Herron v. Commissioner of Social Security

[5] 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA [8] WILLIAM H., 9 CASE NO. 3:19-CV-6148-DWC Plaintiff, 10 ORDER REVERSING AND v. REMANDING DEFENDANT’S 11 DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL SECURITY, [12] Defendant. [14] Plaintiff filed this action, pursuant to 42 U.S.C. § 405 (g), for judicial review of [15] Defendant’s denial of Plaintiff’s application for disability insurance benefits (“DIB”). Pursuant [16] to 28 U.S.C. § 636 (c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties [17] have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 3. [18] After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) [19] erred when he improperly evaluated the opinions of Dr. Patrick De Marco and Mr. Jeffrey [20] Billingsley. As the ALJ’s error is not harmless this matter is reversed and remanded pursuant to [21] sentence four of 42 U.S.C. § 405 (g) to the Commissioner of the Social Security Administration [22] (“Commissioner”) for further proceedings consistent with this Order. [24] 1 FACTUAL AND PROCEDURAL HISTORY 2 On September 17, 2018, Plaintiff filed an application for DIB, alleging disability as of 3 April 21, 2017. See Dkt. 6, Administrative Record (“AR”) 15. The application was denied upon 4 initial administrative review and on reconsideration. See AR 15. A hearing was held before ALJ 5 Lawrence Lee on July 2, 2019. See AR 15. In a decision dated July 26, 2019, the ALJ 6 determined Plaintiff to be not disabled. See AR 29. Plaintiff’s request for review of the ALJ’s 7 decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the 8 Commissioner. See 20 C.F.R. § 404.981 , § 416.1481. 9 In the Opening Brief, Plaintiff maintains the ALJ erred by improperly: (1) evaluating the 10 medical opinion evidence; (2) evaluating Plaintiff’s testimony; and (3) assessing Plaintiff’s 11 residual functional capacity (“RFC”). Dkt. 10. Plaintiff asks this Court to remand this case for an 12 award of benefits. Id. at 18-19. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405 (g), this Court may set aside the Commissioner’s denial of 15 social security benefits if the ALJ’s findings are based on legal error or not supported by 16 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211 , 1214 n.1 (9th 17 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 18 DISCUSSION 19 I. Whether the ALJ properly considered the medical opinion evidence. 20 Plaintiff contends the ALJ erred in evaluating the opinions of Dr. De Marco, Dr. Russell 21 Faria, Dr. Robert Sise, and Mr. Billingsley.1 Dkt. 10, pp. 3-11. [22] 23 1 Plaintiff also alleges the ALJ erred in his consideration of other medical evidence and findings that support the opinions of Dr. De Marco, Dr. Faria, Dr. Sise, and Mr. Billingsley, as well as Plaintiff’s testimony. See [24] 1 A. Standard of Review 2 The regulations regarding evaluation of medical evidence have been amended for claims 3 protectively filed on or after March 27, 2017. 20 C.F.R. §§ 404 .1520c(c), 416.920c(c). As 4 Plaintiff filed his claim for DIB on April 21, 2017, the ALJ applied the new regulations. See AR 5 15. 6 In the new regulations, the Commissioner rescinded Social Security Regulation (“SSR”) 7 06-03p and broadened the definition of acceptable medical sources to include Advanced Practice 8 Registered Nurses (such as nurse practitioners), audiologists, and physician assistants. See 20 9 C.F.R. §§ 404.1502 , 416.902; 82 F. Reg. 8544; 82 F. Reg. 15263. The Commissioner also 10 clarified that all medical sources, not just acceptable medical sources, can provide evidence that 11 will be considered medical opinions. See 20 C.F.R. §§ 404.1502 , 416.902; 82 F. Reg. 8544; 82 F. 12 Reg. 15263. 13 Additionally, the new regulations state the Commissioner “will no longer give any 14 specific evidentiary weight to medical opinions; this includes giving controlling weight to any 15 medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions 16 to Rules), 2017 WL 168819 , 82 Fed. Reg. 5844 , at 5867-5868 (Jan. 18, 2017); see also 20 C.F.R. 17 §§ 404.1520c (a), 416.920c(a). Instead, the Commissioner must consider all medical opinions 18 and “evaluate their persuasiveness” based on supportability, consistency, relationship with the 19 claimant, specialization, and other factors. 20 C.F.R. §§ 404 .152c(c), 416.920c(c). The most [22] Dkt. 10, pp. 9-11. Plaintiff fails to allege any particularized error with respect to this medical evidence and findings. [23] See id. As such, the Court will not consider whether the ALJ properly evaluated the other medical evidence and findings. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155 , 1161 n.2 (9th Cir. 2008) (the court 24 will not consider an issue that a plaintiff fails to argue “with any specificity in his briefing”). 1 important factors are supportability and consistency. 20 C.F.R. §§ 404 .152c(a), (b)(2), 2 416.920c(a), (b)(2). 3 Although the regulations eliminate the “physician hierarchy,” deference to specific 4 medical opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate 5 how [he] considered the medical opinions” and “how persuasive [he] find[s] all of the medical 6 opinions.” 20 C.F.R. §§ 404 .1520c(a), (b)(1), 416.920c(a), (b)(1). The ALJ is specifically 7 required to “explain how [he] considered the supportability and consistency factors” for a 8 medical opinion. 20 C.F.R. §§ 404 .1520c(b)(2), 416.920c(b)(2). 9 The Ninth Circuit currently requires the ALJ to provide “clear and convincing” reasons 10 for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. 11 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 12 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). When a treating or examining 13 physician’s opinion is contradicted, the Ninth Circuit has held the medical opinion can be 14 rejected “for specific and legitimate reasons that are supported by substantial evidence in the 15 record.” Lester, 81 F.3d at 830 -31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 16 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 17 At this time, the Ninth Circuit has not issued a decision stating whether it will continue to 18 require an ALJ to provide “clear and convincing” or “specific and legitimate reasons,” or some 19 variation of those standards, when analyzing medical opinions. Regardless, it is not clear the 20 Court’s consideration of the adequacy of an ALJ’s reasoning under the new regulations differs 21 from the current Ninth Circuit standards in any significant respect. The new regulations require 22 the ALJ to articulate how persuasive the ALJ finds medical opinions and to explain how the ALJ 23 considered the supportability and consistency factors. 20 C.F.R. §§ 404 .1520c(a), (b), [24] 1 416.920c(a), (b). The new regulations appear to, at the least, require an ALJ to specifically 2 account for the legitimate factors of supportability and consistency in addressing the 3 persuasiveness of a medical opinion. Furthermore, the Court must continue to consider whether 4 the ALJ’s decision is supported by substantial evidence. See 82 Fed. Reg. at 5852 (“Courts 5 reviewing claims under our current rules have focused more on whether we sufficiently 6 articulated the weight we gave treating source opinions, rather than on whether substantial 7 evidence supports our final decision.”). 8 Therefore, based on the above considerations, the Court will determine whether the 9 ALJ’s decision is free of legal error and supported by substantial evidence. 10 B. Dr. De Marco 11 Dr. De Marco, Plaintiff’s treating psychologist, diagnosed Plaintiff with pain disorder and 12 somatoform disorder, unspecified. AR 315, 436. After conducting several psychological tests, 13 Dr. De Marco opined the tests “indicate severe depression” and “anxiety caused by severe pain.” 14 AR 436. Dr. De Marco also identified many symptoms and limitations as a result of Plaintiff’s 15 conditions, including serious limitations in Plaintiff’s ability to maintain attention for a two-hour 16 segment of work, accept instructions and respond appropriately to criticism from supervisors, set 17 realistic goals or make plans independently of others, and interact appropriately with the general 18 public. AR 440. Dr. De Marco found Plaintiff’s impairments would cause him to be absent from 19 work more than four days a month. AR 440. 20 The ALJ discussed Dr. De Marco’s opinion and found the opinion was not persuasive for 21 four reasons: (1) because Dr. De Marco provided very little explanation of the evidence he relied 22 on in forming his opinion; (2) he only treated Plaintiff for a short period and “more than a year” 23 prior to when he issued his opinion of Plaintiff’s limitations; (3) the opinion is inconsistent with [24] 1 other providers’ fairly unremarkable physical exams; and (4) the opinion is inconsistent with 2 Plaintiff’s ability to attend college with no formal accommodations. AR 25. 