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Diaz v. Colvin

United States District Court, C.D. California

February 13, 2015

MARIA CONSUELO DIAZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION AND ORDER

SUZANNE H. SEGAL, Magistrate Judge.

I. INTRODUCTION

Plaintiff Maria Consuelo Diaz ("Plaintiff") brings this action seeking to reverse the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and the action is REMANDED for an award of benefits consistent with this decision.

II.

PROCEDURAL HISTORY

Plaintiff applied for Supplemental Security Income ("SSI") benefits on October 16, 2006. (Administrative Record ("AR") 102). Plaintiff alleged disability beginning on March 11, 2006, due to residual pain and limitations from surgery for left breast cancer, a thyroid condition, left arm/hand pain and swelling, headaches from a tumor in her head, high cholesterol, and back pain that radiates to her left leg. (AR 115-119, 122-129, 139-143). Plaintiff's application was denied on February 7, 2007, and on reconsideration on September 13, 2007. (AR 44-53). Plaintiff requested a hearing on October 12, 2007. (AR 54-56). Her initial hearing was held on November 3, 2008 before Administrative Law Judge ("ALJ") Mary L. Everstine. (AR 27-41). Plaintiff testified with the aid of an interpreter. (AR 27-41). Vocational expert ("VE"), Edward Bennett also testified. (AR 27-41). The ALJ issued an unfavorable decision dated November 26, 2008. (AR 20-25).

On February 18, 2011, the Appeals Council denied Plaintiff's requested review. (AR 1-4, 12-13). On April 1, 2010, Plaintiff commenced a civil action in the United States District Court, 412-427). Meanwhile, Plaintiff filed another application for Title XVI benefits on March 23, 2011, which was associated with the prior application for a hearing by the Appeals Council. (AR 436).

A hearing was held on February 4, 2013. Plaintiff testified with the assistance of an interpreter, along with a different V.E., Sharon Spaventa. (AR 356-391). The ALJ indicated she was willing to issue a favorable decision based on a later onset date of disability in March of 2011. (AR 358-365). Plaintiff was unwilling to amend her alleged onset date to March of 2011, and the hearing continued. (AR 358-365). The ALJ issued an unfavorable decision. (AR 309-331).

On March 1, 2013, Plaintiff filed written exceptions and later submitted further legal argument and supporting medical records to the Appeals Council. (AR 285-300, 307). On April 16, 2014, the Appeals Council declined to reverse the ALJ. (AR 279-284). Plaintiff timely filed this action on May 27, 2014.

III.

FACTUAL BACKGROUND

Plaintiff was fifty-seven years old at the time of her second hearing. (AR 102). Plaintiff has a sixth grade education and does not speak or understand English. (AR 368). Plaintiff alleges an onset date of March 11, 2006 due to residual pain and limitations from breast cancer surgery, a thyroid condition, left arm/hand pain and swelling, headaches from a tumor in her head, high cholesterol, and back pain that radiates to her left leg. (AR 102-106, 115-119, 122-149, 139-143). Plaintiff has a vocational background as an assembly person in the aircraft manufacturing industry where she had to lift cables that weighed up to thirty pounds. (AR 369).

A. Plaintiff's Medical History

1. Abraham Orozco, M.D.

Plaintiff received extensive treatment at CMH Center for Family Health in Oxnard, California. (AR 184-186, 188-205). Dr. Orozco, Plaintiff's treating physician, provided records showing at least twelve visits documenting Plaintiff's lumbar spine stenosis, disc disease and radiculopathy. (AR 185-188, 190, 200, 203). On a note dated March 5, 2007, Dr. Orozco indicated that Plaintiff had a permanent condition limiting her left arm and restricting her ability to work. (AR 270). On October 5, 2007, Dr. Orozco documented numbness from Plaintiff's "left knee on down." (AR 192). On October 24, 2008, Dr. Orozco completed a "Medical Source Statement (Physical)" form where he diagnosed Plaintiff with lumbar spinal stenosis, disc disease, and left leg radiculopathy. (AR 269). He also found that the diagnosis had existed for a year prior. (AR 269). He found that Plaintiff could occasionally and frequently lift/carry/upward pull less than ten pounds, walk less than two hours, sit continuously for less than six hours and has moderate push/pull limitation in her upper extremities and severe limitation in her lower extremities. (AR 269). A 2008 CT scan and MRI supported Dr. Orozco's findings. (AR 247-248, 245-246).

