(SS) Pratt v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JAMES PRATT, No. 2:20-CV-2183-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 5 and 9, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c). Pending before the Court are the parties’ briefs on the merits, ECF Nos. 14 and 23 15. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the matter will be remanded for further 15 proceedings. 16 17 I. THE DISABILITY EVALUATION PROCESS 18 To achieve uniformity of decisions, the Commissioner employs a five-step 19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 20 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 21 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 22 not disabled and the claim is denied; 23 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 24 impairment; if not, the claimant is presumed not disabled and the claim is denied; 25 Step 3 If the claimant has one or more severe impairments, 26 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 27 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 28 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on October 26, 2017. See CAR 15.1 3 In the application, Plaintiff claims disability began on November 20, 2013. See id. Plaintiff’s 4 claim was initially denied. Following denial of reconsideration, Plaintiff requested an 5 administrative hearing, which was held on December 27, 2019, before Administrative Law Judge 6 (ALJ) Elizabeth Watson. In a January 21, 2020, decision, the ALJ concluded Plaintiff is not 7 disabled based on the following relevant findings: 8 1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2019; 9 2. Through the date last insured, the claimant had the following 10 severe impairment(s): lumbar degenerative disc disease status post- surgery and hardware failure, obesity, and diabetes mellitus; 11 3. Through the date last insured, the claimant did not have an 12 impairment or combination of impairments that meets or medically equals an impairment listed in the regulations; 13 4. Through the date last insured, the claimant had the residual 14 functional capacity to perform light work, except the claimant was limited to the following: lifting and or carrying twenty pounds 15 occasionally and ten pounds frequently; standing and or walking for a total of four hours, and sitting for a total of about six hours in 16 an eight-hour workday, with normal breaks; occasional climbing of ramps and stairs, and no climbing of ladders, ropes, or scaffolds; 17 occasional balancing, stooping, kneeling, crouching, and crawling; 18 5. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, 19 through the date last insured the claimant could have performed her past relevant work and there were jobs that existed in 20 significant numbers in the national economy that the claimant could have performed. 21 See id. at 17-34. 22 23 After the Appeals Council declined review, this appeal followed. 24 / / / 25 / / / 26 / / / 27 1 Citations are to the Certified Administrative Record (CAR) lodged on March 10, 28 2021, ECF No. 8. 1 III. DISCUSSION 2 In his motion for summary judgment, Plaintiff argues: (1) the ALJ improperly 3 rejected every treating or examining physician’s medical opinions concerning Plaintiff’s 4 limitations; and (2) the ALJ erred in rejecting Plaintiff’s testimony as to the severity of his 5 symptoms. 6 A. Medical Opinions 7 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 8 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 9 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 10 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 11 opinion over another. See id. 12 Under the regulations, only “licensed physicians and certain qualified specialists” 13 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 14 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 15 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 16 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 17 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 18 substantial evidence when the opinions are consistent with independent clinical findings or other 19 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 20 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 21 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 22 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 23 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 24 workers may be discounted provided the ALJ provides reasons germane to each source for doing 25 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 26 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 27 when opinions from “other sources” may be considered acceptable medical opinions). 28 / / / 1 The Commissioner has promulgated revised regulations concerning how ALJs 2 must evaluate medical opinions for claims filed, as here, on or after March 27, 2017. See 20 3 C.F.R. §§ 404.1520c, 416.920c. These regulations supersede prior caselaw establishing the 4 treating physician rule which established a hierarchy of weight to be given medical opinions 5 depending on their source. See id.; see also Jones v. Saul, 2021 WL 620475, at *9 (E.D. Cal. 6 Feb. 17, 2021) (“In sum, because (1) the 2017 regulations are not arbitrary and capricious or 7 manifestly contrary to statute, (2) the prior judicial construction was not mandated by the 8 governing statutory language to the exclusion of a differing agency interpretation, and (3) the 9 [treating-physician rule] is inconsistent with the new regulation, the court concludes that the 2017 10 regulations effectively displace or override [prior caselaw.]”). Thus, ALJs are no longer required 11 to “defer to or give any specific evidentiary weight to” treating physicians over medical opinions 12 from other sources. See Carr v. Comm’r of Soc. Sec., 2021 WL 1721692, at *7 (E.D. Cal. Apr. 13 30, 2021). 14 Under the revised regulations, the ALJ must evaluate opinions and prior 15 administrative medical findings by considering their “persuasiveness.” See Buethe v. Comm’r of 16 Soc. Sec., 2021 WL 1966202, at *3 (E.D. Cal, May 17, 2021) (citing 20 C.F.R. § 404.1520c(a)). 17 In determining how persuasive the opinion of a medical source is, an ALJ must consider the 18 following factors: supportability, consistency, treatment relationship, specialization, and “other 19 factors.” See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(b), (c)(1)-(5)). Despite a 20 requirement to consider all factors, the ALJ’s duty to articulate a rationale for each factor varies. 21 See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(a)-(b)). 