine 3 whether the ALJ’s decision was adequately supported. 4 Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted). 5 Thus, where the ALJ’s errs in not providing any reasons supporting a particular 6 determination (i.e., by failing to consider lay witness testimony), the Stout standard applies and 7 the error is harmless if no reasonable ALJ could have reached a different conclusion had the error 8 not occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is 9 flawed (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either 10 legally insufficient or unsupported by the record), the Batson standard applies and any error is 11 harmless if it is inconsequential to the ultimate decision because the ALJ’s disability 12 determination nonetheless remains valid. 13 Here, the Court finds that the ALJ erred in determining plaintiff’s headache 14 impairment is not medically determinable. As plaintiff notes and the record supports, the 15 condition was diagnosed by several medical doctors, who constitute acceptable sources. 16 Defendant appears to concede the point. Because the ALJ provided an analysis regarding 17 plaintiff’s headache impairment, but that analysis was not based on substantial evidence, the 18 Court applies the Batson standard to determine whether the error is harmless. Under this 19 standard, the Court finds that it not. 20 Under the Batson standard, the ALJ’s error in finding plaintiff’s headaches not to 21 be a medically determinable impairment is only harmless if it is inconsequential to the ultimate 22 decision. According to defendant, the error is inconsequential because, even if headaches had 23 been found to be a medical determinable impairment, plaintiff failed to submit evidence showing 24 that impairment resulted in functional limitations. Given the lack of evidence of functional 25 limitations relating to headaches, defendant concludes the ALJ’s ultimate residual functional 26 capacity assessment – which did not include any limitations related to headaches – remains valid 27 despite the error. 28 / / / 1 The Court does not agree. Contrary to defendant’s contention, plaintiff did in fact 2 present evidence of functional limitations associated with headaches which would have at least 3 satisfied the de minimis severity standard at Step 2. Specifically, as the ALJ noted, Dr. Som, 4 plaintiff’s treating orthopedic specialist, opined that plaintiff was unable to engage in her previous 5 work due in part to chronic migraine headaches. See CAR 25 (citing Exhibit 17F, pg. 32). The 6 ALJ rejected Dr. Som’s opinions, stating: “[T]he claimant’s alleged migraine headaches are non- 7 MDI [medically determinable impairment] and her back pain can be relieved with conservative 8 measures such as medication, physical therapy, heat and ice.” CAR 25. The ALJ’s analysis of 9 Dr. Som’s opinion indicates at least one consequence of the ALJ’s error at Step 2. Specifically, 10 had the ALJ correctly determined that plaintiff’s headaches are in fact a medically determinable 11 impairment, the ALJ would then have been required to evaluate Dr. Som’s opinion in this regard 12 further at Step 4. This further analysis could have resulted in the ALJ giving more weight to Dr. 13 Som’s opinion regarding the limiting effects of plaintiff’s headaches. This, in turn, could have 14 resulted in a finding of functional work-related limitations associated with headaches and a 15 different residual functional capacity assessment at Step 4. Finally, a different functional capacity 16 assessment which included limitations associated with headaches could have resulted in a 17 different vocational finding at Step 5. 18 Because the ALJ erred at Step 2 in finding plaintiff’s headaches not to be a 19 medically determinable impairment, and because the ALJ compounded this error at Step 4 when 20 evaluating the opinions offered by Dr. Som, and because these errors could have further affected 21 the sequential evaluation, the Court cannot say the Step 2 error was harmless under Batson. The 22 matter will be remanded to the agency for further consideration of plaintiff’s headaches at Step 2 23 and, if necessary, throughout the remainder of the sequential evaluation process. 24 B. Credibility 25 The Commissioner determines whether a disability applicant is credible, and the 26 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 27 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 28 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 1 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 2 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 3 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 4 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 5 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 6 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 7 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 8 If there is objective medical evidence of an underlying impairment, the 9 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 10 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 11 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 12 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 13 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 14 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 15 be a reasonable inference, not a medically proven phenomenon. 