2. Angela Rabkin, M.D.

On September 28, 2007, Dr. Rabkin documented that Plaintiff was having some lumbar pain in the back of her leg, numbness in her calf, and that the Plaintiff was moving cautiously due to six weeks of back pain. (AR 162). Dr. Rabkin noted that Plaintiff had continuing complaints of pain and fatigue in the left arm associated to repetitive movement. (AR 161). Dr. Rabkin completed a "Medical Source Statement (Physical)" form on October 19, 2008, where she noted Plaintiff's past breast cancer and current left lumbar radiculopathy. (AR 271). Dr. Rabkin also found that Plaintiff could occasionally lift/carry/upward pull less than ten pounds, stand/walk for less than two hours in an eight hour work day, must alternate sitting continuously, and had moderate limitation to push/pull in both her upper and lower extremities. (AR 271). On November 11, 2009, Dr. Rabkin wrote "these symptoms [left arm pain and swelling] are more pronounced when [Plaintiff] uses her arms for heavy work. She has other more disabling medical conditions." (AR 554).

3. Andraus Thurman, M.D.

Dr. Thurman saw Plaintiff twenty-two times between April of 2010 and March of 2013. On April 5, 2010, Dr. Thurman listed Plaintiff's diagnoses including dyspepsia, left breast cancer status post mastectomy, prolactinoma, low back pain, Sjogren's disease, fibromyalgia, hypothyroidism, thyroid nodules, and elevated liver enzymes. (AR 652). He also noted that Plaintiff was taking a number of medications including Levothyroxine, Femara, Tylenol, Cabergoline, and Meloxicam. (AR 652). On May 6, 2010, Dr. Thurman wrote in his treatment record that Plaintiff had swelling in the left arm, which gets worse with repetitive movement, prolactinoma, a tumor inside of the head that can cause vision and balancing problems, headaches and nausea, osteoarthritic changes in her lumbar spine area, Sjogren's disease and fibromyalgia, both of which are rheumatoid diseases that can flare up with activity. (AR 553). Dr. Thurman noted that Plaintiff's back pain was related to degenerative joint disease that was noted on a previous MRI. (AR 552). The doctor also noted that Plaintiff had received two epidurals for her pain. (AR 552). On March 10, 2011, Dr. Thurman completed a left trochanteric bursa steroid injection for bursitis and diagnosed the Plaintiff with thrombophlebitis. (AR 638). In an April 25, 2011 clinic note, Dr. Thurman stated that he saw Plaintiff for lower back pain, L5 radiculpathy, weakness in her left leg and referred her for an MRI of her lumbar spine. (AR 701, 810-812). In a MRI report dated June 9, 2011, it is noted that Plaintiff had "moderately severe bony narrowing of the left L4-L5 nerve root canal. A broad, central, paracentral and lateral disc bulge associated with dorsal spondylosis, and ventral osteophytes off of L1-L2 and L4." (AR 698-699).

Plaintiff went to ten physical therapy sessions at St. John's Regional Medical Center from November 2010 to March 2011. (AR 570-597). On November 19, 2012, Dr. Thurman wrote a letter concerning Plaintiff's health, stating that Plaintiff had pain symptoms including arthritis and ongoing back pain for which she takes Tylenol, Tramadol, Tylenol with codeine and Meloxicam. (AR 821). On November 26, 2012, Dr. Thurman noted that Plaintiff had a "headache with decrease in visual activity on the left eye as well as a history of prolactinoma." (AR 856).

