Ortega v. Commissioner of Social Security

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Mar 11, 2020 [2] SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 RAFAEL O,1 No. 4:19-CV-5114 -EFS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 10 ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION of Social Security,2 [11] Defendant. [13] 14 Before the Court are the parties’ cross summary-judgment motions.3 15 Plaintiff Rafael O. appeals the denial of benefits by the Administrative Law Judge 16 (ALJ). He alleges the ALJ erred by 1) improperly weighing the medical opinions; 2) [18] 1 To protect the privacy of the social-security Plaintiff, the Court refers to him by [19] first name and last initial or by “Plaintiff.” See LCivR 5.2(c). [20] 2 Andrew Saul is Commissioner of the Social Security Administration. Accordingly, [21] the Court substitutes Andrew M. Saul as the Defendant. See Fed. R. Civ. P. 25(d). [22] 3 ECF Nos. 11 & 12. [1] discounting Plaintiff’s symptom reports; 3) improperly determining that the [2] impairments did not meet or equal a listed impairment; and 4) improperly [3] assessing Plaintiff’s residual functional capacity and therefore relying on an [4] incomplete hypothetical question to the vocational expert at step five. In contrast, [5] Defendant Commissioner of Social Security asks the Court to affirm the ALJ’s [6] decision finding Plaintiff not disabled. After reviewing the record and relevant [7] authority, the Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 11, [8] and denies the Commissioner’s Motion for Summary Judgment, ECF No. 12. [9] I. Five-Step Disability Determination [10] A five-step sequential evaluation process is used to determine whether an [11] adult claimant is disabled.4 Step one assesses whether the claimant is currently [12] engaged in substantial gainful activity.5 If the claimant is engaged in substantial [13] gainful activity, benefits are denied.6 If not, the disability-evaluation proceeds to [14] step two.7 [15] Step two assesses whether the claimant has a medically severe impairment, [16] or combination of impairments, which significantly limits the claimant’s physical [4] 20 C.F.R. § 416.920 (a). [5] Id. § 416.920(a)(4)(i). [21] 6 Id. § 416.920(b). [22] 7 Id. [1] or mental ability to do basic work activities.8 If the claimant does not, benefits are [2] denied. 9 If the claimant does, the disability-evaluation proceeds to step three.10 [3] Step three compares the claimant’s impairment(s) to several recognized by [4] the Commissioner to be so severe as to preclude substantial gainful activity.11 If an [5] impairment meets or equals one of the listed impairments, the claimant is [6] conclusively presumed to be disabled.12 If an impairment does not, the disability7 evaluation proceeds to step four. [8] Step four assesses whether an impairment prevents the claimant from [9] performing work he performed in the past by determining the claimant’s residual [10] functional capacity (RFC).13 If the claimant is able to perform prior work, benefits [11] are denied.14 If the claimant cannot perform prior work, the disability-evaluation [12] proceeds to step five. [13] Step five, the final step, assesses whether the claimant can perform other [14] substantial gainful work—work that exists in significant numbers in the national [8] 20 C.F.R. § 416.920 (a)(4)(ii). [9] Id. § 416.920(c). [18] 10 Id. [19] 11 Id. § 416.920(a)(4)(iii). [20] 12 Id. § 416.920(d). [21] 13 Id. § 416.920(a)(4)(iv). [22] 14 Id. [1] economy—in light of the claimant’s RFC, age, education, and work experience.15 If [2] so, benefits are denied. If not, benefits are granted.16 [3] The claimant has the initial burden of establishing entitlement to disability [4] benefits under steps one through four.17 At step five, the burden shifts to the [5] Commissioner to show that the claimant is not entitled to benefits.18 [6] II. Factual and Procedural Summary [7] Plaintiff filed a Title XVI application, alleging an amended disability onset [8] date of October 28, 2015.19 His claim was denied initially and upon [9] reconsideration.20 A video administrative hearing was held before Administrative [10] Law Judge Donna Walker.21 [11] In denying Plaintiff’s disability claim, the ALJ made the following findings: [12]  Step one: Plaintiff had not engaged in substantial gainful activity [13] since October 28, 2015, the application date; [15] 20 C.F.R. § 416.920 (a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. [16] 1984). [16] 20 C.F.R. § 416.920 (g). [18] 17 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). [18] Id. [20] 19 AR 15 & 285-90. [21] 20 AR 186-92 & 202-11. [22] 21 AR 72-101. [1]  Step two: Plaintiff had the following medically determinable severe [2] impairments: lumbago, without sciatica; remote injury (1992), right [3] upper extremity, forearm, elbow, wrist; ulnar nerve damage; arm [4] pain; bilateral first metatarsophalangeal joint arthritis; and obesity; [5]  Step three: Plaintiff did not have an impairment or combination of [6] impairments that met or medically equaled the severity of one of the [7] listed impairments; [8]  RFC: Plaintiff had the RFC to: [9] perform light work as defined