Smethers v. O'Malley

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [2] Feb 14, 2023 [3] SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON [7] 8 KATHLEEN S.,1 No. 2:21-CV-00179-ACE [9] Plaintiff, 10 ORDER GRANTING PLAINTIFF’S 11 v. MOTION FOR SUMMARY JUDGMENT [12] KILOLO KIJAKAZI, [13] ACTING COMMISSIONER OF 14 SOCIAL SECURITY,2 ECF Nos. 16, 19 [15] Defendant. [16] 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 16, 19. Attorney D. James Tree represents Kathleen S. (Plaintiff); Special 19 Assistant United States Attorney Justin L. Martin represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and the [22] 23 1 To protect the privacy of plaintiffs in social security cases, the undersigned 24 identifies them by only their first names and the initial of their last names. 25 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on 26 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 27 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 28 further action need be taken to continue this suit. See 42 U.S.C. § 405 (g). 1 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 2 Judgment and DENIES Defendant’s Motion for Summary Judgment. 3 JURISDICTION 4 Plaintiff protectively filed an application for Disability Insurance Benefits on 5 January 25, 2016, alleging disability since April 1, 2009. Tr. 15, 79. The 6 applications were denied initially and upon reconsideration. Tr. 80-88, 90-99. 7 Administrative Law Judge (ALJ) Kimberly Boyce held a hearing on October 24, 8 2017, Tr. 37-78, and issued an unfavorable decision on June 18, 2018. Tr. 12-27. 9 Plaintiff requested review by the Appeals Council and the Appeals Council 10 declined to review the decision. Tr. 1-6. Plaintiff then appealed the denial to this 11 Court, which resulted in a stipulated remand order dated January 13, 2020, in 12 which the parties stipulated that the ALJ would take any steps necessary to develop 13 the administrative record, issue a new decision, conduct a de novo hearing (if a 14 fully favorable decision could not be issued on the record), revaluate whether 15 Plaintiff’s impairments met or equaled a listed impairment, reevaluate the medical 16 opinion evidence, reevaluate Plaintiff’s RFC, and obtain supplemental vocational 17 expert testimony, if necessary. Tr. 1033-35. On February 28, 2020 the Appeals 18 Council vacated the prior ALJ decision and remanded the case to an ALJ. Tr. 19 1039-40. On July 27, 2020, and in a supplemental hearing February 8, 20213, 20 Plaintiff appeared before ALJ Lori Freund, who issued an unfavorable decision on 21 March 23, 2021. Tr. 868-90, 897-41, 942-95. The Appeals Council did not [22] 23 3 The ALJ held a supplemental hearing on February 8, 2021. See Tr. 871, 24 941. There is a typographical error in the hearing date on the first and third pages 25 of the February 2021 hearing transcript, however, which lists the supplemental 26 hearing date as “February 8, 2020.” Tr. 897, 899. The date is written correctly in 27 the transcription of the ALJ’s opening statement and on the last page of the hearing 28 transcript. Tr. 899, 941. 1 assume jurisdiction of the case, making the ALJ’s March 2021decision the final 2 decision of the Commissioner, which is appealable to the district court pursuant to [3] 42 U.S.C. § 405 (g). Plaintiff filed this action for judicial review on May 28, 2021. 4 ECF No. 1. 5 STANDARD OF REVIEW 6 The ALJ is tasked with “determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035 , 8 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, [10] 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 11 only if it is not supported by substantial evidence or if it is based on legal error. 12 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance. Id. at 14 1098. Put another way, substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Richardson v. 16 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 17 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 18 interpretation, the Court may not substitute its judgment for that of the ALJ. 19 Tackett, 180 F.3d at 1098 ; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 , 20 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 21 if conflicting evidence supports a finding of either disability or non-disability, the 22 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226 , 1229-1230 23 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 24 set aside if the proper legal standards were not applied in weighing the evidence 25 and making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 26 432, 433 (9th Cir. 1988). [28] 1 SEQUENTIAL EVALUATION PROCESS 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. § 404.1520 (a), 4 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 5 four the claimant bears the burden of establishing a prima facie case of disability. 6 Tackett, 180 F.3d at 1098-1099 . This burden is met once a claimant establishes 7 that a physical or mental impairment prevents the claimant from engaging in past 8 relevant work. 20 C.F.R. § 404.1520 (a)(4), 416.920(a)(4). If a claimant cannot 9 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 10 the Commissioner to show (1) that Plaintiff can perform other substantial gainful 11 activity and (2) that a significant number of jobs exist in the national economy 12 which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 13 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 14 make an adjustment to other work in the national economy, the claimant will be 15 found disabled. 20 C.F.R. § 404.1520 (a)(4)(v), 416.920(a)(4)(v). 16 ADMINISTRATIVE FINDINGS 17 On March 23, 2021, the ALJ issued a decision finding Plaintiff was not 18 disabled as defined in the Social Security Act through her date last insured of June 19 30, 2010. Tr. 868-90. 20 At step one, the ALJ found Plaintiff, who met the insured status 21 requirements of the Social Security Act through June 30, 2010, had not engaged in 22 substantial gainful activity during the period from her alleged onset date of April 1, 23 2009 through her June 30, 2010 date last insured. Tr. 874. 