3 First, the ALJ found Dr. De Marco’s opinion not persuasive because the opinion is 4 conclusory and lacks sufficient explanation. AR 25. An ALJ may “permissibly reject” a 5 physician’s reports “that [do] not contain any explanation of the bases of their conclusions.” 6 Molina v. Astrue, 674 F.3d 1104, 1111-1112 (9th Cir. 2012) (internal quotation marks 7 omitted) (quoting Crane v. Shalala, 76 F.3d 251 , 253 (9th Cir.1996)). But a physician’s 8 opinion cannot be rejected if the opinion is supported by treatment notes. Esparze v. Colvin, 9 631 Fed. App’x 460, 462 (9th Cir. 2015). Here, Plaintiff received treatment from Dr. De 10 Marco over eight sessions in three months. AR 310-315, 436-441. Dr. De Marco noted 11 Plaintiff had been “trying very hard [to] work through [his] depression and anxiety”, but still 12 needed “supportive cognitive psychotherapy” due to his depression and anxiety. AR 311, 13 313. 14 Dr. De Marco assessed Plaintiff for possible Asperger symptoms, where Plaintiff 15 “reached a score of 151 which is suggestive of a moderate to high probability of having this 16 condition.” AR 315. Dr. De Marco conducted several tests which indicated Plaintiff had 17 severe depression and anxiety. AR 436. He completed examinations of Plaintiff in order to 18 assess his mental abilities and aptitudes needed to do work and found Plaintiff was seriously 19 limited or unable to meet competitive standards in several functional areas. AR 438-439. 20 Thus, Dr. De Marco’s treatment notes could reasonably support the limitations he assessed. 21 Therefore, the ALJ’s finding that Dr. De Marco’s opinion is not persuasive because it is 22 conclusory and does not contain adequate explanation is not free of legal error and supported 23 by substantial evidence. [24] 1 Second, the ALJ found Dr. De Marco’s opinion was not persuasive because he treated 2 Plaintiff for a short period of time and completed his treatment of Plaintiff “more than a year 3 prior” to when he issued his opinion. AR 25. Here, the ALJ did not specifically discuss how 4 Dr. De Marco’s short treating relationship with Plaintiff or how issuing the opinion a year after 5 his treatment of Plaintiff undermines the supportability and consistency of his opinion. The ALJ 6 does not cite to, nor does the Court find, that ALJs may find a medical opinion not persuasive 7 solely because the length of relationship between the claimant and the doctor was short. In fact, 8 this appears to run counter to the new regulations. See 20 C.F.R. 404.1520c(a), (b). Nor does the 9 Court find any evidence that issuing an opinion a year after the treatments ended necessarily 10 undermines the potential relevancy of the opinion. Accordingly, the ALJ’s second reason for 11 finding Dr. De Marco’s opinion not persuasive is not free of legal error and supported by 12 substantial evidence. 13 Third, the ALJ found Dr. De Marco’s opinion not persuasive because it is inconsistent 14 with the “fairly unremarkable mental status exams [“MSEs”] of treating mental health 15 professionals.” AR 25. The ALJ specifically notes that “treating psychologists found [Plaintiff] 16 was alert and attentive, and had appropriate affect, unimpaired memory, concentration and 17 attention, and linear and goal directed thought process.” AR 25 (citations omitted). An ALJ need 18 not accept an opinion which is inadequately supported “by the record as a whole.” See Batson 19 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 20 C.F.R. §§ 20 404.1527(c)(3), 416.927(c)(3). But it is error for an ALJ to selectively focus on evidence that 21 tends to suggest a plaintiff is not disabled. See Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 22 Cir. 2001). [24] 1 Here, the ALJ cited MSEs containing fairly unremarkable findings from four different 2 mental health providers. See AR 25, quoting 747-748, 752-753, 775-776, 798-799. But the ALJ 3 failed to acknowledge other providers also made observations which were abnormal. For 4 example, one provider observed Plaintiff showed an agitated appearance and behavior, was 5 behaving anxiously, and had a dysphoric or depressed mood with congruent affect. AR 743. 6 Another provide noted Plaintiff’s mood was “[d]ysphoric but not despondent, despairing, 7 irritable [and] anxious” and also found his affect was “appropriate to mood[.]” AR 459. Plaintiff 8 was noted to be anxious with a congruent affect several other times. See AR 753, 775-776, 799. 