in 20 CFR 416.967(b) except, with the left upper extremity, [Plaintiff] has the ability to [10] lift and/or carry up to 20 pounds occasionally (up to 1/3 of workday), and 10 pounds frequently (up to 2/3 of the [11] workday). With the right upper extremity, [Plaintiff] has the ability to lift and/or carry up to 10 pounds occasionally, and [12] less than 10 pounds frequently. [Plaintiff] has the ability to sit up to 6 hours, and stand and/or walk up to 6 hours. [13] [Plaintiff] has the unlimited ability to push and/or pull, other than as stated for lift/carry. Regarding postural [14] abilities, [Plaintiff] has the unlimited ability to balance, climb ramps or stairs, stoop (i.e., bend at the waist); kneel or [15] crouch (i.e., bend at the knees); but should never crawl, or climb ladders, ropes or scaffolds. [Plaintiff] has the [16] unlimited ability to reach in all directions, including overhead. [Plaintiff] has the unlimited ability to see, hear [17] and communicate. Regarding use of hands, [Plaintiff] has the unlimited ability to handle, for gross manipulation. With [18] his left hand, [Plaintiff] has unlimited use for fingering (fine manipulation) or feel (use of skin receptors). With his right [19] hand, [Plaintiff] has the ability to occasionally finger and feel. Regarding the environment, [Plaintiff] has no [20] limitations regarding exposure to extreme cold, extreme heat, wetness, humidity, noise, fumes, odors, dust, gases or [21] poor ventilation or vibration; but should avoid concentrated exposure to hazards, such as dangerous machinery and [22] unprotected heights. [1]  Step four: Plaintiff was not capable of performing past relevant work; [2] and [3]  Step five: considering Plaintiff’s RFC, age, education, and work [4] history, Plaintiff was capable of performing work that existed in [5] significant numbers in the national economy, such as storage facility [6] rental clerk, furniture rental consultant, and coin machine collector.22 [7] When assessing the medical-opinion evidence, the ALJ gave: [8]  great weight to the reviewing opinion of Norman Staley, M.D.; [9]  partial weight to the treating opinions of Nicolas DeJong, PAC; and [10]  little weight to the reviewing opinions of Brent Packer, M.D., and [11] Myrna Palasi, M.D.23 [12] The ALJ also found that Plaintiff’s medically determinable impairments [13] could reasonably be expected to cause some of the alleged symptoms, but that his [14] statements concerning the intensity, persistence, and limiting effects of those [15] symptoms were not entirely consistent with the medical evidence and other [16] evidence in the record.24 [20] 22 AR 12-30. [21] 23 AR 23. [22] 24 AR 21-23. [1] Plaintiff requested review of the ALJ’s decision by the Appeals Council, [2] which denied review.25 Plaintiff timely appealed to this Court. [3] III. Standard of Review [4] A district court’s review of the Commissioner’s final decision is limited.26 The [5] Commissioner’s decision is set aside “only if it is not supported by substantial [6] evidence or is based on legal error.”27 Substantial evidence is “more than a mere [7] scintilla but less than a preponderance; it is such relevant evidence as a reasonable [8] mind might accept as adequate to support a conclusion.”28 Moreover, because it is [9] the role of the ALJ and not the Court to weigh conflicting evidence, the Court [10] upholds the ALJ’s findings “if they are supported by inferences reasonably drawn [11] from the record.”29 The Court considers the entire record as a whole.30 [14] 25 AR 1-6 & 276-77. [26] 42 U.S.C. § 405 (g). [16] 27 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). [28] Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). [18] 29 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). [19] 30 See Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must [20] consider the entire record as whole, weighing both the evidence that supports and [21] the evidence that detracts from the Commissioner's conclusion,” not simply the [22] evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. [1] Further, the Court may not reverse an ALJ decision due to a harmless [2] error.31 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate [3] nondisability determination.”32 The party appealing the ALJ’s decision generally [4] bears the burden of establishing harm.33 [5] IV. Analysis [6] A. Medical Opinions: Plaintiff establishes consequential error. [7] Plaintiff challenges the ALJ’s weighing of the opinions of Myrna Palasi, [8] M.D., Nicolas DeJong, PA-C, and Brent Packer, M.D. The Court agrees the ALJ [9] erred in failing to meaningfully explain why he discounted these medical opinions [10] in regard to Plaintiff’s right upper extremity, and therefore the Court is unable to [11] assess whether the ALJ’s findings are supported by substantial evidence. [12] The weighing of medical-source opinions is dependent upon the nature of the [13] medical relationship, i.e., 1) a treating physician; 2) an examining physician who [14] examines but did not treat the claimant; and 3) a non-examining physician who [15] neither treated nor examined the claimant.34 Generally, more weight is given to [17] 1998) (“An ALJ's failure to