Wang v. Saul ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 XIAOMEI WANG, Case No. 19-cv-03919-JSC 8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 ANDREW SAUL, Re: Dkt. Nos. 18, 21 Defendant. 11 12 Xiaomei Wang seeks social security benefits for physical and mental impairments 13 including fibromyalgia, generalized arthralgia and myalgia, abdominal and epigastric pain, 14 bilateral hand weakness and pain, memory problems, anger problems, mood swings, an 15 unspecified anxiety disorder, and an unspecified depressive disorder. (See Administrative Record 16 (“AR”) 37-38.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of 17 the final decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) 18 denying her benefits claim. (Dkt. No. 1.)1 Before the Court are Plaintiff’s and Defendant’s 19 motions for summary judgment.2 (Dkt. Nos. 18 & 21.) Because the Administrative Law Judge’s 20 (“ALJ’s”) determination that Plaintiff’s diagnosed fibromyalgia is not a medically determinable 21 impairment constitutes reversible error, the Court GRANTS Plaintiff’s motion, DENIES 22 Defendant’s cross motion, and REMANDS for further proceedings. 23 BACKGROUND 24 Plaintiff filed an application for disability benefits under Title II of the Social Security Act 25 (the “Act”) on December 8, 2014, alleging a disability onset date of December 31, 2007. (AR 26 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 27 ECF-generated page numbers at the top of the documents. 1 279-287.) Her application was denied both initially and upon reconsideration. (AR 160, 165.) 2 Plaintiff then submitted a written request for a hearing before an ALJ, and her hearing was held 3 before ALJ Arthur Zeidman on November 2, 2016. (AR 60.) This hearing was postponed so 4 Plaintiff could obtain representation and see an independent consultative physician. (AR 76.) 5 After obtaining an attorney, another hearing was held on March 7, 2017. (AR 78.) Because 6 Plaintiff is a Mandarin speaker and her interpreter was unable to attend the entire hearing, the ALJ 7 conducted a final hearing on March 22, 2017. (AR 104-106, 108.) On May 24, 2017, The ALJ 8 issued a decision finding that Plaintiff was not disabled. (AR 34.) The ALJ found that Plaintiff 9 had the severe impairments of generalized arthralgia and myalgia, abdominal and epigastric pain, 10 and muscle weakness and pain in her bilateral hands, but that she did not have an impairment or 11 combination of impairments that met or medically equaled one of the listed impairments in 20 12 C.F.R. § 404, Subpart P, Appendix 1. (AR 37-38.) The ALJ then determined that Plaintiff had the 13 residual functional capacity (“RFC”) to perform light work with certain limitations. (AR 39.) The 14 ALJ concluded that Plaintiff was not disabled because she was capable of performing past relevant 15 work that did not require the performance of work-related activities precluded by her RFC. (AR 16 42.) 17 Plaintiff filed a request for review of the ALJ’s decision and the Appeals Council denied 18 review of the ALJ’s decision on January 14, 2019. (AR 7-11, 20.) Plaintiff then sought review in 19 this Court. (Dkt. No. 1.) In accordance with Civil Local Rule 16-5, the parties filed cross-motions 20 for summary judgment. (Dkt. Nos. 18 & 21), which are now ready for decision without oral 21 argument. 22 ISSUES FOR REVIEW 23 1. Did the ALJ err in failing to find that Plaintiff’s fibromyalgia or mental 24 impairments constituted medically determinable severe impairments? 25 2. Did the ALJ err in his evaluation of Plaintiff’s subjective pain symptom 26 testimony? 27 3. Did the ALJ err in weighing Plaintiff’s medical opinion evidence? 1 LEGAL STANDARD 2 A claimant is considered “disabled” under the Social Security Act if she meets two 3 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 4 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 5 reason of any medically determinable physical or mental impairment which can be expected to 6 result in death or which has lasted or can be expected to last for a continuous period of not less 7 than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be 8 severe enough that she is unable to do her previous work and cannot, based on age, education, and 9 work experience “engage in any other kind of substantial gainful work which exists in the national 10 economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is 11 required to employ a five-step sequential analysis, examining: (1) whether the claimant is 12 engaging in “substantial gainful activity”; (2) whether the claimant has a severe “medically 13 determinable physical or mental impairment” or combination of impairments that has lasted for 14 more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the 15 regulations; (4) whether, given the claimant’s RFC, the claimant can still do her “past relevant 16 work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 17 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.R.F. §§ 404.1520(a), 416.920(a). 