Araceli Saldana De Gomez v. Kilolo Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 ARACELI S.D.G., ) Case No. 5:21-cv-02046-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of the Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) [18] 19 I. 20 INTRODUCTION 21 On December 7, 2021, plaintiff Araceli S.D.G. filed a Complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking review of a denial of supplemental security income 24 (“SSI”). The parties have fully briefed the issues in dispute, and the court deems 25 the matter suitable for adjudication without oral argument. 26 Plaintiff presents two disputed issues for decision: (1) whether the 27 administrative law judge (“ALJ”) properly considered the medical evidence in 28 assessing plaintiff’s residual functional capacity (“RFC”); and (2) whether the ALJ 1 properly considered plaintiff’s subjective testimony in assessing her RFC. 2 Plaintiff’s Memorandum in Support of Complaint (“P. Mem.”) at 4-21; see 3 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 3-25. 4 Having carefully studied the parties’ memoranda, the Administrative Record 5 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 6 the ALJ failed to properly evaluate either the opinion of plaintiff’s treating 7 physician or plaintiff’s subjective symptom testimony. The court therefore 8 reverses the decision of the Commissioner denying benefits and remands the 9 matter for further administrative action consistent with this decision. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff was 44 years old on the alleged disability onset date. AR at 64. 13 She has no past relevant work. AR at 664. 14 On October 19, 2015, plaintiff filed an application for SSI, alleging a 15 disability onset date of August 10, 2015. AR at 64. Plaintiff claimed she suffered 16 from systemic lupus erythematosus. Id. 17 Plaintiff’s applications were initially denied on May 26, 2016, and on 18 reconsideration on September 6, 2016. AR at 74, 86. 19 Plaintiff requested a hearing, which the ALJ held on September 7, 2018. AR 20 at 35-63. Plaintiff, represented by counsel and assisted by a Spanish language 21 interpreter, appeared and testified at the hearing. AR at 35-59. The ALJ denied 22 plaintiff’s claim on September 26, 2018. See AR at 22-30. 23 Plaintiff commenced an action for judicial review in this court pursuant to [24] 42 U.S.C. § 405 (g). AR at 676-77. The parties agreed to voluntarily remand the 25 case, and the court remanded the case back to the agency. AR at 686-91. In 26 February 2020, the Appeals Council vacated the decision of the Commissioner and 27 remanded it to the ALJ for consideration of physician Diaz-Gomez’s opinion, [28] 1 evaluation of the severity and limiting effects of plaintiff’s cervical impairment, 2 and further consideration of plaintiff’s subjective complaints. AR at 694-95. 3 Plaintiff again appeared and testified at a hearing before the ALJ on 4 September 14, 2021, again represented by counsel and assisted by an interpreter. 5 AR at 646-75. The ALJ also heard testimony from a vocational expert. AR at 6 663-72. On September 29, 2021, the ALJ again denied plaintiff’s claim for 7 benefits. AR 620-37. 8 Applying the well-established five-step sequential evaluation process, the 9 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 10 since October 19, 2015, the application date. AR at 622. 11 At step two, the ALJ found plaintiff suffered from the following severe 12 impairments: lupus (discoid lupus erythematosus versus systemic lupus 13 erythematosus); chronic peripheral vascular disease; Raynaud’s disease; peripheral 14 neuropathy; varicose veins; cervical spondylosis; and seropositive erosive 15 rheumatoid arthritis. AR at 623. 16 At step three, the ALJ found plaintiff’s impairments, whether individually or 17 in combination, did not meet or medically equal one of the impairments set forth in 18 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 627. 19 The ALJ then assessed plaintiff’s RFC,1 and determined she had the ability 20 to perform: 21 light work as defined in 20 CFR 416.967(b) except she can 22 occasionally climb, stoop, kneel, crouch, and crawl; can never [24] 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152 , 115526 56 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the [27] ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149 , 1151 n.2 (9th Cir. 2007) (citation omitted). 1 balance as it is defined in the Dictionary of Occupational Titles and 2 Selected Characteristics of Occupations; can frequently operate foot 3 controls bilaterally; can frequently push, pull, reach, handle and finger 4 bilaterally; and must avoid extreme cold and heat. 5 AR at 628. 