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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 NORMA BANUELOS, Case No. 1:19-cv-01652-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT ANDREW SAUL, 14 Commissioner of Social Security, 15 Defendant. (Doc. 1) 16 17 _____________________________________/ 18 19 20 I. INTRODUCTION 21 On November 22, 2019, Plaintiff Norma Banuelos (“Plaintiff”) filed a complaint 42 22 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of 23 Social Security (the “Commissioner” or “Defendant”) denying her applications for disability 24 insurance benefits (“DIB”) and Supplemental Security Income (SSI) under the Social Security 25 Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which 26 were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 27 Magistrate Judge.1 28 1 2 On February 29, 2016, Plaintiff protectively applied for DIB and SSI payments, alleging 3 she became disabled on April 10, 2015, due to fibromyalgia, anemia, endometriosis, arthritis, 4 hernia surgery, depression, and anxiety. (Administrative Record (“AR”) 21, 71, 86, 103, 118, 5 138, 146, 274, 279, 436, 503, 510, 530, 585.) Plaintiff was born on August 7, 1968, and was 46 6 years old on the alleged disability onset date. (AR 31, 70, 85, 250, 274, 342, 351.) Plaintiff has 7 high school education and can communicate in English. (AR 31, 49, 83, 98, 278, 280, 494, 496, 8 534, 538, 592, 1021.) 9 A. Relevant Medical Evidence2 10 1. Sierra View Medical Center Emergency Department 11 On April 14, 2014, Plaintiff presented with vomiting, diarrhea, abdominal pain, and 12 cramping. (AR 1250–52.) Tenderness was noted, otherwise her physical and psychiatric 13 examinations were normal. (AR 1251.) 14 Plaintiff presented with complaints of epigastric abdominal pain, nausea, and vomiting on 15 April 7, 2016. (AR 1149–53.) Her general appearance was described as alert, appropriate, and 16 well-nourished with no acute distress. (AR 1149.) Plaintiff’s physical examination was normal, 17 including full range of motion and no tenderness. (AR 1149–50.) 18 On May 9, 2016, Plaintiff again complained of abdominal pain. (AR 1106–11.) 19 Plaintiff’s examination was normal, including normal mood and affect. (AR 1107.) 20 On March 15, 2017, Plaintiff complained of difficulty breathing. (AR 1084–89.) Her 21 physical and mental status examinations were normal. (AR 1084–85.) Plaintiff presented with 22 chest tightness on March 29, 2017, and a normal physical examination. (AR 1067–72.) She was 23 described as cooperative, with a normal mood and affect. (AR 1068.) 24 On April 3, 2018, Plaintiff presented with anxiety and requesting a refill of her 25 medications. (AR 1057–59.) Her physical and mental status examinations were normal, yet she 26 was diagnosed with anxiety disorder. (AR 1058.) 27 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 Plaintiff again presented requesting a refill of her anti-anxiety medication on May 23, 2 2018. (AR 1040–43.) Her physical and mental status examinations were normal, but she 3 appeared anxious. (AR 1041.) 4 2. Family Healthcare Network Porterville 5 On March 6, 2015, Plaintiff presented for an appointment following discharge from the 6 emergency room for joint pain. (AR 496.) She reported a negative CT scan and that she was 7 “overall feeling better,” yet continued to have body aches and joint pain. (AR 496.) Plaintiff was 8 noted to be pleasant, alert, well-developed, and well-nourished. (AR 496.) Her physical 9 examination was normal, including normal (5/5) strength in her upper and lower extremities. 10 (AR 496.) Plaintiff followed up for lab results on March 11, 2015. (AR 969–72.) As before, 11 Plaintiff presented with a pleasant appearance and her physical examination was normal. (AR 12 971.) 13 Plaintiff presented for a follow-up appointment on April 15, 2016, to treat her anxiety. 14 (AR 555–57.) Her mental status examination showed Plaintiff to be alert, oriented, with 15 cognitive function intact. (AR 556.) Plaintiff was noted to be cooperative with the exam, with 16 good eye contact, good judgment and good insight. (AR 556.) Her mood/affect was full range 17 with clear speech. (AR 556.) No auditory or visual hallucinations were noted. (AR 556.) 18 Plaintiff was assessed with adjustment disorder with mixed anxiety and depressed mood. (AR 19 556.) 20 On May 3, 2016, Plaintiff presented with complaints of chest pain. (AR 549–51.) She 21 was observed to be alert, well developed, and well nourished. (AR 549.) Her physical 22 examination was normal. (AR 549–50.) She was assessed with anxiety disorder and advised to 23 continue her medications. (AR 550.) Plaintiff followed up with an appointment on May 10, 24 2016, having been admitted to the emergency room for internal bleeding. (AR 544–46.) Her 25 physical examination showed epigastric tenderness, but was otherwise normal. (AR 545.) 26 Plaintiff presented with complaints of jaw and rib pain on October 10, 2016. (AR 537– 27 38.) She was noted to be in no acute distress, well developed, and well nourished. (AR 538.) 28 Examination of Plaintiff’s chest showed tenderness on palpation of chest wall and ribcage, and 1 she was assessed with fibromyalgia and chondrocostal junction syndrome. (AR 537–38.) On 2 December 15, 2016, Plaintiff attended a follow up appointment following hospitalization for 3 chest tightness that radiated to her jaw. (AR 534–36, 918–920.) On examination, Plaintiff 4 appeared anxious with a depressed mood, sad affect, and intact cognitive function. (AR 535, 5 919.) She was cooperative and had good eye contact, with fair judgment and insight. (AR 535, 6 919.) 7 On March 31, 2017, Plaintiff presented with complaints of trouble with eating and 8 digestion and to establish care. (AR 914–17.) Her physical examination was normal, with well- 9 developed and well-nourished appearance, full range of motion, no tenderness, normal strength, 10 and normal gait. (AR 916.) Plaintiff’s mental status examination was also normal. (AR 916.) 11 Plaintiff presented for a follow up appointment on June 23, 2017. (AR 782–85.) Plaintiff 12 was cooperative and her mental status examination normal, with good eye contact, judgment, and 13 insight. (AR 784.) 14 3. Bakersfield Neuroscience & Spine Institute 15 Complaining of “generalized pain” and stiffness, Plaintiff presented for a neurological 16 consultation on April 8, 2015, following a referral. (AR 888–89.) She also complained of 17 anxiety. (AR 888.) Plaintiff’s examination was normal, including full range of motion in her 18 joints and normal mental status. (AR 889.) The evaluator stated that he was “not very sure 19 whether we are dealing with a neurological situation,” and ordered further testing. (AR 889.) He 20 noted that if the studies were normal, Plaintiff would “most likely benefit from a rheumatological 21 evaluation.” (AR 889.) 22 4. Daniel Watrous, M.D. 23 On April 21, 2015, Plaintiff presented to Dr. Watrous for a rheumatological consultation. 24 (AR 468–70.) She reported having diffuse body pains since childhood, but all testing has been 25 unremarkable. (AR 468.) Examination of Plaintiff’s peripheral joints revealed no active 26 synovitis, erythema, increased warmth, or effusions. (AR 469.) No deformities or significant 27 loss of range of motion were noted. (AR 469.) Dr. Watrous found no evidence of vasculitis, 28 tendonitis, or bursitis in Plaintiff’s peripheral tissues, but observed moderate fibromyalgia tender 1 point tenderness. (AR 469.) Examination of Plaintiff’s spine showed normal curvature and good 2 range of motion with mild tenderness in the paraspinal muscles only. (AR 469.) She was 3 assessed with fibromyalgia with a history of anxiety and depression. (AR 469.) 