18 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 19 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 20 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 21 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 22 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 23 interpretation, it is the ALJ's conclusion that must be upheld.” Id. In other words, if the record 24 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 25 judgment for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th 26 Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported by 27 substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. A 1 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by 2 isolating a specific quantum of supporting evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 3 Cir. 2017). 4 DISCUSSION 5 Plaintiff asserts that the ALJ’s Step Two findings regarding her fibromyalgia and mental 6 impairments were unsupported by substantial evidence, that the ALJ failed to provide clear and 7 convincing reasons for discrediting her subjective pain symptom testimony, and that the ALJ erred 8 in his evaluation of the medical opinions. (Dkt. No. 18 at 2.) The Court agrees. 9 I. Step-Two Determinations Regarding Fibromyalgia and Mental Impairments 10 It is the claimant’s burden to demonstrate the existence of a medically determinable 11 impairment through medical evidence. Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (“The 12 Secretary . . . has express statutory authority to place the burden of showing a medically 13 determinable impairment on the claimant.”); see also 20 C.F.R. § 404.1508 (providing that 14 claimant must establish existence of medically determinable impairment from “medically 15 acceptable clinical and laboratory diagnostic techniques”). The Ninth Circuit has recognized, 16 however, that the step-two inquiry is a “de minimis screening device to dispose of groundless 17 claims.” Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (internal quotation marks and 18 citation omitted). 19 A. Fibromyalgia 20 Plaintiff challenges the ALJ’s finding that Plaintiff’s diagnosed fibromyalgia is “not a 21 medically determinable impairment” on the grounds that the record did not provide the ALJ with 22 substantial evidence to support this conclusion. ( See AR 37 (citing Social Security Ruling 23 (“SSR”) 12-2P.) The Court agrees. 24 “Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective 25 tissue components of muscles, tendons, ligaments, and other tissue.” Revels v. Berryhill, 874 F.3d 26 648, 656 (9th Cir. 2017) (internal quotation marks and citation omitted). Symptoms include 27 “chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep 1 Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). Individuals suffering from fibromyalgia 2 have normal “muscle strength, sensory functions, and reflexes.” Revels, 874 F.3d at 656. Further, 3 “there are no laboratory tests to confirm the diagnosis.” Benecke, 379 F.3d at 590. Fibromyalgia 4 is thus “diagnosed entirely on the basis of patients’ reports of pain and other symptoms.” Id. 5 The Social Security Administration’s Ruling 12-2P governs the evaluation of 6 fibromyalgia. Revels, 874 F.3d at 656 n.2. The Ruling states that the SSA will find that a claimant 7 has a medically-determined impairment of fibromyalgia if a physician has diagnosed the claimant 8 with fibromyalgia, (2) the diagnosing physician’s provides evidence that meets at least one of two 9 sets of criteria set forth in the Ruling, and (3) the diagnosis is not inconsistent with other record 10 evidence. SSR 12-2P, 2012 WL 3104869 *2 (July 12, 2012). With respect to the two sets of 11 criteria, the Ninth Circuit has explained: 12 [SSR 12-2P] provides two sets of criteria for diagnosing the condition, based on the 1990 American College of Rheumatology Criteria for the 13 Classification of Fibromyalgia and the 2010 American College of 14 Rheumatology Preliminary Diagnostic Criteria. [SSR 12-2P, at *2.] 15 Pursuant to the first set of criteria, a person suffers from fibromyalgia if: (1) she has widespread pain that has lasted at least three months 16 (although the pain may “fluctuate in intensity and may not always be present”); (2) she has tenderness in at least eleven of eighteen 17 specified points on her body; and (3) there is evidence that other 18 disorders are not accounting for the pain. Id. at *2-3. (The 1990 ACR Criteria). 19 Pursuant to the second set of criteria, a person suffers from fibromyalgia 20 if: (1) she has widespread pain that has lasted at least three months (although the pain may “fluctuate in intensity and may not always 21 be present”); (2) she has experienced repeated manifestations of six or more 22 fibromyalgia symptoms, signs, or co-occurring conditions, “especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), 23 waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome”; and (3) there is evidence that other disorders are not 24 accounting for the pain. (The 2010 ACR Criteria). 25 Revels, 874 F.3d at 656-57. 