16 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 17 18 The Commissioner may, however, consider the nature of the symptoms alleged, 19 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 20 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 21 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 22 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 23 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 24 physician and third-party testimony about the nature, severity, and effect of symptoms. See 25 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 26 claimant cooperated during physical examinations or provided conflicting statements concerning 27 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 28 claimant testifies as to symptoms greater than would normally be produced by a given 1 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 2 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 3 Regarding reliance on a claimant’s daily activities to find testimony of disabling 4 pain not credible, the Social Security Act does not require that disability claimants be utterly 5 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 6 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 7 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 8 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 9 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 10 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 11 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 12 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 13 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 14 activities are not easily transferable to what may be the more grueling environment of the 15 workplace, where it might be impossible to periodically rest or take medication”). Daily 16 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 17 his day engaged in pursuits involving the performance of physical functions that are transferable 18 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 19 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 20 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 21 At Step 4, the ALJ evaluated the credibility of plaintiff’s statements and testimony 22 to determine residual functional capacity. As to plaintiff’s credibility, the ALJ stated: 23 The claimant alleges she has a physical impairment, which precludes her from performing basic work activities (6E). Specifically, she has been 24 diagnosed with degenerative disc disease (16F/27). The claimant alleges that pain is the primary symptom she suffers from because of her 25 impairment (Hearing Testimony, 2F/13). 26 CAR 20. 27 / / / 28 / / / 1 Following an extensive discussion of the objective clinical evidence, the ALJ 2 stated: 3 As for the claimant’s statements about the intensity, persistence, and limiting effects of . . . her symptoms, they are inconsistent because the 4 claimant is still able to engage in the activities of daily living despite the pain from her back impairment. As such, the undersigned finds that the 5 claimant’s allegations of symptoms and limitations relative to degenerative disc disease are partially inconsistent with the objective 6 findings. While the objective record supports the claimant’s contention that she has back pain, it does not appear to be as intense, persistent, or 7 cause the limiting effects the claimant reports. The claimant has testified to back pain so severe that she could not function (Hearing Testimony). 8 She indicated that she was “completely in pain,” which was the reason why she could no longer work (Hearing Testimony). However, the 9 claimant has indicated at various times that her pain level was a ten out of ten (16F/2, 7F/9). However, the claimant was able to partake in activities 10 of daily living, which included taking her daughter to the park for walks, grocery shopping, cooking, driving her older daughter to work, and 11 exercising (Hearing Testimony, 17F/74). The claimant reported that her pain is worse when she sits; however, the claimant sits for long periods to 12 complete her online schoolwork (7F/17. Hearing Testimony). The claimant reports that the pain is so bad that she cannot focus on her 13 schoolwork; however, she is currently in the middle of completing her thesis, and reports spending four hours a day on schoolwork (Hearing 14 Testimony). The claimant reports that the pain she suffers is so intense that she cannot partake in basic work activities, yet she rated her worst 15 pain at a level five on a ten-point scale as recently as 2017 (2E/2. 18F/30, 17F/49). The claimant reports persistent and intense back pain, but 16 indicates that she did not want to try the epidural injections her providers recommended, not because she believed the treatment would not be 17 beneficial, but because she was not working (17F/36, 50, Hearing Testimony). This is inconsistent with the claimant having such disabling 18 back pain that it would keep her from performing basic work-related activities. The claimant reports that even when her pain is at a ten out of 19 ten, it can be relieved with medication (16F/2). While the claimant reported difficulty walking, her gait was often described as normal 20 (17F/39. 49, 17F/17, 9F/1. 3). The claimant described her pain as fluctuating, and lasting anywhere from two to three second to over an hour 21 with medication, through she is reluctant to take it for fear of dependence (7F/17, 17F/68, 16F/2, Hearing Testimony). The claimant reports resulting 22 pain radiating down her legs, however, a nerve conduction study found only mild polyradiculopathy down both legs, with no active denervation 23 and the majority of physical exams have found that the claimant’s lower extremity strength to be within normal limits (6E/2, 17F/39, 11F/27. 