4 On November 17, 2015, Plaintiff complained of pain in her joints. (AR 895–96.) 5 Plaintiff’s joint examination showed moderate tenderness in her left TMJ joint, left arm, left 6 shoulder, left upper arm, left elbow, left forearm, wrists, hands, and left thumb, with no swelling, 7 redness, effusion, or loss of motion. (AR 896.) Dr. Watrous also noted mild tenderness in 8 Plaintiff’s neck, back, left leg, left thigh, left knee, left ankle, and left foot, with no swelling, 9 redness, effusion, or loss of motion. (AR 896.) 10 Plaintiff complained to Dr. Watrous of pain in her left shoulder on February 4, 2016. (AR 11 454.) Examination of Plaintiff’s joints showed moderate tenderness and mild swelling, with no 12 redness, effusion, or loss of motion in her upper back. (AR 455.) Moderate tenderness was also 13 noted in Plaintiff’s fibromyalgia points, as well as tenderness to her Trapezius muscle, which Dr. 14 Watrous noted was possibly tendonitis or the result of a strain. (AR 455.) 15 On May 11, 2016, Plaintiff presented to Dr. Watrous with pain in her fingers. (AR 658– 16 59.) Examination of Plaintiff’s joints revealed moderate tenderness, with no swelling, redness, 17 effusion, or loss of motion. (AR 659.) Dr. Watrous assessed Plaintiff with “[o]steoarthritis 18 [p]olyosteoarthritis” and lumbago (low back pain). (AR 659.) 19 Plaintiff complained of jaw and rib pain on October 5, 2016. (AR 655–57.) Dr. Watrous 20 noted Plaintiff’s MRI results, which showed “bony hypertrophy bilaterally at L5/S1 with mild 21 disc protrusion”; “facet degenerative spondylosis at L5/S1”; “midlevel degenerative disk changes 22 with mild post disk bulging”; “C5/6 focal protrusion and slight extrusion of disc”; “subtle spinal 23 cord deformation”; and “mild to moderate central canal stenosis.” (AR 655.) On examination, 24 Plaintiff had moderate tenderness in her joints, but no swelling, redness, or effusion. (AR 656.) 25 There was mild to moderate loss of motion in Plaintiff’s TMJ joints, neck, shoulders, wrists, hips, 26 left knee, and big toes. (AR 656.) Dr. Watrous noted tenderness and tightness around Plaintiff’s 27 rib cage. (AR 656.) 28 On December 16, 2016, Plaintiff presented to Dr. Watrous with worsening jaw and face 1 pain. (AR 652–54.) Examination of Plaintiff’s joints showed mild to moderate tenderness and 2 mild swelling, with no redness or effusion. (AR 653.) Plaintiff also had mild loss of motion in 3 her bilateral TMJ joints, neck, right arm, right shoulder, right wrist, right hand and fingers, upper 4 back, and the bilateral knees. (AR 653.) Plaintiff showed symptoms of depression. (AR 652.) 5 Plaintiff complained to Dr. Watrous on February 2, 2017, of pain to her thoracic spine 6 with burning sensation that radiated to her jaw and shoulder blades. (AR 648–51.) On 7 examination of Plaintiff’s joints, mild to moderate tenderness and mild swelling was noted, with 8 no redness, effusion, or loss of motion. (AR 649.) Plaintiff had moderate tenderness in her 9 fibromyalgia points. (AR 649.) Dr. Watrous also noted Plaintiff’s rib cage was very tight and 10 that she had a hard time taking deep breathes due to pain to thoracic area. (AR 649.) Symptoms 11 of generalized anxiety and depression were present. (AR 648.) 12 On March 14, 2017, Plaintiff presented with tightness to her chest and difficulty taking 13 deep breaths. (AR 644–47.) Plaintiff’s joint examination showed mild to moderate tenderness 14 and swelling, with no redness or effusion. (AR 645.) Plaintiff also had mild loss of motion in her 15 bilateral TMJ joints, shoulders, elbows, right wrist, thumbs and fingers, left knee, left ankle, left 16 foot, and right toes. (AR 645.) Moderate tenderness in her fibromyalgia points was also noted. 17 (AR 645.) Symptoms of depression were present. (AR 644.) 18 Plaintiff presented to Dr. Watrous on April 12, 2018, with knee pain and for a 19 fibromyalgia follow up. (AR 641–43.) On examination, Plaintiff exhibited mild tenderness in 20 her joints, with no swelling, redness, effusion, or loss of motion. (AR 642.) She reported having 21 “difficulty with her mental health.” (AR 641.) 22 Dr. Watrous completed a physical medical source statement form on July 31, 2018. (AR 23 624–27.) He opined that Plaintiff could sit, stand, or walk for about two hours in an eight-hour 24 workday. (AR 625.) According to Dr. Watrous, Plaintiff could use her hands, fingers, or arms 25 for 25% of the eight-hour workday. (AR 626.) He found Plaintiff would be “off task” 25% or 26 more of the workday, and was incapable of even “low stress” work due to her anxiety, 27 depression, and panic attacks. (AR 626.) 28 /// 1 5. Emmanuel Fabella, M.D. 2 On May 31, 2016, internist Dr. Fabella conducted an internal medicine evaluation. (AR 3 514–19.) Plaintiff primarily complained of fibromyalgia, but also reported that she has 4 osteoarthritis, depression, anxiety, GERD, and anemia. (AR 514.) 5 Dr. Fabella noted Plaintiff was well-developed and fairly nourished. (AR 516.) 6 Examination for trigger points was positive over all areas tested. (AR 516.) Plaintiff had a 7 mildly antalgic gait but intact balance, and did not require the use of assistive devices for 8 ambulation. (AR 516.) Plaintiff had difficulty walking on her toes due to myalgias and left knee 9 arthralgia. (AR 516.) Dr. Fabella found normal peripheral pulses in Plaintiff’s extremities and 10 symmetrical throughout. (AR 517.) There was no clubbing, cyanosis, or pedal edema seen. Dr 11 Fabella found Plaintiff had no joint deformities, effusions, warmth, swelling, crepitus or pain on 12 motion. (AR 517.) No laxity of any joint was seen. (AR 517.) 13 Dr. Fabella found normal range of motion in Plaintiff’s shoulders, elbows, wrists, hips, 14 and knees. (AR 517.) Examination of Plaintiff’s hands showed early “Heberden’s and 15 Bouchard’s nodes,” and Plaintiff had decreased range of motion in Plaintiff’s left knee with 16 flexion was limited to 90 degrees. (AR 517.) The range of motion in Plaintiff’s right knee was 17 normal. (AR 517.) Dr. Fabella found Plaintiff had normal muscle bulk and tone without atrophy. 18 (AR 517.) Other than otherwise noted in Plaintiff’s hands, her strength was “5/5” throughout. 19 (AR 517.) 20 Dr. Fabella assessed Plaintiff with [f]ibromyalgia, not well-controlled and associated with 21 fatigue” and “[a]rthralgias over the fingers and left knee, most consistent with early osteoarthritis. 22 (AR 518.) He opined that, given Plaintiff’s impairments, she could: lift 10 pounds occasionally 23 and less than 10 pounds frequently, due to arthralgias and myalgias; walk or stand four hours or 24 less of an eight-hour day, secondarily due to arthralgias and myalgias; sit for 60 minutes at a 25 time, after which a break is required, secondarily due to myalgias; climb, balance, kneel, and 26 crawl occasionally, secondarily due to arthralgias and myalgias; never walk on uneven terrain, 27 climb ladders, or work at heights, secondarily due to arthralgias and myalgias; and engage in fine 28 fingering manipulation but with moderate impairment in gross manipulation using both hands, 1 secondarily due to arthralgias and myalgias. (AR 518.) Dr. Fabella found no limitations on 2 hearing and seeing or any environmental restrictions. (AR 518.) 