26 27 As the ALJ recognized, Plaintiff’s treating physician Dr. Law diagnosed Plaintiff with 1 evidence that satisfied at least one of the two sets of criteria set forth in SSR 12-2P. The ALJ 2 concluded at this step that the evidence did not satisfy either the 1990 or 2010 ACR Criteria, and 3 therefore Plaintiff did not establish the existence of fibromyalgia as a medically determinable 4 impairment. (AR 37-38.) 5 The ALJ’s determination regarding Plaintiff’s failure to satisfy either the 1990 or 2010 6 ACR Criteria is not supported by substantial evidence. The record demonstrates that Plaintiff 7 meets the 1990 ACR Criteria’s requirements. Revels, 874 F.3d at 656-57. First, Dr. Law 8 determined that Plaintiff had a history of widespread pain that lasted for at least three months. 9 (AR 510.) In his Fibromyalgia Medical Assessment Form, Dr. Law noted that Plaintiff 10 experienced multi-joint pain without redness or swelling, recurrent and severe headaches, diffuse 11 muscle pain, leg cramps, muscle pain, sore throat, chronic pain, and carpal tunnel syndrome. (AR 12 510.) Dr. Law’s treatment notes support this assessment. Dr. Law began treating Plaintiff in 13 January 2014; he saw Plaintiff approximately once a month— more frequently at certain times as 14 her symptoms recurred—and completed his Fibromyalgia Medical Assessment Form on February 15 11, 2015. (AR 504, 510.) This period of treatment exceeds three months. Throughout his course 16 of treating Plaintiff, Dr. Law’s treatment records indicate that Plaintiff suffered hand pain, chronic 17 sensitivities, general osteoarthritis, multiple area pain, edema, osteoporosis, multiple joint 18 tenderness, joint pain, and all joint tenderness. (AR 457-471, 521-526.) Dr. Law’s February 11, 19 2015 RFC Form additionally noted that Plaintiff had multiple joint pain involving all joints in all 20 extremities, morning stiffness of muscles, an inability to turn her head fully, and swelling of finger 21 joints in both hands. (AR 504.) 22 Second, Dr. Law determined that Plaintiff had tender points in at least 11 of 18 specified 23 points on her body as required by SSR 12-2P. In fact, in his Fibromyalgia Medical Assessment 24 Form, Dr. Law determined that all possible tender points were positive for pain upon digital 25 palpitation. (AR 511.) 26 Finally, Dr. Law determined that no other disorders were the cause of Plaintiff’s pain. 27 (AR 512.) Dr. Law ordered Plaintiff to undergo a series of blood tests and panels, to wear a heart- 1 her white and red blood cell counts. (AR 475-479, 480-492, 493-497, 668.) In rendering his 2 diagnoses in both the RFC and Fibromyalgia Medical Assessment Forms, Dr. Law either 3 implicitly or explicitly ruled out other conditions as the source of Plaintiff’s chronic pain. (See 4 AR 504 (citing the results of Plaintiff’s blood panel regarding Vitamin D levels as support for his 5 findings regarding Plaintiff’s diagnoses); AR 510 (stating that Plaintiff met the ACR’s 2010 6 diagnostic criteria and that Plaintiff’s TSH 4.69(H) test result was a “positive clinical finding” in 7 support of his fibromyalgia diagnosis and that “all other possible causes of [Plaintiff’s] symptoms 8 [had] been ruled out[.]”).) Therefore, Dr. Law’s diagnosis satisfied every element of the 1990 9 ACR Criteria. 10 Plaintiff’s evidence also satisfied the 2010 ACR Criteria. Revels, 874 F.3d at 657. First, 11 for the reasons set out above, Plaintiff established that she suffered widespread pain that lasted at 12 least three months. Second, Dr. Law’s treatment notes further establish that she experienced 13 repeated manifestations of at least six fibromyalgia signs or symptoms during his time as 14 Plaintiff’s treating physician. During this time, Dr. Law’s assessments determined that Plaintiff 15 repeatedly manifested fatigue, “multiple area pain[,]” hand and joint pain, “generalized joint 16 pain[,]” muscle pain, anxiety, possible sleep apnea, osteoarthritis, edema, memory loss, irregular 17 sleep, and insomnia. (AR 457, 459, 467-68, 471, 522-526, 648-650, 653, 656-658, 660-661, 664- 18 666, 669.) These constitute signs and symptoms of fibromyalgia. See SSR 12-2P; see also 19 Revels, 874 F.3d at 656-57. Dr. Law also diagnosed Plaintiff with irritable bowel syndrome, a co- 20 occurring condition under SSR 12-2P. (AR 504.) Third, as explained above, there is evidence that 21 other disorders did not account for Plaintiff’s pain. 22 Further, Dr. Masood’s findings support Dr. Law’s determinations and diagnosis. Dr. 23 Masood’s examination of Plaintiff’s hands was “remarkable for tenderness which affect[ed] all the 24 joints of fingers of both hands,” and revealed that Plaintiff experienced pain when moving her 25 extremities. (AR 539.) In light of this examination, Dr. Masood concluded that Plaintiff had 26 “possible fibromyalgia.” (AR 539.) The ALJ did not reference these findings from Dr. Masood’s 27 December 2, 2016 evaluation, nor was Dr. Masood’s conclusion regarding the possible 1 For these reasons, the ALJ erred in concluding that Plaintiff’s fibromyalgia was not a 2 medically determinable impairment. Despite Dr. Law’s diagnosis, the result of Dr. Masood’s 3 evaluation, and the “de minimis” nature of the step-two inquiry to dispose of “groundless claims,” 4 see Edlund, 253 F.3d at 1158, the ALJ incorrectly determined Plaintiff’s fibromyalgia was not a 5 medically determinable impairment. The record presents substantial evidence demonstrating that 6 Plaintiff’s diagnosis satisfied the guidance set forth in SSR 12-2P for both the 1990 and 2010 7 ACR diagnostic criteria, and was sufficient for the ALJ to find at step two that Plaintiff’s 8 diagnosed fibromyalgia was not only a medically determinable impairment, but likely a severe 9 impairment. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (noting that at step two an 10 impairment “can be found not severe only if the evidence establishes a slight abnormality that has 11 ‘no more than a minimal effect on an individual’s ability to work”) (internal quotations and 12 citation omitted). 13 The substantial evidence of record exposes why Defendant’s argument that the ALJ 14 “reasonably concluded” that Plaintiff did not satisfy SSR 12-2P’s criteria fails. Nonetheless, 15 Defendant argues that any step two error was harmless because the ALJ assessed other medically 16 determinable impairments that “encompassed the alleged fibromyalgia symptoms[.]” (Dkt. No. 21 17 at 13.) Incorrect. First, an ALJ is required to consider “all of [a Plaintiff’s] medically 18 determinable impairments,” both severe and non-severe, when assessing the Plaintiff’s RFC. 20 19 C.F.R. § 416.945(a)(2). Furthermore, an ALJ’s error is only harmless where it is “inconsequential 20 to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 21 1055 (9th Cir. 2006). 22 B. Mental Impairments 23 Plaintiff next argues that the ALJ committed legal error at step two by finding that she did 24 not have a medically determinable mental impairment. 25 The ALJ noted that Plaintiff testified at the March 22, 2017 hearing regarding her anxiety, 26 memory loss, and depression, but determined that the record did not show evidence of a “mental 27 diagnosis or treatment during the relevant adjudicatory period.” (AR 127-129, 38.) One note 1 states in translation that “sometimes [Plaintiff] feels flustered and have [sic] a sense of panic.” 2 (AR 676.)3 Additionally, Plaintiff reported to Dr. Ozer that she had experienced symptoms of 3 anxiety and depression since being laid off from her job in 2007, and that those symptoms 4 worsened after her mother’s death in 2009. (AR 737.) After conducting a series of emotional, 5 psychological, and cognitive tests, Dr. Ozer diagnosed Plaintiff with an unspecified anxiety 6 disorder and an unspecified depressive disorder whose “[s]ymptoms have persisted since at least 7 2007.” (AR 735-749.) Based on the extensiveness of these evaluations, Dr. Ozer’s report 8 constitutes medical evidence under 20 C.F.R. § 404.1521. 9 Contrary to Defendant’s characterization of Dr. Ozer’s report as “speculative,” Dr. Ozer 10 determined—after conducting multiple tests over two days—that the symptoms of Plaintiff’s 11 unspecified depressive and unspecified anxiety disorders had “persisted since at least 2007 and 12 have caused significant distress[.]” (AR 748.) Plaintiff may “establish [] continuing disabling 13 severity by means of a retrospective diagnosis.” Flaten v. Sec'y of Health & Human Servs., 44 14 F.3d 1453, 1461 & n.5 (9th Cir. 1995). Therefore, because Dr. Ozer’s evaluation provided a 15 retrospective diagnosis of two mental disorders during the relevant adjudicatory period, substantial 16 evidence did not support the ALJ’s determination that Plaintiff had no mental impairments at the 17 step two inquiry. 18 The record refutes Defendant’s argument that substantial evidence supported the ALJ’s 19 step two findings regarding Plaintiff’s mental disorders. Furthermore, because an ALJ is required 20 to consider “all of [a Plaintiff’s] medically determinable impairments,” both severe and non- 21 severe, when assessing the Plaintiff’s RFC, 20 C.F.R. § 416.945(a)(2), the ALJ’s failure to do so 22 regarding Plaintiff’s mental disorders does not constitute harmless error. 23 II. Subjective Pain Symptom Testimony 24 The Ninth Circuit has “established a two-step analysis for determining the extent to which 25 a claimant’s symptom testimony must be credited.” Trevizo, 871 F.3d at 678. “First, the ALJ 26 must determine whether the claimant has presented objective medical evidence of an underlying 27 1 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation marks and citation 3 omitted). “Second, if the claimant meets the first test, and there is no evidence of malingering, the 4 ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 5 specific, clear and convincing reasons for doing so.” Id. (internal quotation marks and citation 6 omitted). If the ALJ’s assessment “is supported by substantial evidence in the record, [courts] 7 may not engage in second-guessing.” See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 8 Here, the ALJ determined that Plaintiff’s “medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms[.]” (AR 41.) Because Plaintiff met the 10 first part of the test, the ALJ was required to provide “specific, clear and convincing reasons” for 11 rejecting Plaintiff’s testimony regarding the severity of her symptoms, or else find evidence of 12 malingering. Lingenfelter, 504 F.3d at 1036. The ALJ found no evidence of malingering, but 13 found that the evidence did not support Plaintiff’s allegations of “debilitating impairments” 14 because her statements “concerning the intensity, persistence, and limiting effects of [her] 15 symptoms [were] not entirely consistent with the medical evidence and other evidence in the 16 record[.]” (AR 39, 41.) 