Christina Saccomano v. Andrew Saul

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] CHRISTINA SACCOMANO, 7 Case No. 18-cv-02624-JCS Plaintiff, [8] v. ORDER RE MOTIONS FOR 9 SUMMARY JUDGMENT ANDREW SAUL, 10 Re: Dkt. Nos. 20, 24 Defendant. [12] 13 I. INTRODUCTION 14 Plaintiff Christina Saccomano brings this action appealing the final decision of Defendant 15 Andrew Saul, Commissioner of Social Security (the “Commissioner”),1 to deny Saccomano’s 16 application for disability benefits. The parties have filed cross motions for summary judgment 17 pursuant to Civil Local Rule 16-5. For the reasons discussed below, Saccomano’s motion is 18 GRANTED, the Commissioner’s motion is DENIED, and the matter is REMANDED to the 19 Commissioner for an award of benefits.2 20 II. BACKGROUND 21 The parties’ motions and ALJ’s decision are primarily concerned with Saccomano’s neck 22 and shoulder injury and limitation of her right hand. The Court’s summary of the record focuses 23 on those two issues as addressed by the parties and is therefore not intended to be a complete 24 recitation of Saccomano’s medical history. [26] 1 Andrew Saul was confirmed as Commissioner while this action was pending, and is therefore [27] substituted as the defendant as a matter of law. See 42 U.S.C. § 405 (g); Fed. R. Civ. P. 25(d). 1 A. Saccomano’s Medical Records 2 Christina Saccomano is a 57-year-old woman with a twelfth-grade education. 3 Administrative Record (“AR,” dkt. 15) at 82, 91. She worked as a produce clerk her entire adult 4 life starting in 1984. Id. at 91 . In 2005, Saccomano was involved in an all-terrain vehicle 5 (“ATV”) accident that resulted in an injury to her shoulder. Id. at 44 . She had shoulder surgery 6 three years later in 2008. Id. Before the surgery Saccomano reported that she “had an 7 impingement” which meant she “could not raise [her] right arm over 90 degrees.” Id. at 44–45. 8 Saccomano underwent an MRI on April 29, 2009 after the surgery, which showed “multilevel 9 degenerative changes with disk space narrowing and some facet arthritis.” Id. at 294 . After the 10 surgery, her arm improved and Saccomano returned to work, but by October 2013 her arm pain 11 had returned, accompanied by shoulder pain. Id. at 45–46. Saccomano stopped working as a 12 produce clerk for Safeway because of the pain. Id. at 45 . She alleges an onset date of October 8, 13 2013 for her disability. Id. at 164 . She “ha[s] not worked in any capacity since” that date. Id. 14 Before she stopped working, Saccomano sought treatment to manage her pain. Dr. 15 Richard Kidd treated her pain with physical therapy but noted minimal progress. Id. at 270–83. 16 On May 28, 2013, Dr. James Carter reported that an x-ray of the limited cervical area of 17 Saccomano’s spine indicated that she suffered from degenerative spondylolisthesis at discs C3 and 18 C4, flattening of the mid to lower cervical curve of the spine, degenerative disk disease at C4/C5, 19 C5/C6, and C6/C7, and facet arthrosis at C2/C3, C3/C4, and C4/C5. Id. at 269 . Dr. Carter also 20 noted “[a]nterior weight bearing . . . which has been associated with increased biomedical stress at 21 the cervicalthoracic junction.” Id. He noted that Saccomano’s “[a]nterior soft tissue markings 22 appear within normal limits.” Id. Saccomano continued receiving heat, massage, and physical 23 therapy, but Dr. Kidd described her progress as “stalled,” “minimal,” or “minimal to fair.” Id. at 24 272–79. 25 On August 5, 2013, Saccomano underwent an electromyography (“EMG”) test with Dr. 26 Maliheh Massih. AR 318–20. The test “reveal[ed] evidence of moderate acute C6 radiculopathy 27 on the right, [but] there was no evidence of focal or diffuse neuropathy.” Id. at 320 . Dr. Massih 1 which, when relatively irritated, may underlie pain and paresthesias arising from within ‘named’ 2 peripheral nerves, soft tissues, bony structures, and sensory roots.” Id. 3 Dr. Wendy Flapan evaluated Saccomano at the Stanford Hospital Spine Clinic on June 5, 4 2013, and reported her findings to Dr. Cathy Joseph, also at Stanford Hospital. Id. at 284–86. Dr. 5 Flapan suggested that Saccomano “may have some ongoing spondylosis that are causing her 6 pain.” Id. at 285 . While Dr. Flapan did “not believe that it was necessary at this time to 7 investigate the right shoulder,” she felt that Saccomano “may have some symptomology 8 emanating from within the shoulder.” Id. Dr. Flapan further noted that Saccomano’s Spurling’s 9 test3 was negative, that her shoulder range of motion was full, and that provocative maneuvers of 10 the right shoulder were negative. Id. 11 Saccomano received cervical epidural steroid injections on September 11, 2013 and 12 October 22, 2013. Id. at 334, 341 . Dr. Gang Li, Saccomano’s treating physician, resorted to 13 injections because Saccomano “ha[d] tried conservative medical and physical therapies without 14 significant improvement of the pain.” Id. at 341 . Saccomano reported that injections helped but 15 that the pain returned. Id. at 351 . Dr. Li’s treatment notes consistently indicated a positive 16 Spurling’s test, a “guarded range of motion in flexion, extension, lateral rotation and lateral 17 bending with an increase in pain with bilat lateral rotation over the (R) para-spinal muscles,” and 18 the ineffectiveness of other treatment measures, including epidural injections. Id. at 334–40. His 19 colleague at the Comprehensive Pain Management Center, Clark J. Bishop, PA, reported similar 20 findings, including a positive Spurling’s test and decreased sensation at the C6/7 dermatomes. Id. 21 at 332. Dr. Li reported that while Saccomano was not taking Naproxen consistently, “[t]he patient 22 continues on stable dose of medications in a responsible and compliant fashion.” Id. at 351–52. 23 On January 28, 2014, Dr. Edward Rustamzadeh noted that Saccomano complained of pain 24 in her right arm accompanied by “intermittent numbness and tingling.” Id. at 297 . He viewed [25] 3 “Physicians conduct a Spurling’s test to assess nerve root compression and cervical [26] radiculopathy by turning the patient’s head and applying downward pressure. A positive Spurling’s sign indicates that the neck pain radiates to the area of the body connected to the [27] affected nerve.” Shaw v. AT & T Umbrella Ben. Plan No. 1, 795 F.3d 538 n.1 (6th Cir. 2015) 1 Saccomano’s 2009 post-surgery MRI and concluded that it “showed some mild degenerative disk 2 disease” but “no significant foraminal stenosis on the right to explain any of her radicular 3 symptoms.” Id. at 298. Doctors were divided as to the cause of her symptoms. Dr. Rustamzadeh 4 wrote: “I cannot explain [the EMG results] on the imaging, nor can I explain it in clinical 5 findings.” Id. He opined that the cause of her pain was “most likely . . . shoulder arthropathy.” 6 Id. 7 On February 6, 2014, Dr. Zackary Vaughn examined the 2013 x-rays and concluded that 8 they “do not demonstrate any significant abnormal findings [but] they do demonstrate the previous 9 distal clavicle excision with a small area of calcification in the area of the remaining AC joint.” 10 Id. at 305. He opined that the source of Saccomano’s pain was not her shoulder but her spine, and 11 that her pain “may represent a variant of thoracic outlet syndrome.” Id. Dr. Matthew Smuck 12 reviewed the same images on March 12 and concluded that “[f]our views of the right shoulder 13 demonstrate no acute fracture or dislocation. Mild degenerative change of the acromioclavicular 14 joint, with resportion of the distal clavicle . . . . concerning for osteolysis.” Id. at 311. 15 Saccomano had a hysterectomy in October of 2014, which led to a cardiac event that 16 doctors diagnosed as Takotsubo Syndrome. Id. at 517. She stayed in the hospital and received 17 cardiac treatment. Id. at 968; see also id. at 393–973 (full treatment records from Good Samaritan 18 Hospital). 