6 The ALJ found, at step four, that plaintiff had no past relevant work. AR 7 at 635. 8 At step five, the ALJ considered the plaintiff’s age, education, work 9 experience, and RFC, and found plaintiff could perform jobs that exist in 10 significant numbers in the national economy, including collator, retail marker, and 11 stock checker. AR at 635-36. The ALJ therefore concluded plaintiff was not 12 under a disability, as defined in the Social Security Act, at any time since October 13 19, 2015. AR at 637. 14 The ALJ’s September 29, 2021 decision stands as the final decision of the 15 Commissioner. 16 III. 17 STANDARD OF REVIEW 18 This court is empowered to review decisions by the Commissioner to deny 19 benefits. 42 U.S.C. § 405 (g). The findings and decision of the Social Security 20 Administration (“SSA”) must be upheld if they are free of legal error and 21 supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th 22 Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based 23 on legal error or are not supported by substantial evidence in the record, the court 24 may reject the findings and set aside the decision to deny benefits. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 26 1144, 1147 (9th Cir. 2001). 27 “Substantial evidence is more than a mere scintilla, but less than a [28] 1 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 2 evidence is such “relevant evidence which a reasonable person might accept as 3 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 4 1998) (citations omitted); Mayes, 276 F.3d at 459 . To determine whether 5 substantial evidence supports the ALJ’s finding, the reviewing court must review 6 the administrative record as a whole, “weighing both the evidence that supports 7 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 8 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 9 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 10 marks and citation omitted). If the evidence can reasonably support either 11 affirming or reversing the ALJ’s decision, the reviewing court “may not substitute 12 its judgment for that of the ALJ.” Id. (internal quotation marks and citation 13 omitted). 14 IV. 15 DISCUSSION 16 A. The ALJ Failed to Properly Consider a Treating Physician’s Opinion 17 Plaintiff argues that the ALJ’s unfavorable decision was not supported by 18 substantial evidence, and that the ALJ failed to properly consider relevant medical 19 evidence that documents significant symptoms and limitations preventing plaintiff 20 from pursuing any full-time employment. P. Mem. at 4. 21 Under the regulations applicable in this case, to determine whether a 22 claimant has a medically determinable impairment, the ALJ considers different 23 types of evidence, including medical evidence. 20 C.F.R. §§ 404.1527 (b), 24 416.927(b).2 The regulations distinguish among three types of physicians: (1) [26] 2 The SSA issued new regulations effective March 27, 2017. The regulations [27] cited in this section are effective for cases filed prior to March 27, 2017, such as 28 this one. See 20 C.F.R. §§ 404.1527 (b), 416.927(b). 1 treating physicians; (2) examining physicians; and (3) non-examining physicians. [2] 20 C.F.R. §§ 404.1527 (c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821 , 830 3 (9th Cir. 1996) (as amended). “Generally, a treating physician’s opinion carries 4 more weight than an examining physician’s, and an examining physician’s opinion 5 carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 6 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527 (c)(1)-(2), 416.027(c)(1)- 7 (2). The opinion of the treating physician is generally given the greatest weight 8 because the treating physician is employed to cure and has a greater opportunity to 9 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 10 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 11 Nevertheless, the ALJ is not bound by the opinion of a treating physician. 12 Smolen, 80 F.3d at 1285 . If a treating or examining physician’s opinion is 13 uncontradicted, the ALJ must provide clear and convincing reasons for giving it 14 less weight. Lester, 81 F.3d at 830 . If a treating or examining physician’s opinion 15 is contradicted by other opinions, the ALJ must provide specific and legitimate 16 reasons supported by substantial evidence for rejecting it. Id. at 830-31 . “The 17 opinion of a non-examining physician cannot by itself constitute substantial 18 evidence that justifies the rejection of the opinion of either an examining physician 19 or a treating physician.” Id. at 831 (citations omitted). 