17 The ALJ’s boilerplate finding is not a clear and convincing reason supported by substantial 18 evidence for rejecting Plaintiff’s subjective allegations regarding her functional capacity. See 19 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“An ALJ’s vague 20 allegation that a claimant’s testimony is not consistent with the objective medical evidence, 21 without any specific findings in support of that conclusion is insufficient for our review.”) 22 (internal quotations omitted). “To discredit a claimant’s symptom testimony when the claimant 23 has provided objective medical evidence of the impairments which might reasonably produce the 24 symptoms or pain alleged and there is no evidence of malingering, the ALJ must give ‘specific, 25 clear, and convincing reasons for rejecting’ the testimony by identifying ‘which testimony [the 26 ALJ] found not credible’ and explaining ‘which evidence contradicted that testimony.’” Laborin 27 v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (quoting Brown–Hunter v. Colvin, 806 F.3d 487, 1 hearing testimony regarding failed surgeries in China and determined the record “[did] not show 2 evidence” of failed surgeries, this discussion of whether evidence existed in the record does not 3 address Plaintiff’s testimony regarding her functional capacity. (AR 40.) At bottom, the ALJ 4 provided no reasons for rejecting Plaintiff’s subjective allegations and, instead, discussed the 5 medical evidence at length, but did not tie that evidence to any particular portions of Plaintiff’s 6 testimony that he did not find credible regarding her functional capacity. 7 Further, the objective medical evidence reflects that the ALJ improperly cherry-picked 8 evidence that supported his conclusion while ignoring medical evidence that contradicts his 9 conclusion. See Cotton v. Astrue, 374 Fed.Appx. 769, 773 (9th Cir. 2010) (holding that an ALJ’s 10 “cherry-picking of [claimant’s] histrionic personality out of her host of other disorders is not a 11 convincing basis for the adverse credibility finding”); see also Williams v. Colvin, No. ED CV 14- 12 2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry-pick 13 evidence to support the conclusion that a claimant is not disabled, but must consider the evidence 14 as a whole in making a reasoned disability determination.”). In particular, in his discussion of Dr. 15 Masood’s evaluation the ALJ notes that Plaintiff was diagnosed with generalized arthralgia and 16 myalgia, fatigue, insomnia, cognitive dysfunction, possible fibromyalgia, possible osteoporosis, 17 low back pain, depression, and hypothyroidism. (AR 40-41.) This omits Dr. Masood’s diagnosis 18 of Plaintiff’s unspecified depressive and anxiety disorders, their “severe” symptoms, as well as the 19 “severe psychological impairment[s]” they caused Plaintiff. (AR 747-748.) Dr. Masood also 20 strongly recommended that Plaintiff receive psychological treatment and that she may benefit 21 from psychiatric medications. (AR 748.) Dr. Masood concluded that Plaintiff’s performance on 22 the evaluation’s cognitive and psychological tests “indicate[d] that [Plaintiff] is experiencing 23 impairment in most work-related areas.” (AR 748.) The ALJ’s selective reliance on excerpts of 24 Dr. Masood’s records that support his ultimate conclusion while ignoring Dr. Masood’s diagnoses 25 and findings regarding Plaintiff’s impairments was in error. 26 Defendant argues that the ALJ appropriately considered the objective medical evidence in 27 discrediting Plaintiff’s subjective symptom testimony, including “Plaintiff’s largely unremarkable 1 “reasonably” failed to support Plaintiff’s allegations of debilitating symptoms. (Dkt. No. 21 at 18- 2 19.) According to Defendant, the ALJ properly identified that Plaintiff’s subjective testimony was 3 not consistent with the record. (Dkt. No. 21 at 20.) This argument, however, does not address the 4 ALJ’s failure to provide clear and convincing reasons for the testimony he found not credible and 5 explaining “which evidence contradicted that testimony,” Laborin, 867 F.3d at 1155, and ignores 6 the ALJ’s “cherry-picking” of Dr. Masood’s evaluation, see Cotton, 374 Fed.Appx at 773. 