Plaintiff was also treated at the Ventura County Medical Center from 2008 to 2012 for a total of thirty-three visits. (AR 563-567, 709-714, 717-721, 723, 726, 729, 733-752, 772-773, 802). Doctors noted findings of Sjogren's syndrome, obesity, prolactinoma, osteoporosis, hyperparathyroidism, hypothyroidism, metabolic syndrome, back pain/degenerative disc disease, hyperlipidemia and fibromyalgia and prescribed Femara, Levothyroxine, Nexium, Cabergoline, Meloxicam, Tramadol, Hyrdoxyzine, Ameprazole, Lasatudue, Zometa and Tylenol. (AR 563-567, 707, 710, 711, 719-721, 729, 733, 743).

B. Examining Doctor's Opinions

1. Ursula Taylor, M.D.

Dr. Taylor conducted an independent internal medicine evaluation on August 30, 2011. (AR 655). Dr. Taylor found that Plaintiff's grip strength in her left hand was weaker than in her right, minimal swelling of the left arm in comparison to the right and mild to moderate thoracic kyphosis. (AR 657-658). Dr. Taylor also noted that the Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, limited due to her medical history and pain. (AR 659). Dr. Taylor concluded that the Plaintiff had a high risk of fractures, gross handling and reaching should be limited to frequently due to left arm pain on the left hand, that she should avoid extremes in temperatures due to obesity, swelling and some lower extremity edema and all postural movements should be limited to occasionally based on back pain and history of osteoporosis and left arm swelling. (AR 659).

2. Sean Leoni, M.D., Q.M.E.

Dr. Leoni, in his 2007 summary report of a Complete Internal Medicine Evaluation, noted that the Plaintiff had "no limitations to lifting, sitting, standing or walking" and that she was "able to travel by car or bus if necessary, perform basic activities and move and handle objects." (AR 153). Dr. Leoni diagnosed Plaintiff with history of breast cancer, hypothyroidism, and a history of prolactinoma. (AR 153).

C. Vocational Expert

Vocational Expert Sharon Spaventa had difficulty pinpointing Plaintiff's prior work in the Dictionary of Occupational Titles ("DOT"). (AR 369-377). The VE found a few positions in the DOT that sounded similar to Plaintiff's prior work, but each of those positions included other tasks that the Plaintiff did not perform. (AR 374). The VE testified that a hypothetical individual who is of advanced age, unable to communicate in English, with similar past work experience, who is limited to occasional overhead reaching with the left upper extremity, frequent gross handling with the left upper extremity, occasional climb, balance, stoop, kneel, crouch, crawl, who should avoid climbing ladders or exposure to temperate extremes could generally perform the job pursuant to the DOT. (AR 385-386). However, when asked by Plaintiff's attorney if the hypothetical individual could still do the job if "she needed thirty minute unscheduled breaks throughout a week, due to headache and dizziness which ended up in vomiting, " the VE testified that such a condition would "eliminate all employment." (AR 389).

D. Plaintiff's Testimony

Plaintiff testified that she had not been working since March of 2006. (AR 30). Plaintiff testified that she is a United States citizen and has a sixth grade education. (AR 368). Plaintiff said that she had not returned to work due to pain in her left arm because of a mastectomy and pain in her back and left leg. (AR 31-32). Plaintiff also complained of headaches. (AR 35). Plaintiff is unable to use her left arm for activities and limits her daily tasks, such as cooking, and needs help for other tasks, such as dressing. (AR 33). Plaintiff also said that she was unable to lift objects heavier than "a dish with some food" or a pot. (AR 34).

Plaintiff said that she has trouble sleeping because of the pain in her arm. (AR 35). Plaintiff testified that her job was to prepare cables and then assemble parts. (AR 35). Her job also included reaching for parts, lifting up to thirty pounds, taping, and sewing, when needed. (AR 39). In order to treat her health problems Plaintiff takes "medications daily." (AR 378). Plaintiff testified that, on a scale of one to ten, the pain in her head and bones was a ten. (AR 379). Plaintiff also stated that she gets sleepy as a result of her medications. (AR 379).