19 Dr. Massih repeated the EMG test on November 24, 2014, which she compared to the 20 2009 MRI. Id. at 975. She found “[r]ight C6 and possibly C7 subacute . . . MRI is not 21 correlating, consider repeat [sic] the MRI. This test was done extensively and there is definitly 22 [sic] impingement on the Right C6 and possible C7 as well[.]” Id. 23 Dr. Li completed his first Physician’s Medical Source Statement on April 21, 2014. Id. at 24 312–16. He listed Saccomano’s diagnoses as “neck pain, cervical DDD & radiculopathy, 25 myofascial pain, [and] shoulder pain.” Id. at 312. He also indicated that Saccomano experienced 26 tenderness, muscle weakness, impaired sleep, motor loss, reduced grip strength, significant 27 limitation of motion, easy distractibility, decreased energy, sleep disturbance, and difficulty with 1 experience of pain severe enough to interfere with ATTENTION and CONCENTRATION 2 needed to perform even simple work tasks?” he replied “constantly,” which translates to over 66% 3 of an eight-hour workday. Id. at 313 (emphasis in original). While he opined that Saccomano had 4 no functional limitations in walking city blocks, he noted that she could not sit “in a competitive 5 work situation” for longer than thirty minutes, could not stand for longer than twenty minutes, and 6 would be limited to two hours of sitting, standing, and walking within an eight-hour work day. Id. 7 at 314 (emphasis in original). He estimated that Saccomano would need unscheduled breaks of 8 about fifteen minutes every hour. Id. She could never lift more than ten pounds, climb ladders, or 9 climb stairs; she could rarely lift less than ten pounds, turn her head to the right or left, or look up; 10 she could only occasionally look down, hold her head in a static position, twist, stoop, or 11 crouch/squat. Id. at 315. She would have significant limitations with reaching, handling, or 12 fingering: her right side would only be able to handle or finger 30% of the day and she would 13 never be able to use her right arm to reach. Id. 14 As part of her initial application, Saccomano underwent a telephonic examination at a 15 Social Security Administration field office on May 10, 2014. Id. at 180–82. Her interviewer found 16 that she had no trouble concentrating. Id. at 181. Saccomano was examined by Dr. Jonathan 17 Nordlicht on September 16, 2014. Id. at 72. He noted that her medically determinable 18 impairments could responsibly be expected to produce Saccomano’s pain, but that objective 19 medical evidence alone couldn’t account for the severity of her symptoms. Id. at 75–76. He 20 found that she had exertional limitations, id. at 76, and that, while her “reaching in any direction” 21 was limited, she was “unlimited” in handling, fingering, and feeling. Id. at 77. Dr. Nordlicht 22 found Saccomano “Not Disabled,” id. at 79, and determined that her Residual Functioning 23 Capacity (“RFC”) was suitable for “light work.” Id. at 78. On October 31, 2014, Saccomano 24 underwent a second disability report as part of her request for reconsideration. Dr. J. R. Saphir, 25 another consultative physician, examined Saccomano and concluded that she could occasionally 26 lift twenty pounds, frequently lift ten pounds, and stand, sit, or walk for six hours in an eight-hour 27 work day. Id. at 89. He adopted Dr. Nordlicht’s RFC “as is.” Id. at 90. 1 appeal on October 31, 2014. Id. at 211–17. She listed medications Naproxen, Gabapentin, and 2 Norco; she indicated that the second two produced side effects of “drowsiness [and] hard to 3 concentrate.” Id. at 213. She noted that her daily activities had not changed since the disability 4 report that accompanied her initial application and she “still [had] to limit activities, move much 5 slower, and take numerous breaks due to pain.” Id. at 214. 6 Saccomano underwent another MRI on March 16, 2015, which revealed a small anterior 7 annular fissure “new since the prior study,” mild posterior disc osteophyte complex on C5-C6 and 8 C6-C7, and an unchanged right thyroid cystic nodule of about 5 millimeters. Id. at 979–80.4 9 On April 6, 2015, Saccomano was examined by Dr. Calvin Pon, a consultative examining 10 physician. Many of his conclusions conflicted with Dr. Li’s: 11 She should be able to sit for a total of six hours during an eight-hour work day . . . [S]he should still be able to perform pushing/pulling 12 right arm/hand control occasionally to frequently . . . She should be able to lift and carry frequently 10 pounds and occasionally up to 20 13 pounds with most of the lifting and carrying performed by her left upper extremity because of her complaint of right shoulder pain and 14 right upper extremity numbness . . . . There is no limitation in her ability to perform gross and fine manipulative tasks with her left hand. 15 In spite of her complaint of right thumb and index finger numbness, there is no functional impairment in her ability to perform gross and 16 fine manipulative tasks with the right hand; however, there may be some symptomatic limitations. [17] 18 Id. at 391. Dr. Pon’s Spurling’s test was negative. His examination of Saccomano’s upper 19 extremities revealed that she “was able to forward flex and abduct her right shoulder to 20 approximately 130 degrees, limited by neck and shoulder pain.” Id. at 389–90. She could make a 21 fist normally with both hands, her grip strength was 5/5 in both hands, and manual motor muscle 22 testing indicated that her right shoulder resistance was “3+ to 4-/5.” Id. at 390. 23 Dr. Li filled out his second medical source statement on November 9, 2016. Saccomano’s 24 pain had slightly improved: he estimated that she could now “occasionally” lift less than ten 25 pounds and “rarely” lift ten pounds. Id. at 982. He also noted that that Saccomano’s pain and 26 other symptoms would now only “occasionally” interfere with her attention and concentration. Id. [27] 1 She would still need unscheduled breaks every hour and would still be absent from work more 2 than four days per month. Id. at 983. He estimated that her “feeling” abilities would be limited to 3 three hours per day in an eight-hour work day and that her reaching, handling, and fingering 4 abilities would be limited to thirty minutes. Id. 5 B. Initial Denial of Application 6 Saccomano filed a Title II application for Social Security Disability Insurance Benefits on 7 April 21, 2014. AR at 165. She alleged an onset date of October 8, 2013. Id. She listed the 8 following as the medical conditions causing the pain that prevented her from working: 9 (1) “Cervical DDD”; (2) “Shoulder radicular pain”; (3) “Cervical Feacte disease, bulging discs”; 10 (4) “Right arm pain”; and (5) “Myofascial pain.” Id. at 184. Her initial application was denied on 11 September 11, 2014 because the Commissioner found Saccomano was still capable of doing work 12 that was less strenuous than her previous job. Id. at 79. Saccomano filed for reconsideration. 13 That, too, was denied on May 18, 2015, when the Commissioner again found that Saccomano was 14 “able to perform work that is less demanding” than her past work. Id. at 92. Saccomano then filed 15 a request for a hearing by an administrative law judge on August 13, 2015. Id. at 111. While her 16 request was untimely, the Commissioner found there was good cause to excuse her late filing 17 under 20 C.F.R. § 404.8911 (b) because neither Saccomano nor her representative received notice 18 that her request for reconsideration had been denied. Id. at 111–12. Saccomano did not submit 19 any additional evidence. Id. at 112 . 20 C. Administrative Hearing 21 Administrative Law Judge Robert Freedman (the “ALJ”) held a hearing on November 17, 22 2016. The ALJ first asked Saccomano why her earnings statement listed her as employed through 23 October of 2014 while her alleged date of onset was October of 2013. Id. at 41 . She explained 24 that her earning statement represented income from state disability benefits, sick leave, and 25 vacation benefits. Id. at 41–42. The ALJ prompted Saccomano to describe her job as a produce 26 clerk at Safeway, which she held until her alleged date of onset in October 2013. Id. at 42 . 27 Saccomano replied that her responsibilities included “writing orders on the manager’s days off, 1 half of her work day was spent tracking inventory and the rest was spent “stocking [and] 2 unloading pallets.” Id. at 43 . The heaviest thing she lifted was fifty pounds. Id. at 59 . She only 3 performed cashier work occasionally “when the front end would get busy.” Id. at 43 . 4 The ALJ then asked about Saccomano’s ATV injury. Id. at 44 . Saccomano testified that 5 the 2005 injury lead to her 2008 surgery to repair “an impingement” that meant she could “not 6 raise her right arm over 90 degrees.” Id. at 44–45. Saccomano recounted the history of her pain, 7 which she testified improved after her 2008 surgery but “gradually” returned to her neck. Id. at 8 45. Even though she “moved to a different store and they didn’t have [her] lifting as much,” 9 Saccomano said she stopped working in 2013. Id. at 45–46. When the ALJ asked why she 10 stopped working, Saccomano replied “I was in so much pain I couldn’t do my job.” Id. at 46 . The 11 ALJ asked Saccomano how she was managing the pain. Saccomano replied that she was using 12 “medication, heat, and . . . stretching.” Id. at 49 . 