7 Defendant further argues that the ALJ appropriately discounted Plaintiff’s subjective 8 symptom testimony on the basis that the lack of mental health treatment undermines her claims of 9 debilitating mental health symptoms. (See AR 38 (“The claimant’s record does not show evidence 10 of a mental diagnosis or treatment during the relevant adjudicatory period[.]”).) The ALJ’s 11 assessment, however, was based in part on evidence of Plaintiff’s treatment in China from 12 November 2007 to February 2008, and how during this time Plaintiff did not mention “receiving 13 any psychiatric, psychological, or specialized mental health treatment.” (AR 38.) The ALJ failed 14 to consider that Plaintiff was uninsured while she sought medical treatment in China. (AR 73, 95- 15 97.) A claimant’s “failure to receive medical treatment during the period that [s]he had no 16 medical insurance cannot support an adverse credibility finding.” Orn v. Astrue, 495 F.3d 625, 17 635. Therefore, Plaintiff’s inability to seek mental health treatment in China while uninsured 18 cannot serve as a basis for discounting Plaintiff’s subjective pain symptom testimony. 19 Plaintiff later acquired health insurance in 2014, and stated in the March 7, 2017 hearing 20 that she was also insured when she sought treatment in 2011 and 2012 at the Tri-City Health Care 21 Center. (AR 97.) Plaintiff was seen at Washington Hospital’s Emergency Room for a panic 22 attack on October 24, 2016. (AR 585.) Other than this emergency room visit, she denied ever 23 seeing a psychiatrist, psychologist, or receiving any other mental health services. (AR 738.) 24 Plaintiff reported to Dr. Ozer that she wanted to see a therapist but was unable to find one who 25 spoke Mandarin. (AR 738.) While an ALJ “is permitted to consider lack of treatment in his 26 credibility determination[,]” Burch, 400 F.3d at 681, an ALJ must also “consider and address 27 reasons for not pursuing treatment that are pertinent to an individual’s case,” including possible 1 find a Mandarin-speaking mental health professional—in fact, the ALJ did not address any 2 reasons at all for why Plaintiff did not pursue mental health treatment. (AR 38.) 3 * * * 4 Accordingly, the ALJ failed to provide specific, clear and convincing reasons supported by 5 substantial evidence for discounting Plaintiff’s subjective testimony regarding her functional 6 capacity. Furthermore, the ALJ erred by failing to consider the reasons for Plaintiff’s lack of 7 mental health treatment when making his credibility determination and therefore erred in finding 8 her testimony not credible. 9 III. Medical Opinions 10 In assessing an ALJ’s consideration of the medical opinion evidence, courts “distinguish 11 among the opinions of three types of physicians: (1) those who treat the claimant (treating 12 physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) 13 those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 14 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded 15 more weight than those of non-examining physicians, and the opinions of examining non-treating 16 physicians are afforded less weight than those of treating physicians.” Orn, 495 F.3d at 631. 17 An ALJ may reject the “uncontradicted opinion of a treating or examining doctor” only by 18 stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 19 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation 20 omitted). And “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the 21 Commissioner may not reject this opinion without providing ‘specific and legitimate reasons’ 22 supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (citation 23 omitted). That said, “[w]here the opinion of the claimant’s treating physician is contradicted, and 24 the opinion of a nontreating source is based on independent clinical findings that differ from those 25 of the treating physician, the opinion of the nontreating source may itself be substantial evidence; 26 it is then solely the province of the ALJ to resolve the conflict.” Andrews v. Shalala, 53 F.3d 27 1035, 1041 (9th Cir. 1995); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 1 be viewed as substantial evidence.”) (alterations in original). Likewise, the opinions of 2 nonexamining physicians may “serve as substantial evidence when the opinions are consistent 3 with independent clinical findings or other evidence in the record.” Thomas, 278 F.3d at 957. 4 “The ALJ need not accept the opinion of any physician, including a treating physician, if 5 that opinion is brief, conclusory, and inadequately supported by clinical findings.” Id. Ultimately, 6 “[t]he ALJ must do more than offer his conclusions” when rejecting a medical opinion; instead, 7 she “must set forth his own interpretations and explain why they, rather than the doctors’, are 8 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Thus, “an ALJ errs when he 9 rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, 10 asserting without explanation that another medical opinion is more persuasive, or criticizing it 11 with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. 12 Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). 