(SS) Carrillo v. Commissioner of Social Security ( 2021 )

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 LUCIA CARILLO, No. 1:19-cv-01767-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF 7 ANDREW SAUL, Commissioner of Social AND AGAINST DEFENDANT Security, COMMISSIONER OF SOCIAL SECURITY 8 (Doc. 18, 23) 9 Defendant. 10 11 I. Introduction 12 Plaintiff Lucia Carillo (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the Honorable Gary 16 S. Austin, United States Magistrate Judge.1 See Docs. 18, 23. After reviewing the record the Court 17 finds that substantial evidence and applicable do not support the ALJ’s decision. Plaintiff’s appeal 18 is therefore granted. 19 II. Procedural Background 20 On February 20, 2018 Plaintiff filed an application for disability insurance benefits claiming 21 disability beginning June 6, 2016 due to “back injury, spinal stenosis, bone degeneration” and “left 22 ankle, numbing sensation.” AR 147. The Commissioner denied the application initially on May 23 17, 2018 and on reconsideration on September 25, 2018. AR 57–67, 68–80. 24 Plaintiff requested a hearing which was held before an Administrative Law Judge (the 25 “ALJ”) on June 4, 2019. AR 36–56. Plaintiff was represented by counsel at the hearing. AR 36. 26 27 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 5 and 28 6. 1 On June 28, 2019, the ALJ issued a decision denying Plaintiff’s application. AR 18–32. The 2 Appeals Council denied review on October 28, 2019. AR 1–7. On December 19, 2019 Plaintiff 3 filed a complaint in this Court. Doc. 1. 4 III. Factual Background 5 A. Plaintiff’s Testimony 6 Plaintiff (born June 1964) lived alone in a single-story home. AR 40. She completed high 7 school. AR 39. Plaintiff worked approximately twenty years as a factory worker for the Parker- 8 Hannifin Corporation assembling and inspecting fuel filters for vehicles. AR 40–42, 139. She 9 routinely had to bend over to lift 25-pound boxes of reject parts for inspection. AR 42. She 10 developed back pain related to the on-the-job lifting which progressively worsened. AR 42–43. In 11 2015 she was relegated to light duty and ultimately let go in 2016 when she could no longer perform 12 her job tasks. 47–48. 13 Plaintiff underwent spinal surgery in December 2018 upon recommendation of her 14 neurosurgeon who opined that her stenosis and degeneration would lead to paralysis if left 15 untreated. AR 43, 45. She had six screws put in her back as well as a new disc and a titanium bar. 16 AR 43. Her osteoporosis required the insertion of more screws than would have otherwise been 17 necessary. AR 43. Before her surgery her back pain was so severe she would black out while alone 18 at home and wake up shaking from shock. AR 43–44. After surgery she could not bend or lift, her 19 ankle frequently swelled and stiffened and she needed a walker for mobility outside her home. AR 20 43–46. Her ankle mobility, flexibility and weight bearing ability were limited. AR 46–47. After 21 surgery she underwent a course of physical therapy. AR 51. Additional therapy was recommended. 22 AR 51. Her insurance carrier would not authorize additional physical therapy for her back, but she 23 had recently begun physical therapy for her ankle. AR 51. 24 She was mostly home bound other than attending church and medical appointments. AR 25 51. She had in-home care 34-hours per month to help her cook, clean and shop. AR 48–49. She 26 used a shower chair and a grasping stick to dress. AR 49–50. She could lift up to four pounds, 27 drive short distances, stand for a short time, sit up to an hour and spent four hours a day lying down. 28 AR 49–52. 1 B. Medical Records 2 A February 2018 MRI revealed marked narrowing of the lumbar spine and compressed 3 nerves. AR 298. Contemporaneous examination findings noted mild back pain with range of 4 motion testing and a normal gate. AR 302; 305–06. She began physical therapy in March 2018 5 after reporting poor tolerance for walking and impaired day-to-day functioning. AR 353. She 6 reported continued improvements at her physical therapy appointments. AR 353–74. A May 2018 7 examination revealed normal gait, non-tender low back and full but painful range of motion (ROM). 8 AR 390. A July 2018 examination revealed normal ROM and gait. AR 385. 9 Plaintiff visited Dr. Oladunjoye in August 2018 who recommended surgery. AR 417. An 10 October 2018 MRI confirmed stenosis and impingement. AR 423. On December 14, 2018, 11 Plaintiff underwent multilevel lumbar fusion, laminectomy, facetectomy, discectomy and 12 foraminotomy. AR 2142. She was hospitalized post-op and discharged a week later with a walker. 13 AR 2142. At her one month follow up she reported a 70% reduction in pre-op symptoms, pain 14 level 3 out of 10 and her physical examination revealed 5/5 strength in bilateral lower extremities. 