Copenhaver v. Berryhill ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LAURA C., Case No.: 18-cv-00790-AJB-MDD 11 Plaintiff, REPORT AND 12 v. RECOMMENDATION ON MOTION AND CROSS MOTION FOR 13 NANCY A. BERRYHILL, Acting SUMMARY JUDGMENT Commissioner of Social Security, 14 Defendant. [ECF Nos. 21, 22] 15 16 17 This Report and Recommendation is submitted to United States Judge 18 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 19 72.1(c) of the United States District Court for the Southern District of 20 California. 21 Plaintiff Laura C. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 22 405(g) for judicial review of the final administrative decision of the 23 Commissioner of the Social Security Administration (“Commissioner”). (ECF 24 No. 21 at 2).1 The final administrative decision of the Commissioner denied 25 26 1 Plaintiff’s application for Disability Insurance Benefits under Title II of the 2 Social Security Act (“Title II”) and for Supplemental Security Income under 3 Title XVI of the Social Security Act (“Title XVI”). (AR 115).2 4 For the reasons set forth herein, the Court recommends Plaintiff’s 5 Motion for Summary Judgment is GRANTED IN PART and Defendant’s 6 Cross-Motion for Summary Judgment is DENIED. Specifically, this Court 7 RECOMMENDS that Plaintiff’s request that the case be REMANDED for 8 further proceedings is GRANTED. 9 I. BACKGROUND 10 Plaintiff was born in 1957. (AR 246). At the time the instant 11 application was filed on February 26, 2014, Plaintiff was 56 years-old which 12 categorized her as a person of advanced age. 20 C.F.R. §§ 404.1563, 416.963. 13 A. Procedural History 14 On February 26, 2014, Plaintiff protectively filed an application for a 15 period of Disability Insurance Benefits under Title II. (AR 105). On January 16 3, 2017, Plaintiff filed an application for a period of Supplementary Security 17 Income under Title XVI. (Id.). Both applications alleged a disability 18 beginning February 12, 2014. (Id.). After her application was denied 19 initially and upon reconsideration, Plaintiff requested an administrative 20 hearing before an administrative law judge (“ALJ”). (Id.). An administrative 21 hearing was held on January 18, 2017. (Id.). Plaintiff appeared and was 22 represented by attorney Holly McMahon. (Id.). Testimony was taken from 23 Plaintiff, impartial medical expert John R. Morse, M.D., and impartial 24 25 26 number, not the page number in the original document. 2 “AR” refers to the Certified Administrative Record filed on September 7, 1 vocational expert Gloria J. Lasoff. (Id.). On March 21, 2017, the ALJ issued 2 a decision finding Plaintiff was not disabled from February 12, 2014 through 3 the date of the decision and therefore denied Plaintiff’s claim for benefits. 4 (AR 115). 5 On May 8, 2017, Plaintiff sought review with the Appeals Council. (AR 6 354). On March 20, 2018, the Appeals Council denied Plaintiff’s request for 7 review and declared the ALJ’s decision to be the Commissioner’s final 8 decision in Plaintiff’s case. (AR 1). This timely civil action followed. 9 II. DISCUSSION 10 A. Legal Standard 11 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 12 unsuccessful applicants to seek judicial review of a final agency decision of 13 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 14 review is limited in that a denial of benefits will not be disturbed if it is 15 supported by substantial evidence and contains no legal error. Id.; see also 16 Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004). 17 Substantial evidence means “more than a mere scintilla but less than a 18 preponderance.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). 19 “[I]t is such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 21 (9th Cir. 1995)). The court must consider the record as a whole, weighing 22 both the evidence that supports and detracts from the Commissioner’s 23 conclusions. Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 24 (9th Cir. 1988). If the evidence supports more than one rational 25 interpretation, the court must uphold the ALJ’s decision. Batson, 359 F.3d at 26 1193. When the evidence is inconclusive, “questions of credibility and 1 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting Waters v. 2 Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)). 