24 At step two, the ALJ determined through the date last insured Plaintiff had 25 the following severe impairments: degenerative disc disease of the cervical and 26 lumbar spine; left shoulder impingement syndrome; osteoarthritis of the hips; and 27 hypertension. Id. [28] 1 At step three, the ALJ found through the date last insured, Plaintiff did not 2 have an impairment or combination of impairments that met or medically equaled 3 the severity of one of the listed impairments. Id. 4 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 5 that through her date last insured she could perform light work, with the following 6 limitations: [7] [Plaintiff] could sit for one hour at a time and up to six hours total in [8] an eight-hour workday; she could stand and/or walk for one hour at a 9 time and up to four hours total in an eight-hour day; she could never 10 crawl or climb ladders, ropes, or scaffolds; she could occasionally balance, stoop, kneel, crouch, and climb ramps or stairs; she should [11] avoid all unprotected heights, dangerous machinery, extreme cold and 12 heat, and excessive vibration; and she should avoid even moderate exposure to the operational control of moving machinery. [14] Tr. 877. [15] At step four, the ALJ found Plaintiff was unable to perform past relevant [16] work. Tr. 881. [17] At step five, the ALJ found that, based on the testimony of the vocational [18] expert, and considering Plaintiff’s age, education, work experience, and RFC, [19] through the date last insured Plaintiff could perform jobs that existed in significant [20] numbers in the national economy, including the jobs of production assembler; [21] assembler (electronics accessories); and routing clerk. Tr. 882. [22] The ALJ thus concluded Plaintiff was not under a disability within the [23] meaning of the Social Security Act through June 30, 2010, the date last insured. [24] Tr. 883. [25] ISSUES [26] Plaintiff seeks judicial review of the Commissioner’s final decision denying [27] her disability insurance benefits under Title II of the Social Security Act. The [28] 1 question presented is whether substantial evidence supports the ALJ’s decision 2 denying benefits and, if so, whether that decision is based on proper legal 3 standards. Plaintiff raises the following issues for review (1) whether the ALJ 4 properly evaluated Plaintiff’s symptom complaints; (2) whether the ALJ properly 5 evaluated the medical opinion evidence; (3) whether the ALJ properly applied the 6 Grid Rules; (4) whether the ALJ conducted a proper step-five analysis; and (5) 7 whether the ALJ properly assessed the lay witness opinions. 8 DISCUSSION 9 A. Plaintiff’s Symptom Claims 10 Plaintiff contends the ALJ erred by not properly assessing Plaintiff’s 11 testimony. ECF No. 16 at 7-9. It is the province of the ALJ to make 12 determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 13 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. 14 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 15 produces medical evidence of an underlying medical impairment, the ALJ may not 16 discredit testimony as to the severity of an impairment merely because it is 17 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 18 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 19 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 20 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821 , 834 21 (9th Cir. 1995). “General findings are insufficient: rather the ALJ must identify 22 what testimony is not credible and what evidence undermines the claimant’s 23 complaints.” Lester at 834 ; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 24 The ALJ concluded Plaintiff’s medically determinable impairments could 25 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 26 statements concerning the intensity, persistence, and limiting effects of those 27 symptoms were not fully consistent with the medical evidence and other evidence 28 in the record. Tr. 878. 1 Plaintiff contends the only reason the ALJ gave was that objective evidence 2 from the relevant period does not fully support the level of limitation claimed, and 3 that this is legally insufficient. ECF No. 16 at 7-9. Defendant contends the ALJ 4 “gave four legally sufficient reasons for discounting her symptom testimony,” but 5 Defendant only lists three reasons. ECF No. 19 at 9-13. 6 The Court finds the ALJ gave two reasons to discount Plaintiff’s symptom 7 claims, neither of which was a clear and convincing reason supported by 8 substantial evidence to discount her symptom claims. 9 1. Inconsistent with Objective Medical Evidence 10 The ALJ found that prior to the disability onset date, Plaintiff’s allegations 11 were inconsistent with objective evidence. Tr. 878-79. An ALJ may not discredit 12 a claimant’s symptom testimony and deny benefits solely because the degree of the 13 symptoms alleged is not supported by objective medical evidence. Rollins v. 14 Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341 , 15 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 16 400 F.3d at 680. However, the objective medical evidence is a relevant factor, 17 along with the medical source’s information about the claimant’s pain or other 18 symptoms, in determining the severity of a claimant’s symptoms and their 19 disabling effects. Rollins, 261 F.3d at 857 ; 20 C.F.R. §§ 404.1529 (c)(2), 20 416.929(c)(2). 21 Here, the ALJ found that “as for the limiting effects of his or her symptoms, 22 they are inconsistent because the objective evidence from the relevant period does 23 not fully support the level of limitation claimed.” Tr. 878. The ALJ, however, 24 provided only a cursory summary of medical evidence, misstated evidence, and 25 failed to include relevant evidence; and much of the evidence cited supports 26 Plaintiff’s symptom complaints. 27 The ALJ noted that “medical records establish that [Plaintiff] was involved 28 in a motor vehicle accident, and [Plaintiff] alleges ongoing pelvic and hip pain 1 stemming from her injuries in that accident.” Tr. 878. This is factually incorrect. 