22 Specifically, in all cases the ALJ must at least “explain how [she] considered the 23 supportability and consistency factors,” as they are “the most important factors.” See Buethe, 24 2021 WL 1966202, at *4 (citing § 404.1520c(b)(2)). For supportability, the regulations state: 25 “[t]he more relevant the objective medical evidence and supporting explanations presented by a 26 medical source are to support his or her medical opinion(s) or prior administrative medical 27 finding(s), the more persuasive [the opinion] will be.” See Buethe, 2021 WL 1966202, at *4 28 (quoting § 404.1520c(c)(1)). “For consistency, the regulations state: ‘[t]he more consistent a 1 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 2 medical sources and nonmedical sources in the claim, the more persuasive [the opinion] will be.’” 3 Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(c)(2)). “The ALJ is required to articulate 4 findings on the remaining factors (relationship with claimant, specialization, and ‘other’) only 5 when ‘two or more medical opinions or prior administrative medical findings about the same 6 issue’ are ‘not exactly the same,’ and both are ‘equally well-supported [and] consistent with the 7 record.’” Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(b)(2) & (3)). 8 At Step 4, the ALJ began by her discussion of the opinion evidence with the 9 following: 10 As for the opinion evidence, the undersigned considered all medical opinions and opinions from medical sources and others who have seen the 11 claimant in a professional capacity in accordance with the Regulations. The undersigned did not provide articulation about the evidence that is 12 inherently neither valuable nor persuasive in accordance with 20 CFR 404.1520(c) and 416.920b(c). 13 CAR 29. 14 15 The ALJ then discussed medical opinions from the following sources: (1) Gary Martinovsky 16 M.D.; (2) Eduardo Cornejo, D.C.; (3) Randolph Rhodes, D.C.; (4) James Chau, D.C.; (5) Olivia 17 Wescott, PA; (6) Carl Shin, M.D.; (7) Richard Palmer, Ph.D.; (8) David Chow, M.D.; (9) Robert 18 Rovner, M.D.; (10) Lawrence Weil, M.D.; (11) Henry Scovern, M.D.; and (12) J. Bradus, M.D. 19 See id. at 28-32. 20 In arriving at her residual functional capacity assessment, the ALJ rejected the 21 opinions offered by Drs. Martinovsky, Cornejo, Rhodes, Chau, Shin, Chow, Rovner, and Weil. 22 See CAR 28-31. Dr. Palmer’s opinion regarding mental capacity was found to be “somewhat 23 persuasive.” Id. at 30-31. The ALJ relied on the opinions regarding physical capacity offered by 24 agency reviewing physicians, Drs. Scovern and Bradus, which she found to be persuasive. See 25 id. at 31-32. 26 / / / 27 / / / 28 / / / 1 Plaintiff challenges the ALJ’s rejection of opinions from Drs. Chow, Weil, 2 Rovner, Shin, Cornejo, Rhodes, Martinovsky, and Chau. See ECF No. 14, pgs. 8-22. Plaintiff 3 also contends the ALJ erred by failing to evaluate opinions offered by W.J. Kevin Maher, M.D., 4 and Saket Shah, D.O. See id. Dr. Maher appears to have provided treatment and/or rendered 5 opinions in connection with a worker’s compensation claim. Dr. Shah treated Plaintiff’s diabetes 6 and kidney disease. 7 1. Doctors Addressed by the ALJ 8 Opinions offered by Drs. Chow, Weil, Rovner, Shin, Cornejo, Rhodes, 9 Martinovsky, and Chau were specifically addressed in the hearing decision. 10 i. Drs. Cornejo and Rhodes 11 As to Dr. Cornejo, the ALJ stated: 12 Eduardo Cornejo, D.C., examined the claimant in September 2014. The claimant was diagnosed with lumbar sprain/strain; lumbar disc 13 displacement with myelopathy; lumbar nerve root compression; and lumbar neuritis (Exhibit 13F/4). Mr. Cornejo opined that the claimant 14 should temporarily preclude from any repetitive bending or lifting as well as any work which required prolonged standing or sitting. Additionally, 15 the claimant was unable to work and remained on total temporary disability (Exhibit 13F/5). 16 Mr. Cornejo’s opinion is found to be not persuasive. First, this opinion 17 was rendered for the purposes of worker’s compensation litigation and lacked an adequate function-by-function analysis for the purposes of 18 Social Security disability evaluation. Second, Mr. Cornejo’s opinion is vague. Third, Mr. Cornejo’s opinion is unsupported and inconsistent with 19 the medical record. As noted above, despite the claimant’s severe impairments, the objective evidence supports a greater level of 20 functioning. Specifically, despite the claimant’s limitations, physical examinations found in the medical record are consistent with the 21 assessment that the claimant is not totally disabled and able to perform work at less than the full range of light work (Exhibits 1F/8 and 14; 2F/19- 22 50; 3F/19, 21, 23, 27, and 38; 4F/36, 57, 119-120, 137, and 165; 6F/8, 9, and 10-11; 8F/15 and 19; 10F/8-9 and 103-154; and 16F/53 and 59). 23 Additionally, Mr. Cornejo’s opinion is inconsistent with the claimant’s statements regarding his activities of daily living (Exhibits 11F/2 and 24 18F/5). 25 CAR 29. 26 / / / 27 / / / 28 / / / 1 As to Dr. Rhodes, the ALJ similarly concluded: 2 Dr. Rhode’s opinion is found to be not persuasive. This opinion was rendered for the purposes of worker’s compensation litigation and lacked 3 an adequate function-by-function analysis for the purposes of Social Security disability evaluation. Additionally, Dr. Rhodes’s opinion is 4 unsupported and inconsistent with the medical record. The assessment that the claimant did not tolerate most activities previously required of him 5 including standing and walking most of the time, frequently squatting, stooping, bending at the waist, reaching, and working overhead, 6 pushing/pulling with maximum lifting requirement up to and including approximately 50 pounds without assistance is vague and generally 7 inconsistent with the medical record. As noted above, despite the claimant’s severe impairments, the objective evidence supports a greater 8 level of functioning. Specifically, despite the claimant’s limitations, physical examinations found in the medical record are consistent with the 9 assessment that the claimant is not totally disabled and able to perform work at less than the full range of light work (Exhibits 1F/8 and 14; 2F/19- 10 50; 3F/19, 21, 23, 27, and 38; 4F/36, 57, 119-120, 137, and 165; 6F/8, 9, and 10-11; 8F/15 and 19; 10F/8-9 and 103-154; and 16F/53 and 59). 11 Additionally, Mr. Rhode’s opinion is inconsistent with the claimant’s statements regarding his activities of daily living (Exhibits 11F/2 and 12 18F/5). 13 CAR 29-30. 