3 Even if a reviewing court finds that substantial evidence supports the 4 ALJ’s conclusion, the court must set aside the decision if the ALJ failed to 5 apply the proper legal standards in weighing the evidence and reaching his or 6 her decision. Batson, 359 F.3d at 1193. Section 405(g) permits a court to 7 enter a judgment affirming, modifying, or reversing the Commissioner’s 8 decision. 42 U.S.C. § 405(g). The reviewing court may also remand the 9 matter to the Social Security Administration for further proceedings. Id. 10 B. Summary of the ALJ’s Findings 11 In rendering his decision, the ALJ followed the Commissioner’s five step 12 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the 13 ALJ found that Plaintiff had not engaged in substantial gainful employment 14 since February 12, 2014. (AR 107). 15 At step two, the ALJ found that Plaintiff had the following severe 16 impairments: degenerative disc disease, osteoarthritis, and deep vein 17 thrombosis. (Id.). 18 At step three, the ALJ found that Plaintiff did not have an impairment 19 or combination of impairments that met or medically equaled one of the 20 impairments listed in the Commissioner’s Listing of Impairments. (AR 109) 21 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 22 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)). 23 Next, after considering the entire record, the ALJ determined that 24 Plaintiff had the “residual functional capacity to perform light work as 25 defined in 20 C.F.R. 404.1567(b) and 416.967(b),” and announced the 26 following residual functional capacity (“RFC”): 1 416.967(b) except the [Plaintiff] is limited to frequent climbing stairs and ramps, occasional climbing ladders/ropes/scaffolding, 2 and frequent stooping, kneeling, crouching, and crawling; avoid 3 concentrated exposure to hazards such as moving machinery and working at unprotected heights; and avoid concentrated exposure 4 to extreme temperature and vibration. (AR 110). 5 The ALJ said that this RFC assessment was “consistent with the 6 objective medical evidence and other evidence. . . .” (Id.). The ALJ stated he 7 considered the opinion evidence in accordance with the requirements of 20 8 C.F.R. 404.1527 and 416.927. (Id.). 9 The ALJ then proceeded to step five of the sequential evaluation 10 process. He found Plaintiff was able to perform her past relevant work. (AR 11 115). For the purposes of his step five evaluation, the ALJ accepted the 12 testimony of the vocational expert (“VE”). (Id.). The VE testified that 13 Plaintiff’s past relevant work included the following jobs: medical clerk, 14 administrative assistant, and office supervisor. (Id.). 15 C. Issues in Dispute 16 The issues in dispute in this case are: 1) whether the ALJ erred by 17 giving great weight to the opinion of Dr. Morse, M.D. (the testifying Medical 18 Expert) in establishing Plaintiff’s residual functional capacity over 19 substantial weight given to the opinion of Dr. Crider, M.D. (examining 20 consultative physician); and 2) whether the ALJ failed to provide clear and 21 convincing reasons for rejecting Plaintiff’s pain and limitation testimony. 22 (ECF No. 21-1 at 6, 11). 23 1. The ALJ’s decision to accept the opinion of the non- 24 examining vs. the examining physician in establishing 25 Plaintiff’s RFC 26 “In making a determination of disability, the ALJ must develop the 1 record and interpret the medical evidence.” Howard ex rel. Wolff v. Barnhart, 2 341 F.3d 1006, 1012 (9th Cir. 2003). Title 20 C.F.R. § 404.1546(c) of the Code 3 of Federal Regulations states in pertinent part, “at the administrative law 4 judge hearing level …, the administrative law judge … is responsible for 5 assessing your residual functional capacity.” 6 An individual’s residual functional capacity (RFC) is “based on all the 7 relevant medical and other evidence in the individual’s case record.” Soc. Sec 8 Ruling 16-3p (2016). RFC “is the most an individual can still do despite his 9 or her impairment related limitations.” (Id). When establishing an 10 individual’s RFC, the ALJ reviews the medical record submitted and the 11 opinions of medical providers (e.g. physicians). 12 The Ninth Circuit distinguishes among the opinions of three types of 13 physicians: (1) those who treat the Plaintiff (“treating physicians”); (2) those 14 who examine but do not treat the Plaintiff (“examining physicians”); and (3) 15 those who neither examine nor treat the Plaintiff (“non-examining 16 physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). As a general 17 rule, more weight is given to the opinions of a treating source than to that of 18 a non-treating physician. Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th 19 Cir. 1987)). Likewise, the opinion of an examining physician is typically 20 entitled to greater weight than that of a non-examining physician. Pitzer v. 21 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). 22 In Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), the Ninth Circuit held: 23 If a treating physician's opinion is not given ‘controlling weight’ because it is not ‘well-supported’ or because it is inconsistent with 24 other substantial evidence in the record, the Administration 25 considers specified factors in determining the weight it will be given. Those factors include the ‘length of the treatment 26 relationship and the frequency of examination’ by the treating 1 relationship’ between the patient and the treating physician. Generally, the opinions of examining physicians are afforded more 2 weight than those of non-examining physicians, and the opinions 3 of examining non-treating physicians are afforded less weight than those of treating physicians. 4 5 Id. at 631 (internal citations omitted). 6 Where a non-treating, non-examining physician’s opinion contradicts 7 the treating physician’s opinion, the ALJ may only reject the treating 8 physician’s opinion “if the ALJ gives specific, legitimate reasons for doing so 9 that are based on substantial evidence in the record.” Jamerson v. Chater, 10 112 F.3d 1064, 1066 (9th Cir. 1997) (quoting Andrews v. Shalala, 53 F.3d 11 1035, 1041 (9th Cir. 1995)). “The ALJ may meet this burden by setting out a 12 detailed and thorough summary of the facts and conflicting evidence, stating 13 his interpretation thereof, and making findings.” Morgan v. Apfel, 169 F.3d 14 595, 600-601 (9th Cir. 1999) (citing Magallanes v. Bowen, 881 F.2d 747, 750 15 (9th Cir.1989)). 16 Dr. Crider is an examining physician. After examining Plaintiff, 17 Dr. Crider assessed an RFC to include the following: 18 Plaintiff can lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently. Standing and/or walking can be done up to 19 6 hours in a normal 8-hour workday but requires Plaintiff 20 periodically alternate between sitting and standing. Plaintiff medically requires a hand-held assistive device for balance and 21 support. Plaintiff can climb ramps and stairs without restriction. 22 Plaintiff can never climb ladders, ropes, or scaffolds. Plaintiff can never stoop, kneel, crouch, or crawl. (AR 633-34) (emphasis 23 added). 24 25 Dr. Morse is categorized as a non-examining physician. He was the 26 testifying medical expert at Plaintiff’s hearing, he neither examined nor 1 based upon his review of the medical record, Plaintiff had the following RFC: 2 Limited to lifting no more than 10 pounds on a frequent basis and 3 20 pounds occasionally; sit, stand, and walk no more than six 4 hours per day; limited to frequently climbing ramps and stairs, and limited to occasionally climbing of ladders/ropes/scaffolding; 5 frequently stoop, kneel, crouch, and crawl; avoid concentrated 6 exposure to machinery or unprotected heights. (AR 240-41) (emphasis added). 7 8 Two other non-examining physicians also opined on Plaintiff’s disability 9 status, the State Agency consultants, Dr. S. Lee, M.D. and Dr. A. Wong, M.D. 10 (AR 114). Dr. Lee determined that Plaintiff could lift up to 20 pounds 11 occasionally and more than 10 pounds frequently, stand/walk for 6 hours in 12 an 8-hour work day and sit for 6 hours in an 8-hour work day, occasionally 13 climb ramps and stairs, never climb ladders, ropes, scaffolding, and 14 occasionally balance, stoop, kneel, crouch, crawl, avoid concentrated exposure 15 to hazards such as moving machinery and working at unprotected heights; 16 and avoid concentrated exposure to extreme temperatures and vibration. 17 (Id.). Dr. Wong’s report was similar to Dr. Lee’s. They both gave substantial 18 weight to Dr. Crider’s findings, and found Plaintiff’s postural limitations in 19 line with his report. However, both physicians disagreed with Dr. Crider’s 20 opinion about Plaintiff’s need for a cane to balance and ambulate. (AR 284, 21 302). 