Plaintiff can walk about fifteen minutes, stand for about twenty minutes, and sit for about half an hour at a time. (AR 379). Plaintiff lies down three to four times a day for about half an hour each. (AR 380). On a typical day Plaintiff described her day as "I sit down. I get up. I walk. I lay down." (AR 380). Plaintiff also explained that she gets dizzy spells and headaches about two or three times per week, each event lasting about half an hour until she vomits. (AR 382). Plaintiff also has continuous difficulty seeing through her left eye. (AR 383). Plaintiff talked about having fibromyalgia, explaining that the pain makes her forget little things, and does not allow her to concentrate on her tasks. (AR 383).

E. Lay Witness Testimony

Plaintiff's son, Manuel Diaz, filled out a third party Function Report on April 9, 2011. (AR 515-522). In his report, Mr. Diaz stated that because of Plaintiff's problems sleeping at night caused by her back, chest, and arm pain, she wakes up at ten or eleven in the morning. (AR 515). He also stated that after eating breakfast, she "goes back to rest." (AR 515). Mr. Diaz stated that his mother used to enjoy spending time with the family, cooking, shopping, walking and cleaning but now she is unable to do those activities. (AR 516). He stated that his mother needs help from his father in order to get dressed, and has difficulty bathing her feet. (AR 516). (AR 519).

Mr. Diaz stated that his mother is too scared of falling and hurting herself to leave the house alone. (AR 518-519). He explained that Plaintiff could not lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs or complete tasks, while she is unable to follow instructions or use her hands for long periods of time. (AR 520). Mr. Diaz also stated that the Plaintiff was prescribed a walker and cane. (AR 521).

IV.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity[1] and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 404.1520, 416.920. The steps are:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one on the list of specific impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
(4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1).

The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity, age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a claimant has both exertional (strength-related) and nonexertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

V.

THE ALJ'S DECISION

The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 324). At step one, the ALJ found that Plaintiff had not been in substantial gainful activity since October 4, 2006. (AR 317). At step two, the ALJ found that Plaintiff has several severe impairments which include a history of left breast cancer; status post left breast mastectomy, obesity, a history of hypothyroidism, fatty liver with hepatomegaly, and lumbar pain. (AR 317). The ALJ also found that Plaintiffs other impairments such as Sjogren's syndrome, fibromyalgia, prolactinoma, and osteoporosis were not severe. (AR 318).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20. C.F.R. Part 404, Subpart P, Appendix 1. (AR 321). The ALJ went on to find that Plaintiff had an RFC to perform light work as defined in 20 C.F.R. 416.697(b) "except [Plaintiff] is limited to occasional overhead reaching with the left upper extremity." (Id.). In addition:

[Plaintiff] can engage in frequent, but not constant, gross handling of the left upper extremity. [Plaintiff] has no limitations in the use of her right upper extremity. [Plaintiff] is limited to occasional climbing, balancing, stooping, kneeling, crouching, and crawling. [Plaintiff] is precluded from working around unprotected heights or climbing ladders. [Plaintiff] must avoid concentrated exposure to temperature extremes."

(AR 321). In reaching this opinion, the ALJ specified that she had considered all symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence. (Id.) The ALJ also stated that she considered opinion evidence in her finding. (Id.).

The ALJ questioned Plaintiff's testimony as to the "extent she alleged an inability to perform any work." (AR 322). The ALJ noted that Plaintiff claimed to not be able to lift any weight, but then admitted to being able to lift a cup. (Id.). The ALJ also noted that although Plaintiff claimed a need to alternate between sitting, standing, walking and lying down for pain relief, "Plaintiff did not appear uncomfortable at any time during the hearing or when rising from her chair at the end of the hearing." (Id.).