24 17F/45, 51, 54, 56). The claimant reports that she has to constantly “rest” in order to relieve her pain, but the record shows that she reports 25 conservative measures such as medication will relieve her pain (Hearing Testimony, 7F/17). Notably, in spite of the pain she describes as so severe 26 it precludes her from functioning, the claimant participates in cardio exercise and lists weights for thirty minutes a day, four days a week 27 (Hearing Testimony, 17F.4). 28 CAR 22-23. 1 Though the ALJ found plaintiff’s statements as to totally disabling pain not to be 2 credible, the ALJ nonetheless concluded that “she does suffer from pack pain.” CAR 23. The 3 ALJ states this limitation was taken into account in a residual function capacity assessment that 4 plaintiff can perform a range of less than light work. See id. 5 In her opening brief, plaintiff argues a number of errors in the ALJ’s analysis, 6 some of which are well taken. For example, the ALJ cites plaintiff’s activities of daily living to 7 include taking online education courses and working towards completing a thesis. See CAR 22. 8 As plaintiff states, however, her schoolwork was difficult to do given her pain. See ECF No. 18, 9 pg. 14. Plaintiff states that some days she was able to study for up to four hours over the course 10 of the entre day, while on other days she could not study at all due to pain. See id. Further, 11 plaintiff notes that the ALJ cited no evidence about how long plaintiff is able to sit to study and 12 whether she needs rest breaks due to pain. See id. The ALJ fails to explain how these limited 13 activities are inconsistent with plaintiff’s claims of disabling pain. In other words, given the 14 limitations to which plaintiff testifies regarding pain, the ALJ has not shown that plaintiff’s 15 limited ability to study and complete coursework translates to an ability to maintain full-time 16 competitive employment. As plaintiff notes: 17 The ALJ’s fourth reason is that plaintiff says she has difficulty concentrating but is in the middle of completing her thesis. The two are 18 not mutually exclusive, it is possible to be working on something and at the same time have difficulty concentrating on it. 19 ECF No. 18, pg. 17. 20 21 The ALJ’s credibility analysis is further flawed as a result of the error at Step 2 in 22 determining plaintiff’s headaches are not a medically determinable impairment. As explained 23 above, this error could have resulted in a ripple effect of other errors throughout the sequential 24 evaluation process. For example, but for the error, the ALJ would have been required to 25 determine whether plaintiff’s headache impairment was severe. The record includes evidence to 26 satisfy this de minimis standard. Next, but for the error, the ALJ would likely have concluded 27 plaintiff’s headaches are a severe impairment, which would have triggered a different analysis of 28 the medical opinions, in particular the opinion offered by Dr. Som, which the ALJ rejected. 1 Similarly, consideration of plaintiff’s headaches as a severe impairment could have resulted in a 2 different less adverse credibility finding at Step 4, which in turn could have resulted in a different 3 vocational finding at Step 5. 4 The matter will be remanded to the agency for re-evaluation of plaintiff’s 5 subjective complaints, specifically her complaints related to headaches should such impairment 6 be found on remand to be severe at Step 2. 7 C. Medical Opinions 8 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 9 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 10 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 11 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 12 opinion over another. See id. 13 Under the regulations, only “licensed physicians and certain qualified specialists” 14 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 15 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 16 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 17 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 18 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 19 substantial evidence when the opinions are consistent with independent clinical findings or other 20 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 21 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 22 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 23 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 24 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 25 workers may be discounted provided the ALJ provides reasons germane to each source for doing 26 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 27 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 28 when opinions from “other sources” may be considered acceptable medical opinions). 1 The weight given to medical opinions depends in part on whether they are 2 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 3 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 4 professional, who has a greater opportunity to know and observe the patient as an individual, than 5 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 6 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 7 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 8 Cir. 1990). 