3 6. St. George Spine and Pain Institute 4 Plaintiff presented for an evaluation of her low back and bilateral extremity pain on June 5 23, 2016. (AR 995–96.) She displayed “no pain behavior” throughout the examination. (AR 6 995.) On examination, Plaintiff had positive tenderness in her low back, with limited range of 7 motion but normal (5/5) muscle strength. (AR 995.) Plaintiff also had positive tenderness in her 8 neck, with limited range of motion but normal (5/5) muscle strength. (AR 996.) She was 9 accessed with cervical/lumbar radiculitis and myofascial pain syndrome. (AR 996.) 10 7. Roger A. Izzi, Ph.D. 11 On July 11, 2016, Dr. Izzi performed a psychiatric evaluation of Plaintiff. (AR 522–25.) 12 Plaintiff complained of anxiety, depression, fibromyalgia, anemia, acid reflux disease, 13 endometriosis, peptic ulcer, and osteoarthritis. (AR 522.) She reported that she lacks 14 concentration due to pain and has had suicidal ideation in the past, although no specific intent 15 was noted at that time. (AR 522.) 16 Dr. Izzi observed Plaintiff was alert, responsive, and fully oriented. (AR 523.) Plaintiff’s 17 affect seemed dysphoric and she described feeling “worthless” and “sad.” (AR 523.) On 18 examination, Plaintiff was able to immediately recall three words without any obvious difficulty. 19 (AR 522.) Upon delayed recall, she was able to recall two of the three words. (AR 523.) Dr. 20 Izzi observed Plaintiff could not spell the word “world.” (AR 523.) 21 Dr. Izzi diagnosed Plaintiff with a major depressive disorder with anxious stress, 22 observing that Plaintiff’s performance on the mental status examination “seemed satisfactory.” 23 (AR 524.) He noted that Plaintiff’s mood disorder would fluctuate as her subjective perception of 24 pain fluctuates, and that there is likely to be some depression secondary to her awareness of loss 25 of functional ability. (AR 524.) Dr. Izzi noted that Plaintiff is “not having any difficulty caring 26 for basic hygiene” and that she “does appear capable of performing a simple repetitive type task 27 on a consistent basis over an eight-hour period.” (AR 524.) Dr. Izzi opined that Plaintiff’s ability 28 to get along with peers or be supervised in a work-like setting would be moderately limited by 1 her mood disorder, which will fluctuate. (AR 524.) He further opined that “[a]ny significant 2 fluctuation of mood may limit [Plaintiff’s] ability to perform a complex task on a consistent basis 3 over an eight-hour period.” (AR 524.) According to Dr. Izzi, Plaintiff appeared capable of 4 responding to usual work sessions situations regarding attendance and safety issues and dealing 5 with changes in a routine work setting. (AR 524.) She was also capable of managing her own 6 finances. (AR 525.) 7 8. State Agency Physicians 8 On August 31, 2016, W. Jackson, M.D., a state agency physician, reviewed the record and 9 assessed Plaintiff’s physical residual functional capacity (RFC).3 (AR 78–80, 93–95.) Dr. 10 Jackson found that Plaintiff could: lift and/or carry 20 pounds occasionally and 10 pounds 11 frequently; stand and/or walk for about six hours in an eight-hour workday; sit for about six hours 12 in an eight-hour workday; perform unlimited pushing/pulling with the upper and lower 13 extremities, subject to the lift and carry restrictions; occasionally climb ramps and stairs, balance, 14 stoop, kneel, and crouch; and never crawl or climb ladders, ropes, or scaffolds. (AR 78–80, 93– 15 95.) Dr. Jackson further found that Plaintiff had limited gross and fine manipulation in both 16 hands. (AR 78–80, 93–95.) On reconsideration on January 10, 2017, another state agency 17 physician, E. Christian, M.D., reviewed the record and affirmed Dr. Jackson’s findings. (AR 18 110–12, 125–27.) 19 State agency consultant Brady Dalton, Psy.D., reviewed the record and assessed 20 Plaintiff’s mental RFC on August 20, 2016. (AR 80–82, 95–97.) Dr. Dalton opined that Plaintiff 21 had moderate limitations in the ability to: understand and remember detailed instructions; carry 22 out detailed instructions, maintain attention and concentration for extended periods; perform 23 activities within a schedule; maintain regular attendance; be punctual within customary 24 25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. 26 TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result 27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 tolerances; complete a normal workday and workweek without interruptions from 2 psychologically based symptoms; perform at a consistent pace without an unreasonable number 3 and length of rest periods. (AR 80–82, 95–97.) 4 On reconsideration on March 3, 2014, another state agency physician, S. Gold, M.D., 5 reviewed the record and affirmed Dr. Dalton’s findings. (AR 112–14, 127–29.) 6 9. Kaweah Delta Medical Center Emergency Department 7 On November 30, 2016, Plaintiff presented with complaints of nausea and chest tightness. 8 (AR 1310–22.) Her physical examination was normal. (AR 1314.) 9 Plaintiff was transported via ambulance for a mental health evaluation on April 4, 2017. 10 (AR 1276–79.) She reported depression as a result of “being in pain all the time,” and exhibited 11 suicidal ideations with a plan to “shoot herself in the head.” (AR 1276, 1305.) On physical 12 examination, palpation on Plaintiff’s mid-chest reproduced her chest tightness. (AR 1277.) Her 13 psychiatric examination showed her to be awake, alert, and cooperative, but also with a crying, 14 apprehensive, uneasy, and tense affect. (AR 1277.) Plaintiff also exhibited an inability to 15 express herself, irrational beliefs, and a lack of understanding of her current condition. (AR 16 1280.) She had reduced speech, depressed and anxious mood, with poor insight, poor judgment, 17 and blunted affect. (AR 1290.) Plaintiff was admitted to the psychiatric department of the 18 hospital due to being “actively suicidal” and in “guarded” condition. (AR 1278, 1284, 1301) 19 Upon discharge, Plaintiff was cooperative with good eye contact and feeling “hopeful,” having 20 achieved a “fair level of improvement.” (AR 1295–96.) Her long-term prognosis was deemed 21 “fair.” (AR 1296.) 22 10. LAGS Spine and Sportscare Center 23 On June 14, 2017, Plaintiff presented with pain in her anterior chest wall, shoulder blades, 24 and lower jaw. (AR 871–76.) She had normal range of motion in her cervical spine, with normal 25 sensation, reflexes, and strength. (AR 873–74.) Plaintiff’s lumbar spine range of motion was 26 limited, and pain with motion was noted. (AR 874.) Her straight leg raising test was normal, as 27 was her sensation in her lumbar spine. (AR 874.) Plaintiff’s motor strength was abnormal (4/5) 28 in her hip with abduction, and her lower extremity neurological examination showed abnormal 1 findings. (AR 874.) 2 Plaintiff presented with back, leg, shoulder, jaw, and orofacial pain on May 24, 2018. 3 (AR 817–20.) Plaintiff’s musculoskeletal examination was normal, with a negative straight leg 4 raising test, normal sensation and strength, and normal range of motion in her spine. (AR 818– 5 19.) No tenderness to palpation was noted. (AR 818–19.) Plaintiff was assessed with cervical 6 spondylosis. (AR 819.) 7 On September 4, 2018, Plaintiff complained of jaw pain and intercostal neuralgia. (AR 8 806–810.) Plaintiff’s examination was normal, including full range of motion in Plaintiff’s neck. 9 (AR 808.) It was also noted that Plaintiff exhibited a normal gait with no assistive device used 10 for ambulation. (AR 808.) 11 11. Porterville Adult Clinic 12 Following her hospitalization for suicidal ideation in April 2018, Plaintiff was referred for 13 an assessment on May 21, 2018. (AR 1026–39.) On examination, Plaintiff appeared 14 cooperative, but with a confused attitude and “teary eyed” throughout. (AR 1032.) She exhibited 15 “distorted” and “passive” thoughts about suicide, about which she thinks “daily.” (AR 1033.) 