13 The ALJ inquired about Saccomano’s daily routine. Id. at 50 . According to Saccomano, 14 she cooks for herself and her husband and performs “small amounts” of household chores, such as 15 light vacuuming for five to ten minutes interspersed with fifteen- to twenty-minute breaks. Id. at 16 51. Saccomano further testified that she drives “every day, around town . . . [to the] grocery store, 17 yoga, maybe out to lunch.” Id. at 52 . At the grocery store, Saccomano only purchases “small 18 amounts” totaling “two, three pounds” per bag to avoid the bags being “too heavy” for her to 19 carry. Id. She also testified that she participates in a restorative yoga class about four times per 20 week as a substitute for physical therapy. Id. at 48 . According to Saccomano’s testimony, the 21 class is an hour and fifteen minutes long and consists of “four or five positions throughout the 22 hour class and you stay there for about five minutes . . . . So it’s like a gentle long stretch.” Id. 23 The ALJ confirmed that Saccomano’s doctor “actually recommended . . . an active lifestyle 24 and stay[ing] active.” Id. at 53 ; see also id. at 336 . Saccomano testified that, besides her 25 restorative yoga class, the only other physical activity she regularly engages in is walking her two 26 dogs. Id. at 53 . She explained that she can no longer walk both the large and the medium-sized 27 dog at the same time, so she walks each separately three times a week for three blocks each. Id. 1 walking she needed a twenty-minute break. Id. at 54 . Her husband lifts the food bags for the 2 dogs; the most Saccomano can lift is three pounds. Id. 3 Once the ALJ finished asking questions, Saccomano’s attorney asked about Saccomano’s 4 level of pain. Saccomano testified that her pain level was an eight to a ten out of ten, or a four or 5 five with medication. Id. at 56 . The attorney asked whether the side effects of these medications 6 led to “drowsiness, dizziness, and limited concentration,” Saccomano replied that she experienced 7 all three, which led her to “avoid driving or any substantial thing that [she needs] to be alert for.” [8] Id. In response to questions from her attorney, Saccomano testified that the drowsiness and other 9 side effects made it difficult for her to concentrate, pay attention, and focus. Id. at 56–57. The 10 drowsiness also drove her to take naps of about an hour during the week. Id. at 58 . 11 The ALJ then turned his attention to Ronald Morrell, a sworn vocational expert. Id. at 59 . 12 The ALJ provided the following hypothetical: [13] [A]ssume a hypothetical individual of the same age, educational 14 background, and professional experience as the claimant. And please assume that this hypothetical individual subject to the following 15 limitations. The exertional level of light with ladders, ropes, and scaffolds limited to a no more than occasional basis. . . . Please assume 16 that reaching both lateral and overhead with the upper dominant extremity is limited to no more than occasional. [18] Id. at 61 . The vocational exert testified that such a person would not be able to perform 19 Saccomano’s past work. Id. Such a person would, he opined, be able to perform assembly line 20 work. Id. He identified three specific jobs that the individual in the hypothetical could perform: 21 small products assembler, production assembler, and bench assembler. Id. at 61–62. The 22 vocational expert testified that there are around 300,000 such jobs in the national economy. Id. 23 The ALJ and the vocational expert discussed Saccomano’s inability to frequently reach 24 laterally and overhead. Id. at 64 . They confirmed that the RFC specified that Saccomano should 25 only reach “occasionally,” or for a third of her day. Id. The ALJ then posed a second hypothetical 26 that considered the same individual discussed in the first hypothetical with the added limitation 27 that “the standing duration is limited to no more than four hours.” He asked, “[w]ould this 1 testified that it would not. Id. 2 Saccomano’s attorney then directed the vocational expert’s attention to the Dictionary of 3 Occupational Titles’ (the “DOT”) and its companion, the Selected Characteristics of Occupations 4 (the “SCO”), description of the assembly jobs, which described the occupations as requiring 5 “frequent” reaching. Id. at 66 . The vocational expert testified that, in his professional experience, 6 the reaching requirement was not frequent but occasional. Id. The last time the vocational expert 7 witnessed the jobs being performed was three or four years ago. Id. at 67 . In response to 8 questioning by Saccomano’s attorney, the vocational expert confirmed that he had not prepared a 9 report documenting these observations. Id. Saccomano’s attorney then expanded on the ALJ’s 10 second hypothetical by adding that the person would be limited to lifting and carrying no more 11 than ten pounds frequently and occasionally pushing and pulling. The vocational expert replied 12 that such a person would be able to perform jobs the DOT lists as sedentary based on the ten13 pound limitation. Id. at 68 . 14 Saccomano’s attorney posed her own hypothetical: “If the person were to be off task let’s 15 say 15 to 20 percent of an eight-hour day or work week due to symptoms related to chronic pain or 16 side effects of medication, would there be work for a person like that to do?” Id. at 69 . The 17 vocational expert responded: “For my experience 15 percent is kind of the cut off. So if it’s any 18 greater than 15 percent the answer would be no.” Id. Saccomano’s attorney added: “[i]f in 19 addition to hypothetical number one, we change the reaching, handling, and fingering limitations 20 to 30 minutes each for each of those activities, feeling can be done at three hours . . . . would there 21 be any available work?” Id. The vocational expert responded: “There’d be no jobs.” Id. He 22 further testified, in response to the attorney’s question, that the maximum number of monthly 23 absences that a job would tolerate would be two. Id. at 69–70. 24 D. Regulatory Framework for Determining Disability 25 When a claimant alleges a disability and applies to receive Social Security benefits, the 26 ALJ evaluates the claim using a sequential five step process. 20 C.F.R. § 404.1520 (a)(4). At step 27 one, the ALJ determines whether the applicant is engaged in “substantial gainful activity.” 20 1 significant physical or mental activities . . . that the claimant does for pay or profit.” 20 C.F.R. 2 § 220.141(a)–(b). If the claimant is engaging in such activities, the claimant is not disabled; if not, 3 the evaluation continues at step two. 4 At step two, the ALJ considers whether the claimant has a severe and medically 5 determinable impairment. Impairments are severe when “there is more than a minimal limitation 6 in [the claimant’s] ability to do basic work activities.” 20 C.F.R. § 404.1520 (c). If the claimant 7 does not suffer from a severe impairment, she is not disabled; if she does have a severe 8 impairment, the ALJ proceeds to step three. 9 At step three, the ALJ turns to the Social Security Administration’s listing of severe 10 impairments (the “Listing”). See 20 C.F.R. § 404 , subpt. P, app. 1. If the claimant’s alleged 11 impairment meets one of the entries in the Listing, the claimant is disabled. If not, the ALJ moves 12 to step four. 13 At step four, the ALJ assesses the claimant’s residual functional capacity, or RCF, to 14 assess whether the claimant could perform her past relevant work. 20 C.F.R. § 404.1520 (a)(1). 15 The RCF is a determination of “the most [the claimant] can do despite [the claimant’s] 16 limitations.” 20 C.F.R. § 404.1520 (a)(1). The ALJ considers past relevant work to be “work that 17 [the claimant] has done within the past fifteen years, that was substantial gainful activity, and that 18 lasted long enough for [the claimant] to learn how do to it.” 20 C.F.R. § 404.11560 (b)(1). If the 19 claimant is able to perform past relevant work, she is not disabled; if she is not able to perform 20 such past relevant work, the ALJ continues to step five. In the case of claimants who are fifty-five 21 or older, are restricted to sedentary work, have no transferable skills, and have not completed any 22 relevant vocational education, the Commissioner will usually not offer any evidence of work 23 meeting the claimant’s RFC and the ALJ will decide disability based on the claimant’s ability to 24 perform past work. 20 C.F.R. § 404 , subpt. P, app. 2 § 201.00(d). 25 At the fifth and final step, the burden shifts from the claimant to prove disability to the 26 Commissioner to “identify specific jobs existing in substantial numbers in the national economy 27 that the claimant can perform despite her identified limitations.” Meanel v. Apfel, 172 F.3d 111 , 1 claimant’s RFC, the claimant is not disabled; if not, the claimant is disabled and entitled to 2 benefits. 