9 Thus, the ALJ’s selective focus on evidence which supports his conclusion is error. See 10 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (it is error for the ALJ to ignore or 11 misstate competent evidence in order to justify a conclusion). Accordingly, the ALJ’s finding 12 that Dr. De Marco’s opinion is not persuasive because it is inconsistent with some of the MSEs 13 of record is not free of legal error and supported by substantial evidence. 14 Fourth, the ALJ found Dr. De Marco’s opinion not persuasive because Plaintiff was 15 able to “attend college for about a year with no formal accommodations.” AR 25. Courts have 16 repeatedly stated that “a person's ability to engage in personal activities … does not constitute 17 substantial evidence that he or she has the functional capacity to engage in substantial gainful 18 activity.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998); see also O'Connor v. Sullivan, [19] 938 F.2d 70, 73 (7th Cir. 1991) (“The conditions of work are not identical to those of home life”). 20 Plaintiff’s ability to attend college with no formal accommodations does not necessarily show he 21 could “perform an eight-hour workday, five days per week, or an equivalent work schedule.” See 22 SSR 96-8p, 1996 WL 374184 , at *1. Moreover, the ALJ failed to explain how Plaintiff’s ability to 23 attend college with no formal accommodations shows he could sustain a full-time work schedule. [24] 1 See Mulanax v. Comm’r of Soc. Sec. Admin., 293 Fed. Appx. 522 -523 (9th Cir. 2008) (citing SSR 2 96-8p) (“Generally, in order to be eligible for disability benefits under the Social Security Act, the 3 person must be unable to sustain full-time work – eight hours per day, five days per week”). In 4 addition, disability claimants “should not be penalized for attempting to lead normal lives in the 5 face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Finally, the Court 6 notes Plaintiff was unable to manage the pressure of attending college and testified he withdrew 7 from his classes as a result. AR 48. Thus, the ALJ’s fourth reason for finding Dr. De Marco’s 8 opinion not persuasive is not free of legal error and supported by substantial evidence. 9 For the above stated reasons, the Court finds the ALJ has failed to provide legally valid 10 reasons supported by substantial evidence for finding Dr. De Marco’s opinion not persuasive. 11 Therefore, the ALJ erred. 12 “[H]armless error principles apply in the Social Security context.” Molina, 674 F.3d at 13 1115. An error is harmless, however, only if it is not prejudicial to the claimant or 14 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Commissioner, 15 Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115 . The 16 Ninth Circuit has stated “‘a reviewing court cannot consider an error harmless unless it can 17 confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have 18 reached a different disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 19 2015) (quoting Stout, 454 F.3d at 1055-56 ). The determination as to whether an error is harmless 20 requires a “case-specific application of judgment” by the reviewing court, based on an 21 examination of the record made “‘without regard to errors’ that do not affect the parties’ 22 ‘substantial rights.’” Molina, 674 F.3d at 1118 -1119 (quoting Shinseki v. Sanders, 556 U.S. 396 , 23 407 (2009)). [24] 1 Had the ALJ found Dr. De Marco’s opinion persuasive, the ALJ may have included 2 additional limitations in the RFC. For example, Dr. De Marco found Plaintiff’s impairments 3 would cause him to be absent from work more than four days a month. AR 440. In the RFC, the 4 ALJ did not include any limitations regarding absenteeism. See AR 19. Therefore, if Dr. De 5 Marco’s opinion was found to be persuasive and additional limitations were included in the RFC 6 and in the hypothetical questions posed to the vocational expert (“VE”), the ultimate disability 7 determination may have changed. Accordingly, the ALJ’s errors are not harmless and require 8 reversal. The ALJ is directed to reassess Dr. De Marco’s opinion on remand. 9 C. Dr. Faria 10 Dr. Faria completed an examination of Plaintiff at the request of the Washington 11 Department of Health and Human Services in October 2018. AR 516-524. Dr. Faria opined, in 12 relevant part, that Plaintiff was limited to only occasional bending and no prolonged standing or 13 walking. AR 522. The ALJ discussed Dr. Faria’s opinion and found it persuasive. AR 26. 