cite specific evidence does not indicate that such evidence [18] was not considered[.]”). [19] 31 Molina, 674 F.3d at 1111 . [32] Id. at 1115 (quotation and citation omitted). [21] 33 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). [22] 34 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). [1] the opinion of a treating physician than to the opinion of a non-treating [2] physician.35 When a treating physician’s opinion is not contradicted by another [3] physician, it may be rejected only for “clear and convincing” reasons, and when it is [4] contradicted, it may not be rejected without “specific and legitimate reasons” [5] supported by substantial evidence in the record.36 A reviewing physician’s opinion [6] may be rejected for specific and legitimate reasons supported by substantial [7] evidence, and the opinion of an “other” medical source may be rejected for specific [8] and germane reasons supported by substantial evidence.37 The opinion of a [9] nonexamining physician serves as substantial evidence if it is supported by other [10] independent evidence in the record.38 [11] 1. Dr. Palasi [12] Plaintiff significantly injured his right upper extremity, including his wrist, [13] forearm, and elbow in 1992. Even after surgeries in 1993, Plaintiff continued to [14] experience functional limitations with his right upper extremity and hand. In April [15] 2013, Dr. Palasi reviewed a 2013 medical report prepared by PA-C Paul Furan and [16] a 2013 clinical record.39 Dr. Palasi found that Plaintiff, in regard to his right upper [35] Id. [36] Id. [20] 37 Molina, 674 F.3d at 1111 ; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). [21] 38 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). [22] 39 AR 402. [1] extremity, had weakness and atrophy; decreased range of movement of his right [2] elbow, wrist, and fingers; poor grip; and loss of fine motor skills.40 Dr. Palasi opined [3] that due to Plaintiff’s right arm conditions that he was more limited than the [4] sedentary work restrictions in regard to lifting and carrying, which is a ten-pound [5] lifting restriction and frequent lifting or carrying of small articles such as files or [6] small tools. [7] The ALJ gave little weight to Dr. Palasi’s opinion because it was [8] “inconsistent with the longitudinal record.”41 While consistency with the medical [9] record is a factor for the ALJ to consider, the ALJ did not explain in the paragraph [10] pertaining to Dr. Palasi why the opinion was inconsistent with the longitudinal [11] record.42 In other sections of the opinion, the ALJ discussed portions of the medical [12] record and other medical opinions, but the ALJ’s opinion still as a whole does not [13] permit the Court to meaningfully assess whether the ALJ’s finding that Dr. [14] Palasi’s opinion was inconsistent with the longitudinal record relating to Plaintiff’s [15] right arm is supported by substantial evidence.43 [17] 40 AR 402-04. [18] 41 AR 23. [19] 42 See Lingenfelter, 504 F.3d at 1042 (recognizing that the ALJ is to consider the [20] consistency of the medical opinion with the record as a whole). [21] 43 See Nguyen v. Chater, 100 F.3d 1362, 164 (9th Cir. 1996); Embrey v. Bowen, 849 22 F.2d 418, 421-22 (9th Cir. 1988) (requiring the ALJ to identify the evidence [1] The medical record reflects that, even after surgeries to his right upper [2] extremity, Plaintiff’s functioning was limited.44 For instance, in March 2013, PA-C [3] Paul Furan found that both Plaintiff’s musculoskeletal and nervous systems were [4] abnormal as to his right upper extremity and that Plaintiff had poor strength and [5] grip in his right arm and therefore could not guide a forklift’s hand controls with [6] his right hand as he was unable to do any fine manipulation.45 Mr. Furan stated, “I [7] cannot see any treatment that can reverse this injury.”46 In April 2013, Brent [8] Bingham, D.O. found that Plaintiff had nerve damage to his right hand with no [12] supporting the found conflict to permit the court to meaningfully review the ALJ’s [13] finding); Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the ALJ [14] to build an accurate and logical bridge from the evidence to her conclusions so that [15] we may afford the claimant meaningful review of the SSA’s ultimate findings.”). [16] 44 The administrative record did not contain any medical records before March 2013. [17] The prior ALJ decision from 2015 discusses some of the prior medical evidence, [18] including a March 2013 report by Elizabeth Anderson, PA-C and a 2014 examination [19] performed by Dr. Wing Chau, which are not part of the current administrative [20] record. AR 105-118. [21] 45 This was a report that Dr. Palasi reviewed. AR 402 (relying on AR 395-97). [22] 46 AR 397. [1] sensation to the tips of his fingers, although they did have function.47 In January [2] 2015, Plaintiff was observed by a nurse to have weak right-hand grip.48 [3] In January 2016, PA-C Nicholas DeJong, who often was Plaintiff’s treating [4] provider, observed tenderness and a visible spasm of the bilateral paraspinal [5] muscles, decreased range of motion of the right elbow and wrist, and 1/5 right-hand [6] grip strength.49 Mr. DeJong