22 Ultimately, the ALJ gave great weight to the opinion of Dr. Morse; 23 substantial weight to Dr. Crider’s opinion; and substantial weight to the 24 State Agency consultants, Drs. Lee and Wong. (AR 112, 114). The ALJ stated 25 he gave less weight to Dr. Crider’s opinion than to that of Dr. Morse’s 26 opinion, because Dr. Morse “had access to the entire medical record,” was “an 1 and his “conclusions are consistent with the bulk of the evidence in the 2 record.” (AR 112-113). The ALJ gave the opinions of Drs. Lee and Wong 3 substantial weight “because they are generally consistent with the record” 4 although, the ALJ reiterated his decision to accord Dr. Morse’s opinion with 5 greater weight citing “he had access to the entire record and his opinion is 6 better supported by that record.” (Id.). The ALJ also accepted the opinion of 7 Dr. Morse in concluding that “none of Plaintiff’s impairments met or 8 medically equaled the severity of one of the listed impairments in 20 CFR 9 Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 10 416.920(d), 416.925 and 416.926). 11 As noted herein, “[i]f a treating or examining doctor’s opinion is 12 contradicted by another doctor’s opinion, an ALJ may only reject it by 13 providing specific and legitimate reasons that are supported by substantial 14 evidence. Ryan v. Commissioner Soc. Sec., 528 F3d 1194, 1198 (9th Cir. 15 2008). “This is so because, even when contradicted, a treating or examining 16 physician’s opinion is still owed deference and will often be entitled to the 17 greatest weight … even if it does not meet the test for controlling weight.” 18 Garrison v. Colvin, 759 F3d 995, 1012 (9th Cir. 2014) (internal citations 19 omitted). Further, “[t]he opinion of a non-examining physician cannot by 20 itself constitute substantial evidence that justifies the rejection of the opinion 21 of either an examining physician or a treating physician.” Lester v. Chater, 81 22 F.3d 821, 831 (9th Cir. 1995). 23 Here, in the RFC determination, the ALJ made findings that conflict or 24 appear to conflict with Dr. Crider’s opinion. Adopting Dr. Morse’s opinion, 25 the ALJ found “[t]he physical symptoms and limitations reported by the 26 [Plaintiff] are inconsistent with the medical evidence and the record as a 1 they indicate a more restrictive residual functional capacity assessment” as 2 determine by the ALJ. (AR 111-112). The ALJ cited to the testimony and 3 findings of Dr. Morse to support his determination of Plaintiff’s RFC. For 4 example, the ALJ noted “at the hearing…Dr. Morse…testified he reviewed 5 the medical evidence in the record and reported that “while the Plaintiff 6 complained of chronic neck pain and chronic back pain, the orthopedic CE 7 reported that a straight leg test was negative and found no neurological 8 deficits.” (AR 112). The ALJ then set out Dr. Morse’s assessment of 9 Plaintiff’s RFC. (Id.). As noted herein, the ALJ essentially adopted Dr. 10 Morse’s assessment in full: 11 Perform light work . . . except the [Plaintiff] is limited to frequent climbing stairs and ramps, occasional climbing ladders/ropes/ 12 scaffolding, and frequent stooping, kneeling, crouching, and 13 crawling; avoid concentrated exposure to hazards such as moving machinery and working at unprotected heights; and avoid 14 concentrated exposure to extreme temperature and vibration. (AR 15 110) (emphasis added). 16 The ALJ’s reliance on Dr. Morse’s findings is misplaced. A review of Dr. 17 Morse’s testimony reveals inaccuracies that render the ALJ’s decision not 18 based upon the substantial evidence in the record. For example, one stated 19 reason the ALJ gave Dr. Morse great weight was based on his “board certified 20 specialty in internal medicine.” (AR 112). A review of Dr. Morse’s Vitae 21 shows that he was board certified in internal medicine in 1970, however, his 22 education and training was focused on cardiology. Specifically, he became 23 board certified in cardiology in 1973, has been a fellow of the American Heart 24 Association and American College of Cardiology from 1972 to the present. He 25 was a research fellow, senior clinical fellow, department chief and chairman 26 all in cardiology. (AR 783-84). Also, Dr. Morse has been published at least 1 six times all addressing cardiology issues. As such, this reason cited by the 2 ALJ to give greater weight to Dr. Morse over Dr. Crider, a practicing Board 3 Certified Orthopedic Surgeon, is not based on substantial evidence in the 4 record. 