14 Plaintiff argues the ALJ erred by failing to include in the RFC that Plaintiff is limited to 15 only occasional bending and no prolonged standing or walking. See Dkt. 10, pp. 7-8. The ALJ 16 “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393 , 17 1394-1395 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative evidence’ 18 without explanation.” Flores v. Shalala, 49 F.3d 562, 570-571 (9th Cir. 1995) (quoting Vincent, [19] 739 F.2d at 1395 ). The “ALJ’s written decision must state reasons for disregarding [such] 20 evidence.” Id. at 571. Furthermore, an RFC must take into account all of an individual’s 21 limitations. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Thus, 22 an ALJ errs when he provides an incomplete RFC ignoring “significant and probative evidence.” [24] 1 Jones v. Colvin, 2015 WL 71709 , at *5 (W.D. Wash. Jan. 6, 2015) (citing Hill v. Astrue, 698 2 F.3d 1153 , 1161 (9th Cir. 2012)). 3 The RFC states, in relevant part, Plaintiff “can occasionally climb ramps and stairs, 4 balance, stoop, kneel and crouch” and “needs a sit-stand option every 30 minutes for 5 to 10 5 minutes without being off task.” AR 19. The Court notes that although the ALJ did not 6 specifically use the word “bending” in the RFC, he did limit Plaintiff to occasional stooping. 7 “Stooping is a type of bending in which a person bends his or her body downward and forward 8 by bending the spine at the waist.” SSR 83-10, available at 1983 WL 31251 at *6. Further, 9 Plaintiff failed to articulate how the RFC providing a “sit-stand option every 30 minutes for 5 to 10 10 minutes” does not sufficiently account for Dr. Faria’s opinion that Plaintiff is limited to no 11 prolonged standing or walking. See Dkt. 10, p. 8. See Carmickle, 533 F.3d at 1161 . Accordingly, 12 the Court finds these limitations sufficiently account for Dr. Faria’s opinion that Plaintiff is 13 limited to only occasional bending and no prolonged standing or walking. See Rounds v. Comm'r 14 Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (it is the ALJ’s responsibility to translate 15 and incorporate clinical findings into a succinct RFC). 16 D. Dr. Sise 17 Dr. Sise completed a comprehensive psychiatric evaluation of Plaintiff in October 2018 18 and opined Plaintiff was limited in his ability to perform detailed and complex tasks and perform 19 work activities on a consistent basis without special or additional instructions. AR 532. He also 20 opined Plaintiff was limited in his ability to maintain regular attendance in the workplace and 21 complete a normal workday without interruptions due to his symptoms. AR 532. Dr. Sise 22 diagnosed Plaintiff with major depressive disorder, unspecified anxiety disorder, agoraphobia 23 with panic attacks, and PTSD. AR 531. [24] 1 The ALJ discussed Dr. Sise’s opinion and found it not persuasive for two reasons: 2 (1) The opinion is not persuasive because it uses vague terms (“fair” and “limited”) that do not specifically describe the claimant’s level of functioning. (2) 3 Furthermore, it appears the doctor relied heavily on the claimant’s subjective report of symptoms and limitations (“based on his symptoms”), which are not 4 entirely consistent with the record for the reasons discussed in this decision. 5 AR 26 (numbering added). 6 First, the ALJ found Dr. Sise’s opinion not persuasive because the opinion contains 7 vague terms that “do not specifically describe [Plaintiff’s] level of functioning.” AR 26. 8 An ALJ need not discuss evidence that is neither significant nor probative. See Howard 9 ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003); Vincent, 739 F.2d at 1395 . A 10 doctor’s opinion devoid of any opined limitations is not significant or probative. See, e.g., 11 Hughes v. Colvin, No. C13-0143-MAT, 2013 WL 11319016 , at *3 (W.D. Wash. Aug. 14, 2013), 12 aff’d, 599 F. App’x 765 (9th Cir. 2015) (citing Turner v. Comm’r of Social Sec. Admin., 613 F.3d 13 1217, 1223 (9th Cir. 2010) (explaining that where a doctor’s opinion does not assign any specific 14 limitations, an ALJ need not provide reasons for rejecting the opinion because none of the 15 conclusions were actually rejected)). Dr. Sise’s opinion does not contain any specific limitations 16 related to Plaintiff’s impairments. Thus, given that Dr. Sise did not assign any specific 17 limitations to Plaintiff during the comprehensive psychiatric evaluation, the ALJ did not err in 18 finding the opinion not persuasive because no conclusions were actually rejected. 