9 In addition to considering its source, to evaluate whether the Commissioner 10 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in 11 the record; and (2) clinical findings support the opinions. The Commissioner may reject an 12 uncontradicted opinion of a treating or examining medical professional only for “clear and 13 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 14 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 15 by an examining professional’s opinion which is supported by different independent clinical 16 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 17 1041 (9th Cir. 1995). 18 A contradicted opinion of a treating or examining professional may be rejected 19 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 20 at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the 21 facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 22 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 23 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 24 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 25 without other evidence, is insufficient to reject the opinion of a treating or examining 26 professional. See id. at 831. In any event, the Commissioner need not give weight to any 27 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 28 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); see 1 also Magallanes, 881 F.2d at 751. 2 At Step 4, the ALJ evaluated the medical opinion evidence. See CR 23-26. 3 Specifically, the ALJ assessed opinions offered by the following: (1) Juan Sequeira, M.D., 4 plaintiff’s treating physician; (2) Jess Chen, M.D., plaintiff’s treating physician; (3) Steven Lee, 5 M.D., plaintiff’s treating physician; (4) Sue Cromwell, MS QRP, plaintiff’s treating therapist; (5) 6 Charles Som, D.O., plaintiff’s treating orthopedic specialist; (6) Jeanine Kwun,, M.D., agency 7 reviewing physician; and (7) S. Williams, M.D., agency reviewing physician. See id. The ALJ 8 rejected the opinions of Drs. Sequieira, Chen, Cromwell, and Som, and based his residual 9 functional capacity assessment on the opinions of Drs. Lee, Kwun, and Williams. See id. 10 Plaintiff argues the ALJ erred in rejecting the opinions of Drs. Sequieira and Chen, 11 who are both treating sources. See ECF No. 18, pg. 19. 12 1. Dr. Sequieira 13 As to this doctor’s opinion, the ALJ stated: 14 . . .[A]t the request of the agency, Juan Sequeira, M.DD., one of the claimant’s treating physicians, completed a Treating Doctor Report 15 wherein he opined that the claimant’s pain constantly would interfere with her ability to perform basic tasks (17F/27. 19F/3). He additionally 16 opinioned that the claimant would need a job that would allow her to shift positions every 20 minutes, and that she would need eight ten-minute 17 breaks in the course of an eight-hour workday (19F/3). He further opined that she could sit, stand, and walk about two hours in an eight-hour 18 workday, that she could occasionally lift and carry ten pounds, and never lift and carry 20 pounds (19F/3). Dr. Sequeira opined that the claimant 19 could rarely stoop, climb ladders or stairs, and could never twist, crouch, or squat (19F/4). This opinion is given little weight, as it is inconsistent 20 with the objective medical evidence. A review of the medical evidence shows that the claimant’s back pain does not interfere with her ability to 21 concentrate and pay attention to a task. For example, the claimant is able to pay attention to her schoolwork for at least four hours a day in spite of 22 having back pain (Hearing Testimony). The claimant is able to pay attention to the thesis she is currently writing for her master’s program 23 (Hearing Testimony). Additionally, the claimant reports that she prepares meals, which would likely require standing for longer than 20 minutes at a 24 time (Hearing Testimony). While the claimant has indicated that she has to stretch out four to five times an hour when her back pain is bad there is 25 no reason to believe that she will need eight ten minute breaks in the course of an eight hour workday because her back pain can be relieved 26 with conservative measures such as ice, heat, and medication (Hearing Testimony, 17F/68). There is no reason to believe that the claimant can 27 only sit, stand, or walk for two hours in an eight-hour day. As discussed above, the claimant admitted that she sits for longer than two hours to do 28 her schoolwork online (Hearing Testimony). As further discussed above 1 the claimant walks with a normal gait and has normal strength in her lower extremities, which would allow her to walk or stand for longer than two 2 hours (14F/1. 15F/7-8. 7F/22, 16F/3-4, 17F/33. 46-47). Additionally, as discussed above earlier, the claimant routinely lifts ten-pound weights 3 when she works out, and she should be able to lift 20 pounds as her upper extremities have full strength (17F/69, 74). Finally, there is nothing in the 4 record to support Dr. Sequeira’s postural limitations on the claimant. Though the postural maneuvers of stooping, climbing, crouching, or 5 squatting involve the use of the back muscles, frequently performing these maneuvers should not exacerbate the claimant’s mild to moderate 6 degenerative back condition. Treating providers have noted that the claimant has full lumbar range of motion (17F/69). The claimant is not 7 limited to more than frequently balancing, stooping, kneeling, squatting, crouching, and crawling. There is no evidence that she cannot twist and 8 squat based on her reports that she works out (17F/74). The claimant participates in cardio exercise and lifting weights four days a week, in 30- 9 minute intervals (17F/74). 