20 C.F.R. § 404.1520 (g)(1). 3 E. The ALJ’s Decision 4 The ALJ first determined that Saccomano had not engaged in substantial gainful activity 5 since her alleged onset date of October 13, 2013, and that she had the following severe 6 impairments: “thoracic outlet syndrome; status post arthroscopic surgery to right shoulder; 7 degenerative disc disease of the cervical spine; radiculopathy from the cervical spine affecting the 8 right upper extremity; and degenerative spondylolisthesis in the cervical spine.” AR at 20. The 9 ALJ explained that Saccomano’s impairments do not meet the criteria for a listing. Id. at 20 –21. 10 The ALJ found that Saccomano “has the residual functional capacity to perform light work as 11 defined in 20 CFR 404.1567(b) except ropes, ladders, and scaffolds are limited to no more than an 12 occasional basis. Reaching both laterally and overhead with the upper dominant upper extremity 13 is limited to no more than occasional.” Id. at 21 . 14 The ALJ explained the process he employed to consider Saccomano’s symptoms. First, he 15 found that “the medically determinable impairments could reasonably be expected to cause the 16 alleged symptoms; however, the claimant’s statements concerning the intensity, persistence, and 17 limiting effects of these symptoms are not entirely consistent with the medical evidence and other 18 evidence in the record for the reasons explained in this decision.” Id. at 22 . Then, the ALJ 19 continued: 20 Although the objective medical evidence confirms the presence of chronic pain, the records contain no objective findings that 21 corroborate her allegations of disabling functional limitations. Diagnostic imaging has been relatively benign with her providers 22 noting no need for surgical intervention. The claimant’s treatment course has been essentially conservative in nature consisting of some 23 physical therapy and a few epidural steroid injections in September and October of 2013, but she has primarily been treated through 24 medication management (Exhibit 7F, pgs 12, 25). 25 Ultimately, the ALJ was not convinced that Saccomano’s report of her symptoms and limitations 26 was credible: 27 [A]lthough the claimant has alleged that her impairments prevent her mentioned previously, the claimant’s providers have recommended 1 that she remain active and exercise with the claimants testifying to her attending a restorative yoga class since January of 2015 four times a 2 week, for an hour and a half.[5] She testified to doing her household chores on a limited basis, but admitted to doing the dishes, vacuuming 3 one room at a time for five to 10 minutes, shopping twice a week, and cooking for herself and her husband (completing all meals through 4 the course of the day). She is able to drive and does so daily, with her driving to go grocery shopping a few times a week and driving to 5 yoga. The claimant also reported her going out to lunch. She further testified that while she cannot walk dogs together, she walks one dog 6 at a time, doing two dog walks, three times per week for about three blocks each. All these activities are inconsistent with the claimant’s 7 allegations and suggests the claimant has at least at times overstated her symptoms and limitations. These inconsistencies suggest that the 8 information provided by the claimant generally may not be entirely reliable . . . . Overall, the claimant’s daily activities combined with 9 the minimal objective findings, conservative treatment course, and her doctor’s recommendation of “staying active” and exercising is 10 consistent with the finding that the claimant can perform light work. [11] Id. at 26 . 12 The ALJ was likewise dismissive of Saccomano’s treating physician Dr. Li’s opinion: [13] Overall, the restrictions of Dr. Li are given little to no weight. There 14 is no reasonable basis to support Dr. Li’s broad limitations as to the claimant being unable to sit, stand, or walk a total of six hours in an 15 eight-hour day, missed days, and the need for hourly breaks. Concentration and attention deficits are also unsupported as well as 16 significant limitations regarding hand[ling], fingering, and feeling. Moreover, it seems rather questionable that on the same day Dr. Li 17 completed his April 2014 opinion, his actual treatment records noted only the restrictions as to lifting, climbing, and prolonged sitting 18 (Exhibit 7F, pg. 56). Additionally, as mentioned previously, Dr. Li’s findings on physical examinations remained grossly unchanged with 19 intervening specialist examinations showing contradictive findings and greater functional abilities. [21] Id. at 27 . The ALJ instead relied on the findings of Dr. Pon, the consultative state agency 22 examiner, who “opined the claimant to have no restriction in standing and/or walking, her able to 23 sit for a total of six hours during an eight-hour workday, and her able to lift 20 pounds 24 occasionally and 10 pounds frequently (Exhibit 11F).” Id. at 26 . 25 The ALJ then considered the testimony of Ronald W. Morrell, the vocational expert. The 26 vocational expert conceded that Saccomano could no longer work as a produce clerk but claimed [27] 1 that she could work as a small products assembler, production assembler, or a bench assembler, all 2 of which are exertionally light and unskilled. Id. at 27–28. In making this finding, the ALJ 3 accepted the vocational expert’s testimony that “while the DOT shows these positions require 4 frequent reaching, based on his professional experience and observation of the jobs they do not 5 require more than occasional reaching.” Id. at 29 . Ultimately, the ALJ concluded that 6 “considering the claimant’s age, education, work experience and residual functional capacity, the 7 claimant is capable of making a successful adjustment to other work that exists in significant 8 numbers in the national economy.” Id. The ALJ found Saccomano’s RFC to be “[l]ight work as 9 defined in 20 CFR 404.1567(b) except ropes, ladders, and scaffolds are limited to no more than an 10 occasional basis. Reaching both laterally and overhead with the upper dominant extremity is 11 limited to no more than occasional.” Id. at 21 . Based on his rejection of the testimony of 12 Saccomano and her treating physician, and his assessment of the testimony of Dr. Pon and the 13 vocational expert, the ALJ found Saccomano “not disabled.” Id. 14 F. The Parties’ Arguments 15 Saccomano first argues that the ALJ erred as a matter of law in failing to credit the 16 testimony of Dr. Li, Saccomano’s treating physician, without providing clear and convincing 17 reasons. Pl’s Mot. (dkt. 20) at 12. She further argues that the ALJ improperly rejected her. 18 testimony at the administrative hearing, again not providing clear and convincing reasons for 19 doing so. Id. at 14 . Finally, Saccomano argues that the ALJ’s Step 5 finding that she could work 20 as a small products assembler, production assembler, or bench assembler was not supported by 21 substantial evidence because the ALJ should not have relied on the vocational expert’s testimony 22 over the description of the jobs in the DOT. Id. at 15 . Saccomano maintains that the proper 23 remedy is remand for an award of benefits. Id. at 17–18. 24 The Commissioner argues that the ALJ did not err in disregarding Dr. Li’s opinion because 25 “the objective findings in the record did not [show] support for Plaintiff’s claim of disability.” 26 Comm’r’s Mot. (dtk. 24) at 5. The Commissioner contends that the ALJ’s decision to weigh Dr. 27 Pon and other consultative physicians’ opinions over Dr. Li’s opinion was supported by 1 findings were both supported by and consistent with the record evidence.” Id. at 8 . The 2 Commissioner further asserts that the ALJ made sufficiently specific findings to justify 3 discrediting Saccomano’s testimony about her subjective symptoms. Id. at 11 . Lastly, the 4 Commissioner argues that the ALJ acted appropriately in questioning the vocational expert and in 5 relying on his testimony despite the contradictions with the DOT. Id. at 16–17. The 6 Commissioner asks that, should the Court find the ALJ committed legal error, the Court remand 7 for further administrative proceedings rather than for an award of benefits. Id. at 17–19. 