19 While the ALJ provided an additional reason for finding Dr. Sise’s opinion not 20 persuasive, the Court declines to consider whether this reason contained error, as any error 21 would be harmless because the ALJ gave a reason free of legal error supported by substantial 22 evidence to find the opinion not persuasive. See AR 26; Presley-Carrillo v. Berryhill, 692 F. 23 Appx. 941, 944-945 (9th Cir. 2017) (citing Carmickle, 533 F.3d at 1162 ) (noting that although [24] 1 an ALJ erred with regard to one reason he gave to discount a medical source, “this error was 2 harmless because the ALJ gave a reason supported by the record” to discount the source). 3 Accordingly, the Court finds the ALJ provided a reason free of legal error that is supported by 4 substantial evidence for finding Dr. Sise’s opinion not persuasive. 5 E. Mr. Billingsley 6 Mr. Billingsley, Plaintiff’s treating physical therapist, completed a residual functional 7 capacity questionnaire in September 2018. AR 507-511. He opined Plaintiff had significant 8 limitations including sitting, standing, or walking less than two hours in an 8-hour work day 9 and requiring unscheduled breaks every two hours in an 8-hour work day. AR 509-510. Mr. 10 Billingsley also opined Plaintiff would miss more than four days of work per month as a result 11 of his impairments. AR 511. 12 The ALJ found Mr. Billingsley’s opinion not persuasive for two reasons: 13 The opinion is not persuasive because (1) it is inconsistent with treatment providers’ fairly unremarkable physical exams. Specifically, Dr. Bannister found 14 he had no spasm or tenderness of the back, intact sensation and full strength in the lower extremity, negative straight leg raise test, and normal gait; Dr. Olivera 15 found he had normal range of motion of the back, normal strength, and no focus neurological deficit; Dr. Jereza found he had normal range of motion and no 16 tenderness; and other treatment providers repeatedly found he had normal gait. (2) In addition, the questionnaire has portions that are beyond this provider’s area 17 of expertise. 18 AR 25 (citations omitted) (numbering added). 19 First, the ALJ found Mr. Billingsley’s opinion not persuasive because it is inconsistent 20 with exams of Plaintiff in the record. AR 25. An ALJ can discount a medical opinion due to 21 inconsistencies between that opinion and contemporaneous treatment records. Parent v. Astrue, [22] 521 Fed. Appx. 604, 608 (9th Cir. 2013) (citing Carmickle, 533 F.3d at 1165 ); see also Alonzo, 23 No. CV-18-08317-PCT-JZB, 2020 WL 1000024 , at *3 (the most important factors an ALJ [24] 1 should consider is the supportability and consistency of an opinion). But, an ALJ must explain 2 his reasoning and cannot reject a physician’s opinion in a vague or conclusory manner. Garrison 3 v. Colvin, 759 F.3d 995, 1012-1013 (9th Cir. 2014) (citing Nguyen v. Chater, 100 F.3d 1462 , 4 1464 (9th Cir. 1996)); Embrey, 849 F.2d at 421-422 . The ALJ must state his interpretations and 5 explain why they, rather than the physician’s interpretations, are correct. See Embrey, 849 F.2d 6 at 421-422 . 7 Here, the ALJ cited to several records indicating normal findings. For example, in one 8 instance, Plaintiff’s provider observed he had no spasm or tenderness of the back, intact 9 sensation and full strength in the lower extremity, negative straight leg raise test, and normal 10 gait. AR 334-335. Another provider found Plaintiff had normal range of motion of the back, 11 normal strength, and no focus neurological deficit. AR 424. The ALJ failed to explain how the 12 findings he cited undermine Mr. Billingsley’s opinion. See AR 25. Further, the ALJ failed to 13 explain which portion of Mr. Billingsley’s opinion is contradicted by the findings he cited to. See 14 AR 25. The ALJ “merely states” these observations “point toward an adverse conclusion” but 15 “makes no effort to relate any of these” observations to “the specific medical opinions and 16 findings he rejects.” Embrey, 849 F.2d at 421 (emphasis added). “This approach is inadequate.” 17 Id. Moreover, the Court notes Mr. Billingsley also observed Plaintiff with a normal gait, which 18 could indicate Mr. Billingsley did not find a normal gait as significant to forming his opinion. 19 See AR 508. Accordingly, the ALJ’s citation without explanation to findings of normal gait do 20 not support the ALJ’s conclusion. Therefore, the ALJ’s first reason for finding Mr. Billingsley’s 21 opinion not persuasive is not free of legal error and supported by substantial evidence. 22 Second, the ALJ found Mr. Billingsley’s opinion not persuasive because “the 23 questionnaire has portions that are beyond [Mr. Billingsley’s] area of expertise.” Again, the [24] 1 ALJ’s reasoning is conclusory, as he did not provide any explanation. Without further 2 clarification, the Court is unable to determine what portions of Mr. Billingsley’s opinion the 3 ALJ is referring to. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th 4 Cir. 2014) (citation omitted) (“the ALJ must provide some reasoning in order for us to 5 meaningfully determine whether the ALJ’s conclusions were supported by substantial 6 evidence”). Accordingly, the ALJ’s second reason for finding Mr. Billingsley’s opinion not 7 persuasive is not free of legal error and supported by substantial evidence. 8 For the above stated reasons, the Court finds the ALJ has failed to provide legally valid 9 reasons supported by substantial evidence for finding Mr. Billingsley’s opinion not persuasive. 10 Accordingly, the ALJ is directed to reassess Mr. Billingsley’s opinion on remand. 11 II. Whether the ALJ properly considered Plaintiff’s testimony. 12 Plaintiff contends the ALJ failed to give clear and convincing reasons for rejecting 13 Plaintiff’s testimony about his symptoms and limitations. Dkt. 10, pp. 11-17. The Court 14 concludes the ALJ committed harmful error in assessing the opinions of Dr. De Marco and Mr. 15 Billingsley. See Section I, supra. Because Plaintiff will be able to present new evidence and new 16 testimony on remand and because the ALJ’s reconsideration of the medical evidence may impact 17 his assessment of Plaintiff’s subjective testimony, the ALJ must reconsider Plaintiff’s testimony 18 on remand. 19 III. Whether the ALJ properly determined Plaintiff’s RFC. 20 Plaintiff asserts the ALJ erred in assessing his RFC and finding him not disabled at step 21 five of the sequential evaluation process because the RFC and hypothetical questions to the VE 22 did not contain all Plaintiff’s functional limitations. Dkt. 10, pp. 17-18. The Court concludes 23 the ALJ committed harmful error when he failed to properly consider the opinions of Dr. De [24] 1 Marco and Mr. Billingsley and is directed to re-evaluate them on remand. See Section I, supra. 2 The ALJ must therefore reassess the RFC on remand. See SSR 96-8p (“[t]he RFC assessment 3 must always consider and address medical source opinions.”); Valentine, 574 F.3d at 690 (“an 4 RFC that fails to take into account a claimant’s limitations is defective”). As the ALJ must 5 reassess Plaintiff’s RFC on remand, he must also re-evaluate the findings at step five to 6 determine if there are jobs existing in significant numbers in the national economy Plaintiff can 7 perform in light of the RFC. See Watson v. Astrue, 2010 WL 4269545 , *5 (C.D. Cal. Oct. 22, 8 2010) (finding the ALJ’s RFC determination and hypothetical questions posed to the VE 9 defective when the ALJ did not properly consider a doctor’s findings). 10 IV. Whether this case should be remanded for an award of benefits. 11 Plaintiff argues this matter should be remanded with a direction to award benefits. See 12 Dkt. 10, pp. 18-19. The Court may remand a case “either for additional evidence and findings 13 or to award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when 14 the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to 15 remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 16 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for 17 determining when evidence should be credited and an immediate award of benefits directed[.]” 18 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be 19 awarded where: 20 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved 21 before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence 22 credited. 23 Smolen, 80 F.3d 1273 at 1292 ; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). [1] The Court has directed the ALJ to reconsider the opinions of Dr. De Marco and Mr. [2] Billingsley on remand. See Section I, supra. The Court has also directed the ALJ to reconsider [3] Plaintiff’s testimony. See Section II, supra. For these reasons, the Court finds there are [4] outstanding issues that must be resolved concerning Plaintiff’s functional capabilities and his [5] ability to perform jobs existing in significant numbers in the national economy. Therefore, [6] remand for further administrative proceedings is appropriate. [7] CONCLUSION [8] Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded [9] Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and [10] this matter is remanded for further administrative proceedings in accordance with the findings [11] contained herein. [12] Dated this 27th day of August, 2020. [14] A [15] David W. Christel 16 United States Magistrate Judge