15 AR 2482–83. At her three month follow up she reported 80% reduction in pre-op symptoms and 16 was instructed she could wean off her brace. AR 2484. Plaintiff completed a course of twelve 17 post-op physical therapy sessions between February and May 2019. AR 1948–69. Records reflect 18 subjective improvements following physical therapy (reduction in symptoms, decreased need for 19 walker) and objective improvements (lumbar strength, ROM, gait). AR 1948–69. Records reflect 20 50% progress toward most therapy goals. AR 1969. Her therapist recommended eight additional 21 therapy sessions to address continued posterior chain weakness, core musculature weakness and 22 difficulty ambulating more than 10 minutes. AR 1969. 23 A July 19, 2018 left ankle x-ray revealed a small spur and Plaintiff was diagnosed with a 24 sprained ankle the following month. AR 395, 437. Plaintiff completed twelve physical therapy 25 sessions from September 2018 through November 2018 for her ankle. AR 438. Upon discharge 26 on November 14, 2018, Plaintiff reported pain level 8 out of 10 with activity, and level 2 out of 10 27 when resting and medicated. AR 438. Her self-reported survey results for lower extremity 28 functioning were 28 out of 80 with 60-80% limitation. AR 438. Plaintiff achieved most of her 1 treatment goals. AR 439. Her therapist’s evaluation noted increased strength, ROM and stability, 2 but continued flexibility deficits to be addressed with home exercise. AR 439. December 17, 2018 3 physical exam results noted good ankle dorsiflexion, plantarflexion and eversion. AR 579, 2080. 4 May 24, 2019 bone density scan findings were compatible with osteoporosis. AR 2955. 5 She was advised to consider treatment and follow up in two years. AR 2955. On June 10, 2019 6 Plaintiff visited Family First Medical Care and was diagnosed with age-related osteoporosis 7 without current pathological fracture. AR 35. Plaintiff submitted the Family First medical records 8 to the appeals council. 9 C. Medical Opinions and Prior Administrative Findings 10 Non-examining state agency medical consultants Dr. Wong and Dr. Lee reviewed 11 Plaintiff’s medical file at the initial and reconsideration levels, respectively, and both opined that 12 Plaintiff could perform light work with some postural limitations. AR 63–64; 75–77. 13 Plaintiff’s neurosurgeon, Dr. Olandunjoye, completed an undated residual functional 14 capacity questionnaire. AR 2950–53. He diagnosed Plaintiff with lumbar spinal stenosis with 15 instability and intractable lower back pain with radiculopathy. AR 2950. He opined that Plaintiff 16 could sit and stand/walk for less than 2 hours each in an 8-hour working day, could rarely lift up to 17 10 pounds, and could never twist, stoop, crouch or climb. AR 2950–52. He opined that she needs 18 a job that permits shifting at will between sitting, standing and walking. AR 2952. Finally, he 19 opined that Plaintiff would miss more than four days of work a month. AR 2953. 20 D. Vocational Expert 21 A vocational expert (“VE”) testified at the administrative hearing. The ALJ questioned the 22 VE regarding a hypothetical individual of Plaintiff’s age, education and work history who could 23 perform light work with some postural limitations. AR 52. The VE opined that such an individual 24 could perform Plaintiff’s past work as a filters assembler as that job is generally performed (light 25 26 exertional level), but not as Plaintiff actually performed it (medium exertional level). AR 53. If 27 the individual was limited to sedentary work, no work would be available. AR 54. 28 1 IV. Standard of Review, Generally 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 7 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 8 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 9 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 10 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 11 When performing this analysis, the court must “consider the entire record as a whole and may not 12 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks omitted). 14 15 If the evidence could reasonably support two conclusions, the court “may not substitute its 16 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 17 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision 18 for harmless error, which exists when it is clear from the record that the ALJ’s error was 19 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 20 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 21 V. The Disability Standard 22 23 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful activity due to a medically 24 determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 25 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 26 only unable to do his previous work, but cannot, considering his age, education, and 27 work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate 28 area in which he lives, or whether a specific job vacancy exists for him, or whether 1 he would be hired if he applied for work. 2 42 U.S.C. §1382c(a)(3)(B). 