16 The evaluator noted that Plaintiff’s “impairments are evident in her interpersonal relationships, 17 passive suicidal ideation plans but no intent, low-socio-economic status, physical illnesses. [She] 18 continues to need therapeutic and medication intervention. [Her] symptoms are likely to 19 decompose without continued services and support,” resulting in a greater risk of psychiatric 20 hospitalization. (AR 1035–36.) 21 On June 7, 2018, Plaintiff presented for a psychiatric evaluation upon referral by her 22 primary care physician. (AR 1014–20.) Her mood was described as depressed and anxious, with 23 mildly impaired judgment and insight. (AR 1016–17.) Plaintiff was observed to be friendly and 24 cooperative. (AR 1017.) She exhibited average intelligence. (AR 1017.) The evaluator also 25 noted that Plaintiff “hears voices about three times a week telling her to kill herself” and “she 26 gets paranoid thinking that people are watching her.” (AR 1017.) Plaintiff was diagnosed with 27 “[m]ajor depression, recurrent, severe with psychosis” due to her hearing voices and “panic 28 disorder with agoraphobia.” (AR 1018.) 1 12. Jerry R. Livesay, Ph.D. 2 On June 24, 2018, psychologist Dr. Livesay conducted a mental evaluation of Plaintiff. 3 (AR 600–06.) He noted Plaintiff had appropriate eye contact and was cooperative throughout the 4 assessment. (AR 600.) She presented with a blunted affect and dysphoric mood and there was a 5 “sad quality to her overall demeanor.” (AR 600.) Plaintiff spoke in a low volume, monotone 6 voice, and at a moderate rate speech delivery. (AR 600.) She complained of severe anxiety and 7 depression. (AR 600.) 8 Dr. Livesay observed that Plaintiff was “able to concentrate in a reasonably sustained 9 fashion” and that she “worked fairly persistently at a moderate to slow pace.” (AR 601.) 10 Plaintiff had a “relatively blunted affect” and a “sad, dysthymic demeanor which persisted 11 throughout the assessment.” (AR 603.) Her thought content “included themes of helplessness 12 regarding her medical problems.” (AR 603.) Plaintiff reported “periods of tearfulness and 13 dysphoria in the morning such that it is difficult for her to get out of bed at least 2–3 times 14 weekly,” which Dr. Livesay found “indicate[s] the presence of melancholia, as well as psychotic 15 features accompanying [Plaintiff’s] depression.” (AR 603.) Dr. Livesay found Plaintiff’s 16 intelligence to be in the average range. (AR 604.) 17 Dr. Livesay diagnosed Plaintiff with “[m]ajor [d]epressive [d]isorder, recurrent, 18 moderately severe, with mood congruent psychotic features, anxious distress, anhedonia and 19 melancholia”; “[p]anic [d]isorder, moderate,” and “[i]nsomnia [d]isorder, comorbid to major 20 depression, moderately severe, frequent nocturnal awakenings.” (AR 605.) He opined that 21 Plaintiff’s ability to perform detailed and complex tasks, to interact with coworkers and the 22 public, and to perform work activities on a consistent basis without special or additional 23 instruction is mildly impaired. (AR 605.) Dr. Livesay further found that Plaintiff’s ability to 24 maintain regular attendance and complete a normal workday/workweek without interruptions 25 from a psychiatric condition, and to deal with usual stress encountered in the workplace, is 26 moderately impaired. (AR 605–606.) He explained on the “Medical Source Statement,” 27 completed on July 2, 2018, that Plaintiff’s major depressive disorder causes “auditory 28 hallucinations (i.e., ‘voices’) which make her paranoid around others” and her “low stress 1 tolerance, low volition, and psychotic features significantly limits her ability to adapt to change in 2 routine.” (AR 608.) 3 13. Joseph Serra, M.D. 4 On June 29, 2018, orthopedist Dr. Serra conducted a comprehensive internal medicine 5 evaluation of Plaintiff. (AR 611–15.) Plaintiff complained of pain in her neck and back as a 6 result of fibromyalgia, anemia, endometriosis, arthritis, herniorrhaphy, depression, and anxiety. 7 (AR 611.) She reported that has pain in her left knee and dizziness, as well as arthritis of the 8 cervical spine. (AR 611.) Plaintiff also reported diagnoses of degenerative disc disease and 9 intercostal neuralgia. (AR 611.) 10 Dr. Serra observed that Plaintiff was well-developed and well-nourished. (AR 612.) 11 Plaintiff walked with a left antalgic gait and used a cane. (AR 613.) She had tenderness to 12 palpation in her left knee. (AR 613.) Plaintiff’s straight leg raising test was negative in the 13 seated posture, other than causing pain in her lower legs. (AR 614.) Dr. Serra found Plaintiff’s 14 muscle strength, sensation, and reflexes were all normal. (AR 614.) He opined that Plaintiff’s 15 “subjective complaints far outweigh objective findings,” as she “complains of pain everywhere as 16 she is touched or examined.” (AR 614.) 17 Dr. Serra diagnosed Plaintiff with impingement in her bilateral shoulder, 18 musculoligamentous strain in her lumbar and cervical spine, and “functional overlay.” (AR 614.) 19 He concluded in his report that Plaintiff was limited to standing or walking up to six hours in an 20 eight-hour day; sitting up to six hours per day; lifting and carrying 20 pounds occasionally and 10 21 pounds frequently; frequent climbing of stairs and steps; occasional climbing of ladders and 22 scaffolds; frequent kneeling, balancing, stooping, crawling, and crouching; occasional overhead 23 and forward reaching; and frequent handling, fingering, and feeling. (AR 614–15.) He also 24 found Plaintiff’s use of a cane was not medically necessary and that there were no workplace 25 environmental limitations except for hazards. (AR 614–15.) 26 B. Administrative Proceedings 27 The Commissioner denied Plaintiff’s applications for benefits initially on September 1, 28 2016, and again on reconsideration on January 26, 2017. (AR 100–101, 132–33, 138–43, 146– 1 51.) Consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 2 (AR 152–80.) At the hearing on September 28, 2018, Plaintiff appeared with counsel and 3 testified before an ALJ as to her alleged disabling conditions. (AR 48–62.) 4 A vocational expert (“VE”) testified at the hearing that Plaintiff had past work as an 5 agricultural worker, Dictionary of Operational Titles (DOT) code 920.687-134, which was 6 medium exertional work with a specific vocational preparation (SVP)4 of 2; as an assembler, 7 DOT code 706.684-022, which was light exertional work with an SVP of 2; as an office clerk, 8 DOT code 219.362-010, which was light exertional work with an SVP of 2; and as a human 9 resources clerk, DOT code 209.362-026, which was sedentary exertional work with an SVP of 10 4, performed at a medium level. (AR 64–65.) 11 The ALJ asked the VE to consider a person of Plaintiff’s age, education, and with her 12 work background. (AR 65.) The VE was also to assume this person is limited to the light 13 exertional level. (AR 65.) She could tolerate occasional ramps and stairs, but not use ladders, 14 ropes, or scaffolding. (AR 65.) The individual could occasionally perform balancing, stooping, 15 kneeling, crouching, and crawling, and could perform frequent handling and fingering 16 bilaterally. (AR 65.) Finally, she would be able to perform non-complex routine tasks. (AR 17 65.) The VE testified that such a person could not perform Plaintiff’s past work, but could 18 perform other positions with light exertional level under the DOT in the national economy, such 19 as office helper, DOT code 239.567-010, SVP 2; interviewer, DOT code 205.367-054, SVP 2; 20 and salon attendant, DOT code 359.567-014, SVP 2. (AR 65–66.) 