completed a Physical Functional Evaluation and [7] diagnosed Plaintiff with right wrist and elbow dysfunction/disorder, decreased [8] hand sensation, and ulnar nerve damage, all of which markedly interfered with [9] Plaintiff’s ability to perform basic work-related activities.50 Mr. DeJong found that [10] Plaintiff’s right upper extremity condition caused a limited ability to grip, hold, [11] sense, and fully move his right arm and hand, decreased elbow extension, [12] decreased grip strength (1/5), tingling sensation in his fourth and fifth digits, and [13] numbness in his first and third digits. Mr. DeJong marked that Plaintiff was able [14] to perform sedentary work, which was defined, in part, as including the ability to [15] lift ten pounds maximum and frequent lift or carry lightweight articles. Mr. [16] DeJong found that Plaintiff’s right upper extremity limitations were to last [19] 47 AR 588. [20] 48 AR 408. [21] 49 AR 437-38. [22] 50 AR 438-39 & 543-44. [1] indefinitely and would not improve. Mr. DeJong’s report was reviewed and adopted [2] by a physician.51 [3] Two weeks later, Brent Packer, M.D. reviewed PA-C DeJong’s cosigned [4] January 2016 report, Dr. Palasi’s 2013 report, and the co-signed report prepared by [5] Elizabeth Anderson, PA in 2013.52 Dr. Packer diagnosed Plaintiff with internal [6] derangement of the forearm and dysfunction of the hand, elbow, and wrist with [7] ulnar damage. Dr. Packer stated: [8] Recommend change to less than sedentary highest work activity. [Claimant] is unable to [lift/carry] even small articles frequently with [9] the [right upper extremity] due to such extensive and permanent damage along with chronic pain that appears to interfere with [10] [activities of daily living]. Recommend benefit to [claimant] due to the permanent condition with chronic pain.53 [11] In July 2016, Mr. DeJong treated Plaintiff for decreased range of motion in [12] his right shoulder, which was causing numbness and tingling down his right arm [17] 51 The co-signing physician was Flint Orr, M.D. The Court acknowledges that neither [18] party nor (possibly) the ALJ deciphered Dr. Orr’s signature. The ALJ did not [19] mention Dr. Orr or that a physician co-signed Mr. DeJong’s two reports. AR 544 & [20] 552. [21] 52 AR 458-61. [22] 53 AR 458. [1] to his fingers.54 In August 2016, Mr. DeJong conducted Plaintiff’s annual exam.55 [2] Mr. DeJong found a “baseline decrease in [range of movement] of right elbow and [3] wrist” and “baseline decrease in sensation of right hand.”56 In December 2016, [4] Plaintiff was treated for a laceration to his right palm, which occurred when he [5] pushed a vase down in the trash.57 Plaintiff reported that he does not feel pain in [6] his right hand due to chronic numbness.58 [7] In September 2017, Mr. DeJong treated Plaintiff for a follow-up for reported [8] shoulder pain.59 Plaintiff exhibited decreased range of motion in the right shoulder [9] along with decreased strength in the right shoulder flexion and abduction. Mr. [10] DeJong found the right shoulder condition was due to Plaintiff guarding his right [11] elbow and wrist, resulting in inactivity of the right shoulder. [12] Two months later, Plaintiff visited Mr. DeJong for completion of forms [13] relating to his claimed disability due to his right wrist and elbow dysfunction and [14] right ulnar nerve damage.60 Based on the injuries to the right upper extremities, [16] 54 AR 553. [17] 55 AR 557-61. [18] 56 AR 558. [19] 57 AR 494. [58] Id. [21] 59 AR 570-71. [22] 60 AR 550-52 & 573-77. [1] Mr. DeJong found that Plaintiff had a limited ability to grip due to decreased [2] finger and hand grip (2/5) and limited ability to fully move his right arm, wrist, and [3] hand, along with decreased sensation and strength in his right fingers. Mr. DeJong [4] limited Plaintiff to sedentary work (defined as being able to lift ten pounds [5] maximum and frequently lift or carry lightweight articles) indefinitely and noted [6] that the injury to the wrist and elbow was long term and that the right upper [7] extremity was as strong as it would be. Mr. DeJong’s report was reviewed and co8 signed by Dr. Orr. [9] The medical record reflects that Plaintiff consistently reported, and was [10] observed with, limitations to his right upper extremity, including weakened grip [11] and strength, reduced sensation in his fingers, and reduced range of motion of the [12] hand, wrist, and arm. Moreover, Dr. Palasi’s opinion that Plaintiff’s functions with [13] his right upper extremity were more limited than the typical upper-extremity [14] restrictions associated with sedentary work is largely consistent with Dr. Packer’s [15] opinion and Mr. DeJong’s cosigned opinions. [16] The Commissioner argues that the ALJ was not required to discuss Dr. [17] Palasi’s opinion because it pertained to the period already adjudicated by the prior [18] ALJ decision.61 While the ALJ may not have been required to discuss Dr. Palasi’s [19] opinion, Plaintiff’s right-upper-extremity condition has been longstanding and [20] therefore that the ALJ considered Dr. Palasi’s opinion inconsistent with the [22] 61 ECF No. 12 at 16 (citing AR 113). [1] longitudinal record