2 As Plaintiff points out, Plaintiff had a series of significant injuries in the mid3 2000s, including a serious motor vehicle accident in 2006, resulting in C5-C6 4 fusion surgery for cervical fracture, with residuals including posttraumatic 5 including cervicothoracic syrinx; she was also hospitalized, however, in early 6 January 2008 for multitrauma secondary to a fall. ECF No. 16 at 3; see 454-55, 7 2518, 2534-35. Records show she fell 15 feet off her deck and sustained pelvis 8 and elbow fractures, resulting in surgery for left radial head excision (elbow) along 9 with inpatient rehabilitation for her injuries in January 2008. See, e.g., Tr. 2518, 10 2534-35. X-rays at that time showed pelvic fractures, along with advanced 11 degenerative disc disease in the lower lumbar spine and to a lesser extent the SI 12 joints. Tr. 2405. A CT scan at that time showed findings including acute left 13 sacral fracture, right symphysis pubis fracture, and vertical fracture of left pubic 14 ramus. Tr. 2427. The ALJ indicated these occurred in an earlier accident and 15 found her pelvic injury nonsevere, when this injury occurred closer to her alleged 16 onset date and treatment records show residuals and/or reinjury and possible 17 nonunion of the pelvic fracture through her alleged onset date; the ALJ mentioned 18 her pelvic fractures briefly at step two and once elsewhere in the decision, and the 19 medical expert at the hearing failed to mention the accident or injury at all, despite 20 the fact that Plaintiff’s treating provider, Dr. Abbott opined that her “major injury” 21 was multitrauma due to the fall with pelvic fractures and left elbow fracture Tr. 22 862, 2658; see generally Tr. 871-83. 23 At step two the ALJ noted Plaintiff’s report of a fall and reinjury to her 24 pelvis in February 2010, which is within the period at issue; and records from the 25 ER on February 12, 2010 also show she “fell yesterday reinjuring her pelvis.” Tr. 26 1690. The provider noted at that time “she has had chronic pelvic pain after 27 suffering a nondisplaced pelvic rami fracture a couple years ago” and that “she has 28 been followed for quite some time for this and is on chronic Oxycontin . . . and 1 Percocet . . . which she takes a couple of times a day for breakthrough pain.” Tr. 2 1690-91. 3 The ALJ also did not discuss relevant findings from a February 2009 4 appointment with her orthopedic surgeon, which was two months from her alleged 5 onset date, and showed continued issues with her pelvis, including possible 6 nonunion of the fractures(s) 13 months after her 2008 injury and pelvic fractures. [7] Id. At that time, her orthopedist noted her report she fell hard onto her left hip and 8 that she reported increased pain, and the specialist observed objective findings 9 upon physical exam including decreased range of motion, crepitus on the left 10 “where the psoas tendon rides,” and “mildly positive Stinchfield test on that side as 11 well,” which Plaintiff notes is a test for assessing hip pathology. Tr. 1340; see 12 ECF No. 16 at 9. The specialist diagnosed her with left hip pain secondary to 13 psoas tendonitis, and possible continued nonunion of her left superior pubic ramus 14 fracture two months from her alleged onset date. Id. The ALJ did not discuss the 15 orthopedist’s findings and appeared focused on her use of narcotic pain medicine; 16 the ALJ noted that in February 2009, “however, the [Plaintiff] requested additional 17 medication after a reported fall while going down to the laundry room.” Tr. 878 18 (citing Tr. 1349). The ALJ’s failure to address relevant objective evidence and 19 focus on her use of narcotic pain medication, even though the records cited by the 20 ALJ cited show her doctors prescribed these medications for chronic pain and 21 monitored her use of them, minimized Plaintiff’s reports of pain. For example, the 22 ALJ noted “despite her reports of pain, she was apparently able to go bowling in 23 March 2009,” but the ALJ also noted records showed she entered a narcotic pain 24 medication contract with Dr. Abbott in June 2009 as part of her treatment for 25 chronic pain from prior injuries. Tr. 878. The ALJ also cited records which show 26 she was treated for chronic pain throughout the period at issue, which supports her 27 symptom claims; records from this time show chronic pain in her neck/cervical 28 spine, low back, pelvis and hip due to multiple traumas including fractures, and 1 degenerative disc and degenerative joint disease. See e.g., Tr. 304, 307, 310, 313, 2 316, 319, 322. 3 The ALJ noted “she also reported in October 2009 that she had lumbar pain, 4 and Dr. Abbott reported she exhibited ‘tenderness in the bilateral lumbar 5 paravertebral muscles and the lumbar spine’”; and the ALJ noted “Plaintiff rated 6 her average pain as 4/10 in severity . . . 7/10 at worst.’” Tr. 878 (citing Tr. 313, 7 316). The ALJ does not discuss x-rays taken at the time of her January 2008 8 hospitalization, however, which included findings of advanced degenerative disc 9 disease in the lower lumbar spine and, to a lesser extent, the SI joints. Tr. 2405. 10 The ALJ concluded “records from the relevant period primarily shows that Dr. 11 Abbott refilled the Plaintiff’s narcotic pain medication prescriptions each month 12 and noted only vague ‘tenderness’ over the cervical and lumbar spine in his notes.” 13 Tr. 878 (citing Tr. 322, 325, 357). However, the ALJ cited to only three visits 14 during the period at issue, did not discuss previous traumatic injuries, which 15 treating provider Dr. Abbott indicated were the cause of her chronic pain, 16 discussed only some of the objective findings upon exam, and concluded such 17 findings were “vague” without explanation. Tr. 878. The ALJ noted, for example, 18 that in February 2010 Plaintiff went to the ER with reports of increased pelvic 19 pain, and that after that “Dr. Abbott added Gabapentin to her medication regimen.” 