5 Second, as another reason to give greater weight to Dr. Morse, the ALJ 6 cited to his review of the entire longitudinal record and that his “conclusions 7 were consistent with the bulk of the evidence in the record.” (AR 112). At the 8 hearing, Dr. Morse noted Dr. Crider assessed Plaintiff with primarily 9 “discogenic disease of the neck and back.” (AR 239). Dr. Morse also noted Dr. 10 Crider’s decision regarding Plaintiff’s need for a cane. (AR 240). Dr. Morse 11 testified there were inconsistencies in regard to the need for a cane in Dr. 12 Crider’s evaluation: “The RFC that he offered was basically a light RFC with 13 some inconsistencies…to whether or not she needs a cane….” (Id.). 14 A review of Dr. Crider’s report notes that Plaintiff did not use an 15 assistive device for ambulation at the examination. However, Dr. Crider 16 stated that “in his opinion” Plaintiff should use a cane for balance and 17 support. (AR 631, 633). This is the opinion of the CE and nothing in Dr. 18 Morse’s testimony noted any contrary record evidence. Additionally, Plaintiff 19 testified later in the hearing that there were days she used a cane to lean on. 20 She uses it to lean on if she isn’t sitting. (AR 264). Her use of a cane was also 21 documented at a follow up appointment after her back surgery. One of her 22 treating physicians, Dr. Phan, M.D. reported Plaintiff was “utilizing [a] cane 23 to assist with ambulation.” (AR 853). 24 Third, Dr. Morse testified that Dr. Crider did not assess Plaintiff with 25 any postural limitations.3 “The orthopedist did not limit her at all.” (AR 241). 26 1 Dr. Morse testified that he would limit her to frequent ramps and stairs, 2 frequent stooping, kneeling, crouching and crawling, and occasional climbing 3 ladders, ropes and scaffolds. (Id.). A review of Dr. Crider’s report shows that 4 he did assess Plaintiff with the following postural limitations: “ramps and 5 stairs without restriction;” “never climb ladders, ropes, scaffolds due to her 6 present complaints;” and “stooping kneeling, crouching and crawling can 7 never be done due to her present complaints.” (AR 633-34). 8 Fourth, the ALJ gave more weight to Dr. Morse’s opinion than to Dr. 9 Crider’s opinion because Dr. Morse had the benefit of reviewing the entire 10 record, so was better able to determine Plaintiff’s most recent abilities and 11 disabilities. 12 The majority of the ALJ’s reasons for giving primary weight to Dr. 13 Morse are not substantiated by other evidence in the record. Dr. Morse’s 14 testimony appears to have been overly focused on Dr. Crider’s consultative 15 report rather than all the record evidence at that point in time. For example, 16 Dr. Morse testified that Dr. Crider’s report “was contradictory with respect to 17 the postural limitations he assessed.” (AR 239-40). However, despite citing 18 numerous pages of Plaintiff’s medical record that existed during the 19 timeframe that Dr. Crider performed his examination, the ALJ still adopted 20 Dr. Morse’s RFC determination. A sampling of Plaintiff’s individual progress 21 notes provide relevant evidence in the record to support Plaintiff’s allegation 22 of error: 23 2014: In May 2014, Plaintiff had an x-ray of her lumbar spine showing 24 multilevel degenerative disc disease but no acute disease, and an x-ray of her 25 cervical spine showed severe degenerative disc disease. (AR 543, 545-46). In 26 1 July 2014, treating physician Dr. Gin noted 5/5 strength and “muscle tone 2 and strength normal and symmetric” in Plaintiff’s upper and lower 3 extremities. (AR 662-70). These records do not, however, support the 4 conclusion that Plaintiff is able to climb ladders, ropes, or scaffolding, or 5 stoop, kneel, crouch, or crawl. In September 2014, during an examination 6 regarding seasonal allergies and hypertension, Dr. Judson Merritt, M.D. 7 found Plaintiff’s musculoskeletal range of motion normal. (AR 680-82). In 8 November 2014, Plaintiff had an MRI of her lumbar spine, which showed 9 multilevel degenerative changes of the lumbar spine, including a disc 10 extrusion at L3-4 resulting in severe left neuroforaminal stenosis and 11 impingement on the left L4 traversing nerve root. (AR 652-53). These 12 records similarly do not support the conclusion that Plaintiff is able to climb 13 ladders, ropes, or scaffolding, or stoop, kneel, crouch, or crawl. 