14 Regarding the ALJ’s analysis for both doctors, Plaintiff argues: 15 . . .Courts, however, regularly hold it is error for an ALJ to reject medical opinions on the grounds they were issued in a workers’ 16 compensation case. See, e.g., Caudel v. Saul, no. 1:19-cv-1255-JLT, 2021 WL 973948 at *12-13 (E.D. Cal., March 16, 2021) [citing Perez v. Astrue, 17 831 F.Supp.2d 1168, 1177 (C.D. Cal. 2011); Booth v. Barnhart, 181 F.Supp.2d 1099, 1105-1106 (C.D. Cal. 2002)]. “Despite the differences in 18 terminology, the ALJ has responsibility to address the findings in a workers’ compensation and its ‘corresponding Social Security 19 terminology.’” (Caudel, 2021 WL 973948 at *12 [quoting Ray v. Saul, no. 2:18-cv-0561-DB, 2019 WL 3767454 at *3 (E.D. Cal., Aug. 9, 2019)]. 20 Moreover, Dr. Cornejo and Dr. Rhode’s limitations included no prolonged sitting, standing, and walking, which the ALJ had a basic duty to address 21 directly. See, Booth, 181 F.Supp.2d at 1107-1108. Thus, the ALJ’s first reason for rejecting these opinions is not legitimate. 22 ECF No. 14, pg. 20. 23 24 Dr. Cornejo’s opinions are contained in Exhibit 13F, CAR 1752-1758. In this 25 report, Dr. Cornejo states that Plaintiff has suffered decreased lumbar ranges of motion, muscle 26 weakness, abnormal dermatomal sensitivity, and other limitations. See id. at 1755-1756. 27 Notably, however, Dr. Cornejo only opined that Plaintiff should be temporarily precluded from 28 any repetitive bending or lifting and work that requires prolonged sitting and standing. See id. 1 Furthermore, Dr. Cornejo opined that “whether the employer could accept this patient back in 2 some sort of modified duty is pending outcome of recommended treatments.” See id. at 1756. 3 Dr. Rhodes’ opinions are found in Exhibit 14F, CAR 1759-1783, 1799-1828. 4 Exhibit 14F is an evaluation dated May 26, 2015. See id. at 1759. Exhibit 15F is a second 5 evaluation dated April 25, 2017. See id. at 1799. Dr. Rhodes opined that Plaintiff suffers from 6 increased pain due to his workplace injury and, as such, cannot tolerate his usual and customary 7 duties as a Service Manager. See id. at 1792. In support of his opinion, Dr. Rhodes suggests that 8 Plaintiff cannot tolerate previously required activities such as standing and walking most of the 9 time or pushing/pulling with a maximum weight of 50 pounds without assistance. See id. 10 The ALJ rejected these opinions because, among other reasons, they were rendered 11 for purposes of worker’s compensation and not social security disability. The Court finds no 12 error in the ALJ’s analysis. Under the regulations, decisions by other government agencies are 13 not binding in social security cases. See 20 C.F.R. § 404.1504 (decisions by other governmental 14 agencies about whether one is approved for workers compensation is not binding with regard to a 15 social security disability decision because the requirements are different). Even so, as Plaintiff 16 correctly notes, despite differences in analysis and terminology, the ALJ is still required to 17 address findings rendered for purposes of a worker’s compensation claims. 18 The ALJ properly did so here. Dr. Cornejo did not document any findings or 19 render any opinions translatable in the social security context. To the contrary, and in 20 contravention of the requirement in the social security context that a limitation be expected to be 21 continuous for a period not less than 12 months, Dr. Cornejo opined as to a temporary limitation 22 to repetitive, bending, lifting, sitting, and standing. In outlining Dr. Cornejo’s findings and 23 opinions and noting that they are not consistent with the social security framework, the ALJ 24 complied with the current regulations by explaining why the opinion was not persuasive. 25 Similarly, Dr. Rhodes did not offer any opinions which can be translated to the 26 social security context. Dr. Rhodes opined that Plaintiff experiences increased pain and cannot, 27 as a result, perform his regular duties as a Service Manager. Dr. Rhodes further opined that 28 Plaintiff cannot tolerate pushing/pulling a maximum weight of 50 pounds without assistance. As 1 the ALJ noted, these opinions are vague and do not indicate any specific degree of limitation. In 2 any event, with respect to the push/pull limitation, the ALJ’s residual functional capacity 3 assessment limits Plaintiff to light work, which involves less exertion.2 4 ii. Dr. Martinovsky 5 As to Dr. Martinovsky, the ALJ stated: 6 Gary Martinovsky, M.D., examined the claimant in September 2014 in relation to a workers compensation’s claim. It was noted that the claimant 7 sustained injuries to his lower back and right foot when he lifted a table and felt acute pain in his lower back in November 2013 (Exhibit 2F/6). A 8 physical examination revealed the claimant appeared well-developed, well-nourished, and in no acute distress. The claimant was alert and 9 oriented with appropriate mood and pleasant affect. The claimant ambulated with a cane and an antalgic gait pattern. The claimant exhibited 10 tenderness to palpation over the bilateral lumbar paraspinal muscles. However, there was no sciatic notch tenderness on the right, and there was 11 no spinous process tenderness or masses palpable along the lumbar spine. The claimant exhibited normal bulk and tone in all major muscle groups of 12 the lower extremities, with no atrophy noted. The claimant’s motor strength was 5/5 and symmetric throughout the bilateral upper and lower 13 extremities except 4+/5 on right ankle plantarflexion (Exhibit 2F/9). Dr. Martinovsky diagnosed the claimant with lumbar radiculitis (Exhibit 14 2F/10). Dr. Martinovsky opined that the claimant was temporarily totally disabled pending for spine surgery consultation (Id.). 15 Dr. Martinovsky’s opinion is found to be not persuasive. It was rendered 16 for the purposes of worker’s compensation litigation and lacked an adequate function-by-function analysis for the purposes of Social Security 17 disability evaluation. Additionally, Dr. Martinovsky’s opinion is unsupported and inconsistent with the medical record. As noted above, 18 despite the claimant’s severe impairments, the objective evidence supports a greater level of functioning. Specifically, despite the claimant’s 19 limitations, physical examinations found in the medical record are consistent with the assessment that the claimant is not totally disabled and 20 able to perform work at less than the full range of light work (Exhibits 1F/8 and 14; 2F/19-50; 3F/19, 21, 23, 27, and 38; 4F/36, 57, 119-120, 137, 21 and 165; 6F/8, 9, and 10-11; 8F/15 and 19; 10F/8-9 and 103-154; and 16F/53 and 59). Additionally, Dr. Martinovsky’s opinion is 22 inconsistent with the claimant’s statements regarding his activities of daily living (Exhibits 11F/2 and 18F/5). 