20 Tr. 878 (citing Tr. 334, 339). Treatment records reveal at the follow up visit with 21 Dr. Abbott, however, he noted her history of chronic back and pelvic pain due to 22 multiple traumas, he observed objective findings including antalgic gait upon 23 exam, and only then added gabapentin to her narcotic pain control regimen. Tr. 24 339. 25 The ALJ’s characterization of the evidence also resulted in minimizing her 26 other severe impairments and her symptoms. The ALJ noted Plaintiff’s “history of 27 left shoulder complaints in 2006 and 2007 with treatment including injections,” 28 and noted she went to the ER in June 2010 reporting left shoulder pain, and that x1 ray at that time “revealed a likely bone infarct of the proximal humeral 2 metaphysis.” Tr. 879. The ALJ does not discuss this evidence further, noting only 3 that Dr. Abbott “increased her pain medication dosage in June and July 2010, but 4 his treatment notes only included findings of ‘tenderness.’” Tr. 879 (citing Tr. 5 365, 367). Records from the ER visit, however, show she reported left shoulder 6 pain for two months along with a remote injury, and x-ray at that time showed 7 likely bony infarct of proximal humeral metaphysis less likely an enchondroma. 8 Tr. 602-03. While the ALJ found she had a left shoulder impairment, there is 9 limited discussion of objective evidence supporting her symptoms, and no 10 limitation in the RFC for this impairment. 11 The ALJ also found hypertension as a severe impairment. Tr. 874. The ALJ 12 appeared to discount hypertension during the period at issue, however; the ALJ 13 noted one appointment in January 2010 when Dr. Abbott reported Plaintiff’s high 14 blood pressure was “white coat,” because “her blood pressure tested normal at 15 home but not in his office.” Tr. 878 (citing Tr. 325). At that time, however, Dr. 16 Abbott was treating Plaintiff with two medications for hypertension, and records 17 show persistent often uncontrolled hypertension prior to and throughout the period 18 at issue. See, e.g., Tr. 343, 354, 2537. Records also show Dr. Abbott increased 19 Metoprolol, one of her two blood pressure medications, a few weeks later after 20 poorly controlled hypertension was noted at her ER visit in February 2010. Tr. 21 333-34, 339. Further, at the end of the same paragraph in the decision finding 22 hypertension was only “white coat,” the ALJ then discounted her report she often 23 needed to lie in bed all day by attributing her symptoms to hypertension; the ALJ 24 concluded one occasion when she reported she had to lie in bed “was apparently 25 during an episode of high blood pressure where she felt ill overall.” Tr. 879. The 26 analysis is contradictory, minimizes her symptom claims, and does not accurately 27 reflect the medical evidence during the period at issue. [28] 1 The ALJ failed to discuss relevant medical evidence and misstated evidence, 2 including her history of pelvic fractures, which Plaintiff’s treating physician 3 indicated was her “major injury” prior to her date last insured, as discussed supra. 4 An ALJ must consider all of the relevant evidence in the record and may not point 5 to only those portions of the records that bolster his findings. See, e.g., Holohan v. 6 Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot 7 selectively rely on some entries in plaintiff’s records while ignoring others). In 8 citing portions of the record that show milder examination findings while the 9 longitudinal record shows more mixed results during the relevant period at issue, 10 the ALJ’s characterization of the record is not supported by substantial evidence. 11 The ALJ’s conclusion that Plaintiff’s symptom testimony is not consistent with 12 objective medical evidence is therefore not supported by substantial evidence. 13 2. Activities 14 The ALJ concluded that Plaintiff’s activities were inconsistent with her 15 allegations. Tr. 878. The ALJ may consider a claimant’s activities that undermine 16 reported symptoms. Rollins, 261 F.3d at 857 . If a claimant can spend a substantial 17 part of the day engaged in pursuits involving the performance of exertional or non18 exertional functions, the ALJ may find these activities inconsistent with the 19 reported disabling symptoms. Fair, 885 F.2d at 603 ; Molina, 674 F.3d at 1113. 20 “While a claimant need not vegetate in a dark room in order to be eligible for 21 benefits, the ALJ may discount a claimant’s symptom claims when the claimant 22 reports participation in everyday activities indicating capacities that are 23 transferable to a work setting” or when activities “contradict claims of a totally 24 debilitating impairment.” Molina, 674 F.3d at 1112-13. 25 Here, the ALJ found “despite her reports of pain, she was apparently able to 26 go bowling in March 2009.” Tr. 878 (citing Tr. 1353). The ALJ also noted that at 27 an appointment in October 2009 “she also stated that she was currently working 28 and enjoyed her job.” Tr. 878 (citing Tr. 316). The ALJ discussed her part-time 1 work activity in 2009 at step one, however, noting earnings records show only 2 $1,048,50 in income in 2009, far below SGA levels; and Plaintiff testified at the 3 2017 hearing that she tried to work over at a Pier 1 store in 2009, but this was not 4 full-time work and she had difficulty doing the work due to pain. Tr. 874; see e.g., 5 Tr. 50-54, 968-69. At the visit where she reported she enjoyed her job, she also 6 reported her pain level was 7/10. Tr. 316. While she reported she went bowling 7 one time in March 2009, she also injured her knee at that time, and the ALJ did not 8 discuss this or any other activity further. 9 These general findings are insufficient to undermine Plaintiff’s symptom 10 claims. It is well-established that a claimant need not be “utterly incapacitated” to 11 be eligible for benefits. Fair, 885 F.2d at 603 . The Court also cannot affirm the 12 ALJ’s credibility decision based on evidence that the ALJ did not discuss. Connett 13 v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Here, while the ALJ mentions 14 Plaintiff’s one time bowling and report she was working and enjoying it one 15 occasion, these facts are briefly noted without any accompanying discussion of 16 their import on the disability analysis, what symptoms were undermined by these 17 activities, or why. See Tr. 878. Without further explanation of the ALJ’s 18 reasoning, a finding that Plaintiff’s activities were inconsistent with her symptom 19 claims is not supported by substantial evidence, and this was not a clear and 20 convincing reason to discount her symptom claims. 