3 To achieve uniformity in the decision-making process, the Commissioner has established a 4 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 5 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 6 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 7 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 8 gainful activity during the period of alleged disability, (2) whether the claimant had medically 9 determinable “severe impairments,” (3) whether these impairments meet or are medically 10 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 11 whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant 12 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 13 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 14 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 15 prove that Plaintiff can perform other work in the national economy, given her RFC, age, education 16 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 17 VI. The ALJ’s Decision 18 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since 19 her alleged disability onset date. AR 23. At step two, the ALJ found that Plaintiff had the following 20 severe impairments: degenerative disc disease of the lumbar spine. AR 23. At step three, the ALJ 21 concluded that Plaintiff did not have an impairment or combination of impairments that met or 22 medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, 23 Appendix 1. AR 24. 24 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 25 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) 26 and 416.967(b), with some postural limitations. AR 24–26. At step four, considering Plaintiff’s 27 RFC, the ALJ found that Plaintiff could perform her past relevant work as a filters assembler as 28 generally performed, but not as actually performed. AR 26. Accordingly, the ALJ found that 1 Plaintiff was not disabled. AR 26. 2 VII. Issues Presented 3 Plaintiff asserts three claims of error. First, Plaintiff contends the ALJ erred at steps two 4 and four in dismissing her osteoporosis and left ankle impairments without consideration or 5 discussion. Br. at 7, Doc. 18. Second, Plaintiff contends the ALJ wrongfully rejected the opinion 6 of her neurosurgeon, Dr. Oladunjoye. Br. at 9. Third, Plaintiff contends the ALJ improperly 7 rejected her subjective testimony as to the severity of her symptoms. Br. at 11. Plaintiff’s three 8 claims of error will be addressed in turn. 9 A. Dismissing Osteoporosis and Left Ankle Impairments at Steps Two and Four 10 1. Applicable Law 11 At step two of the five-step process, plaintiff has the burden to provide evidence of a 12 medically determinable physical or mental impairment that is severe and that has lasted or can be 13 expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(3), 14 1382c(a)(3)(D); Ukolov v. Barnhart, 420 F.3d 1002, 1004–05 (9th Cir. 2005). A medically 15 determinable physical or mental impairment “must result from anatomical, physiological, or 16 psychological abnormalities that can be shown by medically acceptable clinical and laboratory 17 diagnostic techniques,” and will not be found based solely on the claimant’s statement of 18 symptoms, a diagnosis or a medical opinion. 20 C.F.R. § 404.1521. 19 Step two is “a de minimis screening device [used] to dispose of groundless claims.” Smolen 20 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment or combination of 21 impairments is one that significantly limits physical or mental ability to do basic work activities. 22 20 C.F.R. § 404.1520. An impairment or combination of impairments should be found to be “non- 23 severe” only when the evidence establishes merely a slight abnormality that has no more than a 24 minimal effect on an individual’s physical or mental ability to do basic work activities. Webb v. 25 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 20 C.F.R. § 404.1522. “Basic work activities” mean 26 the abilities and aptitudes necessary to do most jobs, including physical functions such as walking, 27 standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, and mental functions 28 1 such as the ability to understand, carry out, and remember simple instructions, deal with changes 2 in a routine work setting, use judgment, and respond appropriately to supervisors, coworkers, and 3 usual work situations. 20 C.F.R. § 404.1522. 4 When reviewing an ALJ’s findings at step two the Court “must determine whether the ALJ 5 had substantial evidence to find that the medical evidence clearly established that [the claimant] 6 did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at 7 687 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the deference usually 8 accorded to the Secretary’s application of regulations, numerous appellate courts have imposed a 9 narrow construction upon the severity regulation applied here.”)). 