23 CAR 28. 24 25 / / / 26 / / / 27 2 “Light work” involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§ 404.1567(b) and 28 416.967(b). 1 Dr. Martinovsky’s opinions are contained in Exhibits 2F, CAR 378-384. In 2 Exhibit 2F, Dr. Martinovsky opined that Plaintiff’s rotation is limited; there is tenderness over the 3 bilateral lumbar paraspinal muscles, and point tenderness in the hip. See id. at 382-383. Dr. 4 Martinovsky diagnosed Plaintiff with Lumbar radiculitis, a condition that occurs when a nerve in 5 the lower back is injured, pinched, or compressed. See id. Dr. Martinovsky opined that Plaintiff 6 is temporarily totally disabled pending spine surgery consultation. See id. at 383. 7 The Court finds that the ALJ complied with the revised regulations in considering 8 Dr. Martinovsky’s opinion. In particular, as the ALJ noted, Dr. Martinovsky documented 9 findings and rendered an ultimate opinion in the context of a worker’s compensation claim, which 10 involves different standard that disability claims in the social security context. In this regard, the 11 Court notes that Dr. Martinovsky opined that Plaintiff is totally temporarily disabled pending 12 further surgery consultation, which is not a standard in social security cases because, among other 13 reasons, the social security analysis requires a showing of a disabling condition expected to last 14 for a continuous period not less than 12 months. Notably, as with Drs. Cornejo and Rhodes, 15 discussed above, Dr. Martinovsky did not make any findings or render any specific opinions as to 16 limitations which are translatable in the social security framework. 17 iii. Dr. Chau 18 As to Dr. Chau, the ALJ stated: 19 James Chau, D.C., examined the claimant in July 2019. Mr. Chau diagnosed the claimant with fusion of spine, lumbosacral region; fusion of 20 spine, lumbar region; lumbar radiculopathy; and lumbosacral radiculopathy (Exhibit 17F/7). Mr. Chau indicated that the claimant had 21 not reached maximum medical improvement and therefore not ratable (Id.). Mr. Chau also noted that the claimant’s work stats was temporary 22 totally disabled (Exhibit 17F/8). 23 Mr. Chau’s opinion is found to be not persuasive. This opinion was rendered for the purposes of workers compensation litigation and lacked 24 an adequate function-by-function analysis for the purposes of Social Security disability evaluation. 25 CAR 30. 26 27 / / / 28 / / / 1 Dr. Chau’s findings are found in Exhibit 17F. See CAR at 1905-1915. Dr. Chau 2 performed his evaluation on June 25, 2019. See id. at 1905. In conclusion, Dr. Chau noted that 3 Plaintiff had “not reached maximum medical improvement and therefore not ratable.” See id. at 4 1911. Dr. Chau recommended delaying Plaintiff’s functional capacity evaluation until he made 5 progress with his pain. See id. 6 As with Drs. Cornejo, Rhodes, and Martinovsky, Dr. Chau rendered opinions in 7 the context of a worker’s compensation evaluation. And like the other doctors discussed above, 8 Dr. Chau’s findings and opinion are not translatable in the social security context, as the ALJ 9 noted. More specifically, the Court agrees with the ALJ that Dr. Chau’s evaluation and opinion 10 did not provide any function-by-function analysis of Plaintiff’s capacity. Instead, Dr. Chau 11 opined that Plaintiff’s worker’s compensation disability status cannot be rated as of the time of 12 his evaluation and that Plaintiff was temporarily disabled. Again, the Court observes that this 13 opinion is not consistent with the requirement in social security cases that limitations be expected 14 to last in duration for a continuous period of not less than 12 months. 15 iv. Dr. Shin 16 As to Dr. Shin, the ALJ stated: 17 From March 2019 to October 2019, the claimant was seen at The Center for Interdisciplinary Spine. During this period, Olivia Wescott, PA, and 18 Carl Shin, M.D., diagnosed the claimant with chronic low back pain and right lower extremity pain; insomnia due to his chronic pain; and 19 right leg radiculopathy. They opined that the claimant’s work status was permanent and stationary with permanent restrictions (Exhibit 11F/3-54). 20 In March 2019, they noted that the claimant’s Oswestry Disability Index score was 58% indicating severe disability (Exhibit 11F/53). However, 21 they also noted in October 2019 that the claimant was able to do two hours of household chores a day such as cooking, cleaning dishes, and going to 22 the grocery store. The claimant also spent three hours a day spending time with his son, going to the park and watching television (Exhibit 11F/2). 23 The opinions provided by Ms. Wescott and Dr. Shin are found to be 24 unpersuasive. First, it is not clear whether these opinions were adopted by the claimant’s subjective complaints or an actual assessment of the 25 claimant’s functional abilities. Second, these opinions are vague and lack an adequate function-by-function analysis for the purposes of Social 26 Security disability evaluation. 27 CAR 30. 28 / / / 1 On March 29, 2019, Dr. Shin administered a diagnostic test to measure the 2 functional effects of Plaintiff’s back pain. See Exhibit 11F, CAR 1277. Dr. Shin opined that 3 Plaintiff has failed all conservative care, injections are not going to help, and Plaintiff can hardly 4 move. See id. at 1277. According to the Oswestry Disability Index, Plaintiff suffers pain when 5 walking more than a quarter mile, sitting, and walking more than ten minutes. See id. Dr. Shin 6 noted, among other things, that Plaintiff states he experiences pain flares when “he moves around 7 and has to do anything,” and “can do maybe 25% of the housework and does it very slow and [in] 8 small lots.” Id. 9 The Court finds the ALJ’s determination appropriate because it is unclear whether 10 these opinions are clinical findings that support the opinions, or opinions based on Plaintiff’s 11 subjective experience. See Lester, 81 F.3d at 831. Moreover, the record indicates that Plaintiff 12 performs two hours of household chores a day and spends three hours a day with his son, going to 13 the park and watching TV. See CAR 1226. Yet, on the other hand, Dr. Shin noted that Plaintiff 14 is hardly able to move. See CAR 1277. Further, while Dr. Shin opined that Plaintiff is 15 considered severely disabled based on the Oswestry Disability Index, the quantifying factors 16 listed to conduct the evaluation appear to be largely based on Plaintiff’s subjective complaints. 