20 An ALJ must also consider evidence from those who are not acceptable 21 medical sources. See 20 C.F.R. §§ 404.1527 (f)(1), 416.927(f)(1). An ALJ may 22 only reject the opinion of a non-acceptable medical source by providing a germane 23 reason. See Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015). 24 1. The ALJ Properly Assessed Dr. Nazeri’s Opinion 25 Plaintiff argues that the ALJ failed to properly consider Dr. Nazeri’s opinion 26 that plaintiff could not maintain a full-time or part-time job due to multiple medical 27 conditions. P. Mem. at 8. [28] 1 Dr. Kavoos C. Nazeri, a rheumatologist, treated plaintiff from December 2 2015 through April 2018. See AR at 401-465. Dr. Nazeri’s treatment notes 3 generally showed that plaintiff was treated for lupus, iron deficiency anemia, 4 Raynaud’s, and postherpetic neuralgia, and that she was treated with steroids, 5 Plaquenil, and Imuran. AR at 407, 419. During several visits Dr. Nazeri 6 documented that plaintiff had decreased range of motion (AR at 404, 407, 410, 7 413, 419), while she had normal range of motion on other occasions (AR at 411, 8 426, 432, 435). In June 2016, Dr. Nazeri noted in plaintiff’s treatment plan that in 9 his opinion, “patient cannot maintain a full-time or part-time job due to multiple 10 medical conditions.” AR at 417-18. Plaintiff continued to complain of pain, and 11 in September 2016, Dr. Nazeri noted she had “grinding of the left knee.” AR at 12 420. The doctor recommended a steroid injection in plaintiff’s left knee with 13 Depomedrol 60 mg., which she received, and advised her to follow up about her 14 sympathetic ganglion injection for post herpetic neuralgia. AR at 421, 436. 15 Although the ALJ did not specifically mention Dr. Nazeri in his decision, he 16 nevertheless reviewed and discussed Dr. Nazeri’s treatment notes pertaining to 17 plaintiff’s complaints of pain. AR at 623 (citing AR at 420, 421, 432, 435, 442). 18 The ALJ found that plaintiff’s left knee osteoarthritis was non-severe because the 19 record reflected only mild symptoms related to this impairment. AR at 623. The 20 ALJ also reviewed Dr. Nazeri’s treatment notes with respect to plaintiff’s lupus 21 diagnosis, but generally found that those notes showed normal range of motion in 22 her rheumatology exams. AR 630. 23 Plaintiff argues that the ALJ failed to properly consider Dr. Nazeri’s opinion 24 that plaintiff could not maintain a full-time or part-time job due to her multiple 25 medical conditions. P. Mem. at 8. But this is a vocational opinion on an ultimate 26 issue, not a medical opinion. As the Ninth Circuit has explained, “this 27 determination is for the Social Security Administration to make, not a physician.” [28] 1 McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011) (affirming the ALJ’s rejection 2 of medical opinion that claimant “could not work at all”). An ALJ “will not give 3 any special significance to the source of an opinion on issues reserved to the 4 Commissioner.” 20 C.F.R. § 404.1527 (d)(3). “A treating physician’s evaluation 5 of a patient’s ability to work may be useful or suggestive of useful information, but 6 a treating physician ordinarily does not consult a vocational expert or have the 7 expertise of one.” McLeod, 640 F.3d at 884 . Dr. Nazeri’s opinion that plaintiff 8 cannot maintain a full-time or part-time job provided no basis for this conclusion 9 and did not include any specific functional limitations. As such, the ALJ was not 10 required to adopt or give any special weight to Dr. Nazeri’s disability opinion. 11 2. The ALJ Failed to Properly Consider One Medical Opinion 12 Plaintiff argues the ALJ failed to properly consider the relevant medical 13 evidence that documented significant symptoms and limitations preventing 14 plaintiff from pursuing full-time employment. P. Mem. at 4. In assessing 15 plaintiff’s RFC, the ALJ considered the opinion of plaintiff’s treating physician Dr. 16 Diaz-Gomez, and the opinions of two examining physicians, Dr. Girgis and Dr. 17 Yu. See AR at 630, 633, 634. 