21 The ALJ asked a follow up question regarding a second hypothetical worker who has the 22 same limitations as the first, but also would be able to stand and walk for a total combined time 23 of four hours in a workday. (AR 66) The VE testified there would be no light work available in 24 the national economy that such a person could perform, and only sedentary jobs were available. 25 (AR 66.) 26 4 Specific vocational preparation, 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 In the third hypothetical, the ALJ asked the VE to consider the limitations set forth in 2 the second hypothetical, with the additional limitation that she would be able to attend a 3 maximum of all but two days out of a work month, those days being missed unexpectedly due 4 to pain, fatigue or mental health symptoms. (AR 66.) The VE testified there would be no work 5 available in the national economy that such a person could perform. (AR 67.) 6 Plaintiff’s attorney posed a fourth hypothetical to the VE, concerning an individual who 7 could lift and carry ten pounds occasionally and less than ten pounds frequently; stand and walk 8 for four hours; sit for six out of eight hours but requires shifting of positions every hour; 9 perform occasional climbing, balancing, kneeling, and crawling; must avoid uneven terrain; 10 cannot climb ladders or work at heights; and perform occasional fingering and gross 11 manipulation in both upper extremities. (AR 67.) The VE testified such a person could not 12 perform Plaintiff’s past work or any work in the national economy. (AR 67.) 13 C. The ALJ’s Decision 14 In a decision dated February 14, 2019, the ALJ found that Plaintiff was not disabled, as 15 defined by the Act. (AR 21–32.) The ALJ conducted the five-step disability analysis set forth in 16 20 C.F.R. §§ 404.1520, 416.920. (AR 23–32.) The ALJ decided that Plaintiff had not engaged in 17 substantial gainful activity since April 10, 2015, the alleged onset date (step one). (AR 23) At 18 step two, the ALJ found Plaintiff’s following impairments to be severe: osteoarthritis, 19 fibromyalgia, and anxiety disorder. (AR 23.) Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled one of the listed impairments in 20 21 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 23–25.) 22 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 23 five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, 24 we assess your residual functional capacity . . . . We use this residual functional capacity 25 assessment at both step four and step five when we evaluate your claim at these steps.”). The 26 ALJ determined that Plaintiff had the RFC: 27 to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967 (b) and 28 could tolerate occasional ramps and stairs; could not use ladders, ropes, or 1 and crawling; could perform frequent handling and fingering bilaterally; and 2 could perform non-complex, routine tasks. 3 (AR 25–30.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 4 expected to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not 5 entirely consistent with the medical evidence and other evidence in the record.” (AR 26.) 6 The ALJ determined that, given The ALJ found that Plaintiff could not perform any of her 7 past relevant work. (AR 30–31). Nonetheless, the ALJ determined that Plaintiff could perform 8 alternate jobs that exist in significant numbers in the national economy, such as office helper, 9 interviewer, and salon attendant. (AR 31–32). Ultimately, the ALJ concluded that Plaintiff was 10 not disabled at any time through the date of her decision. (AR 32.) 11 Plaintiff sought review of this decision before the Appeals Council, which denied review 12 on September 25, 2019. (AR 1–8.) Therefore, the ALJ’s decision became the final decision of 13 the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 14 III. LEGAL STANDARD 15 A. Applicable Law 16 An individual is considered “disabled” for purposes of disability benefits if he or she is 17 unable “to engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which has lasted or can 19 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 20 423(d)(1)(A). However, “[a]n individual shall be determined to be under a disability only if [her] 21 physical or mental impairment or impairments are of such severity that he is not only unable to 22 do his previous work but cannot, considering his age, education, and work experience, engage in 23 any other kind of substantial gainful work which exists in the national economy.” Id. § 24 423(d)(2)(A). 25 “The Social Security Regulations set out a five-step sequential process for determining 26 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 27 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 28 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 1 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 2 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 3 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. 4 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable 5 of performing her past relevant work. If so, the claimant is not disabled. If not, 6 the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, 7 the claimant is not disabled. If not, the claimant is disabled. 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 9 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is 10 found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider 11 subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 12 “The claimant carries the initial burden of proving a disability in steps one through four of 13 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 14 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 15 shifts to the Commissioner in step five to show that the claimant can perform other substantial 16 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 17 B. Scope of Review 18 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 19 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 20 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” 21 means “such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of 23 N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but 24 less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 25 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 26 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be 27 disturbed only if that decision is not supported by substantial evidence or it is based upon legal 28 error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will 1 uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 2 interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the 3 evidence is susceptible to more than one rational interpretation, the court may not substitute its 4 judgment for that of the Commissioner.” (citations omitted)). 5 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 6 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 7 must determine whether the Commissioner applied the proper legal standards and whether 8 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 9 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot 10 be affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d 11 at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 12 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 13 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 14 Cir. 1993)). 15 Finally, courts “may not reverse an ALJ’s decision on account of an error that is 16 harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. 