13 Plaintiff asserts the ALJ erred in evaluating the medical opinions of Dr. Law, Dr. Masood, 14 and Dr. Ozer. 15 A. Dr. Law 16 The ALJ gave little weight to the opinion of Dr. Law, Plaintiff’s treating physician, 17 because he found that Dr. Law’s “examination notes did not identify or document the symptoms 18 he identified in the [fibromyalgia] assessment form,” his opinions in the RFC Form were 19 unsupported by objective findings in the record, and Dr. Law began treating Plaintiff after her date 20 last insured. (AR 38, 41-42.) Plaintiff contends that the ALJ erred in doing so because (1) Dr. 21 Law’s treatment notes contain references to many of the symptoms he listed on the Fibromyalgia 22 Medical Assessment Form and therefore the reasons for discrediting his opinions are not 23 supported by substantial evidence; (2) Dr. Law’s submitted RFC Form opinions were supported 24 by objective findings; and (3) Dr. Law had a longitudinal history of examining Plaintiff, and his 25 opinions were credible even if he did not read Plaintiff’s treatment notes from China. (Dkt. No. 26 18 at 19-20; AR 504-516.) 27 First, the ALJ erred in determining that Dr. Law’s examination notes did not document the 1 was unsupported by objective findings in the record. As discussed earlier, Dr. Law’s treatment 2 notes are substantial evidence that document the symptoms identified in the Fibromyalgia Medical 3 Assessment Form he completed. (See AR 457, 459, 463, 467-68, 470-71, 522-526, 648-650, 653, 4 656-658, 660-661, 664-666, 669.) The RFC Form also determined that Plaintiff’s diagnosed 5 fibromyalgia was an “objective reason” for her pain, and the Fibromyalgia Medical Assessment 6 Form additionally identified that all possible tender points “were positive for pain upon digital 7 palpitation[.]” (AR 505, 511.) 8 Second, the ALJ erred in determining that Dr. Law’s medical opinion was not credible 9 because he began treating Plaintiff after her date last insured and that, absent evidence he reviewed 10 her treatment notes from the relevant time period, he could not ascertain Plaintiff’s limitations 11 reaching back to December 2012. (AR 41-42.) “Retrospective diagnoses by treating physicians . . 12 . are [] relevant to the determination of a continuously existing disability with an onset prior to 13 expiration of insured status.” Flaten, 44 F.3d at 1461 n.5 (9th Cir. 1995); see also Lester, 81 F.3d 14 at 832 (“[M]edical evaluations made after the expiration of a claimant’s insured status are relevant 15 to an evaluation of the preexpiration condition.”) (internal quotations and citation omitted). 16 Giving “little weight” to Dr. Law’s medical opinion for these reasons constitutes legal error. See 17 Iatridis v. Astrue, 501 F. Supp. 2d 1267, 1276 (C.D. Cal. 2007) (holding that ALJ’s “discounting” 18 of treating physician’s opinion that plaintiff’s work-related limitations were effective as of May 19 11, 1995 “because they were set forth on May 18 and September 6, 2001” constituted legal error). 20 Defendant argues that the ALJ properly discounted Dr. Law’s testimony in light of other 21 physicians’ findings. (Dkt. No. 21 at 23.) Not so. Because Dr. Law is Plaintiff’s treating 22 physician, the ALJ was required to provide specific and legitimate reasons supported by 23 substantial evidence for rejecting Dr. Law’s medical opinions on the basis of any non-treating 24 physician’s contradictory opinion. See Lester, 81 F.3d at 830. Substantial evidence does not 25 support the ALJ’s conclusion that Dr. Law’s medical opinions regarding Plaintiff’s diagnoses and 26 work-related limitations are controverted. For instance, Raymond Y. Chan, D.C., offered Plaintiff 27 chiropractic treatment after she was injured in a car accident on September 24, 2014; the ALJ 1 However, Plaintiff’s records from the Chan Chiropractic Center state that “at discharge, there were 2 multiple tender points as defined by the American College of Rheumatology.” (AR 554.) As 3 discussed earlier, Dr. Masood’s examination of Plaintiff’s hands was “remarkable for tenderness 4 which affect[ed] all the joints of fingers of both hands,” and revealed that Plaintiff experienced 5 pain when moving her extremities. (AR 539.) In light of this examination, Dr. Masood’s 6 conclusion that Plaintiff had “possible fibromyalgia” supports—rather than refutes—Dr. Law’s 7 medical opinions. (AR 539.) 8 While, unlike Dr. Law’s assessment in the RFC Form, Dr. Masood’s RFC assessment 9 determined that Plaintiff could perform work-related tasks with certain limitations, the ALJ did 10 not provide any specific or legitimate reasons for rejecting Dr. Law’s opinion regarding Plaintiff’s 11 work-related limitations in light of Dr. Masood’s evaluations. See Lester, 81 F.3d at 830. Put 12 differently, the ALJ determined that Dr. Law’s RFC assessment was “overly restrictive” because 13 “it was unsupported by objective findings in the record,” and then summarized Dr. Masood’s 14 evaluation that found Plaintiff was suited for “light exertional work.” (AR 41-42.) While Dr. 15 Masood’s evaluation and opinion constitutes substantial evidence, see Magallanes, 881 F.2d at 16 751, merely summarizing her findings without providing specific and legitimate reasons for why 17 those findings reject Dr. Law’s RFC evaluation constitutes legal error, see Lester, 81 F.3d at 830. 