The ALJ reviewed the specific findings of Plaintiff's physicians and questioned their findings. (AR 323). The ALJ claimed that both Dr. Orozco and Dr. Rabkin merely "checked boxes on a form" and thus failed to discuss any clinical findings. (Id.). The ALJ also stated that Plaintiff had only pursued conservative care for her alleged pain and had rejected advised treatment such as epidural injections. (Id.). The ALJ also found that Dr. Thurman's statement that the Plaintiff cannot work should be rejected because Dr. Thurman described "most symptoms as very well controlled on medication." (AR 324). The ALJ found that reports by consultative doctors, Dr. Leoni and Dr. Taylor, were most consistent with medical evidence finding that Plaintiff had no functional limitations and that Plaintiff could perform a wide range of light work. (AR 324).

At step four, the ALJ found that Plaintiff is capable of performing her past relevant work as an electrical assembler, and that the work does not require the performance of work-related activities precluded by Plaintiff's RFC. (Id.). As a result, at step five the ALJ found Plaintiff "not disabled." (AR 325).

VI.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision to deny benefits. "The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Auckland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). To determine whether substantial evidence supports a finding, the court must "consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Auckland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Circ. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

VII.

DISCUSSION

Plaintiff contends that the ALJ erred for three reasons. First, she claims that the ALJ improperly assessed and rejected the opinions of Plaintiff's treating physicians. Second, she contends that the ALJ improperly evaluated Plaintiff's RFC and her ability to perform past relevant work at step four. Third, Plaintiff argues that the ALJ improperly discredited Plaintiff's testimony and failed to assess the third party written testimony.

A. ALJ Improperly Rejected The Treating Physicians' Opinions

Plaintiff claims that the ALJ's failed to give proper weight to the treating physicians' opinions. Dr. Orozco, Dr. Rabkin, and Dr. Thurman, all treating doctors, provided detailed reports and notes explaining the severity of Plaintiff's health problems. (AR 161, 269-270, 247-248, 245-246, 162, 187, 245-246, 267, 269, 271, 645-646, 650-654, 821-824). The ALJ rejected the treating physicians' opinions and based her finding on the opinions of Dr. Leoni and Dr. Taylor. (AR 324). However, the ALJ failed to provide legitimate reasons for rejecting the treating doctors' opinions.

The Ninth Circuit recognizes three types of physicians: (1) treating physicians, who examine and treat, (2) examining physicians, who examine but do not treat, and (3) non-examining physicians who neither examine nor treat. Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Treating physicians are given the greatest weight because they are best able to observe their patients as an individual. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003; Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002); Magallanes v. Bowen, 881 F.3d 747, 751 (9th Cir. 1989). Accordingly, where the treating physicians' opinion is refuted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons, supported by substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830-31; see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). However, treating physicians' opinions are not given more weight if they are conclusory or lack support in the medical evidence. Batson v. comm'r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004).

As Plaintiff's treating physicians, Drs. Orozco, Rabkin and Thurman are presumed to be in a better position to assess Plaintiff's functional limitations. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Nonetheless, the ALJ found that because both Dr. Orozco's and Dr. Rabkin's assessment allegedly "consisted of checking boxes on a short form, " their opinions should be given little probative weight. (AR 319). The ALJ also found that "no physician [from Las Islas Family Medical Group] imposed functional limitations on the claimant." (AR 320). These two reasons are not legitimate because they are contradicted by substantial evidence in the record.

Dr. Orozco treated Plaintiff twelve times between September 5, 2006 and March 3, 2008. (AR 157, 185-186, 190, 192-193, 195-197, 200, 203), and his records are detailed. Dr. Orozco diagnosed Plaintiff with disc disease, left leg radiculopathy, and lumbar spinal stenosis. (AR 269). Dr. Orozco also found that Plaintiff had severe push/pull limitations in her lower extremities, moderate push/pull limitations in her upper extremities, along with occasional ability to lift/carry/upward pull less than ten pounds for not more than one third of an eight hour day, which constitute significant functional limitations. (AR 269). A lumbar spine MRI and CT scan confirmed Dr. Orozco's diagnosis, and showed that Plaintiff's impairments were deteriorating. (AR 245-249). Plaintiff received two epidural injections to ease her lumbar pain, contrary to the ALJ's observation in her decision. (AR 277-278; AR 323 "[plaintiff" declined epidural injections.").