17 See Car 1277. 18 v. Drs. Chow, Rovner, and Weil 19 As to Drs. Chow, Rovner, and Weil, the ALJ stated: 20 In addition, the medical record revealed that David Chow, M.D., Robert Rovner, M.D., and Lawrence Weil, M.D., at multiple points in the record, 21 indicated that the claimant either continue on temporary disability or was temporarily totally disabled (Exhibits 1F/15 and 20; 3F/21, 23, 25, 27, 29, 31, 22 33, 36, and 39; and 10F/14, 27, 40, 53, 65, 77, 90, 102, 113, 124, 135, 143, 150, and 157). 23 These opinions are found to be unpersuasive. These ratings have no 24 meaning in a Social Security disability evaluation and provide no probative value as to the claimant’s functional abilities. 25 Dr. Weil also noted that the claimant’s functional abilities with 26 medications included: the claimant was able to lift 10-15 lbs., walk 5 blocks, sit 60 minutes and stand 30 minutes. Additionally, with 27 medication, the claimant could perform household tasks including cooking, cleaning, self-care, laundry, grocery shopping for approximately 28 30 minutes at a tune. Without medications, the claimant was able to lift 5 1 lbs., walk 1 block or less, sit 30 minutes and stand 15 minutes or less. Without medication, the claimant could perform household tasks including 2 cooking, cleaning, self-care, laundry, grocery shopping for approximately less than 10 minutes at a time (Exhibit 10F/12). 3 This opinion is found to be unpersuasive. This opinion is unsupported and 4 inconsistent with the medical record. As noted above, despite the claimant’s severe impairments, the objective evidence supports a greater 5 level of functioning. Specifically, despite the claimant’s limitations, physical examinations found in the medical record are consistent with the 6 assessment that the claimant is not totally disabled and able to perform work at less than the full range of light work (Exhibits 1F/8 and 14; 2F/19- 7 50; 3F/19, 21, 23, 27, and 38; 4F/36, 57, 119-120, 137, and 165; 6F/8, 9, and 10-11; 8F/15 and 19; 10F/8-9 and 103-154; and 16F/53 and 59). 8 Additionally, this opinion is inconsistent with the claimant’s statements regarding his activities of daily living. Rather, the claimant’s activities of 9 daily living are consistent with the residual functional capacity (Exhibits 11F/2 and 18F/5). 10 CAR 31. 11 12 Drs. Chow, Rovner, and Weil provided opinions regarding Plaintiff’s physical 13 functional capacity. These doctors’ opinions are contained sparingly throughout the record at 14 Exhibits 1F, 3F, and 10F. All three doctors opined throughout various points in the record that 15 Plaintiff either continue on temporary disability or was temporarily totally disabled. See id. Dr. 16 Chow performed evaluations in March and April 2014. See Exhibit 1F, CAR 8, 14. Dr. Rovner 17 performed Plaintiff’s surgeries in August 2016. Exhibit 3F, CAR 19. Lastly, Dr. Weil treated 18 Plaintiff from October 2017 through March 2019. See generally Exhibit 10F. 19 Plaintiff argues that the ALJ incorrectly cited Dr. Weil’s and Dr. Chow’s findings as 20 conflicting. See ECF No. 14 at 10. Among other evidence, Plaintiff provides reports from Dr. Weil 21 and Chow that suggest his “lumbar ranges were restricted by pain,” and he experienced “decreased 22 sensation in L5 and S1 dermatomes.” See id. Plaintiff states the ALJ manufactured an inconsistency 23 without providing evidence. See id. at 9. Concerning Dr. Rovner’s findings, Plaintiff argues the ALJ 24 limited her focus to parts of the record at Plaintiff’s disadvantage. See id. Specifically, Plaintiff 25 indicates the ALJ cited to post-surgical reports indicating Plaintiff had improved while ignoring his 26 ongoing lower back pain resulting from fractured metal hardware used to fuse Plaintiff’s spine. See 27 id. at 11. 28 / / / 1 The Court finds no error in the ALJ’s evaluation of Drs. Chow and Rovner. As the 2 ALJ noted, these doctors opined throughout the record that Plaintiff was temporarily disabled, which 3 contravenes the temporal requirement in social cases that limitations be expected to last a continuous 4 duration of not less than 12 months. Neither Dr. Chow nor Dr. Rovner offered specific function-by- 5 function assessments which could be relevant in the social security context. The Court also agrees 6 with the ALJ that Dr. Weil’s various assessments of temporary disability are not entitled to weight. 7 Unlike Drs. Chow and Rovner, Dr. Weil rendered specific function-by-function 8 assessments, which the ALJ specifically considered and rejected as inconsistent with the other 9 medical evidence and Plaintiff’s daily activities. Though these are specific and legitimate reasons, the 10 ALJ has not supported her analysis with a discussion of the evidence she cites in the context of Dr. 11 Weil’s opinions. The ALJ cites in a conclusory fashion to a host of exhibits she states support her 12 conclusion but does not specifically discuss any of that evidence or explain how it undermines Dr. 13 Weil’s conclusions. On this record, the Court can only guess as to what the support for the ALJ’s 14 analysis might be or why the ALJ reached the conclusion she did. 15 The Court finds that the matter should be remanded to allow the Commissioner to 16 further consider Dr. Weil’s opinions. 17 2. Doctors Not Addresses by the ALJ 18 Plaintiff argues the ALJ erred by failing to address records and opinions from Drs. 19 Maher and Shah. 20 i. Dr. Maher 21 Plaintiff argues the ALJ erred by failing to address Dr. Maher’s opinions. Plaintiff 22 offers the following summary of Dr. Maher’s treatment and opinions: 23 After his November 20, 2013 workplace injury, Plaintiff first treated with Dr. Maher, an occupational medicine doctor at Kaiser 24 Permanente in Richmond, California. See, AR 363-373. On January 23, 2014, Dr. Maher examined Plaintiff and found that despite conservative 25 treatment, including physical therapy, over the previous 9 weeks, Plaintiff’s pain and functioning had not improved. AR 371-373. Dr. Maher 26 requested Plaintiff transfer to a pain management specialist for continuing care. AR 373. Objectively, Dr. Maher reported Plaintiff was “very tender” 27 over the right sacroiliac joint and lumbar region; his straight leg raise test was positive; avoided use of his right leg when standing; and appeared in 28 mild distress changing positions. AR 371. Dr. Maher concluded Plaintiff 1 could not perform modified work duties, placed him off work, and instructed him to avoid prolong[ed] sitting and use a cane or back support 2 as needed. Id. Dr. Maher’s earlier examinations also found Plaintiff grimacing in pain, with the same objective findings, and advised Plaintiff 3 required modified work duties that precluded any bending at the waist, any twisting of the torso, lifting no more than 10 pounds, and he needed to 4 alternate between sitting, standing, and walking every 15 to 20 minutes. AR 366; see, also, AR 363. 