reflects, at least in a conclusory manner, the ALJ’s [2] interpretation of the record. On this medical record, without the ALJ offering a [3] meaningful explanation as to why Dr. Palasi’s opinion was “inconsistent with the [4] longitudinal record,” the ALJ erred by discounting Dr. Palasi’s opinion.62 [5] 2. PA-C DeJong [6] Physician’s assistant Mr. DeJong treated Plaintiff for a variety of medical [7] conditions. On two occasions Mr. DeJong completed a Physical Functional [8] Evaluation for Plaintiff.63 The first evaluation occurred January 28, 2016. Due to [9] Plaintiff’s prior injury and surgeries to his right upper extremity to repair his [10] tendons and vessels, Mr. DeJong diagnosed Plaintiff with right wrist [11] dysfunction/disorder, right elbow dysfunction/disorder, decreased hand sensation, [12] and ulnar nerve damage, all of which Mr. DeJong opined markedly interfered with [13] Plaintiff’s ability to perform basic work-related activities.64 Mr. DeJong found that [14] Plaintiff had a limited ability to grip, hold, sense, and fully move his right arm and [15] hand, decreased elbow extension, decreased grip strength (1/5), tingling sensation [16] in his fourth and fifth digits, and numbness in his first and third digits. Mr. [18] 62 AR 23. See Embrey, 849 F.2d at 421-22 (requiring the ALJ to identify the evidence [19] supporting the found conflict to permit the court to meaningfully review the ALJ’s [20] finding); Blakes, 331 F.3d at 569 (same). [21] 63 AR 437-41, 542-46, & 550-52. [22] 64 AR 438-39 & 543. [1] DeJong marked that Plaintiff was able to perform sedentary work, which was [2] defined, in part, as including the requirements of lifting ten pounds and frequently [3] lifting or carrying lightweight articles.65 Mr. DeJong found that Plaintiff’s right [4] upper extremity limitations were to last indefinitely. Mr. DeJong’s report was [5] reviewed and adopted by Dr. Orr. [6] In November 2017, Mr. DeJong issued another report that was again [7] reviewed and adopted by the same physician.66 Based on the injuries to the right [8] upper extremity, Mr. DeJong found that Plaintiff had a limited ability to grip, hold, [9] and fully move his right arm, wrist, and hand. Mr. DeJong limited Plaintiff to [10] sedentary work indefinitely. [11] The ALJ gave partial weight to Mr. DeJong’s co-signed 2016 and 2017 [12] opinions because while Mr. DeJong “appeared to base his opinion on his objective [13] findings . . . the limitation is not consistent with the longitudinal record.”67 The [14] ALJ also discounted Mr. DeJong’s 2017 opinion because he did not refer to [15] Plaintiff’s bilateral foot arthritis, thus indicating that Mr. DeJong did not evaluate [16] Plaintiff’s full capabilities. [17] First, the parties disagree as to what standard applies to the ALJ’s weighing [18] of Mr. DeJong’s opinions, which were both co-signed by Dr. Orr. Plaintiff argues [20] 65 AR 544. [21] 66 AR 550-52. [22] 67 AR 23. [1] that the ALJ was required to articulate legitimate and specific reasons for [2] discounting these co-signed opinions, while the Commissioner argues that the ALJ [3] was only required to give germane reasons for discounting Mr. DeJong’s opinion, [4] even if it was co-signed by a physician.68 [5] It is undisputed that, per the regulations that apply to Plaintiff’s [6] application, Mr. DeJong, as a physician’s assistant, is an “other” medical source.69 [7] The ALJ is to use “other” medical source opinions in determining the “severity of [8] [the individual's] impairment(s) and how it affects [the individual's] ability to [9] work.”70 The ALJ may not reject the competent testimony of “other” medical [10] sources without comment.71 In order to reject the competent testimony of “other” [11] medical sources, the ALJ must give specific “reasons germane to each witness for [12] doing so.”72 [14] 68 See Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (discussing 20 C.F.R. § 15 416.913). [16] 69 See 20 C.F.R. § 416.902 (a)(8) (including licensed physician's assistant as [17] acceptable medical source for impairments within his licensed scope of practice “only [18] with respect to claims filed . . . on or after March 27, 2017”). [19] 70 SSR 06-03p, 2006 WL 2329939 , at *2; 20 C.F.R. § 416.913 (a(3). [20] 71 Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). [21] 72 Molina, 674 F.3d at 1111 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217 , [22] 1224 (9th Cir. 2010)). [1] Here, there can be no dispute that Mr. DeJong’s diagnosis as to Plaintiff’s [2] right upper extremity is supported by the medical evidence. The focus instead is on [3] what standard applied to the ALJ’s weighing of Mr. DeJong’s co-signed opined [4] limitations and whether the ALJ satisfied the applicable standard. Unfortunately, [5] the ALJ neither states whether she was treating Mr. DeJong’s opinions as opinion [6] from an “other source” for which she was to provide germane and specific reasons [7] supported by substantial evidence for discounting, or as opinions from a medical [8] provider, given that Dr. Orr co-signed Mr. DeJong’s two reports, for which the ALJ [9] was to provide, at a minimum, specific and legitimate reasons supported by [10] substantial evidence for discounting.73 Regardless, the ALJ’s offered reasons for [11] discounting Mr. DeJong’s opinions fail even under the lenient germane-reasons [12] standard. [13] Similar to Dr. Palasi, the ALJ failed to offer an explanation as to how Mr. [14] DeJong’s opinions were inconsistent with the longitudinal medical evidence. The [15] ALJ’s discussion of the medical evidence merely summarizes the treatment records [16] and offers no interpretation thereof as to how it is inconsistent with Mr. DeJong’s [17] opinions that Plaintiff’s abilities to grip, hold, sense, and fully move his right arm [18] and hand were markedly limited, restricting him to lifting ten pounds maximum [19] along with frequently lifting or carrying lightweight articles. [21] 73 The ALJ did not even note that Mr. DeJong’s opinions were reviewed and co-signed [22] by a physician. See 20 C.F.R. § 416.927 ; Gomez, 74 F.3d at 970-71 . [1] The ALJ also discounted Mr. DeJong’s 2017 opinion because he did not refer [2] to Plaintiff’s bilateral foot arthritis, “indicating he did not evaluate [Plaintiff’s] full [3] capabilities.”74 While a provider’s failure to evaluate a condition may be critical to [4] analyzing his opinion, here the focus of Mr. DeJong’s functional report was Plaintiff’s [5] functional abilities with his upper extremities, specifically his right upper extremity. [6] That Mr. DeJong did not refer to Plaintiff’s bilateral foot arthritis in his report was [7] not a germane reason to discount his assessment as to Plaintiff’s right-upper8 extremity abilities.75 [9] In sum, the ALJ failed to provide sufficiently articulated reasons for [10] discounting Mr. DeJong’s opinions. [11] 3. Dr. Packer [12] In February 2016, Dr. Packer reviewed Dr. Palasi’s report, Mr. DeJong’s [13] January 2016 report, and Ms. Anderson March 2013 report.76 Dr. Packer diagnosed [14] Plaintiff with internal derangement of the forearm and dysfunction of the hand, [15] elbow, and wrist with ulnar damage. Dr. Packer found that Plaintiff had marked [16] non-exertional restrictions, postural restrictions, and gross or fine motor skill [18] 74 AR 23. [19] 75 See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (recognizing that it is not [20] legitimate to discount an opinion for a reason that is not responsive to the medical [21] opinion). [22] 76 AR 458-61. [1] restrictions. He opined that, while Plaintiff was able to perform sedentary [2] exertional levels with his left upper extremity, he was limited to less than [3] sedentary exertional levels for his right upper extremity because Plaintiff was [4] unable to lift or carry even small articles frequently with his right upper extremity. [5] The ALJ assigned Dr. Packer’s opinion little weight because 1) he did not [6] have the opportunity to examine Plaintiff, and 2) Dr. Packer had access to limited [7] records.77 First, the number of visits a claimant had with a particular provider is a [8] relevant factor in assigning weight to an opinion.78 However, all opinions, including [9] the opinions of nonexamining providers, are to be considered.79 Here, the ALJ gave [10] great weight to the nonexamining opinion of Norman Staley, M.D. while at the [11] same time discounting Dr. Packer’s nonexamining opinion. Therefore, that Dr. [12] Packer had not examined Plaintiff was not a legitimate reason to discount Dr. [13] Packer’s opinion given the great weight given to the opinion of Dr. Staley, whom [14] also did not examine Plaintiff. [15] Second, the ALJ gave more weight to Dr. Staley’s nonreviewing opinion [16] because he reviewed more records than Dr. Packer, who only noted that he [17] reviewed Dr. Palasi’s report, Ms. Anderson’s report, and Mr. DeJong’s 2016 report. [18] That Dr. Staley reviewed more of the medical record is a specific and legitimate [20] 77 AR 23. [78] 20 C.F.R. § 416.927 (c). [79] 20 C.F.R. § 416.927 (b), (c). [1] factor to assign his opinion more weight than Dr. Packer’s opinion, so long as Dr. [2] Staley’s (rather than Dr. Packer’s) opinion is more consistent with the longitudinal [3] record. The ALJ’s failure to meaningfully explain how Dr. Staley’s opinion, rather [4] than Dr. Packer’s opinion, was more “consistent with the objective evidence [5] available at the time of his [review] as well as the longitudinal record,” prevents [6] the Court from reviewing whether the ALJ’s interpretation is supported by [7] substantial evidence.80 The ALJ failed to meaningfully articulate the reasons for [8] discounting Dr. Packer’s opinion. [9] 4. The ALJ’s errors are consequential. [10] Remand is required only if an error is consequential. The Court finds the [11] ALJ’s failure to explain her findings supporting her decisions to discount the [12] opinions Dr. Palasi, Mr. DeJong, and Dr. Packer is a consequential error.81 If these [13] opinions are granted more weight, the RFC will be more restrictive as to the upper [14] right extremity. Dr. Packer opined that Plaintiff could not even lift or carry “small [15] articles frequently” with his right upper extremity.82 Dr. Palasi opined that [16] Plaintiff’s lifting and carrying abilities were more limited than typical sedentary [17] work, which permits frequent