21 3. Lack of Treatment 22 Defendant contends “the ALJ reasonably determined that Plaintiff’s 23 allegations of disabling impairments were incompatible with lack of treatment 24 during the relevant period,” but the page Defendant cites to, Tr. 884, is not part of 25 the text of the decision. ECF No. 19 at 9; see Tr. 871-83. While the ALJ did note 26 that “despite the voluminous record, the evidence from the relevant period is 27 relatively small” in discussing Plaintiff’s symptom complaints, Tr. 878, the only 28 place the ALJ mentioned limited medical treatment during the relevant period was 1 at step two, when the ALJ found “little to no treatment of her hips” during the 2 period at issue. Tr. 874. The Court will therefore not consider Defendant’s post 3 hoc rationalization. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (The 4 Court will “review only the reasons provided by the ALJ in the disability 5 determination and may not affirm the ALJ on a ground upon which he did not 6 rely.”). 7 The Court also notes that the period at issue from her alleged onset date to 8 her date last insured was 14 months in a record that spans over a decade, but that 9 records during that brief amount of time show regular treatment by Dr. Abbott and 10 specialists, including daily narcotic pain medication for chronic pain from her prior 11 injuries; Dr. Abbott and others indicated her symptoms, including chronic pain, 12 were a result of her history of multiple fractures/traumatic injuries, some of which 13 the ALJ failed to discuss prior to her date last insured. 14 The ALJ’s failed to provide clear and convincing reasons supported by 15 substantial evidence to reject Plaintiff’s claims. In the absence of a clear and 16 convincing reason to discount symptom reports, the limitations in a claimant’s 17 symptom reports must be made part of the RFC. See Lingenfelter v. Astrue, 504 18 F.3d 1028, 1035 (9th Cir. 2007) (“[T]he ALJ failed to provide clear and 19 convincing reasons for finding Lingenfelter’s alleged pain and symptoms not 20 credible, and therefore was required to include these limitations in his assessment 21 of Lingenfelter’s RFC.”). Upon remand the ALJ shall reevaluate the medical 22 evidence and reconsider Plaintiff’s symptom claims, providing clear and 23 convincing reasons supported by substantial evidence to discount her claims, or 24 including them in the RFC. 25 B. Medical Opinions 26 Plaintiff contends the ALJ erred by improperly evaluating the medical 27 opinions of Michael Abbott, MD, Rox Burkett, MD, and Louis Fuchs, MD. ECF 28 No. 16 at 9-19. 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s opinion, and an examining physician’s opinion carries more weight 8 than a reviewing physician. Id. at 1202 . “In addition, the regulations give more 9 weight to opinions that are explained than to those that are not . . . and to the 10 opinions of specialists concerning matters relating to their specialty over that of 11 nonspecialists.” Id. (citations omitted). If a treating or examining physician’s 12 opinion is uncontradicted, the ALJ may reject it only by offering “clear and 13 convincing reasons that are supported by substantial evidence.” Bayliss v. 14 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Lester v. Chater, 81 F.3d 821 , 830 15 (9th Cir. 1995). “If a treating or examining doctor’s opinion is contradicted by 16 another doctor’s opinion, an ALJ may only reject it by providing specific and 17 legitimate reasons that are supported by substantial evidence.” Id. The opinion of 18 a nonexamining physician may serve as substantial evidence if it is supported by 19 other independent evidence in the record. Andrews, 53 F.3d at 1041 . 20 1. Dr. Abbott 21 In October 2017 and August 2020 Plaintiff’s treating physician, Dr. Abbott, 22 completed medical report forms and provided his opinion on Plaintiff’s level of 23 functioning during the period at issue. Tr. 862-63, 2658-60. In 2017, Dr. Abbott 24 opined Plaintiff’s diagnoses included “multitrauma due to fall including pelvic 25 fracture and left elbow fracture” in 2007 and history of motor vehicle accident with 26 “scapula fracture” in 2006. Tr. 872. He noted that “MRI confirmed multiple 27 fractures.” Id. He reported that in “2009-2010, during the day she spent 8-12 28 hours lying down” and that treatment during that time included narcotic “pain 1 meds (oxycodone).” Id. He opined her physical conditions were likely to cause 2 her pain, her prognosis was fair, and he reported that in “2009-2010, she tried to 3 work at Pier 1 … but it caused more pain.” Tr. 861-62. He opined that in 20094 2010 she was severely limited and unable to meet the demands of full-time 5 sedentary work, or to physically travel on a daily basis. Tr. 862. 6 In 2020, Dr. Abbott opined her diagnoses were history of 2007 pelvic 7 fracture and elbow fracture, and 2006 history of motor vehicle accident scapula 8 fracture and he explained her “major injury” was the December 31, 2007 fall, and 9 that her 2006 motor vehicle accident was a “moderate injury.” Tr. 2658. He 10 explained that in 2009-2010 she was treated with oxycodone, which “could have 11 caused drowsiness/constipation” in 2009-2010. Id. He opined due to her trauma 12 history she had conditions likely to cause pain. Id. He opined her prognosis was 13 fair and that she tried to work in 2009-2010 but it caused pain, and that in 200914 2010 she was severely limited and unable to meet the demands of full-time 15 sedentary work, or to physically travel on a daily basis. Tr. 2659. The ALJ gave 16 Dr. Abbott’s opinions little weight. Tr. 879. As Dr. Abbott’s opinions were 17 contradicted by the opinion of Dr. Fuchs and the state agency examiners, the ALJ 18 was required to give specific and legitimate reasons to reject Dr. Abbott’s opinion. 