14 2015: Between January and May 2015, Plaintiff underwent epidural 15 steroid injections in her spine. (AR 657-58, 882, 897). These records report 16 that Plaintiff’s history and physical findings are consistent with lumbar 17 radiculopathy. (AR 882). The records do not indicate that Plaintiff would 18 have been able to climb ladders, ropes, or scaffolding, or stoop, kneel, crouch, 19 or crawl. In June 2015, Plaintiff began physical therapy, which she attended 20 one to two times weekly. (AR 751-59, 902-06). Plaintiff’s June 12, 2015 21 physical therapy records indicated Plaintiff’s functional limitation include no 22 vacuuming or sweeping. (AR 752). These records also indicate Plaintiff 23 recently fell and “started using a cane because her left leg was giving her 24 difficulty.” (AR 751). Plaintiff reported her post-stretching pain as a 4/10 on 25 June 19, 2015; a 5/10 on June 24, 2015; and an 8/10 on June 29, 2015. (AR 26 902-06). In July 2015, Plaintiff had an MRI of her lumbar spine, which 1 overall mild spinal canal stenosis. (AR 750-51). In August 2015, treating 2 nurse practitioner Elizabeth Stimson examined Plaintiff and found Spurling’s 3 test negative, Trendelenburn sign negative, and normal alignment of thoracic 4 spine. (AR 774-75). Plaintiff was tender to percussion in her cervical, 5 thoracic, and lumbar spine. (Id.). In November 2015, Plaintiff underwent a 6 partial laminectomy of the left L3-L4 with laminoforaminotomy and 7 facetectomy. (AR 975-80). Taken together, these records do not support the 8 conclusion that Plaintiff is able to climb ladders, ropes, or scaffolding, or 9 stoop, kneel, crouch, or crawl. 10 2016: In January 2016, treating physician Vinko Zlomislic reported 11 Plaintiff’s motor strength was “5/5 in both upper and lower extremities.” (AR 12 995). These records also indicate that Plaintiff was intermittently wearing a 13 brace and that she was referred to physical therapy. (Id.). In April 2016, 14 Plaintiff presented to Dr. Jan Weichsel, M.D., complaining of chronic pain. 15 (AR 1036). Plaintiff reported experiencing daily pain causing her to stay in 16 bed all day. (Id.). In April 2016, Plaintiff reported being in “max pain,” and 17 increased back pain since her previous appointment. (AR 1043). In April and 18 May 2016, Plaintiff attended physical therapy. (AR 1043, 1048) 19 The ALJ must provide specific and legitimate reasons supported by 20 substantial evidence in rejecting the contradicted opinions of examining 21 physicians. Lester, 81 F.3d at 830-31. As stated previously, an examining 22 physician’s opinion can alone constitute substantial evidence, where it rests 23 on that physician’s own independent examination of the plaintiff. See 24 Tonapetyan, 242 F.3d at 1149. The opinion of a non-examining physician, 25 standing alone, cannot constitute substantial evidence. Widmark v. 26 Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. Comm’r, 169 1 7 (9th Cir. 1993). Here, the ALJ’s reliance on the opinion of a physician who 2 neither treated nor examined Plaintiff over an examining physician and the 3 reports of several treating physicians was not based on substantial evidence. 4 The record evidence provides no support for Dr. Morse’s opinion—or the 5 ALJ’s RFC conclusion—that Plaintiff is able to climb ladders, ropes, or 6 scaffolds, or stoop, kneel, crouch, or crawl. As a result, the ALJ erred by 7 according greater weight to the testifying medical expert, Dr. Morse, than to 8 the consultative examining physician, Dr. Crider. 9 In a related argument, Plaintiff contends that she was eligible for a 10 closed period of disability because her “lumbar condition met the durational 11 requirement of the act independent of any other impairment….” (ECF 21-1, 12 p. 7). Plaintiff asserts that “the ALJ failed to articulate specific and 13 legitimate reasons for rejecting Dr. Crider’s opinions for the period February 14 24, [2014] through November 2015 and the immediate post-surgical period.” 15 (Id.). According to Plaintiff “the ALJ should have adjudicated that separate 16 capacity different from the post-surgical status.” (Id.). Defendant argues 17 “Plaintiff points to no pre-surgical evidence establishing functional 18 limitations beyond her restrictive RFC as a matter of law.” (ECF 22-1, p.6). 