Dr. Rabkin treated Plaintiff eleven times between September 22, 2006 and June 20, 2008. (AR 162-164, 169, 171-175, 255-262). Like Dr. Orozco, Dr. Rabkin diagnosed Plaintiff with lumbar radiculopathy and history of left breast cancer while finding that Plaintiff had moderate push/pull limitations in both her upper and lower extremities, and the ability to stand/walk for less than two hours during an eight hour work day. (AR 271).

Examining physicians, Drs. Leoni and Taylor, each examined Plaintiff once. (AR 153, 655). Dr. Leoni found that Plaintiff had full mobility, no signs of weakness, and no limitations in lifting/sitting/standing or walking. (AR 153). Dr. Taylor found that Plaintiff was morbidly obese, had a history of osteoporosis, mild to moderate thoracic kyphosis and used no assistive devices to ambulate. (AR 659). Neither Dr. Leoni nor Dr. Taylor completed diagnostic tests during their examination of Plaintiff. (AR 655-660).

The ALJ credited the examining physicians' opinions and rejected the treating physicians' opinions. The ALJ found that both Dr. Orozco and Dr. Rabkin failed to discuss their clinical findings by checking boxes on a form. (AR 323). In addition, the ALJ found that no physician at La Islas Family Medical Group identified any functional limitations for Plaintiff. (Id.). Finally, the ALJ concluded that Plaintiff pursued only conservative care for her alleged pain. (Id.). These reasons do not qualify as "specific and legitimate" reasons because they are not supported by the record.

The ALJ's finding that the treating physicians did not properly discuss their clinical findings in making their conclusions is not supported by the record. Dr. Orozco took detailed notes of Plaintiff's conditions, ordered tests, referred Plaintiff to other medical professionals, and made findings based on the results he received. (AR 157, 185-186, 190, 192-193, 195-197, 200, 203). The CT scan and MRI Dr. Orozco ordered validated his diagnosis. (AR 149-153). Dr. Orozco also filled out a Medical Source Statement (Physical), provided by the Social Security Administration by checking boxes to show Plaintiff's abilities. (AR 269). The ALJ found that this form was not detailed enough to be given the proper weight that it deserves. However, this form along with the tests, observations, and notes provided by Dr. Orozco refute the ALJ's conclusion that Dr. Orozco's opinions were not supported by clinical findings.

Dr. Rabkin also kept detailed notes about Plaintiff's treatment. (AR 161-162, 271, 554, 733-750). Dr. Rabkin ordered a bone scan and an MRI to verify Plaintiff's disc disease and radiculopathy. (AR 162, 750). Dr. Rabkin filled out a Medical Source Statement (Physical), provided by the Social Security Administration, by checking boxes to show Plaintiff's limitations. (AR 371) The ALJ found that the form was not supported by medical data. However, the form along with the medical records and tests described above refute the ALJ's conclusion.

The ALJ found that no physician at La Islas Family Medical Group found that the Plaintiff had any functional limitations. (AR 324). Dr. Thurman, who saw Plaintiff thirty-one times, was a physician at La Islas Family Medical Group, and he opined that "the patient is no longer able to work at or even remotely near the capacity that she had done before." (AR 648). Dr. Thurman based his opinion on his observations of the Plaintiff during their time together, her medical history, diagnostic tests, an MRI and a CT scan. (AR 552-553, 638, 648 701, 793-801, 810-812). The ALJ found that Dr. Thurman's opinion was unsupported by the record, but the record actually shows that Dr. Thurman performed injections for Plaintiff's pain and recommended her for more testing. (AR 324, 638, 810-812). The ALJ erred by failing to recognize that Dr. Thurman, a physician at La Islas Family Medical Group, did in fact find that Plaintiff had functional limitations supported by clinical findings.