18 a. Treating Physician Dr. Diaz-Gomez 19 Dr. Mario Diaz-Gomez was plaintiff’s primacy care physician. On 20 September 15, 2017, he prepared a written medical opinion regarding plaintiff’s 21 ability to do work-related activities. AR at 1468-72. Dr. Diaz-Gomez opined that 22 plaintiff was limited to lifting less than 10 pounds as well as sitting and standing or 23 walking for less than 2 hours each in an 8 hour work day. AR at 1468. He 24 indicated that plaintiff was unable to meet competitive standards in most work 25 function areas, and would likely miss more than 4 days of work per month because 26 of her medical conditions. AR at 1471-72. Dr. Diaz-Gomez based these 27 limitations on plaintiff’s “uncontrolled Lupus symptoms [which] are good one day [28] 1 bad the next [and] may change within minutes [or] hours.” AR at 1469. 2 On September 19, 2017, Dr. Diaz-Gomez prepared another statement 3 reporting that plaintiff had lupus, hypertension, peripheal neuropathy, and 4 spondylosis of the cervical region, and experienced exertional and postural 5 limitations that significantly limited her activities of daily living. AR at 1473. 6 b. Examining Physicians Dr. Girgis and Dr. Yu 7 Dr. Bahaa Girgis examined plaintiff and performed a medical evaluation on 8 May 13, 2016. AR at 334-39. Dr. Girgis observed that plaintiff was in “no acute 9 distress,” and was able to walk and move quickly, had “bluish discoloration on the 10 tips of her fingers,” and had “some hyper pigmented brownish discoloration of the 11 skin of both legs.” AR at 335, 336. Plaintiff showed no signs of joint swelling in 12 her shoulders or elbows, and her range of motion in both was grossly normal. AR 13 at 337. With respect to plaintiff’s lower extremities: she had a grossly normal 14 range of motion in the hips, knees, and ankles, showed no signs of effusion or 15 deformity of the knees, and no mediolateral or anteroposterior instability. AR at 16 337. Dr. Girgis noted plaintiff had “good active motion,” no pill-rolling tremor, no 17 atrophy or fasciculation, her strength was 5/5, and she was without focal motor 18 deficits. Id. Plaintiff also had normal gait and did not require an assistive device 19 to ambulate across the room. Id. She could change position and get on and off the 20 examining table without difficulty. AR at 338. Dr. Girgis opined that plaintiff was 21 “capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently.” [22] Id. She could “stand and walk 6 hours in an 8-hour workday with frequent stops of 23 10 minutes per hour.” Id. She could also “sit 6 hours in an 8-hour workday.” Id. 24 Dr. Girgis additionally reviewed plaintiff’s medical records that showed she had 25 positive ANA antibodies in December 2015. AR at 335. 26 Dr. Warren Yu, an orthopedic consultative examiner, performed an 27 orthopedic examination of plaintiff on August 21, 2021. AR at 1474-78. Dr. Yu [28] 1 observed plaintiff walked without a limp and had normal gait without antalgia. AR 2 at 1475. She could also squat and rise, and did not use an assistive device. Id. She 3 had full range of motion of the cervical, lumbar spine, elbows, and wrists. AR at 4 1475-76. The examination revealed tenderness over DIP and PIP joints bilaterally, 5 but otherwise no cynanosis, clubbing, varicosities, edema, dermatitis, or 6 ulcerations. AR at 1476. Dr. Yu opined plaintiff could lift and carry 20 pounds 7 occasionally, and 10 pounds frequently; could push and pull on a frequent basis; 8 and could sit or walk and stand 6 hours out of an 8-hour work day. AR at 1477. 9 c. The ALJ’s Finding 10 The ALJ assigned Dr. Yu’s and Dr. Girgis’s opinions partial weight because 11 they did not have a treatment relationship with plaintiff and their opinions were not 12 entirely supported by the record. AR at 633. The ALJ specifically rejected Dr. 13 Girgis’s opined limitation that plaintiff needed frequent stops of 10 minutes per 14 hour, reasoning that her “joint and muscle pain from Lupus waxed and waned and 15 appeared to impose only moderate limitations but did not prevent [plaintiff] from 16 standing for six hours in an eight-hour workday with normal break.” AR at 633. 17 Plaintiff argues the ALJ gave no specific reason to reject this opined limitation – 18 contending the ALJ simply stated it was not supported by objective evidence (P. 19 Mem. at 7, 15) – but that plainly was not the case. 20 The ALJ gave little weight to the opinion of Dr. Diaz-Gomez. AR at 634. 