5 ECF No. 14, pgs. 17-18. 6 7 Dr. Maher’s report is contained in the record at Exhibit 1F. See CAR 363-373. Dr. 8 Maher examined Plaintiff after his workplace injury on November 20, 2013. See id. On January 23, 9 2014, Dr. Maher examined Plaintiff again and concluded that, despite conservative treatment over 10 nine weeks, Plaintiff’s overall functioning had not improved. See id. at 371-373. Dr. Maher 11 concluded Plaintiff could not perform even modified work duties. See id. at 371. 12 Though the ALJ’s hearing decision references Exhibit 1F, the ALJ does not provide 13 any specific analysis of opinions offered by Dr. Maher. The ALJ’s opinion is devoid of any mention 14 as to Dr. Maher’s report. Whether or not Dr. Maher’s opinions have probative value, the ALJ must at 15 a minimum acknowledge Dr. Maher’s report. See Garrison v. Colvin, 759 F. 3d 995, 1012-1013 16 (holding the ALJ errs when rejecting a medical opinion or assigning it little weight while doing 17 nothing more than ignoring it). 18 At the outset of the ALJ’s analysis of the medical opinions, the ALJ stated: “The 19 undersigned did not provide articulation about the evidence that is inherently neither valuable nor 20 persuasive in accordance with 20 CFR 404.1520(c) and 416.920b(c).” CAR 29. These 21 regulations do not provide, however, that the ALJ may ignore medical opinions. Section 22 404.1520(c) discusses the requirement that a claimant impairment be severe. Section 416.920b(c) 23 discusses evidence which is inherently neither valuable nor persuasive, such as decisions by other 24 government agencies, findings by disability examiners made at a previous level of adjudication, 25 and statements on issues reserved to the Commissioner. Dr. Maher’s opinions do not fall into any 26 of these categories. To the contrary, Dr. Maher appears to have rendered opinions, albeit in the 27 context of a worker’s compensation claim, which are directly translatable to the social security 28 context. Specifically, Dr. Maher opined as to function-by-function limitations which could be 1 applicable in this case. 2 To the extent the ALJ relies on section 416.920b(c)(2) regarding findings by 3 disability examiners, the Court finds it curious that the ALJ would specifically discount the 4 opinions of other doctors who rendered opinion in the worker’s compensation context but say 5 nothing about the opinions of Dr. Maher which were also rendered in the worker’s compensation 6 context. The concern is compounded because Dr. Maher rendered opinions on a function-by- 7 function basis relevant in the social security framework. 8 The Court finds that the matter should be remanded to allow the Commissioner to 9 properly consider Dr. Maher’s opinions. 10 ii. Dr. Shah 11 As to Dr. Shah, the Plaintiff contends: 12 After Dr. Rovner, the ALJ cited six pages from primary care doctor Saket Shah, D.O. at Stanford Healthcare, who treated Plaintiff for his diabetes 13 and kidney disease over many years. AR 31 [citing Exh. 4F/36, 57, 119-120, 137, 165; Exh. 8F/15, 19 at AR 507, 528, 590-591, 608, 636, 889, 893]. Since 14 Dr. Shah did not treat Plaintiff’s chronic back pain, it is unclear the reason it relates to Dr. Weil’s opinions, as the ALJ did not explain the relevance. 15 However, the ALJ’s selective citations ignores the reports from Dr. Shah that reference his general observations of Plaintiff’s debilitating pain. See, AR 524 16 [significant discomfort], 527 [antalgic gait, using cane], 573 [tingling/ numbness in feet, antalgic gait], 590 [ongoing back pain], 602 [neuropathy 17 secondary to lumbar spine], 607-608 [exercise limited by back pain, sensory deficit in right foot], 636 [antalgic gait], 887-889 [loss of sensation in foot, 18 back pain and fatigue]; “[s]low movement, difficulty sitting up due to back pain”], 893 [same]. It was unreasonable for the ALJ to find Dr. Shah’s 19 evidence is inconsistent with Dr. Weil’s opinions. 20 ECF No. 14, pg. 12. 21 Dr. Shah treated Plaintiff for diabetes and kidney disease over many years. See 22 Exhibit 4F, CAR 507; Exhibit 8F, CAR 1019. On February 24, 2015, Dr. Shah diagnosed 23 Plaintiff with “worsening hyperglycemia, uncontrolled type 2 diabetes with renal complications, 24 slightly borderline hypertension, and class 1 obesity.” See id. The ALJ cited these opinions 25 generally, with no specific reference other than various citations. 26 / / / 27 / / / 28 / / / 1 Plaintiff argues, “[s]ince Dr. Shah did not treat Plaintiff’s chronic back pain, it is 2 unclear the reason it related to Dr. Weil’s opinions, as the ALJ did not explain the relevance.” 3 See ECF No. 14 at 12. This argument is persuasive. As noted, the ALJ may reject a contradicted 4 opinion of a treating or examining professional only for “specific and legitimate” reasons 5 supported by substantial evidence. See Lester, 81 F.3d at 830. This test is met if the 6 Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical 7 evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. 8 Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). The ALJ failed to do so here. Without specific 9 facts set forth by the ALJ, the Court cannot discern why Dr. Shah’s opinions contradict Dr. 10 Weil’s. 11 Further, as with Dr. Maher discussed above, the ALJ’s citation to 20 C.F.R. §§ 12 404.1520(c) and 416.920b(c) does not render the ALJ’s analysis sufficient. The Court finds that 13 the matter should be remanded to allow the Commissioner to properly consider Dr. Shah’s 14 opinions. 15 B. Plaintiff’s Statements and Testimony 16 The Commissioner determines the weight to be given to a claimant’s own 17 statements and testimony, and the court defers to the Commissioner’s discretion if the 18 Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 19 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons. 20 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. 