10 CAR 23-24. 11 Plaintiff argues: 12 ALJ Zeidman rejects Dr. Sequeira’s opinion that back pain interferes with plaintiff’s focus because claimant is able to pay attention to 13 schoolwork for at least four hours a day. As discussed above, there is no evidence that plaintiff is able to do so. Further, the evidence is that there 14 are many days where she can do nothing but attend to her pain. Thus, this is not a legitimate reason supported by evidence. Next ALJ Zeidman states 15 that Dr. Sequeira’s finding that plaintiff will need eight ten-minute breaks throughout the workday is not plausible because she can use ice, heat, and 16 medication to relieve pain. This reason is not legitimate because administering ice and heat would require a break from work. Accordingly, 17 Dr. Sequeira’s opinion should be credited. 18 ECF No. 18, pg. 19. 19 The Court agrees. The ALJ rejected Dr. Sequeira’s opinion for three primary 20 reasons, none of which is particularly legitimate, let alone convincing. First, the ALJ rejected the 21 doctor’s opinion as inconsistent with plaintiff’s ability to work towards her master’s degree. 22 Second, the ALJ cited plaintiff’s ability to prepare meals. Third, the ALJ referenced plaintiff’s 23 ability to exercise. For the reasons discussed below, the Court finds none to be based on 24 substantial evidence. 25 The ALJ cited plaintiff’s ability to study and work towards her master’s degree as 26 a reason to discount the opinions offered by Dr. Sequeira. As explained above in the context of 27 the ALJ’s reference to this same fact when assessing her credibility, plaintiff accomplishes this 28 task on an intermittent basis. Though she can sit for up to four hours a day to study, there is no 1 evidence that these are continuous hours. Thus, the evidence is consistent with the need for 2 breaks, which both plaintiff and the doctor say are warranted. Additionally, plaintiff’s ability to 3 study and concentrate is totally absent on other days when pain is particularly bad. Thus, the 4 limitations assessed by Dr. Sequeira are not necessarily inconsistent with plaintiff’s ability to 5 engage in online coursework. 6 The ALJ gave Dr. Sequeira’s opinion little weight, in part, because he found 7 plaintiff’s ability to prepare meals inconsistent with the limitations opined by the doctor. 8 According to the ALJ: “Additionally, the claimant reports that she prepares meals, which would 9 likely require standing for longer than 20 minutes at a time (Hearing Testimony).” CAR 24. The 10 ALJ’s use of the word “likely” suggests the ALJ has replaced speculation for evidence. In 11 particular, the ALJ cites no evidence as to the manner in which the plaintiff is able to prepare 12 meals. To the extent plaintiff must sit to prepare simple meals using a microwave or on a 13 stovetop, her ability to prepare meals could certainly be consistent with the limitations opined by 14 Dr. Sequerira. And there is no evidence to establish that “preparing meals” necessarily involves 15 standing for increments “longer than 20 minutes at a time.” 16 The ALJ also discounted Dr. Sequeira’s opinion because he found plaintiff’s 17 ability to exercise and lift weights inconsistent with the opined limitations. The ALJ noted that 18 plaintiff lifts ten-pound weights during 30-minute exercise sessions four times a week and 19 concludes from this activity that “she should be able to lift 20 pounds as her upper extremities 20 have full strength. . . .” CAR 24. This conclusion is contradictory in that, if plaintiff’s upper 21 extremities have normal strength, and if the amount of weight plaintiff lifts during weight-lifting 22 training is ten pounds, it is reasonable to conclude plaintiff’s lifting limit is ten pounds. Again, 23 with the use of the word “should,” it appears the 20-pound limit is based on the ALJ’s speculation 24 and not evidence of record. 25 Finally, the Court notes the possibility that the ALJ’s error at Step 2 infects the 26 ALJ’s analysis of the medical opinions. Because the ALJ erroneously found plaintiff’s headaches 27 to not be a medically determinable impairment, the ALJ failed to assess the effects of plaintiff’s 28 headaches on the various medical opinions. Specifically, symptoms related to headaches could 1 reasonably be expected to limit the manner in which plaintiff was able to engage in her 2 schoolwork. The matter will be remanded to allow the agency to re-evaluate Dr. Sequeira’s 3 opinion. 4 2. Dr. Chen 5 As to Dr. Chen, also a treating source, the ALJ stated: 6 Dr. Chen opined that the claimant should be limited to working six hours a day, lifting no more than 20 pounds and standing/walking for less than 7 two hours a day (17F/63). He further opined that the claimant could not stoop crawl, crouch, or kneel on a repetitive basis (17F/51). The 8 undersigned gives this opinion little weight because overall it is inconsistent with the objective record. There is nothing in the objective 9 medical record that supports the notion that the claimant can only work for six hours a day. The claimant’s back pain is relieved with conservative 10 measures such as medication, and other than her back pain, she has a normal gait, and full strength in her muscles (17F/49, 51, 68). She is able 11 to sit for extended periods and keep her mind focused on a task such as her schoolwork or writing her thesis (Hearing Testimony). In short, other than 12 her back pain, which can be relieved by conservative measures, there is no other reason to restrict her work schedule (17F/68). As discussed above, 13 the claimant has full strength in her legs and a normal gait, she walks for exercise, and given her normal muscle tone and strength, she should be 14 able to stand and walk for longer than two hours (17F/49, 51, 74). For the reasons discussed above, the claimant can frequently kneel, crawl, stoop, 15 and crouch. However, the opinion is consistent with the medical record in limiting the claimant to lifting no more than 20 pounds. 