21 Because Dr. Diaz-Gomez was a treating physician whose opinion was contradicted 22 by the consultative opinions of the State agency physicians (AR at 338, 1477), the 23 ALJ needed to provide specific and legitimate reasons supported by substantial 24 evidence to reject it. See Smolen, 80 F.3d at 1285 . The ALJ provided three 25 separate reasons for discounting Dr. Diaz-Gomez’s opinion: First, the ALJ 26 explained that Dr. Diaz-Gomez inadequately referenced medically acceptable 27 objective clinical or diagnostic findings. AR at 634. Second, the ALJ discounted [28] 1 Dr. Diaz-Gomez’s opinion because his assessment was based on a summary of the 2 claimant’s subjective complaints, diagnoses, and treatment without documenting 3 any significant positive objective findings. Id. Third, the ALJ found that the 4 objective medical evidence did not support the doctor’s findings of extreme 5 physical limitations. Id. Plaintiff argues the ALJ failed to properly consider this 6 opinion.3 P. Mem. at 9, 15. 7 The ALJ’s first reason for discounting Diaz-Gomez’s opinion – inadequately 8 referencing clinical or diagnostic findings – was not supported by substantial 9 evidence. See AR at 634. In his 2017 opinions, Dr. Diaz-Gomez diagnosed 10 plaintiff with lupus, hypertension, peripheral neuropathy, and spondylosis of 11 cervical region, and listed several clinical findings to support his opinion – joint 12 stiffness, left trapezius trigger point, and left TTP cervical facet joint C3-C5. AR 13 at 1469, 1473. The treatment records documenting these findings are a part of the 14 administrative record. See, e.g., AR at 530, 989, 1033, 1046, 1232. Accordingly, a 15 failure to provide or reference clinical or diagnostic findings was not a legally 16 sufficient reason to give Dr. Diaz-Gomez’s opinion little weight. 17 The ALJ’s second reason for discounting the treating physician’s opinion 18 was that he based the assessment on plaintiff’s subjective complaints, diagnoses, 19 and treatment without documenting any significant positive objective findings. AR 20 at 634. A physician’s opinion may be rejected if it is based on a claimant’s 21 subjective complaints that were properly discounted. Tonapetyan v. Halter, 242 22 F.3d 1144, 1149 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). [24] 3 Defendant contends plaintiff fails to present an argument that the ALJ 25 should have afforded Dr. Diaz-Gomez’s opinion greater weight or erred in 26 discounting it, and therefore waived any such argument. D. Mem. at 14. Defendant has a point; certainly plaintiff’s argument could have been more clearly [27] articulated. Nonetheless, the court finds the argument is fairly and sufficiently 28 raised. 1 As discussed below, however, the ALJ erred in his adverse credibility 2 determination. Thus, even if Dr. Diaz-Gomez’s opinion were based solely on 3 plaintiff’s subjective complaints, this reason does not suffice to discount his 4 opinion. 5 The ALJ’s third reason for giving Dr. Diaz-Gomez’s opinion little weight 6 was that it was inconsistent with plaintiff’s generally normal physical exams 7 showing she had full range of motion of her neck and full motor strength in her 8 upper and lower extremities. AR at 634; see Batson v. Comm’r, 359 F.3d 9 1190,1195 (9th Cir. 2004) (holding that an ALJ may discredit physicians’ opinions 10 that are “unsupported by the record as a whole . . . or by objective medical 11 findings”). But a large percentage of plaintiff’s treatment notes reflect physical 12 findings and clinical test results that support Dr. Diaz-Gomez’s opinion. 13 Plaintiff was diagnosed with shingles and facial pain as early as September 14 2, 2015. AR at 307. She had elevated ANA, Sjogrens, rheumatoid arthritis factor, 15 and C-reactive protein levels on December 15, 2015. AR at 317-19. Her medical 16 records consistently showed she received non-conservative treatment for these 17 ailments. For example, in 2016, after being diagnosed with osteoarthritis of the left 18 knee, plaintiff received a steroid injection. AR at 420, 436; see Garrison v. Colvin, [19] 759 F.3d 995, 1015 (9th Cir. 2014) (steroid shots generally do not qualify as 20 conservative treatment). Her laboratory findings documented she had positive 21 ANA, SS-A, Smith, RNP, and RF, and that she was treated with steroids, Plaquenil 22 and Imuran. AR at 407. Although, at times plaintiff’s treatment records note she 23 had normal range of motion of the left knee, the physical exams during the same 24 doctor’s visits document swelling of the left knee. AR at 432, 435. 