10 Irrespective of severity, all medically determinable impairments are considered when 11 assessing a claimant’s residual functional capacity prior to step four. 20 C.F.R. § 404.1545(a)(2) 12 (“We will consider all of your medically determinable impairments of which we are aware, 13 including your medically determinable impairments that are not ‘severe’ . . . when we assess your 14 residual functional capacity.”) (citations omitted). 15 2. Analysis 16 Plaintiff contends the ALJ erred in failing to consider her osteoporosis and ankle injury at 17 steps two and four. Defendant responds that there was no evidence that either impairment caused 18 workplace limitations that lasted 12 months. The Court finds that the ALJ did not err in omitting 19 Plaintiff’s osteoporosis from her discussion, but did err with respect to Plaintiff’s ankle impairment. 20 a. Osteoporosis 21 The administrative record contains two pieces of medical evidence concerning Plaintiff’s 22 osteoporosis. May 24, 2019 bone density scan findings were compatible with osteoporosis. AR 23 2955. Plaintiff was advised to “[c]onsider treatment and follow-up in 2 years.” AR 2955. On June 24 10, 2019 Plaintiff was diagnosed with age-related osteoporosis without current pathological 25 fracture. AR 35. Plaintiff and her physician “discussed pathophysiology and future ramifications 26 of low bone density” and “discussed recommendations for treatment and daily calcium intake.” 27 AR 35. Thus, the records establish only a diagnosis, a recommendation for daily calcium intake, a 28 1 recommendation to consider non-specific other “treatment” and an instruction to follow up in two- 2 years. These records do not suggest that Plaintiff’s osteoporosis caused any functional limitations. 3 Plaintiff states that her spinal fusion surgery was “reportedly complicated by suspected 4 osteoporosis.” Br. at 3 (citing AR 2539–43; AR 43). Plaintiff cites to the spinal fusion surgery 5 records (AR 2539–43) but those records contain no mention of osteoporosis. Plaintiff also cites to 6 her own testimony that Dr. Oladunjoye “had to put extra screws in my back [during fusion surgery] 7 because of the osteoporosis.” AR 43. The use of extra screws during her fusion surgery does not 8 support an inference that osteoporosis exacerbated her degenerative disc disease, undermined the 9 efficacy of her fusion procedure or stymied her progress thereafter.2 Even assuming osteoporosis 10 complicated Plaintiff’s spinal fusion surgery, the ALJ’s analysis of Plaintiff’s osteoporosis-related 11 limitations would be subsumed in her analysis of the degenerative disc disease itself (which the 12 ALJ found to be a severe impairment). Plaintiff offers no explanation as to what her alleged 13 osteoporosis related limitations were. She simply contends the ALJ erred in not acknowledging 14 the condition. 15 Because the record contains no evidence that Plaintiff’s osteoporosis caused any distinct 16 functional limitations, the ALJ did not err. See Lowery v. Colvin, 2014 WL 183892, *4 (D. Or. 17 Jan. 14, 2014) (“In the Ninth Circuit, excluding a diagnosis from the list of severe impairments at 18 step two is significant only if the impairment caused additional functional limitations not accounted 19 for in the RFC assessment.” (citing Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007)). 20 b. Left Ankle Impairment 21 The record establishes that Plaintiff had a medically determinable impairment in her left 22 ankle. A July 19, 2018 left ankle x-ray revealed a small spur and Plaintiff was diagnosed with a 23 sprained ankle the following month. AR 395, 437. Plaintiff completed twelve physical therapy 24 sessions from September 2018 through November 2018 for her ankle. AR 438. Upon discharge 25 her therapist’s evaluation noted increased strength, ROM and stability but continued flexibility 26 deficits to be addressed with home exercise. AR 439. December 17, 2018 physical exam results 27 2 Noticeably absent from Dr. Oladunjoye’s opinion is any discussion of osteoporosis (suspected or 28 otherwise) or any related surgical complications. 1 noted good ankle dorsiflexion, plantarflexion and eversion. AR 579, 2080. 2 Defendant contends that these records “establish[] that Plaintiff had a sprained ankle for 3 which she received treatment and, beginning four months later, examinations were normal.” Br. at 4 7. Accordingly, Defendant concludes that Plaintiff’s ankle impairment “did not last for 12 months, 5 and, therefore, could not be considered a severe impairment.” Resp. at 7. Indeed, Plaintiff 6 exhibited good ankle dorsiflexion, plantarflexion and eversion during her post-fusion surgery 7 recovery examination on December 17, 2018. AR 579. However, she testified that “after her 8 surgery” she could not bend or lift, her ankle frequently swelled and stiffened and she needed a 9 walker for mobility outside her home. AR 43–46. She testified that her ankle mobility, flexibility 10 and weight bearing ability were limited. AR 46–47. Finally, she testified that she had physical 11 therapy scheduled for her ankle on June 11, 2019. AR 51. 