8 In response to the Commissioner’s motion for summary judgment, Saccomano argues that 9 the ALJ erred because he failed to “explain how any of the objective findings or Dr. Li’s treatment 10 notes are actually inconsistent with the limitations he described.” Reply (dkt. 25) at 3 (emphasis 11 in original). While Saccomano concedes that the ALJ considered the correct factors in assessing 12 the consistency between Saccomano’s testimony and the objective evidence in the record, 13 Saccomano contests the ALJ’s finding that the two are inconsistent. Id. Saccomano again 14 contends that: [15] the ALJ did not ask the vocational expert if the evidence he provided 16 was consistent with the information provided in the DOT, and then, after the vocational expert directly stated that his testimony was 17 contrary to the information in the DOT and the SCO, the ALJ did not attempt to elicit any explanation regarding the conflict between the 18 ALJ’s hypothetical question allowing for only occasional reaching, both laterally and overhead, and the vocational expert’s identification 19 of jobs listed as requiring frequent to constant reaching. [20] Id. at 7 . 21 Saccomano asserts that the ALJ not only erred in relying on the vocational expert’s 22 testimony without articulating persuasive evidence for doing so, but also that the ALJ failed to 23 consider Saccomano’s limitations regarding time missed and resting requirements. As a result, 24 “the VE’s testimony that Saccomano can perform those occupations has no evidentiary value.” Id. 25 at 7. Finally, Saccomano renews her request that the Court remand for payment of benefits 26 because remanding for further administrative proceedings would be “fruitless” and because all the 27 requirements of the Ninth Circuit’s the “credit as true” rule are met. Id. at 8 . 1 III. ANALYSIS 2 A. Legal Standard 3 District courts have jurisdiction to review the final decisions of the Commissioner and may 4 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 5 hearings. 42 U.S.C. § 405 (g); see also 42 U.S.C. § 1383 (c)(3). 6 When reviewing the Commissioner’s decision, the Court takes as conclusive any findings 7 of the Commissioner that are free of legal error and supported by “substantial evidence.” 8 Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a 9 conclusion” and that is based on the entire record. Richardson v. Perales, 402 U.S. 389, 401 . 10 (1971). “‘Substantial evidence’ means more than a mere scintilla,” id., but “less than 11 preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 12 1988) (citation omitted). Even if the Commissioner’s findings are supported by substantial 13 evidence, the decision should be set aside if proper legal standards were not applied when 14 weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 . (9th Cir. 1978) (quoting Flake v. 15 Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the Court must consider 16 both the evidence that supports and the evidence that detracts from the Commissioner’s 17 conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 18 F.2d 993, 995 (9th Cir. 1985)). 19 The legal standard for rejecting the controverted findings of a claimant’s treating physician 20 requires “specific and legitimate reasons.” Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 21 The legal standard for rejecting a claimant’s testimony about her subjective symptoms as not 22 credible requires “specific, clear and convincing” reasons. Garrison v. Colvin, 759 F.3d 995 , 23 1014–15 (9th Cir. 2014). The legal standard for relying on a vocational expert’s testimony when 24 it conflicts with the DOT is “persuasive evidence to support the deviation.” Johnson v. Shalala, [25] 60 F.3d 1428, 1435 (9th Cir. 1995). If the ALJ failed to meet these standards, the court may find 26 legal error. See Benitez, 573 F.2d at 655 . 27 Although the Court may “review only the reasons provided by the ALJ in the disability 1 Garrison, 759 F.3 at 1010, “harmless error analysis applies in the social security context.” Marsh 2 v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). “[W]here the circumstances of the case show a 3 substantial likelihood of prejudice, remand is appropriate so that the agency can decide whether 4 reconsideration is necessary. By contrast, where harmlessness is clear and not a borderline 5 question, remand is not appropriate.” McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) 6 (footnotes, citations, and internal quotation marks omitted). If the Court identifies defects in the 7 administrative proceeding or the ALJ’s conclusions, the Court may remand for further proceedings 8 or for a calculation of benefits. See Garrison, 759 F.3d 1019–21. 9 B. The ALJ Erred in Dismissing the Opinion of Saccomano’s Treating Physician 10 Saccomano argues that the ALJ dismissed the opinion of Dr. Li, her treating physician, 11 without providing specific and legitimate reasons for doing so, thus committing legal error. The 12 Court agrees. 13 “Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 14 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 15 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 16 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).6 The Ninth Circuit “afford[s] 17 greater weight to a treating physician's opinion because ‘he is employed to cure and has a greater 18 opportunity to know and observe the patient as an individual.’” Magallanes v. Bowen, 881 F.2d 19 747, 751 (9th Cir. 1989) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 20 When, as here, the treating physician’s opinion is contradicted by other opinions in the record, the 21 ALJ must provide specific and legitimate reasons supported by substantial evidence before 22 discounting that opinion. Murray, 722 F.2d at 502 (9th Cir. 1983). 23 In this case, the ALJ gave “little to no weight” to the opinion of Dr. Li, Saccomano’s 24 treating physician, stating that: [26] 6 The regulations governing treatment of medical evidence have been amended with respect to applications filed on or after March 27, 2017. Compare 20 C.F.R. § 404.1527 with 20 C.F.R. [27] § 404.1520c. Because Saccomano filed her application before that date, the older framework 1 [t]here is no reasonable basis to support Dr. Li’s broad limitations as to the claimant’s being unable to sit, stand, or walk a total of six hours 2 in an eight-hour day, missed days, and the need for hourly breaks. Concentration and attention deficits are also unsupported as well as 3 the significant limitations regarding handing,[7] fingering, and feeling. 4 AR at 27. Here, because Dr. Li’s opinions are partially contradicted by the assessment of 5 consultative examining physician Dr. Pon and the state examiners Dr. Nordlicht and Dr. Saphir, 6 see id at 25–27, the ALJ is required to have given specific and legitimate reasons for relying on 7 Dr. Pon’s report instead. His reasons are specific, but they are not legitimate. Therefore, the ALJ 8 has erred as a matter of law by failing to properly weigh the opinion of Saccomano’s treating 9 physician. 10 1. Dr. Li’s Conclusions Regarding Motor Skill Limitations 11 The ALJ opined that the limitations that Dr. Li noted regarding reaching, handling, and 12 fingering were unsupported by the record, particularly because Dr. Pon had different findings. AR 13 at 26. However, the record contains several instances where doctors assessed Saccomano as 14 having C6 radiculopathy, which causes finger and thumb numbness leading to the limitations Dr. 15 Li described. Not only did Dr. Li consistently mention C6 radiculopathy, but Dr. Massih did as 16 well. Id. at 390. Dr. Pon also noted C6 radiculopathy and admitted that “there may be some 17 symptomatic limitations” regarding gross and fine manipulative tasks using the right hand, which 18 is consistent with Dr. Li’s medical source statement. Id. at 391. 19 The ALJ and the Commissioner make much of the fact that “on the same day Dr. Li 20 completed his April 2014 opinion, his actual treatment records noted only restrictions as to lifting, 21 climbing, and prolonged sitting.” Id. at 27 (citing id. at 372). The Ninth Circuit has recognized, 22 however, that “[t]he primary function of medical records is to promote communication and 23 recordkeeping for health care personnel—not to provide evidence for disability determinations. 24 [The Ninth Circuit] therefore [does] not require that a medical condition be mentioned in every 25 report to conclude that a physician’s opinion is supported by the record.” Orn v. Astrue, 495 F.3d 26 625, 634 (9th Cir. 2007). When, as here, “the record contains numerous reports from [the [27] 1 claimant’s] health care providers, as well as results from medical tests and laboratory findings, that 2 support the questionnaires completed by [the treating physicians],” it is erroneous to focus on a 3 single day of treatment notes, particularly when the treatment records as a whole support a 4 different conclusion. Id. The ALJ in this case mischaracterized Dr. Li’s opinion and drew an 5 illegitimate inference from his medical source statement. This reason for the ALJ’s finding was 6 not legitimate and constitutes reversible legal error. 