25 In April 2017, a physical examination revealed plaintiff was in no acute 26 distress, but was diagnosed with cervical spondylosis without myleopathy or 27 radioculopathy. AR at 925. Plaintiff was prescribed and continued taking opioids [28] 1 for symptom control and Methotrexate for lupus. AR at 925; see Gentry v. 2 Comm’r, 741 F.3d 708, 725 (6th Cir. 2014) (finding that the prescription of higher 3 risk biologic medications such as methotrexate indicated claimant’s arthritic 4 condition was at least moderate to severe). Plaintiff also received a Bupivacaine 5 injection for her cervical spondylosis pain management. AR at 519. Imaging 6 reports of her lower limb veins from October 2, 2017 showed plaintiff experienced 7 severe venous reflux disease in most of her lower limb veins, with some mild and 8 moderate at her left calf perforator and anterior accessory vein. AR at 228. The 9 reviewing doctor opined that plaintiff’s daily activities were limited due to her leg 10 symptoms and that she was a candidate for vein ablation, which she received in 11 October and November 2017. AR at 234-62. Plaintiff also underwent 12 phlebectomy for her varicose veins in March 2018. AR at 483. 13 In 2018 plaintiff complained of severe pain in the left side of her face from 14 her forehead down to the neck. AR at 594. A physical exam showed muscle bulk 15 equal bilaterally in upper and lower extremities but her motor exams of upper and 16 lower extremities were grossly normal. AR at 595. Plaintiff requested a Toradol 17 injection for pain management which was administered. AR at 597. 18 In February 2019, at a rheumatology consultation, plaintiff reported pain 19 started in her hands and was progressing to many joints, even though her 20 neurological exam findings were grossly intact. AR 965-68. X-ray records from 21 March 2019 revealed that plaintiff had cystic/erosive changes in the bilateral 22 second and third toe, but no radiographic findings of inflammatory arthritis. AR at 23 1034. She also had scattered degenerative changes of the axial and appendicular 24 skeleton, and 2 milliliter retrolisthesis of C2 and C3 in the extension position. Id. 25 The ALJ nevertheless determined that these x-rays were unremarkable. AR at 631. 26 To the extent the ALJ implies plaintiff’s unremarkable results on her x-rays are 27 inconsistent with her diagnoses and impairments, the court notes that lay intuitions [28] 1 about medical phenomena are often wrong. See Padilla v. Astrue, 541 F. Supp. 2d 2 1102, 1106 (C.D. Cal. 2008) (ALJ is not qualified to extrapolate functional 3 limitations from raw medical data). 4 On May 7, 2019, at a rheumatology follow-up visit, plaintiff complained of 5 right knee pain for the past 10 days. AR at 981. Her lab results showed an 6 elevated C-reactive protein level, sedimentation rate, and ANA level. AR at 987. 7 Although plaintiff’s neurological exam was grossly intact, she had MCP synovitis 8 and right knee swelling. AR at 984. Plaintiff’s treatment plan included a weekly 9 Benlysta injection, athrocentesis, a steroid injection and anaesthetic into the right 10 knee joint and she was advised to rest for a few more days before resuming regular 11 activities. AR at 989-90. 12 Plaintiff’s physical therapy treatment records from May 3, 2021 showed that 13 her right knee mobility was restricted in all directions. AR at 1240. A physical 14 examination revealed her lower extremity functional scale was 29/80, she had 15 antalgic gait, lacked full knee extension at heel strike, and lacked proper heel 16 strike/toe off. AR at 1242. Additionally, plaintiff’s clinical presentation was 17 unstable with unpredictable characteristics. AR at 1244. On June 9, 2021, 18 plaintiff’s lower extremity functional scale improved to 31/80, with antalgic gait 19 and lacking full knee extension and proper heel strike. AR at 1258. Although the 20 ALJ considered these physical therapy records, the ALJ merely noted that they 21 showed plaintiff had “non-pitting left knee edema” and “motor strength ranging 22 from 4 to 4-/5 upon examination.” AR at 631; see Gooden v. Colvin, 2016 WL 23 6407367, at *7 (C.D. Cal. Oct. 28, 2016) (finding error where ALJ failed to 24 explicitly consider significance of physical therapy evidence implying some 25 physical work-related limitations); Williams v. Berryhill, 2019 WL 923749 , at *12 26 (D. Nev. Feb. 1, 2019) (same); see also Reddick v. Chater, 157 F.3d 715 , 722-23 27 (9th Cir. 1998) (an ALJ must not “cherry-pick” certain observations without [28] 1 considering their context). 2 In short, the ALJ’s third reason for discounting Dr. Diaz-Gomez’s opinion – 3 inconsistency with the objective medical evidence – was not supported by 4 substantial evidence in the record as a whole. Accordingly, the ALJ failed to cite 5 any specific and legitimate reason supported by substantial evidence for giving Dr. 6 Diaz-Gomez’s opinion little weight. 