12 In sum, approximately eleven months after her bone spur and ankle sprain diagnosis 13 Plaintiff testified she continued experiencing extensive ankle limitations and had additional 14 physical therapy scheduled. This is not inconsistent with the notion that her ankle limitation was a 15 severe impairment which could be expected to last twelve months from onset (i.e. one month 16 beyond the date of her testimony). However, her December 17, 2018 normal ankle examination 17 arguably undermines her testimony and supports the opposite conclusion. In such circumstances 18 courts are to defer to an ALJ’s conclusion where the evidence supports two conclusions. Jamerson 19 v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). Here, the ALJ’s decision contains 20 no conclusions to which the Court can defer regarding the severity of Plaintiff’s ankle impairment. 21 The ALJ simply did not acknowledge Plaintiff’s ankle impairment or corresponding records. 22 Remand is appropriate for the ALJ to determine at step two whether Plaintiff’s left ankle 23 impairment was a severe impairment that could be expected to last twelve months from onset. Even 24 if not severe, the ALJ should determine the impact (if any) of the ankle limitation on Plaintiff’s 25 RFC prior to step four. See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically 26 determinable impairments of which we are aware, including your medically determinable 27 impairments that are not ‘severe’ . . . when we assess your residual functional capacity.”) (citations 28 omitted). 1 B. Rejection of Dr. Oladunjoye’s Opinion 2 1. Applicable Law 3 Before proceeding to step four, the ALJ must first determine the claimant’s residual 4 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 5 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 6 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 7 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 8 9 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 10 A determination of residual functional capacity is not a medical opinion, but a legal decision 11 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 12 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 13 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 14 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 15 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities. 16 17 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). 18 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 19 such as medical records, lay evidence and the effects of symptoms, including pain, that are 20 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 21 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical 22 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 23 24 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 25 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 26 F.2d 1403, 1408 (9th Cir. 1986)). 27 28 1 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy 2 of medical opinions, and provide that “We will not defer or give any specific evidentiary weight, 3 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 4 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, when evaluating 5 any medical opinion, the regulations provide that the ALJ will consider the factors of supportability, 6 7 consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). 8 Supportability and consistency are the two most important factors and the agency will articulate 9 how the factors of supportability and consistency are considered. Id. 10 2. Analysis 11 The ALJ rejected Dr. Oladunjoye’s opinion as “grossly over-restrictive in light of the 12 clinical examination findings from before her surgery and the evidence of improvement with 13 physical therapy soon after surgery, as discussed above.” AR 25 (emphasis added). Plaintiff 14 15 contends the ALJ provided no citation to the record and no interpretation of any specific “clinical 16 examination findings.” Br. at 10. However, the ALJ did reference an earlier factual discussion 17 containing such citations and interpretations, and although a generalized reference to an earlier 18 factual summary is not ideal, it was clear which prior findings the ALJ was referring to here. 19 The ALJ provided the following summary of Plaintiff’s pre and post-operative clinical 20 examination findings: 21 Pre-surgical clinical examination findings showed tenderness and decreased range 22 of motion, but otherwise grossly normal motor strength, sensation, and gait 23 (Exhibits 1F, 3F, 5F, 8F, and 16F). Associated treatment aside from the fusion surgery has included physical therapy and medication management, such as with 24 nonsteroidal anti-inflammatory drugs (“NSAIDs”), medication used to treat neuropathic pain, muscle relaxants, and opioid pain medications (e.g. Exhibits 1F, 25 7F, 8F, 16F, 20F, 21F, and 22F). Post-surgical physical therapy records show improvement with lumbar strength, range of motion, and gait following her surgery, 26 but persistent tenderness (e.g. Exhibit 20F/44). 