7 2. Dr. Li’s Purported Failure to Record Saccomano’s Improvement 8 The ALJ asserted that “Dr. Li’s findings on physical examinations remained grossly 9 unchanged with intervening specialist examinations showing contradictive findings and greater 10 functional abilities.” Id. at 27 . The record does not support this conclusion. Dr. Li’s findings in 11 the November 2016 medical source statement indicate improvement from his observations in 2014 12 in her lifting and concentration. Compare id. at 312–16 (stating Saccomano could “rarely” lift less 13 than ten pounds, “never” lift ten pounds or more, and that her concentration would “constantly” be 14 impaired) with id. at 981–83 (stating Saccomano could “occasionally” lift less than ten pounds, 15 “rarely” lift ten pounds, and that her concentration would “occasionally” be impaired). 16 More importantly, as a matter of law, a “finding that a treating source’s medical opinion is 17 not entitled to controlling weight [because it is contradicted] does not mean that the opinion is 18 rejected.” Social Security Ruling (SSR) 96-2p at 1. Ninth Circuit law is clear: 19 To say that medical opinions . . . are contrary to the preponderant conclusions mandated by the objective findings does not achieve the 20 level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer 21 his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. [22] 23 Embrey v. Bowen, 849 F.2d 418 , 421–22 (9th Cir. 1988) (footnote omitted). The ALJ did not 24 make sufficiently specific interpretations of Dr. Li’s findings. Therefore, contradictions between 25 Dr. Li’s opinions and other examining physicians’ opinions are not in themselves specific and 26 legitimate reasons to reject Dr. Li’s conclusions. 27 C. The ALJ Erred in Finding Saccomano’s Testimony Not Credible 1 about her subjective pain without identifying clear and convincing reasons for his disbelief. “The 2 ALJ is responsible for determining credibility and resolving conflicts in medical testimony.” 3 Magallanes, 881 F.2d at 750 (citing Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)). When 4 there is no finding of malingering, however, the ALJ must provide “specific, clear and convincing 5 reasons” for finding a claimant’s testimony not credible. Garrison, 759 F.3d at 1014–15. 6 “General findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998) (internal 7 quotation marks omitted). 8 The ALJ advanced the following reasons for finding Saccomano’s testimony not credible: 9 “Overall, the claimant’s daily activities combined with the minimal objective findings, 10 conservative treatment course, and her doctor’s recommendation of ‘staying active’ and exercising 11 is consistent with the finding that the claimant can perform light work.” Id. at 26. It is not enough 12 to list reasons; the reasons must be clear and convincing. Here, the ALJ fell short of this standard. 13 The ALJ is responsible for determining the claimant’s credibility. Magallanes, 881 F.2d at 14 750. The Ninth Circuit has articulated a two-part test for weighing a claimant’s testimony 15 regarding her subjective symptoms: 16 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 17 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 18 “which could reasonably be expected to produce the pain or other symptoms alleged.” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 19 1991) (en banc) (internal quotation marks omitted). The claimant, however, “need not show that her impairment could reasonably be 20 expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of 21 the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). “Thus, the ALJ may not reject subjective symptom testimony . . . 22 simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Id.; see also 23 Reddick, 157 F.3d at 722 (“[T]he Commissioner may not discredit the claimant’s testimony as to the severity of symptoms merely because 24 they are unsupported by objective medical evidence.”). 25 Second, if the claimant meets this first test, and there is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 26 the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1281 ; see also 27 Robbins [v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)] credible by making specific findings as to credibility and stating clear 1 and convincing reasons for each.”). 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).8 3 The ALJ acknowledged that Saccomano’s “medically determinable impairments could 4 reasonably be expected to cause the alleged symptoms.” AR at 22. The Court must now 5 determine whether the ALJ articulated clear and convincing reasons for finding that “the 6 information provided by the claimant generally may not be entirely reliable.” Id. at 26. None of 7 the ALJ’s reasons pass that test. 8 1. Transferring Saccomano’s Reported Daily Activities to the Workplaces 9 The ALJ’s first reason—that Saccomano’s daily activities led him to believe she was 10 embellishing her symptoms—is not clear and convincing for two reasons. First, as a matter of 11 Ninth Circuit law, “daily activities may be grounds for an adverse credibility finding ‘if a claimant 12 is able to spend a substantial part of his day engaged in pursuits involving the performance of 13 physical functions that are transferable to a work setting.’” Orn, 495 F.3d at 639 (citing Fair v. 14 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The Ninth Circuit has “repeatedly warned that ALJs 15 must be especially cautious in concluding that daily activities are inconsistent with testimony 16 about pain, because impairments that would unquestionably preclude work and all the pressures of 17 a workplace environment will often be consistent with doing more than merely resting in bed all 18 day.” Garrison, 759 F.3d at 1016 ; see also Vertigan v. Halter, 260 F.3d 1044 , 1049–50 (9th Cir. 19 2001) (“[T]he mere fact that a plaintiff has carried on certain daily activities, such as grocery 20 shopping, driving a car, or limited walking for exercise, does not in any way detract from her 21 credibility as to her overall disability.”). Further, the ALJ offered no evidence to support his 22 assertion that Saccomano’s “doctor’s recommendation of ‘staying active’ and exercising is 23 consistent with the finding that the claimant can perform light work.” AR at 26. This conclusion 24 alone, unsupported, is insufficient to meet the “clear and convincing” standard. 25 The ALJ did not find that Saccomano’s allegedly inconsistent daily activities are [27] 8 The Commissioner objects to the Ninth Circuit’s “clear and convincing reasons” standard for the 1 transferable to the workplace or offer convincing evidence that her report of daily activities 2 conflicted with her report of her symptoms; therefore, the ALJ committed a legal error when he 3 found Saccomano’s testimony not credible based on her daily reported activities. 4 2. Saccomano’s Pain Testimony and Her Daily Activity Testimony 5 Secondly, Saccomano’s testimony about her daily activities is not inconsistent with her 6 subjective pain testimony. The ALJ opined that Saccomano’s reports of restorative yoga and dog 7 walking were evidence that her testimony about her physical limitations were “overstated.” AR at 8 26. A closer look at Saccomano’s testimony at the hearing, however, reveals no inconsistency 9 between what Saccomano does each day and what she says her disability prevents her from doing. 10 The ALJ’s opinion makes these activities out to be more frequent and strenuous than is supported 11 by substantial evidence. For example, Saccomano’s testimony was that she walked the dogs three 12 times weekly (requiring rest afterwards) and went to restorative yoga four times weekly. Id. at 48. 13 These activities are not daily occurrences. The same is true for going out to lunch; Saccomano 14 testified that this was something she “maybe” did, id. at 52, suggesting that it is not a daily routine 15 as the ALJ implies. 16 The ALJ’s opinion similarly mischaracterized Saccomano’s yoga class. Id. at 26. The 17 class is not recreational. Saccomano testified that the restorative yoga class is a therapeutic 18 substitute for physical therapy and consists of “a gentle long stretch.” Id. at 46–48. Stretching 19 does not demonstrate an ability to work, and there is no basis to punish Saccomano for complying 20 with her doctor’s treatment recommendations, particularly given that failure to adhere to treatment 21 weighs negatively on a claimant’s credibility. See 20 C.F.R. §§ 404.1530 , 416.930 (requiring the 22 claimant to follow her course of prescribed treatment to receive benefits). 