7 3. The ALJ Considered Ms. Perez’s Report 8 Plaintiff additionally argues that the ALJ erred in failing to consider the 9 medical source statement provided by social worker Erika Perez, LCSW. P. Mem. 10 at 13. This is simply incorrect. 11 Ms. Perez is a licensed social worker who provided plaintiff with 12 psychotherapy services. See AR 1041, 1156. Perez provided a letter dated 13 February 23, 2021, and reported plaintiff was diagnosed with major depressive 14 disorder, anxiety, and stressors. AR at 1156. Perez also reported that plaintiff 15 suffered from multiple psychiatric symptoms that impair plaintiff’s ability to 16 function, including depressed mood, sleep changes, psychomotor agitation, loss of 17 energy, feelings of guilt, poor concentration, excessive worry, crying spells, and 18 intrusive thoughts about past trauma. Id. Contrary to plaintiff’s argument, the ALJ 19 acknowledged and recounted all of this in considering the severity of plaintiff’s 20 mental impairments at step two. AR at 624. 21 Licensed clinical social workers and psychotherapists are not among the 22 categories medical professionals listed in the operative definition of “acceptable 23 medical source.” See 20 C.F.R. § 404.1502 (a); Grotts v. Kijakazi, 27 F.4th 1273 , 24 1277 (7th Cir. 2022) (not all licensed medical professionals are “treating sources” 25 or “acceptable medical sources”). An ALJ may only reject the opinion of a 26 non-acceptable medical source by providing a germane reason. See Britton v. 27 Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015). [28] 1 Here, Ms. Perez did not opine specific functional limitations, and the ALJ in 2 fact considered her report. To the extent Mr. Perez may be said to have offered a 3 medical opinion and the ALJ may be said to have discounted that opinion in some 4 fashion, the ALJ did so by juxtaposing it with other medical findings, and by 5 noting plaintiff’s failure to seek treatment consistent with the extent of her 6 complaints until January 2021, although she alleges an August 2015 onset date. 7 AR at 624-25. These are germane reasons that placed Ms. Perez’s report in 8 context. Nothing more was required. 9 B. The ALJ Failed to Properly Consider Plaintiff’s Subjective Complaints 10 Plaintiff also argues the ALJ improperly discounted her symptom testimony 11 based on the objective medical evidence and her attempts to perform some limited 12 part-time work. P. Mem. at 15-22. Plaintiff argues the ALJ failed to articulate 13 clear and convincing reasons to discount her testimony. Id. 14 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 15 evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded 16 SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, [17] 2017 WL 5180304 , at *1 (Oct. 25, 2017). “Although SSRs do not have the same 18 force and effect as statutes or regulations, they are binding on all components of 19 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35 (b)(1)). 20 In adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom 21 evaluation is not an examination of an individual’s character.” Id. at *2 . 22 [SSR 16-3p] makes clear what our precedent already required: that 23 assessments of an individual’s testimony by an ALJ are designed to 24 evaluate the intensity and persistence of symptoms after the ALJ finds 25 that the individual has a medically determinable impairment(s) that 26 could reasonably be expected to produce those symptoms, and not to 27 delve into wide-ranging scrutiny of the claimant’s character and [28] 1 apparent truthfulness. 2 Trevizo v. Berryhill, 871 F.3d 664 , 678 n.5 (9th Cir. 2017) (cleaned up). 3 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 4 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913 , 921 (C.D. Cal. 2019) (quoting 5 Trevizo, 871 F.3d at 678 ). First, the ALJ must determine whether the claimant 6 produced objective medical evidence of an underlying impairment that could 7 reasonably be expected to produce the symptoms alleged. Id. Second, if the 8 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 9 must evaluate the intensity and persistence of the claimant’s symptoms and 10 determine the extent to which they limit her ability to perform work-related 11 activities. Id. 12 In assessing intensity and persistence, the ALJ may consider: a claimant’s 13 daily activities; the location, duration, frequency, and intensity of the symptoms; 14 precipitating and aggravating factors; the type, dosage, effectiveness, and side 15 effects of medication taken to alleviate the symptoms; other treatment received; 16 other measures used to relieve the symptoms; and other factors concerning the 17 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing [18] 20 C.F.R. § 416.929 ; SSR 16-3p, 2017 WL 5180304 , at *4; Smolen, 80 F.3d at 19 1283-84 & n.8 (9th Cir. 1996)). To reject the claimant’s subjective symptom 20 statements at step two, the ALJ must provide “specific, clear, and convincing” 21 reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 22 929. 