United States District Court, C.D. California
AMENDED MEMORANDUM OPINION AND ORDER
E. SCOTT United States Magistrate Judge.
Dina Knorr appeals the final decision of the Commissioner
denying her application for Social Security benefits. For the
reasons stated below, the Commissioner's decision is
reversed and remanded for the Commissioner to calculate and
award benefits to Plaintiff.
March 10, 2017, the Court entered an initial Memorandum
Opinion and Order reversing and remanding the decision of the
Commissioner for an award of benefits. (Dkt. 19.) The
Commissioner timely filed a Motion to Alter Judgment under
Federal Rule of Civil Procedure 59(e), alleging legal error
in the Court's decision to remand for an award of
benefits, rather than remand for further administrative
proceedings. (Dkt. 21.) Plaintiff opposed the motion. (Dkt.
24.) This Amended Memorandum Opinion and Order addresses the
arguments raised in the Commissioner's motion, and finds
that remand for an award of benefits is nevertheless
September 18, 2012, Plaintiff filed applications for Social
Security Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) alleging
a disability onset date of October 30, 2009. See
Administrative Record (“AR”) 52, 142-44. At
Plaintiff's request, a hearing was held before an
administrative law judge (“ALJ”) on June 23,
2014. AR 34-51. The ALJ issued a decision denying benefits on
August 11, 2014. AR 18-29, 34-51.
determined that Plaintiff had severe impairments of a back
injury and sacroiliac arthrosis. AR 22. The ALJ found that
Plaintiff's gastroesophageal reflux disease (GERD),
affective disorder, and depression were non-severe. AR 22-24,
26-27. The ALJ concluded that the combination of these
impairments did not meet or medically equal the severity of
one of the listed impairments set forth in the Listing of
Impairments (“Listing”) set forth at 20 C.F.R.,
Part 404, Subpart P, Appendix 1. AR 24.
determined that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work,
except that (1) she is limited to sitting for 30 minutes at
one time and then would need to be able to stand/stretch for
a few seconds, and (2) she is capable of performing
occasional postural maneuvers. AR 24. This RFC was consistent
with the opinions of two non-examining State agency
physicians, which the ALJ gave great weight, but was less
restrictive than the opinion of Plaintiff's treating
physician, Dr. Gregory D. Carlson, which the ALJ gave little
weight. AR 27. The ALJ also relied on the opinion of Dr. Neil
who examined Plaintiff and performed a disability analysis
under California Worker's Compensation regulations. AR
this RFC, the ALJ found that Plaintiff was unable to perform
her past relevant work as a registered nurse and clinical
coordinator. AR 27. However, the ALJ found that jobs exist in
significant numbers in the national economy that she could
perform, such as information clerk, charge account clerk, and
bench assembler. AR 28. Accordingly, the ALJ concluded that
Plaintiff had not been under a disability, as defined in the
Social Security Act, from October 30, 2009 through the date
of the decision. AR 29.
asked the Appeals Council to review the ALJ's decision,
but the Appeals Council declined on February 11, 2016. AR
1-6, 14-16. On that date, the ALJ's decision became the
final decision of the Commissioner. See 42 U.S.C.
§ 405(h). This timely civil action followed.
42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. The ALJ's
findings and decision should be upheld if they are free from
legal error and are supported by substantial evidence based
on the record as a whole. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial evidence means such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion. Richardson, 402 U.S. at 401;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). It is more than a scintilla, but less than a
preponderance. Lingenfelter, 504 F.3d at 1035
(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). To determine whether substantial
evidence supports a finding, the reviewing court “must
review the administrative record as a whole, weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion.” Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
evidence can reasonably support either affirming or
reversing, ” the reviewing court “may not
substitute its judgment” for that of the Commissioner.
Id. at 720-21.
decision of the ALJ will not be reversed for errors that are
harmless.” Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). Generally, an error is harmless if it
either “occurred during a procedure or step the ALJ was
not required to perform, ” or if it “was
inconsequential to the ultimate nondisability
determination.” Stout v. Comm'r, Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
The Evaluation of Disability.
person is “disabled” for purposes of receiving
Social Security benefits if he is unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted, or is expected to last, for a continuous period of at
least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v.
Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A
claimant for disability benefits bears the burden of
producing evidence to demonstrate that he was disabled within
the relevant time period. Johnson v. Shalala, 60
F.3d 1428, 1432 (9th Cir. 1995).
The Five-Step Evaluation Process.
follows a five-step sequential evaluation process in
assessing whether a claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); Lester v.
Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the
first step, the Commissioner must determine whether the
claimant is currently engaged in substantial gainful
activity; if so, the claimant is not disabled and the claim
must be denied. 20 C.F.R. §§ 404.1520(a)(4)(i),
claimant is not engaged in substantial gainful activity, the
second step requires the Commissioner to determine whether
the claimant has a “severe” impairment or
combination of impairments significantly limiting his ability
to do basic work activities; if not, a finding of not
disabled is made and the claim must be denied. Id.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
claimant has a “severe” impairment or combination
of impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing set
forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so,
disability is conclusively presumed and benefits are awarded.
Id. §§ 404.1520(a)(4)(iii),
claimant's impairment or combination of impairments does
not meet or equal an impairment in the Listing, the fourth
step requires the Commissioner to determine whether the
claimant has sufficient residual functional capacity
(“RFC”) to perform his past work; if so, the
claimant is not disabled and the claim must be denied.
Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). The claimant has the burden of proving he
is unable to perform past relevant work. Drouin, 966
F.2d at 1257. If the claimant meets that burden, a prima
facie case of disability is established. Id.
happens or if the claimant has no past relevant work, the
Commissioner then bears the burden of establishing that the
claimant is not disabled because he can perform other
substantial gainful work available in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
That determination comprises the fifth and final step in the
sequential analysis. Id. §§ 404.1520,
416.920; Lester, 81 F.3d at 828 n. 5;
Drouin, 966 F.2d at 1257.
raises the following two issues:
One: Whether the ALJ properly evaluated the medical
evidence and the opinion of Plaintiff's treating
orthopedic surgeon, Dr. Carlson.
Two: Whether the ALJ properly evaluated Plaintiff's
pain testimony. (Dkt. 18 [Joint Stipulation or
“JS”] at 4, 31-32.)
Issue One: The ALJ's Stated Reasons for Discounting
the Opinion of Plaintiff's Treating Physician, Dr.
Carlson, Are Not Supported by Substantial Evidence, and the
Record as a Whole Does Not Contain Substantial Evidence that
Would Support Giving Dr. Carlson's Opinion Little
deciding how to resolve conflicts between medical opinions,
the ALJ must consider that there are three types of
physicians who may offer opinions in Social Security cases:
(1) those who directly treated the plaintiff, (2) those who
examined but did not treat the plaintiff, and (3) those who
did not treat or examine the plaintiff. See 20
C.F.R. § 404.1527(c); Lester, 81 F.3d at 830. A
treating physician's opinion is generally entitled to
more weight than that of an examining physician, which is
generally entitled to more weight than that of a
non-examining physician. Lester, 81 F.3d at 830.
Thus, the ALJ must give specific and legitimate reasons for
rejecting a treating physician's opinion in favor of a
non-treating physician's contradictory opinion or an
examining physician's opinion in favor of a non-examining
physician's opinion. Orn v. Astrue, 495 F.3d
625, 632 (9th Cir. 2007) (citing Reddick v. Chater,
157 F.3d 715, 725 (9th Cir. 1998)); Lester, 81 F.3d
at 830-31 (citing Murray v. Heckler, 722 F.2d 499,
502 (9th Cir.1983)).
treating physician's opinion is uncontroverted by another
doctor, it may be rejected only for “clear and
convincing” reasons. Lester, 81 F.3d at 830
(citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th
Cir. 1991)). However, “[t]he ALJ need not accept the
opinion of any physician, including a treating physician, if
that opinion is brief, conclusory, and inadequately supported
by clinical findings.” Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors
to be considered by the adjudicator in determining the weight
to give a medical opinion include: “[l]ength of the
treatment relationship and the frequency of
examination” by the treating physician; and the
“nature and extent of the treatment relationship”
between the patient and the treating physician. Orn,
495 F.3d at 631 (quoting 20 C.F.R. §
determining a claimant's RFC, the ALJ should consider
those limitations for which there is support in the record,
but the ALJ need not consider properly rejected evidence of
subjective complaints. Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005) (“Preparing a
function-by-function analysis for medical conditions or
impairments that the ALJ found neither credible nor supported
by the record is unnecessary.”); Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th
Cir. 2004) (“The ALJ was not required to incorporate
evidence from the opinions of Batson's treating
physicians, which were permissibly discounted.”).
are three main differences between the RFC assessed by the
ALJ and Dr. Carlson's May 2014 opinion. Compare
AR 24-27 (ALJ's findings) with AR 935-39 (Dr.