17 Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear 18 from the record that ‘the ALJ’s error was inconsequential to the ultimate nondisability 19 determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins, 20 466 F.3d at 885). “[T]he burden of showing that an error is harmful normally falls upon the party 21 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations 22 omitted). 23 IV. DISCUSSION 24 Plaintiff contends that the ALJ erred in rejecting portions of the opinions from her treating 25 and examining and physicians without setting forth specific and legitimate reasons supported by 26 substantial evidence. (See Doc. 17 at 12–22; Doc. 22.) Defendant counters that the ALJ properly 27 reviewed the record and resolved the conflicting opinion evidence. (See Doc. 21 at 8–17.) 28 /// 1 1. Legal Standard 2 3 The medical opinions of three types of medical sources are recognized in Social Security 4 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 5 treat the claimant (examining physicians); and (3) those who neither examine nor treat the 6 claimant (non-examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 7 Ordinarily, more weight is given to the opinion of a treating professional, who has a greater 8 opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 9 1273, 1285 (9th Cir. 1996). “To evaluate whether an ALJ properly rejected a medical opinion, in 10 addition to considering its source, the court considers whether (1) contradictory opinions are in 11 the record; and (2) clinical findings support the opinions.” Cooper v. Astrue, No. CIV S–08– 12 1859 KJM, 2010 WL 1286729, at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an 13 uncontradicted opinion of a treating or examining medical professional only for “clear and 14 convincing” reasons. Lester, 81 F.3d at 830. In contrast, a contradicted opinion of a treating or 15 examining professional may be rejected for “specific and legitimate reasons that are supported by 16 substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 17 F.3d at 1198); see also Lester, 81 F.3d at 830. “An ALJ can satisfy the ‘substantial evidence’ 18 requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical 19 evidence, stating his interpretation thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 20 995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “The 21 ALJ must do more than state conclusions. He must set forth his own interpretations and explain 22 why they, rather than the doctors’, are correct.” Id. (citation omitted). 23 “[E]ven when contradicted, a treating or examining physician’s opinion is still owed 24 deference and will often be ‘entitled to the greatest weight . . . even if it does not meet the test for 25 controlling weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th 26 Cir. 2007)). The regulations require the ALJ to weigh the contradicted treating physician 27 28 1 opinion, Edlund, 253 F.3d at 11575, except that the ALJ in any event need not give it any weight 2 if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 3 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally supported opinion rejected); see 4 also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The opinion of a non-examining 5 professional, by itself, is insufficient to reject the opinion of a treating or examining professional. 6 Lester, 81 F.3d at 831. 7 2. Analysis of the ALJ’s Treatment of the Opinion Evidence 8 a. Dr. Watrous 9 On July 31, 2018, Dr. Watrous, who had been Plaintiff’s treating physician for over three 10 years, completed a physical medical source statement form. (AR 58, 624–27.) He opined that 11 Plaintiff could sit, stand, or walk for about two hours in an eight-hour workday, and she could use 12 her hands, fingers, or arms for 25% of the eight-hour workday. (AR 625–26.) He found Plaintiff 13 would be “off task” 25% or more of the workday, and was incapable of even “low stress” work 14 due to her anxiety, depression, and panic attacks. (AR 626.) The ALJ accorded this opinion 15 “little weight.” (AR 29.) 16 Although not specifically identified by the ALJ as a basis for its rejection, Dr. Watrous’s 17 opinion is contradicted by the opinion evidence of Disability Determinations Service medical 18 consultants Drs. Jackson and Christian, who opined that Plaintiff was able to lift and/or carry 20 19 pounds occasionally and 10 pounds frequently; stand and/or walk for about six hours in an eight- 20 hour workday; sit for about six hours in an eight-hour workday; and perform unlimited 21 pushing/pulling with the upper and lower extremities, subject to the lift and carry restrictions. 22 (AR 78–80, 93–95, 110–12, 125–27.) Thus, the ALJ was required to state a “specific and 23 legitimate reason,” supported by substantial evidence, for rejecting Dr. Watrous’s opinion. 24 Trevizo, 871 F.3d at 675. 25 In reviewing the medical evidence and giving little weight to Dr. Watrous’s opinion, the 26 ALJ stated that “[t]he record does not support the intensity of the above noted limitations and is 27 5 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 thus inconsistent with the longitudinal record, as described in the analysis of the Disability 2 Determination Services consultant opinions, above.” (AR 29.) 3 In her discussion of the opinions of Drs. Jackson and Christian (who assessed Plaintiff’s 4 alleged physical limitations), the ALJ described the longitudinal record as follows: 5 [W]hile [Plaintiff] was diagnosed with fibromyalgia and osteoarthritis, she was also noted - in contradiction to the intensity of her allegations - as exhibiting 5/5 6 extremity strength, extremity ranges of motion within normal limits, intact balance, negative straight leg raising, a well-appearing and well-developed 7 appearance, and a consultative examiner reported that her subjective complaints 8 "far outweigh" objective findings. (e.g. Exhibits IF/21/35/62, 6F, 9F/10, 13F, 16F, 19F/3/14/68/69, 20F, 21F/7, 24F/5/60, 25F/l 7, 28F/2/19/29/68/111/212, 9 29F/22/56). 10 (AR 28.) Such description ignores contrary evidence in the records cited that supports Dr. 11 Watrous’s opinion. For example, physical examinations of Plaintiff showing “extremity ranges 12 of motion within normal limits” were nevertheless accompanied by findings of mild to moderate 13 joint tenderness. (See AR 455, 469, 642, 649, 659, 896.) Although Plaintiff exhibited “5/5 14 extremity strength” during examinations, those examinations also showed limited range of 15 motion in her knee (AR 517), back (AR 995), and neck (AR 996). Examinations with “negative 16 straight leg raising” test results also showed limited range of motion and pain in Plaintiff’s low 17 back (AR 874), weakened muscle strength in her hip joint (AR 874), abnormal neurological 18 findings in her lower extremities (AR 874), and a diagnosis of cervical spondylosis (AR 819). 19 Where “intact balance” was noted, so too was antalgic gait. (See AR 516, 613.) Examiners 20 noting Plaintiff’s “well-appearing and well-developed appearance” assessed her at the same time 21 with anxiety disorder (AR 550), chondrocostal junction syndrome (AR 538), arthralgias (AR 22 518), bilateral shoulder impingement (AR 614), musculoligamentous strain in her lumbar and 23 cervical spine (AR 614). 24 While the ALJ’s description of it implies the contrary, review of Plaintiff’s longitudinal 25 record shows that abnormal physical examination findings were not rare. The existence of 26 tenderness in Plaintiff’s joints and fibromyalgia points was repeatedly noted in her examinations 27 by Dr. Watrous and others over a four-year period. (See AR 538, 645, 653, 656, 1251.) Several 28 of these examinations also showed loss of motion in her joints. (See AR 645, 653, 656.) 