16 CAR 24. 17 18 Plaintiff argues: 19 In rejecting Dr. Chen’s opinion, the ALJ finds it untenable that plaintiff can only work six hours per day because her back pain is relieved 20 by conservative measures. This reason is not legitimate because plaintiff testified that after her pain increases with the amount of activity she 21 performs and that after a certain point she must lay down to relieve pain. Therefore, no legitimate reason is provided to reject Dr. Chen’s opinion. 22 ECF No. 18, pg. 19. 23 24 Again infecting the decision, the Court finds that the ALJ’s error at Step 2 25 undermines his analysis of Dr. Chen’s opinions. Specifically, in rejecting Dr. Chen’s opinions, 26 the ALJ stated: “There is nothing in the objective medical record that supports the notion that the 27 claimant can only work for six hours a day.” CAR 24. While the ALJ continued by discussing 28 evidence related to plaintiff’s back pain, the ALJ did not consider possible limiting effects related 1 to plaintiff’s headaches. 2 D. Non-Exertional Limitations 3 Plaintiff contends the ALJ erred by failing to include medically determinable non- 4 exertional limitations associated with headaches in the residual functional capacity assessment. 5 See ECF No. 18, pg. 11. Because the ALJ erred at Step 2 in determining plaintiff’s headaches are 6 not a medically determinable impairment, it is impossible for the Court to conclude that the ALJ 7 did not err at Step 4 by not including non-exertional limitations associated with headaches. Had 8 the ALJ not erred, and had the ALJ determined plaintiff’s headaches were severe, and had the 9 ALJ accepted Dr. Som’s opinions regarding headaches, the ALJ might well have also concluded 10 that plaintiff’s residual functional capacity includes non-exertional limitations. 11 The matter will be remanded to the agency to determine whether plaintiff’s 12 headaches, which are a medically determinable impairment, result in non-exertional limitations 13 which should be included in plaintiff’s residual functional capacity. 14 E. Residual Functional Capacity Determination 15 Residual functional capacity is what a person “can still do despite [the 16 individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. 17 Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current 18 “physical and mental capabilities”). Thus, residual functional capacity describes a person’s 19 exertional capabilities in light of his or her limitations. 20 According to plaintiff, the ALJ’s residual functional capacity assessment is flawed 21 because it is based on the opinions of non-examining and non-treating sources. See ECF No. 18, 22 pgs. 19-20. The Court does not agree. The opinions of non-examining professionals constitute 23 substantial evidence when, as here, the opinions are consistent with independent clinical findings 24 or other evidence in the record. See Thomas, 278 F.3d at 957. Plaintiff reliance on Gallant v. 25 Heckler, 753 F.2d 1450 (9th Cir. 1984), is misplaced. Plaintiff argues that, under Gallant, 26 evidence from non-examining and non-treating sources cannot constitute substantial evidence to 27 support the ALJ’s findings. In Gallant, however, the court held that evidence from non- 28 examining professions does not constitute substantial evidence where it is contradicted by all wOASe 6. LOUVRE IIS OUI PI ee AY st Ve 1 | other evidence in the record. See Gallant, 753 F.2d at 1456. Here, the non-examining doctors’ 2 | opinions upon which the ALJ relied are supported by opinions offered by Dr. Lee, a treating 3 || source. 4 The foregoing is not meant to suggest that the ALJ’s residual functional capacity 5 || may not be flawed for other reasons discussed in this decision, specifically the ALJ’s error at Step 6 | 2 regarding plaintiffs headaches and the various way that error has infected the remainder of the 7 | ALJ’s sequential evaluation, including determination of plaintiffs residual functional capacity. 8 9 IV. CONCLUSION 10 For the foregoing reasons, this matter will be remanded under sentence four of 42 11 | U.S.C. § 405(g) for further development of the record and/or further findings addressing the 12 || deficiencies noted above. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff's motion for summary judgment, ECF No. 18, is granted; 15 2. Defendant’s motion for summary judgment, ECF No. 19, is denied; 16 3. The Commissioner’s final decision is reversed and this matter is remanded 17 | for further proceedings consistent with this order; and 18 4. The Clerk of the Court is directed to enter judgment and close this file. 19 20 21 || Dated: September 23, 2020 Ssvcqo_ 22 DENNIS M. COTA 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 21