27 AR 24–25 (emphasis added). 28 1 As to pre-surgical clinical examination findings, a review of the ALJ’s cited exhibits largely 2 confirms the accuracy of her description. The Court did note one exception, namely exhibit 5F 3 (AR 327) which noted “[a]ntalgic gait,” in contrast to the ALJ’s description of a normal gate. The 4 remaining exhibits cited by the ALJ confirm the accuracy of her description. 5 As to post-surgical physical therapy records, however, the ALJ’s description is incomplete. 6 7 The ALJ cited only one page of the medical file in support of her assessment of post-surgical 8 examination findings (Exhibit 20F/44, AR 1969) making it all the more important that she fully 9 capture the clinical assessment contained therein. The page in question contains Plaintiff’s final 10 physical therapy evaluation after her twelve visits. The physical therapist identified three areas of 11 improvement (lumbar strength, range of motion, and gait). AR 1969. But the physical therapist 12 also identified three areas of continued limitation: 1) “Patient remains very weak throughout the 13 posterior chain as well as the core musculature;” 2) “TTP [tenderness to palpitation] to the lumbar 14 15 paraspinals;” and 3) “Patient continues to have trouble ambulating for > 10 minutes.”3 AR 1969. 16 The ALJ identified Plaintiff’s continued tenderness but not the other limitations identified by the 17 physical therapist. 18 In sum, of the five regulatory factors outlined at 20 C.F.R. § 404.1520c, the ALJ‘s 19 discussion implicates only the first factor (supportability). The ALJ found Dr. Oladunjoye’s 20 opinion unsupportable in light of pre-surgical clinical examination findings and post-surgical 21 improvement. The ALJ provided one sentence of analysis devoted to each (as a part of her six- 22 23 3 As to the walking limitation, the physical therapist’s full description provides some potentially 24 relevant context: “Patient continues to have trouble ambulating for > 10 minutes, driving, and participating in recreational activities.” AR 1969 (emphasis added). It seems unlikely that the 25 physical therapist observed Plaintiff driving or participating in recreational activities, rather the physical therapist was likely reciting Plaintiff’s own subjective account of her continued 26 limitations. It’s certainly possible that the therapist observed Plaintiff unsuccessfully attempting to 27 ambulate for more than 10 minutes during an exam. But it’s not clear whether that is actually what occurred or if he was simply reciting Plaintiff’s subjective statements. In any event, the ALJ’s 28 decision is silent as to her thoughts on the matter. 1 sentence summary of the 2965-page medical file). Her analysis of Plaintiff’s post-surgical 2 improvement cites one page of the medical file containing a concise clinical assessment. The 3 clinical assessment identified three areas of improvement and three continued limitations. The ALJ 4 did not acknowledge two of the three continued limitations. 5 The ALJ’s omission is notable given the rather limited basis offered for her rejection of Dr. 6 7 Oladunjoye’s opinion and her limited discussion of the medical file generally. The omission is 8 important because the limitations identified by the physical therapist tend to support Dr. 9 Oladunjoye’s assessment of relevant functional capacities (strength, walking), and potentially 10 undermines the ALJ’s RFC for light work. The omission is also significant given the VE’s 11 testimony that all work would be precluded if Plaintiff were limited to the sedentary exertional 12 level. Remand is warranted for the ALJ to consider the supportability of Dr. Oladunjoye’s opinion 13 in light of all evidence of Plaintiff’s post-surgical limitations. 14 15 C. Rejecting Plaintiff’s Testimony 16 1. Applicable Law 17 The ALJ is responsible for determining credibility,4 resolving conflicts in medical 18 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). A 19 claimant’s statements of pain or other symptoms are not conclusive evidence of a physical or mental 20 impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. 