19 The Program Operations Manual System4 (POMS) DI 25510.001(B)(1) 20 states: 21 A claimant may be entitled to a closed period of disability if the evidence shows he or she was disabled or blind for a continuous 22 period of not less than 12 months but based on the evidence is no 23 longer disabled…at the time of adjudication. To establish a closed period of disability the evidence must 24 show the onset date, satisfaction of the duration requirement, and 25 26 4 The POMS is a primary source of information used by Social Security employees to 1 the date disability ceased. 2 Here the evidence presented is insufficient to find that Plaintiff was 3 continuously unable to engage in substantial gainful activity because of a 4 medically determinable impairment(s). Plaintiff alleged a disability 5 commencing February 2014. (ECF 21-1, p. 7). Slightly less than a year later, 6 Dr. Crider’s examination concluded that Plaintiff was not disabled but had 7 specific postural limitations that he set out in his written report. Plaintiff 8 does not assert that Dr. Crider’s overall opinion was error, in fact Plaintiff 9 asserts “the ALJ failed to articulate specific and legitimate reasons for 10 rejecting Dr. Crider’s opinions for the period February 24 through November 11 2015 and the immediate post-surgical period.” (Id.). Because Dr. Crider’s 12 opinion of non-disability is uncontested, the twelve month period required to 13 support a closed period of disability is not satisfied. The ALJ did not fail to 14 determine whether Plaintiff’s pre-surgical impairment and post-surgical 15 recuperative period satisfied the requirements for a closed period of 16 disability. 17 2. Adverse Credibility Determination 18 As a result of the Court’s inability to affirm the ALJ’s reasons for 19 rejecting the examining physician’s opinions, it is unnecessary to reach the 20 other disputed issue raised by Plaintiff. Because the Court is unable to 21 affirm the ALJ’s rejection of the examining physician’s opinions, the Court is 22 also unable to affirm the ALJ’s RFC determination. Since the Court cannot 23 affirm the RFC, it follows that it is futile for the Court to consider the other 24 claim of error raised by Plaintiff. 25 3. Remand for Further Administrative Proceedings 26 A court has discretion to remand for further proceedings when an ALJ has 1 committed legal error in denying benefits. Harman v. Apfel, 211 F.3d 1172, 2 1176-77 (9th Cir. 2000). The record does not support the ALJ’s decision to 3 accord less weight to the opinion of Plaintiff’s examining physician absent 4 providing specific and legitimate reasons supported by substantial evidence. 5 See Thomas v. Barnhart, 278 F. 3d 947, 957 (9th Cir. 2002). 6 When error exists in an administrative determination, “the proper 7 course, except in rare circumstances, is to remand to the agency for 8 additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 9 (2002) (citations and quotation marks omitted); Moisa v. Barnhart, 367 F.3d 10 882, 886 (9th Cir. 2004). On remand, the ALJ must evaluate the opinion of 11 Plaintiff’s examining physician in accordance with the applicable law. 12 Accordingly, the Court recommends the case be remanded for further 13 administrative action consistent with the findings presented herein. 14 III. CONCLUSION AND RECOMMENDATION 15 For the foregoing reasons, this Court RECOMMENDS that Plaintiff’s 16 Motion for Summary Judgment be GRANTED to the extent that the case be 17 REMANDED for further proceedings. IT IS FURTHER 18 RECOMMENDED that Defendant’s Motion for Summary Judgment be 19 DENIED. This Report and Recommendation of the undersigned Magistrate 20 Judge is submitted to the United States District Judge assigned to this case, 21 pursuant to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 22 72.1(c) of the United States District Court for the Southern District of 23 California. 24 IT IS HEREBY ORDERED that any written objection to this report 25 must be filed with the court and served on all parties no later than January 26 17, 2020. The document should be captioned “Objections to Report and 1 IT IS FURTHER ORDERED that any reply to the objections shall be 9 || filed with the Court and served on all parties no later than January 24, 3 ||2020. The parties are advised that failure to file objections within the 4 ||specified time may waive the right to raise those objections on appeal of the 5 || Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 : Dated: January 2, 2020 Mitel [> Hon. Mitchell D. Dembin 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27