19 See Bayliss, 427 F.3d at 1216 . 20 The ALJ gave Dr. Abbott’s opinions little weight because they were 21 rendered seven and ten years after the date last insured, and “his own treatment 22 notes from the relevant period are generally unsupportive of the restrictions he 23 assessed,” he did not explain his opinion, and it was vague and unsupported by the 24 evidence of record. Tr. 879. Plaintiff contends the ALJ failed to give legally 25 sufficient reasons to discount the treating source opinion because Dr. Abbott’s 26 opinion was relevant to her conditions during the period at issue, the ALJ 27 speculated and misstated the record, and Dr. Abbott’s treatment records were 28 consistent with his opinion, and he provided specific functional limitations based 1 on his experience and treatment records during the period at issue, which 2 documented objective findings, along with Plaintiff’s reports of pain and continued 3 treatment with narcotic pain medication. ECF No 16 at 12-16. Defendant 4 contends the ALJ reasonably gave little weight to Dr. Abbott’s 2017 and 2020 5 opinions, because they were inconsistent with contemporaneous treatment notes, 6 which showed only some tenderness in Plaintiff’s neck and back, but otherwise 7 “described routine medication management”; and because Dr. Abbott’s opinions 8 were unsupported by the record and “the evidence of record shows that Plaintiff’s 9 condition improved following her 2006 accident.” ECF No. 19 at 15-16. 10 The ALJ gave the opinions little weight because they were rendered 7 and 11 10 years after Plaintiff’s date last insured. Tr. 879. The ALJ is required to 12 consider “all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035 , 13 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527 (b)). Additionally, the extent to 14 which a medical source is “familiar with the other information in [the claimant’s] 15 case record” is relevant in assessing the weight of that source’s medical opinion. 16 See 20 C.F.R. §§ 404.1527 (c)(6). Here, although Dr. Abbott provided his opinions 17 many years after Plaintiff’s date last insured, he indicated he was her treating 18 provider during the period at issue and he explained on the form he provided that 19 his opinion was based on his treatment records from that time. Tr. 862-63, 265820 60. Dr. Abbott is her primary care provider who has treated her from 2006 through 21 present, including during the period at issue, and on this record the fact that his 22 opinions were rendered 7 and 10 years after her date last insured was not a specific 23 and legitimate reason to give his opinion little weight. 24 The ALJ also gave Dr. Abbott’s opinions little weight because “his own 25 treatment notes from the relevant period are generally unsupportive of the 26 restrictions he assessed,” he did not explain his opinion, and it was vague and 27 unsupported by the evidence of record. Tr. 879. Relevant factors to evaluating 28 any medical opinion include the amount of relevant evidence that supports the 1 opinion, the quality of the explanation provided in the opinion, and the consistency 2 of the medical opinion with the record as a whole. Lingenfelter, 504 F.3d at 1042; 3 Orn, 495 F.3d at 631 . A physician’s opinion may also be rejected if it is 4 unsupported by the physician’s treatment notes. Connett v. Barnhart, 340 F.3d 5 871, 875 (9th Cir. 2003). Here, the ALJ concluded “[Dr. Abbott] states she was 6 unable to walk for three months, but this likely refers to her status after the 2006 7 motor vehicle accident, and Dr. Abbott does not offer further clarification,” and 8 “his entire assessment seems to hinge of the injuries sustained from the accident, as 9 he included pelvic fracture, scapula fracture, and left elbow fracture as her sole 10 diagnosis.” Tr. 879. 11 As discussed in relation to Plaintiff’s symptom complaints, supra, however, 12 this is a misstatement of the evidence, as Plaintiff suffered two accidents, including 13 a serious fall with injuries that the ALJ failed to discuss, and which Dr. Abbott 14 explained was her “major injury” in his 2020 opinion. Tr. 2658. Dr. Abbott 15 explained that due to her history of traumatic injuries she had conditions likely to 16 cause pain in 2009-2010; and that at that time she was treated with oxycodone, 17 with side effects including drowsiness, and this is consistent with his and other 18 providers treatment records from the time showing chronic pain in her neck, back, 19 and pelvis status post multiple fractures. Tr. 2658; see, e.g., Tr. 307, 310, 313, 20 316, 319, 322, 334. While the ALJ found Dr. Abbott’s opinion vague, he indicated 21 that in 2009-2010 she was severely limited and unable to meet the demands of full22 time sedentary work, or to physically travel on a daily basis, which are concrete 23 limitations; and his findings are consistent with his treatment records from that 24 time, showing she attempted to return to work and could not sustain it due to pain. 25 Tr. 2659. The ALJ’s finding Dr. Abbott’s opinion was due little weight because 26 his treatment notes from the relevant period are generally unsupportive of the 27 restrictions he assessed, he did not explain his opinion, and it was vague and 28 unsupported by the evidence of record is not supported by substantial evidence, 1 and this was not a specific and legitimate reason to reject the treating provider’s 2 opinions. 3 2. Dr. Burkett 4 In November 2017, Dr. Burkett reviewed Plaintiff’s file and rendered an 5 opinion on her level of functioning. Tr. 863-67. Dr. Burkett diagnosed her with 6 fracture cervical spine with C5-C6 fusion from a 2006 MVA with ongoing neck 7 pain; shoulder injuries, pelvic and hip injuries, degenerative arthritis of the hip, 8 status post left hip replacement September 2016, hospitalization for pelvic fracture 9 January 2008, and chronic pain management for failed spine surgeries. Tr. 865. 