21 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 22 23 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 24 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 25 26 4 Social Security Ruling 16-3p applies to disability applications heard by the agency on or after March 28, 2016. Ruling 16-3p eliminated the use of the term “credibility” to emphasize that 27 subjective symptom evaluation is not “an examination of an individual’s character” but an endeavor to “determine how symptoms limit ability to perform work-related activities.” S.S.R. 16-3p at 1- 28 2. 1 medical evidence of an impairment that could reasonably be expected to produce some degree of 2 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 3 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 4 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 5 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. 6 7 An ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and 8 convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p 9 at *10. Subjective pain testimony “cannot be rejected on the sole ground that it is not fully 10 corroborated by objective medical evidence,” but the medical evidence “is still a relevant factor in 11 determining the severity of claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 12 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). The ALJ must 13 examine the record as a whole, including objective medical evidence; the claimant’s representations 14 15 of the intensity, persistence and limiting effects of his symptoms; statements and other information 16 from medical providers and other third parties; and, any other relevant evidence included in the 17 individual’s administrative record. S.S.R. 16-3p at 5. 18 2. Analysis 19 The ALJ found that Plaintiff’s back impairment could reasonably be expected to produce 20 some degree of the symptom or pain alleged. AR 25. The ALJ found no malingering. AR 25. The 21 ALJ was therefore required to offer clear and convincing reasons for rejecting Plaintiff’s testimony. 22 23 Burrell, 775 F.3d at 1136. The ALJ offered the following basis for rejecting Plaintiff’s testimony: 24 The objective evidence, including clinical examination findings, extent of treatment outside of the surgery, and documented improvement following her surgery, are not 25 entirely consistent with the claimant's allegations of disabling symptoms. 26 AR 25. Thus, the ALJ offered two of the same reasons offered in support of her rejection of Dr. 27 Oladunjoye’s testimony: clinical examination findings and post-surgical improvement. However, 28 1 the ALJ did not further elaborate on those reasons. The Court finds the explanation equally 2 insufficient to justify the rejection of Plaintiff’s testimony under the applicable “clear and 3 convincing” standard. See Moore v. Commissioner of SSA, 278 F.3d 920, 924 (9th Cir. 2002) (“The 4 clear and convincing standard is the most demanding required in Social Security cases.”). 5 The ALJ offered one additional justification for rejecting Plaintiff’s testimony, namely 6 7 “extent of treatment outside of the surgery.” AR 25. The ALJ explained Plaintiff’s treatment 8 history as follows: “Associated treatment aside from the fusion surgery has included physical 9 therapy and medication management, such as with nonsteroidal anti-inflammatory drugs 10 (“NSAIDs”), medication used to treat neuropathic pain, muscle relaxants, and opioid pain 11 medications (e.g. Exhibits 1F, 7F, 8F, 16F, 20F, 21F, and 22F).” The ALJ’s reasoning is neither 12 clear nor convincing. Plaintiff’s treatment was indeed conservative prior to her spinal fusion 13 surgery. But she did have the spinal fusion surgery. The fact that Plaintiff also had conservative 14 15 treatment prior to surgery does not undermine her testimony about her allegedly disabling 16 limitations. 17 VIII. Conclusion and Remand for Further Proceedings 18 Remand is appropriate for the ALJ to: 1) consider whether Plaintiff’s left ankle impairment 19 was a severe impairment and (even if not severe) whether it nonetheless impacts her RFC; 2) to 20 properly evaluate Dr. Oladunjoye’s opinion, and 3) to properly evaluate Plaintiff’s subjective 21 testimony. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Generally when a court . 22 23 . . reverses an administrative determination, the proper course, except in rare circumstances, is to 24 remand to the agency for additional investigation or explanation.”). 25 IX. Order 26 The Court finds that substantial evidence and applicable law do not support the ALJ’s 27 conclusion. Accordingly, it is ordered that the Commissioner’s decision is reversed, and this matter 28 1 is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further 2 proceedings consistent with this opinion. The Clerk of Court is directed to enter judgment in favor 3 of Plaintiff Lucia Carillo and against Defendant Commissioner of Social Security. 4 5 IT IS SO ORDERED. 6 7 Dated: February 1, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28