lifting and carrying of lightweight articles.83 And [19] 80 See Embrey, 849 F.2d at 421-22. [20] 81 See Molina, 674 F.3d at 1111 & 1115. [21] 82 AR 458. [22] 83 AR 541. [1] although Mr. DeJong opined that Plaintiff could frequently lift and carry [2] lightweight articles, the ALJ did not discuss whether lifting and carrying [3] lightweight articles is the equivalent to lifting and carrying up to ten pounds, as [4] permitted by the RFC.84 If these opinions are given more weight, Plaintiff’s right [5] upper extremity limitations may be work preclusive, as the vocational expert [6] testified that a sedentary RFC with continuing non-use of the right upper [7] extremity is work preclusive.85 [8] B. Plaintiff’s Symptom Reports: Plaintiff establishes error. [9] Plaintiff argues the ALJ failed to provide valid reasons for rejecting his [10] symptom reports. When examining a claimant’s symptom reports, the ALJ must [11] make a two-step inquiry. “First, the ALJ must determine whether there is objective [12] medical evidence of an underlying impairment which could reasonably be expected [13] to produce the pain or other symptoms alleged.”86 Second, “[i]f the claimant meets [15] 84 AR 544 & 552 (differentiating between light work, which requires the ability to [16] frequently lift or carry up to 10 pounds,” and “sedentary work, which requires the [17] ability to “frequently lift or carry lightweight articles”); 20 C.F.R. § 416.967 (a) [18] (defining sedentary work as, in part, involving “lifting no more than 10 pounds at a [19] time and occasionally lifting or carrying articles like docket files, ledgers, and small [20] tools”). [21] 85 AR 86. [22] 86 Molina, 674 F.3d at 1112 . [1] the first test and there is no evidence of malingering, the ALJ can only reject the [2] claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, [3] clear and convincing reasons’ for the rejection.”87 Here, the ALJ found Plaintiff’s [4] statements concerning the intensity, persistence, and limiting effects of his right5 upper-extremity symptoms inconsistent with the objective medical evidence, failure [6] to seek additional care, and activity level.88 [7] First, as to the ALJ’s finding that Plaintiff’s symptom reports were [8] inconsistent with the objective medical evidence, symptom reports cannot be solely [9] discounted on the grounds that they were not fully corroborated by the objective [10] medical evidence.89 However, medical evidence is a relevant factor in considering [11] the severity of the reported symptoms. 90 As discussed above, the ALJ’s summary [12] about the objective medical evidence relating to Plaintiff’s right upper extremity is [13] inadequate to permit the Court to determine whether the ALJ’s conclusory findings [14] as to the medical opinions is supported by substantial evidence. Similarly, the [15] Court finds the ALJ’s summary of the objective medical evidence fails to [18] 87 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 [19] F.3d at 1036). [20] 88 AR 21-23. [21] 89 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). [90] Id. [1] sufficiently explain how Plaintiff’s reported symptoms about his right upper [2] extremity are inconsistent with the medical record. [3] Second, the ALJ appears to discount Plaintiff’s symptom reports because he [4] did not seek additional care from November 2016 to April 2017 and because the [5] April 2017 exam notes reflect normal range of motion of his extremities and intact [6] motor and sensory function.91 Any decision to discount Plaintiff’s right-upper7 extremity symptoms because Plaintiff did not seek additional care is not a [8] legitimate reason supported by substantial evidence on this record.92 PA-C DeJong [9] did not recommend any treatment, noting twice that Plaintiff’s right upper [10] extremity was as strong and healed as it would be, and Dr. Packer found that the [11] condition was permanent.93 [12] The ALJ also cited to April 2017 examination notes. However, examination [13] notes must be read in their context.94 On this visit, Plaintiff was being seen for [15] 91 AR 22 (citing AR 498-507). [16] 92 See SSR 16-3p (recognizing that a “medical source may have advised the individual [17] that there is no further effective treatment to prescribe or recommend that would [18] benefit the individual”). [19] 93 AR 397, 552, & 548. [20] 94 See Orn, 495 F.3d at 634 (“The primary function of medical records is to promote [21] communication and recordkeeping for health care personnel—not to provide [22] evidence for disability determinations. We therefore do not require that a medical [1] chest pain. Although the notes state under the musculoskeletal section, “normal [2] range of motion [and] no edema,”95 and under the extremities section, “atraumatic, [3] normal [range of motion], no significant lower extremity edema,”96 these notes [4] cannot be used solely to discount Plaintiff’s symptom reports because Plaintiff was [5] not seeking care for his right upper extremity during this appointment. Moreover, [6] as discussed above, there is no medical recommendation that Plaintiff pursue [7] further treatment for his right upper extremity, other than stretching exercises to [8] reduce