21 See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify 22 what testimony is not afforded weight and what evidence undermines the testimony. See id. 23 Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s 24 reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also 25 Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 26 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 27 / / / 28 / / / 1 If there is objective medical evidence of an underlying impairment, the 2 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 3 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 4 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 5 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 6 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 7 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 8 be a reasonable inference, not a medically proven phenomenon. 9 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 10 11 The Commissioner may, however, consider the nature of the symptoms alleged, 12 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 13 947 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may 14 also consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other 15 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to 16 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and 17 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See 18 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 19 claimant cooperated during physical examinations or provided conflicting statements concerning 20 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 21 claimant testifies as to symptoms greater than would normally be produced by a given 22 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 23 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 24 Regarding reliance on a claimant’s daily activities to discount testimony of 25 disabling pain, the Social Security Act does not require that disability claimants be utterly 26 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 27 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 28 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 1 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 2 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 3 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 4 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 5 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 6 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 7 activities are not easily transferable to what may be the more grueling environment of the 8 workplace, where it might be impossible to periodically rest or take medication”). Daily 9 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 10 his day engaged in pursuits involving the performance of physical functions that are transferable 11 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 12 before relying on daily activities to discount a claimant’s pain testimony. See Burch v. Barnhart, 13 400 F.3d 676, 681 (9th Cir. 2005). 14 At Step 4, the ALJ considered Plaintiff’s statements and testimony in determining 15 his residual functional capacity. The ALJ provided the following summary of Plaintiff’s 16 statements and testimony and her conclusions: 17 The claimant alleged that he is unable to work due to his back injury and sciatica (Exhibits 2E/2, 13E/1-10, and Hearing Testimony). The claimant 18 testified that he had to lie down due to right leg pain and right foot pain. The claimant reported that his condition prevents him from 19 performing normal activities and working a full time job during the period of consideration. He indicated that due to the severity of his condition, he 20 is unable to maintain employment and is unable to sustain work activity during the period of consideration. 21 However, despite the claimant’s alleged impairments, the claimant’s 22 statements regarding his activities of daily living are fairly strong. The claimant reported that he is able to care for his personal hygiene 23 independently, prepare meals, and perform household chores. Additionally, the claimant indicated that he is able to care for his son. 24 Furthermore, the claimant is able to operate a motor vehicle. He is also able to go shopping for groceries as needed (Exhibits 11F/2, 18F/5 25 and Hearing Testimony). The performance of these activities is in direct contrast to his allegations, and rather, is generally consistent with the 26 residual functional capacity in this case. Moreover, as discussed in greater detail below, the medical record appears to support a level of function 27 greater than one alleged by claimant. 28 / / / 1 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be 2 expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of 3 these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 4 CAR 20. 5 6 The ALJ then set forth a detailed and exhaustive survey of the longitudinal medical record, which 7 the Court does not repeat here. See id. at 20-27. 8 The ALJ offered the following rationale for rejecting Plaintiff’s statements and 9 testimony: 10 Overall, the medical record supports the functional limitations detailed in the residual functional capacity. Given the claimant’s lumbar degenerative 11 disc disease status pos- surgery and hardware failure, obesity, and diabetes mellitus, the residual functional capacity appropriately limits the claimant 12 to less than the full range of light work with additional postural limitations. However, the record also raises some concerns regarding the 13 claimant’s allegations regarding the intensity, persistence and limiting effect of those symptoms. 14 As noted above, there are several reasons why the claimant's allegations of 15 debilitating symptoms are not entirely consistent with the medical evidence. First, the claimant's assertions appear out of proportion and not 16 as debilitating as alleged. As noted above, although the claimant is limited by his lumbar degenerative disc disease status post-surgery and 17 hardware failure, obesity, and diabetes mellitus, the claimant’s severe impairments are adequately accounted for in the residual functional 18 capacity. Specifically, the residual functional capacity appropriately limits the claimant to less than the full range of light work with additional 19 postural limitations. There is nothing in the medical evidence of record to warrant a more restrictive residual functional capacity. The objective 20 evidence, in the form of physical/psychiatric examinations in the medical record appears to suggest a level of function greater than one 21 alleged by the claimant. Outside of the claimant’s severe back issues and obesity, physical examinations found in the medical record revealed fairly 22 normal findings. Physical