23 The ALJ also cited Saccomano’s testimony about “doing household chores,” such as 24 cooking, doing the dishes, grocery shopping, and weekly light vacuuming, as inconsistent with her 25 pain testimony. Id. at 26 . However, Saccomano undertakes these activities in ways designed to 26 accommodate her chronic pain. She limits herself to “small amounts [of dishes] at a time.” Id. at 27 50. While cooking, she cannot lift anything as heavy as a gallon of milk. Id. at 54 . She only 1 minutes afterwards. Id. at 50–51. Saccomano’s testimony that she needs frequent rest and must 2 modify the length and intensity of her activities is consistent with her subjective pain testimony 3 and the rest of the record when properly credited. 4 Finally, the ALJ points to Saccomano’s driving as evidence that her testimony about both 5 her pain and the side effects of her medications (drowsiness and difficulty concentrating) is not 6 credible. Id. at 25–26. Saccomano only drives to places near her home, spending a total of twenty 7 minutes per trip in the car. Id. at 52 . This is not inconsistent with her statement that she avoids 8 driving and other activities that require her to focus because of the side effects of her medication. 9 The record does not support this reason for rejecting Saccomano’s testimony. 10 3. Lack of Objective Medical Evidence 11 The ALJ’s third reason—that a lack of objective findings led him to discredit Saccomano’s 12 testimony—is unconvincing as a matter of law. The Ninth Circuit and the Social Security 13 Administration have made clear that “the Commissioner may not discredit the claimant’s 14 testimony as to the severity of symptoms merely because they are unsupported by objective 15 medical evidence.” Reddick, 157 F.3d at 722 . See also 20 C.F.R. § 404.1529 (c)(2) (assuring the 16 claimant that an ALJ “will not reject your statements about the intensity and persistence of your 17 pain or other symptoms or about the effect your symptoms have on your ability to work solely 18 because the available objective medical evidence does not substantiate your statements.”). The 19 Ninth Circuit has further specified that “an ALJ does not provide specific, clear, and convincing 20 reasons for rejecting a claimant’s testimony by simply reciting the medical evidence in support of 21 his or her residual functional capacity determination . . . . [The ALJ must] provide clear and 22 convincing reasons, supported by evidence in the record, to support that credibility 23 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Lack of objective 24 evidence alone is not a clear and convincing reason, and the ALJ did not provide any additional 25 reasoning beyond the lack of objective medical documentation. Therefore, a credibility 26 determination made on these grounds is unconvincing as a matter of law 27 4. Diagnostic Imaging and Conservative Treatment 1 benign.” Id. at 23. He points to the lack of surgery and “minimal” findings on the x-ray and MRI 2 as evidence of Saccomano’s lack of credibility. Id. at 23–24. The record tells a different story. 3 The May 2013 x-ray noted anterolisthesis, degenerative spondylolisthesis, flattening of the mid to 4 lower cervical curve, facet arthritis, and degenerative disk disease. Id. at 269. The 2014 MRI 5 found “mild degenerative change of the acromioclavicular joint,” id. at 311; this is consistent with 6 the 2009 MRI, which led Dr. Flapan to diagnose possible chronic thoracic outlet syndrome and 7 cervicalgia in 2013. Id. at 284–85. Dr. Massih noted that the 2014 EMG showed “definatly [sic] 8 impingement.” Id. at 974. 9 To support his reasoning, the ALJ selectively discusses Dr. Rustnazadeh’s findings. Id. at 10 23. While it is accurate that Dr. Rustanazadeh “cannot explain” the EMG findings of C6 11 radiculopathy, his conclusion was that “most likely, [Saccomano] has shoulder arthropathy.” Id. 12 at 298. The ALJ was also technically correct that Dr. Vaughn’s reading of the diagnostic imaging 13 yielded “no clear evidence of isolated C6 nerve root impingement.” Id. at 26 (citing id. at 305). 14 However, Dr. Vaughn went on to say, “I do not feel that her shoulder is the source of her pain” 15 and suggested that “a variant of thoracic outlet syndrome” could be the cause. Id. at 305. These 16 two physician opinions do not contradict the severity of Saccomano’s pain. Rather, they disagree 17 as to its cause. Accordingly, it is not convincing for the ALJ to advance their opinions to discredit 18 Saccomano’s pain testimony. 19 The ALJ also pointed to the fact that Saccomano did not need surgery to support his 20 conclusion that she was exaggerating her symptoms. However, the ALJ overlooked (or perhaps 21 discredited without sufficient reason) Dr. Li’s treatment note that surgery “might be indicated but 22 carries much higher risks and financial burden.” Id. at 336. This is particularly relevant given the 23 adverse reaction Saccomano had to her hysterectomy in 2014. See id. at 518–19 24 (“Intraoperatively, the patient has a significant vasovagal episode with profound bradycardia and 25 hypertension . . . . It was felt that the patient likely developed Takotsubo Syndrome and will make 26 a full recovery.”); see also Pl’s Mot. (dkt. 20) at 7 n.2 (discussing a source explaining that 27 Takotsubo syndrome can be a reaction to surgery.). The ALJ did not address any of these issues; 1 therefore not clear and convincing. 2 Finally, the ALJ asserts that Saccomano’s treatment was “conservative” and that her 3 symptoms were solved with medication. Neither of these assertions is supported by the record. 4 First, Dr. Li did not consider epidural injections “conservative” treatment, but instead prescribed 5 the injections because “conservative treatment had failed.” AR at 341. In addition, the ALJ offers 6 no justification for classifying epidural shots, which are administered by a surgeon and require 7 conscious sedation, as “conservative.” See Garrison, 759 F.3d at 1015 n.20 (“[W]e doubt that 8 epidural steroid shots to the neck and lower back qualify as ‘conservative medical treatment.’”). 9 Finally, Saccomano did not claim that medication fully alleviates her pain, only that it reduces it, 10 and further testified that the medication causes significant side effects. AR at 56 (Saccomano’s 11 testimony that medication reduces the pain from “eight to ten” to “about a four or a five,” and that 12 it causes “dizziness, drowsiness, and limited concentration”). The record does not support the 13 ALJ’s final reason, and it is therefore not convincing. 14 None of the ALJ’s reasons for dismissing Saccomano’s testimony as not credible are clear 15 and convincing. The ALJ committed a reversible legal error in failing to credit Saccomano’s 16 testimony about her subjective pain symptoms. 17 D. The ALJ Erred in His Step Five Analysis 18 Finally, Saccomano argues that the ALJ’s determination that she could perform light 19 work—specifically as a small products assembler, production assembler, or bench assembler— 20 was legal error because the ALJ relied on vocational expert testimony that conflicted with the 21 DOT without persuasive evidence, and because the ALJ’s hypotheticals were defective. The 22 Court agrees. 23 1. Conflict Between Vocational Expert Testimony and the DOT 24 At the November 17, 2013 hearing, the ALJ heard testimony from vocational expert 25 Ronald Morrell that the three jobs he referenced required only “occasional” reaching and were 26 therefore appropriate substantial gainful employment for Saccomano given the ALJ’s 27 determination of her RFC. AR at 63. This assessment, he admitted, was contrary to the DOT and 1 products assembler and “frequent” for production and bench assemblers. AR 66–67; see also 2 SCO at 281 (production assembler), 282 (bench assembler), and 285 (small products assembler). 3 In situations like this, “an ALJ may rely on expert testimony which contradicts the DOT, but only 4 insofar as the record contains persuasive evidence to support the deviation.” Johnson, 60 F.3d at 5 1435. 6 The vocational expert testified that he based his deviation from the DOT and SCO on his 7 personal observations of the jobs being performed. AR at 67. He testified that he had not seen the 8 jobs done in three or four years. Id. He further testified that he had not prepared any reports about 9 the jobs or the discrepancy between what he had seen and what was reported in the DOT. Id. 10 Other than noting that his observations occurred several years earlier, the vocational expert did not 11 discuss the extent to which he had observed these jobs being performed or address whether his 12 observations were sufficient to reach a conclusion as to the entire category of jobs. See id. at 66– 13 68. The ALJ did not inquire further as to the basis for the vocational expert’s opinion. An 14 unrecorded and unexamined or explained past recollection from years ago is not persuasive 15 evidence to support a deviation from the DOT and the SCO. Because the vocational expert’s 16 deviation from the DOT and the SCO regarding the amount of reaching required by the jobs he set 17 forth is not supported by persuasive evidence in the record, the ALJ erred in relying on his 18 testimony. 