Carlson's 2014 opinion). First, the ALJ found Plaintiff
was limited to sitting for 30 minutes at one time, and then
would need to stand and stretch for a few seconds; Dr.
Carlson found that Plaintiff was limited to sitting for 15
minutes at one time, and would need to change positions as
needed and take unscheduled breaks. Second, both the ALJ and
Dr. Carlson found that Plaintiff was limited to occasional
postural maneuvers, but Dr. Carlson also found that Plaintiff
could never twist or stoop/bend. Third, Dr. Carlson opined
that Plaintiff would likely be absent from work about 2 days
per month, whereas the ALJ predicted no atypical absenteeism.
saw Dr. Carlson approximately once a month between August
2010 and May 2014, and he performed two spinal fusion
surgeries on her back. See AR 608-711, 835-58,
941-66 (treatment notes); AR 762 (first surgery in August
2010); AR 732 (second surgery in April 2012). Under Social
Security regulations, the length and extent of this treating
relationship mean that his opinion is generally entitled to
greater weight than the opinion of a non-examining physician.
See 20 C.F.R. § 404.1527(c)(2)(i)-(ii);
Orn, 495 F.3d at 631. Because Dr. Carlson's 2014
opinion was contradicted by the opinions of two non-examining
State agency physicians, who assigned a less restrictive RFC,
see AR 53-63, 64-78, the ALJ was required to provide
“‘specific and legitimate reasons' supported
by substantial evidence in the record” for rejecting
Dr. Carlson's opinion. Orn, 495 F.3d at 632
(quoting Lester, 81 F.3d at 830).
gave the following reasons for assigning Dr. Carlson's
opinion little weight: (1) it was inconsistent with Dr.
Carlson's treatment notes, which the ALJ characterized as
showing “benign physical findings”; (2) it was
inconsistent with “objective studies showing no
compression and only mild radiculopathy”; and (3) it
was inconsistent with Dr. Carlson's own March 2013
evaluation. AR 27. As discussed below, these stated reasons
do not provide substantial evidence for favoring the opinion
of the non-examining physicians over Plaintiff's
long-time treating physician.
Carlson's Treatment Notes.
summarizing Dr. Carlson's treatment notes, see
AR 608-711, 835-58, 941-66, the ALJ characterized them as
inconsistent with Dr. Carlson's May 2014 disability
evaluation, see AR 935-39, because the ALJ found the
treatment notes “show[ed] benign physical
findings.” AR 25-27. The ALJ's opinion discusses
four specific treatment notes.
the ALJ found that in January 2011, Plaintiff “had
normal sensation.” AR 25 (citing Exhibit 8F/62-71 [AR
669-78]). The cited progress reports state:
Physical examination shows a mild antalgia to the right. She
has increased tenderness to palpation at the lumbosacral
junction and in the center portion of her low back.
There is no erythema, warmth, or signs of infection. She has
a well-healed incision. Range of motion is unchanged at
70 degrees of flexion, 5 degrees of extension, and 10 degrees
of right and left lateral bend. There are no motor or
sensory deficits noted.
AR 669, 675 (emphasis added).
the ALJ found that in March 2011, Plaintiff “had a
negative straight leg raising test and minimal physical
findings.” AR 25 (citing Exhibit 8F/58-61).
cited progress report states:
Exam today shows that she has an area of tenderness at
¶ 3-4. She has increasing pain with extension
or lateral bend to the left. She has no motor or sensory
deficits in the legs. She has a negative straight leg raise.
AR 667 (emphasis added).
the ALJ found that in July 2011, Plaintiff “presented
with a negative straight leg raising test and good range of
motion in her hips.” AR 25 (citing Exhibit ...