1 An ALJ may properly discount a treating physician’s opinion that is inconsistent with the 2 medical record, including his own findings. See Valentine, 574 F.3d at 692–93. However, in so 3 doing, an ALJ may not consider evidence that only supports the non-disability determination, 4 while disregarding evidence that supports the contradictory opinion from a physician. See, e.g., 5 Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (finding that “the ALJ’s specific 6 reason for rejecting [a physician’s] medical opinion [was] not supported by substantial evidence” 7 because, in part, “the ALJ selectively relied on some entries in [the plaintiff’s] records . . . and 8 ignored the many others that indicated continued, severe impairment”); see also Reddick, 157 9 F.3d at 722–23 (An ALJ may not “cherry pick” from a record to support the conclusion, but 10 rather must account for the context of the whole record.). See generally Gallant v. Heckler, 753 11 F.2d 1450, 1456 (9th Cir. 1984) (“Although it is within the power of the [ALJ] to . . . weigh 12 conflicting evidence, he cannot reach a conclusion first, and then attempt to justify it by ignoring 13 competent evidence in the record that suggests an opposite result.” (citations omitted)). 14 Here, the ALJ’s conclusion that Dr. Watrous’s opinion was “inconsistent with the 15 longitudinal record” is based on isolated favorable portions of the record and does not account for 16 it as a whole. See Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016) (“We cannot affirm, 17 however, by isolating a specific quantum of supporting evidence, but must consider the record as 18 a whole.”); Holohan, 246 F.3d at 1205 (noting a treating physician’s statements must be read in 19 context of the overall diagnostic picture he draws). The Court therefore finds that the ALJ’s 20 rejection of Dr. Watrous’s opinion is not supported by substantial evidence. 21 b. Dr. Fabella 22 Consultative internist Dr. Fabella examined Plaintiff on May 31, 2016, and opined that, 23 given Plaintiff’s impairments, she: could lift 10 pounds occasionally and less than 10 pounds 24 frequently; walk or stand four hours or less of an eight-hour day; sit for 60 minutes at a time, after 25 which a break is required; climb, balance, kneel, and crawl occasionally; never walk on uneven 26 terrain, climb ladders, or work at heights; and engage in fine fingering manipulation but with 27 moderate impairment in gross manipulation using both hands. (AR 518.) Like the opinion of Dr. 28 Watrous, Dr. Fabella’s opinion is contradicted by the opinions of non-examining consultants Drs. 1 Jackson and Christian. (See AR 78–80, 93–95, 110–12, 125–27.) 2 Although the ALJ gave “some weight” to Dr. Fabella’s opinion, she did not specify 3 portion of the opinion she was adopting and what portion she was rejecting. Comparing the 4 opinion to the RFC finding, it appears the ALJ intended to reject Dr. Fabella’s opined lifting, 5 walking, standing, sitting, and bilateral hand gross manipulation limitations. (Compare AR 25– 6 26 with AR 518.) The ALJ apparently determined these limitations were “overly restrictive” and 7 “only somewhat consistent with the longitudinal record” as described in her analysis of the 8 opinions of the non-examining internal medicine physicians. (AR 28.) As set forth above, 9 however, the ALJ’s description is impermissibly selective. The Court therefore finds that it does 10 not constitute substantial evidence to support the rejection of portions of Dr. Fabella’s opinion 11 based on a purported inconsistency with the longitudinal record. 12 c. Dr. Izzi 13 Following an examination on July 11, 2016, consultative psychologist Dr. Izzi diagnosed 14 Plaintiff with a major depressive disorder with anxious stress, observing that Plaintiff’s 15 performance on the mental status examination “seemed satisfactory.” (AR 524.) Dr. Izzi opined 16 that Plaintiff’s ability to get along with peers or be supervised in a work-like setting would be 17 moderately limited by her mood disorder, which would fluctuate. (AR 524.) He further opined 18 that “[a]ny significant fluctuation of mood may limit [Plaintiff’s] ability to perform a complex 19 task on a consistent basis over an eight-hour period.” (AR 524.) According to Dr. Izzi, Plaintiff 20 appeared capable of responding to usual work sessions situations regarding attendance and safety 21 issues and dealing with changes in a routine work setting. (AR 524.) She was also capable of 22 managing her own finances. (AR 525.) 23 Although not specifically identified by the ALJ as a basis for its rejection, Dr. Izzi’s 24 opinion is contradicted by the opinion evidence of Disability Determinations Service medical 25 consultants Drs. Dalton and Gold, who opined that Plaintiff had no social interaction or 26 adaptation limitations. (AR 82, 97, 114, 129.) Thus, the ALJ was required to state “specific and 27 legitimate” reasons, supported by substantial evidence, for her partial rejection of Dr. Izzi’s 28 opinion. 1 The ALJ explicitly rejected Dr. Izzi’s opined moderate limitation in Plaintiff’s ability to 2 get along with peers or be supervised in a work-like setting, finding it “not support[ed]” by the 3 longitudinal record. (AR 29.) The ALJ accorded the remainder of the opinion “some weight,” 4 observing that it appeared “generally consistent” with the record “as described in the analysis of 5 the Disability Determination Services consultant opinions, above.” (AR 29.) 6 The ALJ described the longitudinal record in her analysis of the opinion of consulting 7 non-examiners Drs. Dalton and Gold (who assessed Plaintiff’s alleged mental limitations) as 8 follows: 9 [W]hile [Plaintiff] has a history of psychological hospitalization and exhibited difficulties in recall and concentration tasks, she was also noted - in contradiction 10 to the intensity of her allegations - as exhibiting average intelligence, intact cognitive functioning, the ability to concentrate in a reasonably sustained fashion 11 with fair persistence at a moderate to slow pace, a pleasant and cooperative 12 demeanor, and fair or good judgment and insight (e.g. Exhibits IF/62, 6F, 7F, 9F/7/l 7/22/27/28, 11F/5, 12F, 13F, 16F, 18F/124, 20F, 24F/5/8/60, 27F/l/15/l7, 13 28F/2/19/29/45/68/212, 29F/22/34/40/50). 14 (AR 29.) As with her description of the longitudinal record documenting Plaintiff’s physical 15 impairments, the ALJ has selectively relied on some entries in Plaintiff’s records and ignored 16 others pertaining to her mental impairments.6 For example, during examinations where Plaintiff 17 was noted to “exhibit[] an average intelligence,” she was also found to be suffering from severe 18 major depression with psychosis, due to her experiencing auditory hallucinations advising her to 19 commit suicide. (See AR 603, 608, 1016–17.) A finding of “intact cognitive function” was 20 coupled with a diagnosis of adjustment disorder. (See AR 556.) Whereas Plaintiff presented 21 with “a pleasant and cooperative demeanor,” she also exhibited a depressed and/or anxious mood 22 (AR 535, 919, 1016–17, 1277, 1290), blunted and/or sad affect (AR 535, 919, 1277, 1290), 23 confused attitude (AR 1032), irrational beliefs (AR 1290), distorted thoughts (AR 1032), reduced 24 speech (AR 1290), daily suicidal thoughts (AR 1023), and poor insight and judgment (AR 1290). 