examinations consistently noted that the claimant’s lungs were clear to auscultation bilaterally with no wheezes or 23 rales. The claimant’s lower extremities often exhibited no edema. The claimant consistently exhibited no cranial nerve deficit. The claimant’s 24 motor strength of various muscle groups tested was still often fairly strong, consistently remaining around 4+/5 to 5/5. Thus, despite the 25 claimant’s severe back issues, the claimant’s motor strength supports an assessment that the claimant could perform work at the less than full range 26 of light. Additionally, the claimant was able to consistently heel, toe, and tandem walk. Furthermore, the claimant was consistently described as 27 oriented, well-nourished, well-developed, and in no acute distress (Exhibits 1F/8 and 14; 2F/19-50; 3F/19, 21, 23, 27, and 38; 4F/36, 57, 28 119-120, 137, and 165; 6F/8, 9, and 10-11; 8F/15 and 19; 10F/8-9 and 1 103-154; and 16F/53 and 59). These findings support the assessment that the claimant is not totally disabled. Rather, despite the claimant’s severe 2 impairments, these findings show that the claimant is appropriately limited to less than the full range of light work. 3 In addition, psychiatric examinations found throughout the medical record 4 support the assessment that the claimant had no limitations in his mental functioning. Psychiatric examinations consistently showed that the 5 claimant exhibited normal mood, affect, behavior, judgment, and thought content (Exhibits 4F/119-120, 137, and 165; 6F/8 and 10-11; and 8F/15). 6 These findings further support the residual functional capacity. 7 Second, the claimant’s statements regarding his activities of daily living suggest a level of function inconsistent with his allegations. Despite his 8 alleged impairments, the claimant reported that he is able to care for his personal hygiene independently, prepare meals, and perform household 9 chores. Additionally, the claimant indicated that he is able to care for his son. Furthermore, the claimant is able to operate a motor vehicle. He is 10 also able to go shopping for groceries as needed (Exhibits 11F/2, 18F/5, and Hearing Testimony). This is strong evidence that the claimant’s 11 impairments are not as debilitating as he alleges. For these reasons, the claimant’s allegations concerning the severity of his symptoms are not 12 entirely consistent with the evidence and any limitations imposed by the claimant’s impairments were accounted for sufficiently in the residual 13 functional capacity. 14 CAR 27-28. 15 Here, the ALJ cited two reasons for discounting Plaintiff’s statements and 16 testimony. First, the ALJ cited inconsistency with the medical record. Second, the ALJ cited 17 inconsistent with Plaintiff’s activities of daily living. Each reason alone is clear and convincing if 18 supported by the record and proper analysis. 19 1. The Medical Record 20 As explained above, general findings are insufficient. See Lester, 81 F.3d at 834. 21 The ALJ must make specific findings which identify what testimony is not afforded weight and 22 what evidence undermines the testimony. See id. Insofar as the ALJ’s cites the medical record, 23 the ALJ met her burden. Specifically, the ALJ noted the following as inconsistent with Plaintiff’s 24 allegations of disabling back pain: (1) lack of lower extremity edema; (2) lack of cranial nerve 25 deficit; and (3) consistent and strong motor strength findings. 26 / / / 27 / / / 28 / / / 1 2. Activities of Daily Living 2 The ALJ listed the following activities which were found to undermine Plaintiff’s 3 statements and testimony: (1) care for his personal hygiene independently; (2) prepare meals; (3) 4 perform household chores; (4) care for his son; (5) operate a motor vehicle; and (6) go shopping 5 for groceries. See CAR 28. Plaintiff, however, has testified these activities are limited, primarily 6 due to back and foot pain. For example, in a function report completed December 2, 2019, 7 contained in the record at Exhibit 18F, CAR 1919, Plaintiff stated he can wash his hair unassisted 8 and maintains independent grooming and dressing, but uses a therapy device to get his socks on 9 and no longer ties his shoes. See id. Furthermore, he can go to the bathroom but experiences 10 numbness and pain while doing so. See id. Plaintiff stated he can drive, but only to the store, and 11 shop, but only briefly. See id. As far as meal preparation, Plaintiff stated he can cook, but only 12 in segments, with a maximum of ten minutes standing. See id. Regarding lifting objects, 13 Plaintiff stated he can do so if he does not have to bend down and use both hands. See id. 14 Plaintiff also alleged he can take his son to the park, but only if he sits on the bench the whole 15 time. See id. 16 The Court finds that the ALJ’s reliance on Plaintiff’s limited daily activities is 17 misplaced. Plaintiff’s statements and testimony reflect daily activities that are limited in nature. 18 The mere fact that Plaintiff has carried out these activities does not detract from his credibility as 19 to his overall disability. See Orn, 495 F. 3d at 639; see also Gallant, 753 F.2d at 1488 (discussing 20 claimant’s entitlement to benefits based on constant leg and back pain despite his ability to cook 21 meals and wash dishes). The ALJ has not sufficiently explained how these limited daily activities 22 translate into sustaining full-time competitive work. See Fair, 885 F. 2d at 603. 23 Though the ALJ’s analysis of Plaintiff’s statements and testimony is sufficient to 24 the extent the ALJ properly cited inconsistency with the medication record, discussed above, 25 given that the matter will be remanded to allow further consideration of various medical opinions, 26 the Commissioner should reassess whether citation to Plaintiff’s limited daily activities is 27 appropriate in this case. 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, this matter will be remanded under sentence four of 42 3 | U.S.C. § 405(g) for further development of the record and/or further findings addressing the 4 | deficiencies noted above. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for summary judgment, ECF No. 14, is granted; 7 2. Defendant’s motion for summary judgment, ECF No. 15, is denied; 8 3. The Commissioner’s final decision is reversed and this matter is remanded 9 | for further proceedings consistent with this order; and 10 4. The Clerk of the Court is directed to enter judgment and close this file. 11 12 | Dated: January 5, 2022 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25