10 He opined Plaintiff “has well documented injuries with MVA and fall from a deck 11 in her records . . . she has had two major surgeries, one before her onset and one 12 after.” Tr. 866. He opined the records, which were not all available upon state 13 agency review, fully support hip, back and pelvic injuries.” Id. He opined 14 considering her pain, combination of problems, and lack of sustainable function, 15 she was “much more limited than the light level RFC” found by the state agency. 16 Id. He opined with her neck problem “even after surgery,” arm and shoulder pain, 17 left hip problems “even after surgery,” and “low back and pelvic pain and 18 problems” she equaled listing 1.02 from her alleged onset date; and that she could 19 equal listing 1.04 “for many of the same reasons counting all her orthopedic 20 problems with issues of pain, weakness, and leg problems.” Id. He further opined 21 she could not “stand more than an hour per day at work and or [sic] lift over 5-10 22 pounds with some reduction in gross manipulation to ½ of normal and little to no 23 overhead reaching and limited stooping and twisting.” He noted there is much 24 more evidence after her date last insured that was not discussed, and mentioned 25 weight bearing joint failure “quite early [in her] 50s . . . needed hip replacement on 26 the left,” along with “shoulder issues yet to be addressed” as of his 2017 review of 27 medical records. Tr. 866. He explained she required opioids to manage her pain, 28 that multiple imaging studies showed findings including advanced degenerative 1 changes in her left hip and degenerative changes in her pelvis and lower spine, and 2 that she eventually required left hip replacement in 2016 “as a result of the chronic 3 trauma for a younger person.” Tr. 865. 4 The ALJ did not explain the weight given to Dr. Burkett’s opinion, despite 5 the Appeals Council order directing the ALJ to further evaluate whether Plaintiff’s 6 impairments met or medically equaled a listed impairment, and to “give further 7 consideration to the opinion evidence . . . and explain the weight given to such 8 opinion evidence.” Tr. 880, 1039-40. In Social Security cases, when the Appeals 9 Council remands a case to the ALJ, the ALJ must take any action ordered by the 10 Appeals Council and must follow the specific instructions of the reviewing court. [11] 20 C.F.R. § 404.977 ; Samples v. Colvin, 103 F. Supp. 3d 1227, 1231-32 (D. Or. 12 2015). The ALJ did note that “the AC also noted that Rox Burkett, M.D., opined 13 that the [Plaintiff’s] impairments were medically equivalent in severity to listings 14 1.20 and 1.04 prior to her date last insured” in his discussion of listed impairments 15 at step three. Tr. 875. Elsewhere in the decision, however, in addressing Dr. 16 Burkett’s medical opinion as to Plaintiff’s imitations the ALJ noted only that “Dr. 17 Burkett did not elaborate on when these limitations began, but even assuming that 18 he believed they began during the relevant period, they are unsupported by the 19 objective evidence described above.” Tr. 880. Dr. Burkett explained more than 20 once in his opinion that he “only focus[ed] on the information available in the 21 insured time from 2006 to DLI of 6/30/2010,” however, noting that while he 22 reviewed the entire record available to him in 2017 and Plaintiff “has scores of 23 visits in the time since the DLI that only support worsening but according to policy 24 will again limit the information up to the DLI.” Tr. 864, 865. The ALJ failed to 25 assess and explain the weight given to Dr. Burkett’s opinion and her reasons to 26 reject it were not supported by substantial evidence. [28] 1 3. Dr. Fuchs 2 At the July 2020 hearing Dr. Fuchs testified and provided an opinion on 3 Plaintiff’s level of functioning. Tr. 953-67. Dr. Fuchs opined her impairments 4 were status post C5-C6 fusion, and status post total hip arthroplasty in 2016. Tr. 5 953. He testified that the records at issue showed only tenderness in the cervical 6 and lumbosacral spine, no problems with her left shoulder, and “during that time 7 period . . . I don’t find any severe problems with [Plaintiff]. Tr. 954. He opined 8 she did not meet or equal a listed impairment during the period at issue prior to her 9 date last insured. Tr. 955. He opined she could continuously lift and carry 10 10 pounds, “even frequently up to 20 lifting and carrying,” and that she could sit for 2 11 hours, stand and walk for one hour, “maybe two hours standing and/or walking”; 12 and he clarified, at the ALJ’s request, that in an eight hour workday “she should be 13 able to remain sedentary for six hours in the appropriate workplace . . . certainly 14 three hours, clearly, that she should be able to ambulate, and maybe even four.” 15 Tr. 955-56. He opined she did not require use of a cane, had no limitation in the 16 use of her hands, but that she should not use foot controls. Tr. 956. He testified 17 she could occasionally climb stairs but not ladders or scaffolds; and she could 18 frequently balance, occasionally stoop, kneel, and crouch, but should not crawl; 19 she should avoid unprotected heights and vibration, could frequently operate a 20 motor vehicle, and could have occasional exposure to wetness, extreme cold, and 21 extreme heat. Id. 22 After the February 2021 supplemental hearing, on September 10, 2020 the 23 ALJ forwarded additional evidence for Dr. Fuchs’ review with a medical 24 interrogatory. Tr. 2661-62. The ALJ asked him to review the new evidence and 25 provided an interrogatory asking “does the additional medical evidence change 26 your opinion given in your previous testimony regarding the nature and severity of 27 [Plaintiff’s] impairment(s) during the relevant time period?” Id. On October 21, 28 2020, Dr. Fuchs submitted his response, explaining: “I do not have notes on my 1 original testimony,” but that “reviewing the current new material, I believe 2 [Plaintiff] has the following abilities.” Tr. 2665-66. He opined she could lift and 3 carry 10 pounds continuously and 20 pounds occasionally; sit for two hours