The ALJ's third reason, i.e., that Drs. Orozco, Rabkin and Thurman responded with limited and conservative treatment, is not supported by the record. All three physicians had a long and extensive treating relationship with Plaintiff and they extensively documented Plaintiff's lumbar pain. (AR 157, 162-164, 168-169, 171-175, 185-188, 190, 192-193, 195-197, 200, 203, 255-262, 794-797). Dr. Orozco diagnosed Plaintiff with lumbar spinal stenosis, disc disease and left leg radiculopathy. (AR 269). Dr. Rabkin diagnosed Plaintiff with left lumbar radiculopathy. (AR 271). Dr. Thurman diagnosed Plaintiff with degenerative joint disease, thrombophlebitis and bursitis. (AR 552-638). Dr. Orozco also ordered diagnostic tests, and advised Plaintiff to receive epidural injections to ease her pain, which she received. (AR 186, 277-278). Dr. Rabkin also ordered diagnostic tests. (AR 162-750). Plaintiff went to ten physical therapy treatments. (AR 570-597). Dr. Thurman completed a left trochanteric bursa steroid injection for bursitis. (AR 638). "Conservative treatment" is not a fair characterization of this record.

B. The ALJ Improperly Evaluated Plaintiff's RFC And Ability To Perform Past Relevant Work At Step Four.

Plaintiff claims that the ALJ's finding that Plaintiff "has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b)" with additional limitations is not consistent with the record. (AR 321). Plaintiff also argues that the ALJ's conclusion that Plaintiff can perform her past relevant work as an electrical assembler was error. This Court agrees.

1. ALJ's RFC Finding Fails to Consider Plaintiff's Documented Limitations

During step four of the five-step sequential process the claimant carries the burden of proving that he cannot return to a position similar to his past work as it is generally performed. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). The ALJ must make a threshold determination as to the claimant's residual function. This determination is not a medical opinion but instead an administrative finding reached after consideration of all the relevant evidence, including the diagnoses, treatment, observations, medical records, and the Plaintiff's own subjective symptoms. See Social Security Ruling 96-5p; 20 C.F.R. § 404.1527 (e)(2) (stating that a residual functional capacity finding is not a medical opinion but an administrative finding that is reserved to the Commissioner). The residual functional capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). Once the ALJ determines the claimant's residual functional capacity, he then compares these limitations with the job duties of the claimant's previous work.

Here, the ALJ found that Plaintiff has the RFC to perform light work. Light work requires lifting up to twenty pounds, with ten pounds frequently, and walking and/or standing for up to six hours a day. See 20 C.F.R. §404.1567 and 416.967. Both Drs. Orozco and Rabkin, Plaintiff's treating physicians, found that Plaintiff could only lift/carry/upward pull less than ten pounds occasionally, frequently lift/carry/upward pull less than ten pounds, stand/walk for less than two hours of an eight hour day, and sit continuously for less than six hours in an eight hour day. (AR 269, 271). Plaintiff also testified that she could not carry objects heavier than "a dish with some food" or a pot. (AR 34). Plaintiff explained that she can walk about fifteen minutes, stand for about twenty minutes, and sit for about half an hour at a time, while needing to lay down about three or four times a day. (AR 379-380). This evidence refutes the ALJ's finding.

The ALJ also erred by failed to consider all of Plaintiff's impairments in her RFC conclusion. Where there is a severe impairment at step two, all medical impairments must be considered in the remaining steps of the sequential analysis. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). Plaintiff had a history of prolactinoma, obesity, Sjogren's syndrome, osteoporosis, hyperparathyroidism, hypothyroidism, metabolic syndrome, back pain/degenerative disc disease, hyperlipidemia and fibromyalgia that should have been taken into consideration for the RFC finding. (AR 563-567, 707, 710, 711, 719-721, 729, 733, 743). All of the above-mentioned impairments have support in the record. The RFC failed to properly include all of Plaintiff's documented limitations.