25 On occasions where Plaintiff’s insight and judgment were deemed “fair or good,” she was 26 27 6 Some of the evidence cited by the ALJ in her description bears little relation to it, in that it does not contain findings relating to Plaintiff’s mental impairments. (See, e.g., AR 514–19 (examination by internist Dr. Fabella); AR 28 545 (May 10, 2016 follow up appointment after hospitalization for internal bleeding); AR 596 (record of urine drug 1 observed to be anxious with a depressed mood and sad affect. (See AR 535, 556, 919) On other 2 occasions, Plaintiff’s insight and judgment were found to be either mildly impaired (AR 1016– 3 17) or poor (AR 1290). 4 As discussed above, an ALJ may not, as she has done here, “cherry pick” evidence to fit a 5 description of a claimant’s mental impairment record that could support a conclusion of non- 6 disability, while ignoring evidence that might not. See Holohan, 246 F.3d at 1207; Reddick, 157 7 F.3d at 722–23; Attmore, 827 F.3d at 875. Thus, the Court finds that the ALJ’s conclusion that 8 Dr. Izzi’s opined moderate limitation in Plaintiff’s ability to get along with peers or be supervised 9 in a work-like setting was not supported by the longitudinal record lacks substantial evidence. 10 d. Dr. Livesay 11 Following a mental evaluation on June 23, 2018, Dr. Livesay, also a consultative 12 psychologist, opined that Plaintiff’s ability to perform detailed and complex tasks, to interact with 13 coworkers and the public, and to perform work activities on a consistent basis without special or 14 additional instruction is mildly impaired. (AR 605.) He further found moderate limitations in 15 Plaintiff’s ability to maintain regular attendance and complete a normal workday/workweek 16 without interruptions from a psychiatric condition, and to deal with usual stress encountered in 17 the workplace. (AR 605–606.) 18 While according the opinion “some weight” and deeming it “generally consistent with the 19 longitudinal record” as described in the analysis of the opinions of the non-examining mental 20 health physicians, the ALJ nevertheless found Dr. Livesay’s opinion of moderate impairment in 21 Plaintiff’s ability to maintain regular attendance not supported by the “objective evidence.” (AR 22 29.) The ALJ does not specify to what “objective evidence” is she referring, and her failure to do 23 so is erroneous. See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (“To say that the 24 medical opinions are not supported by sufficient objective findings or are contrary to the 25 preponderant conclusions mandated by the objective findings does not achieve the level of 26 specificity our prior cases have required . . . .”); Garrison, 759 F.3d at 1012–13 (An ALJ errs by 27 assigning a medical opinion “little weight while doing nothing more than . . . criticizing it with 28 boilerplate language that fails to offer a substantive basis for his conclusion.”). To the extent the 1 “objective evidence” is the same as that recited in the ALJ’s description of the longitudinal record 2 of Plaintiff’s mental impairments, it is too selective to constitute substantial evidence, as the 3 Court has previously found. 4 3. Harmless Error Analysis 5 In light of the foregoing, the Court finds that the ALJ failed to provide specific and 6 legitimate reasons supported by substantial evidence for rejecting the medical opinions of Drs. 7 Watrous, Fabella, Izzi, and Livesay. The Court cannot conclude that the error was harmless. 8 Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054). If the ALJ were to have accepted any 9 part of the rejected opinions, the ALJ likely would have reached an RFC determination with the 10 greater limitations they recommended. For example, the VE testified that a limitation to standing 11 and walking for a total of four hours in workday (as opined by Dr. Fabella) would preclude all 12 work at the light exertional level, leaving only sedentary work available. (AR 66.) A limitation 13 of occasional fingering and gross manipulation in both upper extremities (germane to the 14 opinions of Drs. Watrous and Fabella) would preclude all work. (AR 67.) In addition, missing 15 two days of work a month due to pain, fatigue, or mental health symptoms (germane to the 16 opinions of Drs. Watrous and Livesay) would also preclude all work. (AR 66–67.) Because a 17 substantial likelihood exists that the ALJ’s improper rejection of the medical opinion evidence 18 affected the result and therefore was not “inconsequential to the ultimate nondisability 19 determination,” the error is not harmless. Molina, 674 F.3d at 1121–22. 20 B. The ALJ’s Error Warrants Remand for Further Proceedings 21 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is 22 “to remand to the agency for additional investigation or explanation.” Treichler v. Comm’r of 23 Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citations omitted). The Ninth Circuit recognized 24 a limited exception to this typical course where courts “remand[] for an award of benefits instead 25 of further proceedings.” Id. at 1100–01 (citations omitted); see also id. at 1100 (noting that this 26 exception is “sometimes referred to as the ‘credit-as-true’ rule”). In determining whether to 27 apply this exception to the “ordinary remand rule,” the court must determine, in part, whether (1) 28 “the record has been fully developed;” (2) “there are outstanding issues that must be resolved 1 before a determination of disability can be made;” and (3) “further administrative proceedings 2 would be useful.” Id. at 1101 (citations omitted). As to the last inquiry, additional 3 “[a]dministrative proceedings are generally useful where the record has not been fully developed, 4 there is a need to resolve conflicts and ambiguities, or the presentation of further evidence . . . 5 may well prove enlightening in light of the passage of time.” Id. (citations omitted). Ultimately, 6 “[t]he decision whether to remand a case for additional evidence or simply to award benefits is in 7 [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 8 Having found that the ALJ failed to articulate specific and legitimate reasons supported 9 by substantial evidence for rejecting the medical opinion evidence, the Court further finds that the 10 “credit-as-true” exception to the “ordinary remand rule” does not apply here. As Plaintiff 11 concedes (see Doc. 17 at 22; Doc. 22 at 4), additional administrative proceedings will be useful in 12 this case, particularly to accord an opportunity to the ALJ to reconsider and resolve conflicts in 13 the medical opinion evidence. Cf. Dominguez v. Colvin, 808 F.3d 403, 408–09 (9th Cir. 2016); 14 Lule v. Berryhill, Case No.: 1:15-cv-01631-JLT, 2017 WL 541096, at *6 (E.D. Cal. Feb. 10, 15 2017) (“When there is conflicting medical evidence, ‘it is the ALJ’s role to determine credibility 16 and to resolve the conflict.’”) (quoting Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)). On 17 remand, the ALJ should address this error by properly evaluating the opinion evidence and re- 18 assessing Plaintiff’s functional limitations considering that evaluation and the other medical 19 evidence of record. 20 The Court will, therefore, remand this matter for further proceedings. 21 V. CONCLUSION AND ORDER 22 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 23 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for 24 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 25 judgment in favor of Plaintiff Norma Banuelos and against Defendant Andrew Saul, 26 Commissioner of Social Security. 27 IT IS SO ORDERED. 28 1 Dated: February 25, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28