18 B. Dr. Masood 19 “As is the case with the opinion of a treating physician, the Commissioner must provide 20 ‘clear and convincing’ reasons for rejecting the uncontradicted opinion of an examining 21 physician.” Lester, 81 F.3d at 830 (citation omitted). Even if an examining physician’s opinion is 22 contradicted, an ALJ may only reject it for “specific and legitimate reasons that are supported by 23 substantial evidence in the record.” Id. (citation omitted). Whereas the ALJ determined that 24 Plaintiff was limited to “frequent” handling and hand controls bilaterally, Dr. Masood’s evaluation 25 states that Plaintiff could only use both hands or perform fine finger and hand movements 26 “occasionally.” (AR 42, 539-540.) The ALJ does not provide clear or convincing reasons for 27 rejecting Dr. Masood’s determination that Plaintiff was limited to occasional, rather than frequent, 1 Tri-City Health Center in support of her ability to frequently rather than occasionally use her 2 hands. (AR 42, 404-455.) However, even if this or other evidence contradicted Dr. Masood’s 3 evaluation, the ALJ has failed to provide specific or legitimate reasons for rejecting Dr. Masood’s 4 medical opinion regarding Plaintiff’s work-related limitations on the use of her hands. See Lester, 5 81 F.3d at 830. In the case of the Tri-City Health Center records, these primarily concern 6 Plaintiff’s mammogram screenings and treatment for gallbladder stones. (AR 404-455.) 7 Plaintiff’s Tri-City Health Center records mention her hands on a record dated November 13, 8 2012, when she was assessed for thumb and hand pain. (AR 418.) The ALJ cites to these records 9 without providing any reason for why they contradict Dr. Masood’s medical opinion. (AR 42.) 10 Therefore, the ALJ’s failure to provide any reason for rejecting Dr. Masood’s medical opinion or a 11 substantive basis for his own conclusion regarding Plaintiff’s ability to frequently use her hands, 12 see Garrison, 759 F.3d at 1012-13, constitutes legal error. 13 C. Dr. Ozer 14 The ALJ gave little weight to Dr. Ozer’s assessment because “a onetime examination 15 performed more than four years after the [Plaintiff]’s date last insured” was inadequate to assess 16 Plaintiff’s mental functioning before December 31, 2012. (AR 38.) As such, Dr. Ozer could not 17 “know” information regarding the severity and limitations caused by Plaintiff’s mental 18 impairments. (AR 38.) Dr. Ozer is an examining physician whose uncontroverted opinion the 19 ALJ may only reject with “clear and convincing reasons that are supported by substantial evidence 20 in the record.” Lester, 81 F.3d at 830 (citation omitted). As with Dr. Law’s evaluations, 21 “medical evaluations made after the expiration of a claimant's insured status are relevant to an 22 evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) 23 (citations omitted). Therefore, absent any other reason for discrediting Dr. Ozer’s medical 24 opinion, the ALJ failed to provide clear and convincing reasons for rejecting Dr. Ozer’s opinion. 25 See Lester, 81 F.3d at 830. 26 * * * 27 In sum, the Court finds that the ALJ committed legal error in discounting the medical 1 IV. Remand 2 Plaintiff asks the Court to remand the case for the payment of benefits or, alternatively, for 3 || further proceedings. When reversing an ALJ’s decision, “the proper course, except in rare 4 || circumstances, is to remand to the agency for additional investigation or explanation.” Benecke, 5 379 F.3d at 595. Remand for an award of benefits is proper, however, “where (1) the record has 6 || been fully developed and further administrative proceedings would serve no useful purpose; (2) 7 || the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant 8 testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, 9 || the ALJ would be required to find the claimant disabled on remand.” Revels, 874 F.3d at 668 10 (internal quotation marks and citation omitted). 11 The first prong of the test is not satisfied here. For instance, further proceedings would 12 || determine the proper weight to assign Dr. Law’s RFC and Fibromyalgia Medical Assessment 13 Forms, Dr. Masood’s evaluation of Plaintiff, and what possible reasons, if any, exist for 14 || discrediting Dr. Ozer’s evaluation, or how crediting Dr. Ozer’s evaluation would affect the step 3 15 || two evaluation of Plaintiff's mental impairments. Accordingly, the record must be more fully a 16 || developed, and further proceedings would serve a useful purpose. CONCLUSION 18 For the reasons set forth above, the Court GRANTS Plaintiffs motion, DENIES 19 Defendant’s cross-motion, and REMANDS for further proceedings consistent with this Order. 20 This Order disposes of Dkt. Nos. 18 & 21. 21 IT IS SO ORDERED. 22 Dated: September 30, 2020 23 | 1 24 ne CQUYELINE SCOTT CORLEY 25 United States Magistrate Judge 26 27 28