19 2. Incomplete Hypotheticals 20 Saccomano further argues that the vocational expert’s opinion is of “no evidentiary value” 21 because the ALJ failed to include all Saccomano’s limitations in the hypotheticals he posed to the 22 vocational expert. Hypotheticals “must include ‘all of the claimant’s functional limitations, both 23 physical and mental’ supported by the record.” Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 24 2002) (quoting Flores v. Shalala, 49 F.3d 562 , 570–71 (9th Cir. 1995)). Saccomano testified 25 about her “drowsiness, dizziness, and limited concentration.” AR at 56–58. In addition, Dr. Li, 26 whose opinion the ALJ improperly discredited, opined that Saccomano would miss more than four 27 days of work each month and that she would need unscheduled breaks of five to ten minutes 1 feeling. Id. at 983. The ALJ’s two hypotheticals, however, did not mention these limitations. See 2 id. at 61, 65. 3 While the ALJ “need not include all claimed impairments in his hypotheticals, he must 4 make specific findings explaining his rationale for disbelieving any of the claimant’s subjective 5 complaints not included in the hypothetical.” Light v. Soc. Sec. Admin., 119 F.3d 789 , 793 (9th 6 Cir. 1997). The ALJ did not make a specific finding explaining his rationale for not including 7 Saccomano’s limitations with respect to time off-task, missed work days, and manipulation limits 8 in his hypotheticals. He did not specifically address the medication side effects of drowsiness, 9 dizziness, and lack of concentration, or Dr. Li’s opinion as stated in his 2016 medical source 10 statement beyond discussing his general lack of trust in both sources; as discussed above, his 11 reasons for discrediting those sources were not sufficient. The ALJ therefore erred in failing to 12 include Saccomano’s limitations regarding being off-task at work, missing work, and having 13 difficulty with manipulative tasks in his hypotheticals to the vocational expert. 14 Ninth Circuit precedent dictates that this error is not harmless: 15 [A]n ALJ is not free to disregard properly supported limitations . . . . Such a failure [to include a claimant’s validly determined limitations] 16 cannot be deemed harmless because, if the ignored testimony is credited, a proper hypothetical would have included limitations 17 which, the record suggests, would have been determinative as to the vocational expert's recommendation to the ALJ. [18] 19 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). Here, the Court knows what the 20 vocational expert’s response would have been to a hypothetical including all Saccomano’s 21 limitations because Saccomano’s attorney posed one. Id. at 68–69 (presenting additional 22 hypotheticals, including one corresponding to Dr. Li’s assessment of Saccomano’s reaching, 23 handling, and fingering limitations). The vocational expert’s response is clear: “There’d be no 24 jobs.” Id. at 69. Based on that response, the Court can assume that “a proper hypothetical would 25 have been determinative as to the vocational expert’s recommendation,” and concludes that the 26 ALJ’s error in relying on an incomplete hypothetical RFC was not harmless. See Robbins, 466 27 F.3d at 886. 1 E. Remand for Benefits Is Appropriate 2 The proper remedy for the ALJ’s legal errors is for the Court to remand the case for an award of 3 benefits. The Ninth Circuit follows the “credit as true” rule, a three-part test that allows the Court 4 to remand to the ALJ to calculate and award benefits when: (1) “the ALJ failed to provide legally 5 sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion”; 6 (2) “there are [no] outstanding issues that must be resolved before a disability determination can 7 be made” and “further administrative proceedings would [not] be useful”; and (3) “on the record 8 taken as a whole, there is no doubt as to disability.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th 9 Cir. 2017) (citations and internal quotation marks omitted); see also Garrison, 759 F.3d at 1021 10 (holding that a district court abused its discretion in declining to apply the “credit as true” rule to 11 an appropriate case). The “credit-as-true” rule does not apply “when the record as a whole creates 12 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 13 Security Act,” Garrison, 759 F.3d at 1021 , when “there is a need to resolve conflicts and 14 ambiguities,” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014), or 15 when there is ambiguity about when the claimant’s disability began that is not solved by the 16 record credited as true. See Dominquez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). 17 Here, as discussed above, the ALJ failed to provide legally sufficient reasons for rejecting 18 Dr. Li’s opinions and Saccomano’s testimony. No outstanding issues must be resolved through 19 further administrative proceedings, and nothing in the record raises serious doubt as to whether 20 Saccomano is truly disabled. As in cases where the Ninth Circuit has held the “credit as true” rule 21 to be appropriate, the physician who treated Saccomono “extensively”—Dr. Li—found 22 consistently that she had disabling limitations, his “opinion was supported by other doctors’ 23 diagnoses, . . . a vocational expert addressed the physical limitations outlined by the physician and 24 testified that the claimant was unable to do any full-time work,” and the “administrative record [is] 25 extensive and without inconsistencies in the claimant’s primary physician’s medical opinions.” 26 See Leon, 880 F.3d at 1047 (summarizing Trevizo v. Berryhill, 871 F.3d 664, 677, 683 (9th Cir. 27 2017)) (emphasis added). Also as in such cases, the ALJ rejecting Saccomano’s testimony 1 alleged, although the claimant’s testimony as to her own limitations was not inconsistent with the 2 medical opinions and observations in the record.” Id. (summarizing Trevizo, 871 F.3d at 679–80). 3 Although doctors who treated Saccomano differed in their opinions of what, exactly, caused her 4 pain, none opined that her pain was not as severe as she testified. The Court concludes that the 5 credit-as-true rule applies under these circumstances. 6 The Commissioner argues that, because “the RFC assessment contains no restrictions in 7 reaching, either in direction or frequency, for the left upper extremity,” remand for further 8 hearings is appropriate to determine the capacity of her left arm and shoulder. Comm’r’s Mot. 9 (dkt. 24) at 17 (citing AR at 26). The issue of whether to treat DOT descriptions as unilateral or 10 bilateral is not settled. See Lamear v. Berryhill, 865 F.3d 1201 , 1206 n.4 (9th Cir. 2017) 11 (acknowledging the differing opinions among the federal circuits). Regardless of Saccomano’s 12 restriction on reaching, however, her pain symptoms and the side effects of her medication are 13 sufficient to render her disabled. Dr. Li opined that that Saccomano would miss more than four 14 days of work per month, and the ALJ failed to provide legally sufficient reasons to reject that 15 opinion. AR at 983. The vocation expert testified unambiguously that no job available to 16 someone with Saccomano’s other restrictions would permit her to miss more than two days per 17 month “on a regular consistent basis.” Id. at 69–70. 18 There are no outstanding issues remaining because, even if the Court were to remand for a 19 determination regarding Saccomano’s left hand, properly crediting her pain testimony and Dr. Li’s 20 assessment of her ability to attend work would compel an award of benefits independent of 21 restrictions on reaching. Further proceedings with respect to this issue would be inappropriate and 22 the matter is therefore REMANDED for an award of benefits. See Garrison, 759 F.3d at 1019– 23 21. 24 IV. CONCLUSION 25 For the reasons discussed above, Saccomano’s motion is GRANTED, the Commissioner’s 26 motion is DENIED, and the matter is REMANDED to the Commissioner for an award of benefits 27 / / / 1 consistent with this order. The Clerk is instructed to enter a judgement accordingly and to close 2 || the file. 3 IT IS SO ORDERED. 4 || Dated: September 30, 2019 J PH C. SPERO 6 ief Magistrate Judge [41] © [16] = 17 Z 18