2. ALJ's Finding That Plaintiff Is Capable of Performing Past Relevant Work as an Electrical Assembler Is Incorrect.

The ALJ must compare the Plaintiff's limitations to Plaintiff's prior work in the Dictionary of Occupational Titles. This information usually comes in through a vocational expert. The ALJ found that because Plaintiff could perform a wide range of light work, she could perform her past work as an electrical assembler. (AR 324). As discussed above, Plaintiff is unable to perform a wide range of light work and thus is unable to perform her past relevant work as generally performed.

C. The ALJ Failed to Provide Clear And Convicing Reasons To Reject Plaintiff's Testimony And Did Not Properly Consider Lay Witness Statements

1. The ALJ Did Not Give Clear And Convincing Reasons To Reject Plaintiff's Testimony

Throughout the process of determining disability a claimant's subjective symptoms are a critical issue. Whenever an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1291 (9th Cir. 1990). Because subjective symptoms, such as pain, are highly idiosyncratic, a plaintiff is not required to adduce proof of a medical impairment that would make the claimed level of pain inevitable. As long as a plaintiff offers evidence of a medical impairment that could reasonably be expected to produce pain, the ALJ may not require the degree of pain to be corroborated by objective medical evidence. Bunnell v. Sullivan, 947 F.29 341, 346-347 (9th Cir. 1991) (en banc); Smolen, 80 F.3d at 1282. The ALJ may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence. Bunnell, 947 F.2d at 346-347.

Here, the ALJ found that claimant's credibility was lacking because allegedly there were no significant clinical findings and also due to the lack of significant ongoing medical treatment for pain. (AR 323). In fact, though, Plaintiff's medical history as noted by Drs. Orozco, Rabkin and Thurman included significant clinical findings and extensive treatment for pain. Plaintiff also received injections, tests and other forms of treatment to cure her of her pain. (AR 247-248, 245-246, 552, 638, 707, 570-597). There is also evidence of Plaintiff's pain throughout the medical reports done by every doctor she visited. (AR 162-164, 171-175, 185-186, 192-193, 195-197, 255-261, 709-714, 717-721, 733-752). Accordingly, the reasons provided by the ALJ for rejecting Plaintiff's testimony were not supported by the record.

2. The ALJ Erred By Disregarding Lay Witness Testimony

The ALJ is required to consider the credibility of law testimony provided by family members and friends. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). If an ALJ rejects lay witness testimony, the ALJ must provide specific reasons that are germane to each witness whose testimony he rejects. Id. (citing Stout v. Comm'r, 454 F.3d 1050, 104 (9th Cir. 2006)). Plaintiff's son, Manuel Diaz, provided testimony that corroborated Plaintiff's pain. (AR 515-522). The ALJ's decision did not reflect adequate consideration of this testimony. (AR 315-325).

D. If Plaintiff's Subjective Testimony Were Credited As True And All The Other Evidence Were Given Proper Weight, Plaintiff Would Be Found Disabled

The court must ordinarily remand for an award of benefits where "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). (citing, inter alia, Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Orn, 495 F.3d at 640; Smolen, 80 F.3d at 1292). The "credit-as-true" rule allows courts the flexibility to remand for further proceedings, rather than an award, only where the record as a whole "creates serious doubt" that a claimant is disabled. Id. at 1021.

No such doubt exists in this case. The VE stated that the Plaintiff's need of breaks due to dizziness would "eliminate all employment." (AR 389). The objective medical evidence clearly shows that Plaintiff is suffering from multiple severe impairments. Plaintiff testified to her abilities and pain, stating that she cannot stand, sit or walk for long periods of time. (AR 379). Plaintiff's son also noted that Plaintiff could no longer do the activities she once did. (AR 519). The Court is satisfied that the record has been fully developed, that further administrative proceedings would serve no useful purpose, and that if the discounted evidence, including the treating physicians opinions and Plaintiff's testimony, were credited as true, Plaintiff would be entitled to benefits.

VIII.

CONCLUSION

Consistent with the foregoing, it is ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this action for the awards of benefits. The Clerk of the Court shall serve copies of this order and the Judgment on counsel for both parties.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE.


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