the symptoms associated with Plaintiff’s right shoulder given his reduced [9] use of his right upper extremity. [10] Finally, the ALJ found Plaintiff’s testimony that he is inactive inconsistent [11] with his statement to Jared Clifford, DPM, who treated Plaintiff for bilateral foot [12] pain in April 2017 and who noted that Plaintiff reported he was “very active.”97 [13] While an ALJ may discount a claimant’s symptom reports on the basis of [14] inconsistent statements, the ALJ failed to explain the basis for his finding that [15] Plaintiff’s testimony is inconsistent with his statement to Dr. Clifford. Plaintiff [16] testified as to being limited in his ability to use his right arm, lift without causing [18] condition be mentioned in every report to conclude that a physician’s opinion is [19] supported by the record.”). [20] 95 AR 499. [21] 96 AR 503. [22] 97 AR 22 (citing AR 532). [1] back pain due to poor mechanics, fatigue of his left hand due to using it, and walk [2] for long distances, and stand at times if his toes get “stuck.”98 The ALJ’s conclusory [3] finding that Plaintiff offered inconsistent statements is not sufficient for the Court [4] to determine that the ALJ’s finding is supported by substantial evidence. Because [5] this matter is getting remanded for a reweighing of the medical evidence and in [6] light of the ALJ’s failure to explain how the objective medical evidence is [7] inconsistent with Plaintiff’s reported symptoms and in discounting Plaintiff’s [8] reported right upper extremity symptoms for failure to seek treatment and the [9] fairly benign observations during the April 2017 examination for chest pain, the [10] Court directs the ALJ to reassess Plaintiff’s symptom reports on remand. On this [11] record, a purported single inconsistent statement is insufficient to discount [12] Plaintiff’s reported symptoms as to his right upper extremity. [13] C. Step Three (Listings): The ALJ must reevaluate. [14] Plaintiff contends the ALJ erred by finding that Plaintiff’s impairments did [15] not meet Listings 1.07 (fracture of an upper extremity) or 1.08 (soft issue injury), [16] singly, or in combination. On remand, the ALJ is to reassess whether Plaintiff’s [17] impairments meet these Listings singly, or in combination. In making this [19] 98 AR 88-100. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (The ALJ may [20] consider “ordinary techniques of credibility evaluation,” such as reputation for lying, [21] prior inconsistent statements concerning symptoms, and other testimony that [22] “appears less than candid.”). [1] reassessment, the ALJ is to consider whether a physical consultative examination [2] should be conducted and determine whether a medical expert should be called at [3] the hearing to discuss whether Plaintiff’s conditions meet or equal a Listing. [4] D. RFC and Step Five: The ALJ must reevaluate. [5] Plaintiff argues that the ALJ’s hypothetical failed to account for all of his [6] limitations, including a sedentary RFC with less than occasional use of the right [7] dominant arm and being off task more than 10 percent of the workday due to pain [8] and other limitations. Because the ALJ’s RFC was based on an erroneous weighing [9] of the medical evidence and Plaintiff’s symptom reports, the ALJ on remand is to [10] reassess Plaintiff’s RFC and proceed with a new step-five analysis. [11] E. Remand for Further Proceedings [12] As explained above, the ALJ consequentially erred. However, even if the [13] medical opinions of Dr. Palasi, Mr. DeJong, and Dr. Packer are given great weight, [14] the record would not remain free from conflicts, as Dr. Staley opined that Plaintiff [15] could perform light work and lift less than ten pounds frequently with his right upper [16] extremity. Therefore, the record as a whole creates serious doubt that Plaintiff is [17] disabled; therefore, remand for further proceedings, rather than for an award of [18] benefits, is necessary.99 [21] 99 See Garrison, 759 F.3d at 1021 ; Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. [22] 2017). [1] On remand, the ALJ is to consider scheduling a consultative physical [2] examination, reweigh the medical-opinion evidence, reevaluate Plaintiff’s symptom [3] reports, and, if necessary, complete the sequential analysis. [4] V. Conclusion [5] Accordingly, IT IS HEREBY ORDERED: [6] 1. The Clerk’s Office is directed to substitute Andrew M. Saul, [7] Commissioner of the Social Security Administration, as the [8] Defendant. [9] 2. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is [10] GRANTED. [11] 3. The Commissioner’s Motion for Summary Judgment, ECF No. 12, is [12] DENIED. [13] 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff [14] REVERSING and REMANDING the matter to the Commissioner of [15] Social Security for further proceedings consistent with this [16] recommendation pursuant to sentence four of 42 U.S.C. § 405 (g). [17] 5. The case shall be CLOSED. [18] IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, [19] provide copies to all counsel, and close the file. [20] DATED this 11th day of March 2020. [21] s/Edward F. Shea _____________ [22] EDWARD F. SHEA Senior United States District Judge