at one 4 time and stand and walk one hour at a time; and in an eight hour day she could sit 5 six hours and stand and/or walk four hours. Tr. 2666. Regarding “upper limbs,” 6 he opined she could perform “occasional overhead bilaterally [and] with no further 7 limits”; and “foot controls occasional.” Id. Regarding postural limitations, he 8 opined she could occasionally climb stairs and ramps but no ladders; she could 9 occasionally balance, stoop, kneel, and crouch, but could not crawl. Id. Regarding 10 environmental limitations, he opined “no heights, occasional mechanical, motor 11 vehicle, humidity. No extreme cold, heat, vibrations.” Id. He opined she had “no 12 limits re shopping, transportation etc.” Id. 13 The ALJ gave Dr. Fuchs’ opinion significant weight because he had the 14 opportunity to review the entire medical record, he is a board-certified orthopedic 15 surgeon, he is familiar with Social Security regulations, and “the record support[s] 16 his opinion far more than the opinions of Drs. Burkett and Abbott.” Tr. 880. 17 Plaintiff contends the ALJ failed to provide any explanation or citation to 18 support his finding that Dr. Fuchs’ opinion was supported more by the record than 19 Dr. Burkett and Dr. Abbott, and notes that Dr. Burkett is also familiar with the 20 social security regulations. ECF No. 16 at 18-19. Defendant contends the ALJ 21 reasonably gave Dr. Fuchs’ opinion significant weight because it was informed by 22 the entire medical record, he was a specialist familiar with the Social Security 23 Regulations, and the ALJ discussed the relevant objective evidence at several 24 points in the decision in connection with Plaintiff’s symptom testimony, as well as 25 in her analysis of Dr. Abbott’s opinion. ECF No. 19 at 18. However as discussed 26 supra, the ALJ erred in her discussion of Plaintiff’s symptom testimony, and her 27 conclusions concerning Dr. Abbott’s opinions were not supported by substantial 28 evidence. Further, upon questioning by Plaintiff’s representative at the hearing, 1 Dr. Fuchs testified he “had not made note of” the opinions of Dr. Abbott and Dr. 2 Burkett along with other relevant evidence, and he was unable to answer questions 3 about the opinions of Dr. Burkett and Dr. Abbott and appeared unfamiliar with 4 other aspects of Plaintiff’s record; the ALJ noted Plaintiff’s concern that Dr. Fuchs 5 had not carefully reviewed the record, such that he appeared to be viewing 6 evidence including the opinions of Dr. Burkett and Dr. Abbott for the first time at 7 the hearing, was not aware of all of Plaintiff’s impairments during the period at 8 issue, and failed to cite to any records in his response to the new evidence. Tr. 9 875, 1207; see, e.g., Tr. 960, 964-967. The ALJ’s conclusion that Dr. Fuchs 10 opinion was due significant weight because the record supports his opinion far 11 more than the opinions of Dr. Burkett and Dr Abbott is not supported by 12 substantial evidence. 13 C. Other Issues 14 Plaintiff also contends the ALJ erred by not assessing disability under the 15 Grid Rules; the ALJ failed to meet her step five burden; and the ALJ failed to 16 properly assess the lay witness opinions. ECF No. 16 at 5-7, 19-21. As the case is 17 remanded for errors in assessing the medical testimony and plaintiff symptom 18 clams, the ALJ shall reperform the sequential analysis, making new findings at 19 each step and taking the testimony of a vocational expert, and shall reconsider all 20 lay witness statements, crediting the opinions or providing germane reasons to 21 discount them. 22 CONCLUSION 23 Plaintiff argues the decision should be reversed and remanded for the 24 payment of benefits. ECF No. 19 at 20. The Court has the discretion to remand 25 the case for additional evidence and findings or to award benefits. Smolen, 80 F.3d 26 at 1292 . The Court may award benefits if the record is fully developed and further 27 administrative proceedings would serve no useful purpose. Id. Remand is 28 appropriate when additional administrative proceedings could remedy defects. 1 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). The Court will also not 2 remand for immediate payment of benefits if “the record as a whole creates serious 3 doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 4 Here, the Court finds that further proceedings are necessary because the ALJ 5 limited her discussion of the evidence to the distant 2010 date last insured, and 6 there are significant medical records and treatment after that date. The Court 7 therefore remands the claim for further proceedings for the ALJ to reconsider all 8 relevant medical evidence and reevaluate Plaintiff’s symptom claims, to reassess 9 conflicting medical opinion evidence, and to perform the five-step sequential 10 evaluation anew. For these reasons, the Court remands this case for further 11 administrative proceedings. 12 The ALJ’s decision is not supported by substantial evidence and not free of 13 harmful legal error. On remand, The ALJ shall reevaluate the medical evidence of 14 record, being mindful to consider all Plaintiff’s impairments, make new findings 15 on each of the five steps of the sequential evaluation process, take the testimony of 16 a vocational expert, and issue a new decision. The ALJ shall reassess all medical 17 opinion evidence and shall also reassess plaintiff’s subjective complaints, taking 18 into consideration any other evidence or testimony relevant to Plaintiff’s disability 19 claim. 20 Accordingly, IT IS ORDERED: 21 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is 22 GRANTED. 23 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 24 DENIED. 25 3. The matter is REMANDED to the Commissioner for additional 26 proceedings consistent with this Order. 27 4. An application for attorney fees may be filed by separate motion. [28] 1 The District Court Executive is directed to file this Order and provide a copy 2|| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. [4] 5 DATED February 14, 2023. Wada ALEXANDER C. EKSTROM = UNITED STATES MAGISTRATE JUDGE