23 At the first step, the ALJ here found plaintiff’s medically determinable 24 impairments could reasonably be expected to cause the symptoms alleged. AR 25 at 629. At the second step, because the ALJ did not find any evidence of 26 malingering, the ALJ was required to provide clear and convincing reasons for 27 discounting plaintiff’s testimony. Here, the ALJ discounted plaintiff’s subjective [28] 1 complaints for two reasons. First, the ALJ reasoned that plaintiff’s allegations as 2 to the intensity, persistence, and limiting effects of her symptoms were not entirely 3 consistent with the objective medical evidence. AR at 629. Second, the ALJ found 4 that plaintiff’s work activities after the alleged onset date were inconsistent with 5 her symptom testimony. Id. 6 At the September 14, 2021 hearing, plaintiff testified that she worked for 7 Amazon for two months delivering packages, but was terminated because she was 8 doing “really bad” because of her knee injuries. AR at 655. One day she was 9 feeling so bad that she had to be taken to the hospital. Id. She also sporadically 10 worked for Uber for about two years making $900 to $1,000 per month. AR at 11 655-56. She testified she had a number of procedures performed on her legs to 12 correct her vascular impairments but that she continues to have swelling in the legs 13 despite these procedures, and has to elevate her legs on a daily basis to help with 14 the circulation and to decrease swelling and pain. AR at 657. Plaintiff also had 15 problems with her hands causing her to drop things a lot and her hands to feel 16 heavy with a loss of strength. AR at 657-658. She continued to receive injections 17 for her rheumatoid arthritis. AR at 658. Plaintiff also testified that she recently 18 gained weight as a result of her chemotherapy treatment. AR at 661. Although she 19 was still able to drive, she felt disoriented, had issues with forgetfulness, and did 20 not feel safe when attempting to drive. AR at 662. 21 The ALJ’s first reason for discounting plaintiff’s credibility, namely that the 22 objective medical evidence was not entirely consistent with her asserted functional 23 restrictions, is unavailing. AR at 628-29; see Burch v. Barnhart, 400 F.3d 676 , 24 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole basis 25 for discounting pain testimony, it is a factor that the ALJ can consider in his 26 credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 27 (lack of corroborative objective medicine may be one factor in evaluating [28] 1 credibility). Although there was objective medical evidence of conditions that 2 could cause plaintiff to suffer from significant symptoms, the ALJ found that 3 plaintiff’s claim that her lower extremities pain reduced her ability to perform 4 work-related activities was inconsistent with the objective evidence, because, 5 among other things, clinical and neurological findings suggested that she had 6 normal motor strength in her bilateral lower extremities. AR at 629. 7 As set forth above, many of the findings the ALJ cites showing full range of 8 motion and full motor strength also showed that plaintiff was consistently 9 prescribed pain killers, steroid injections, and other aggressive treatment and pain 10 management medications. Apparently, her treatment providers at those facilities 11 did not think these findings were inconsistent with her allegations of significant 12 pain. If the ALJ believed that these medical findings were inconsistent with 13 plaintiff’s allegation of disabling pain, he should have provided an explanation and 14 support for his conclusions. The ALJ did not do so here. See Day v. Weinberger, [15] 522 F.2d 1154, 1156 (9th Cir. 1975) (An ALJ who is not qualified as a medical 16 expert may not make his own assessment as to the claimant’s physical condition.). 17 When read as a whole, the treatment notes do not undermine plaintiff’s testimony. 18 Rather, they consistently reveal that, despite some occasional signs of 19 improvement and her general ability to move her extremities, she continued to 20 suffer debilitating pain and sought conservative and non-conservative treatment for 21 her pain, such as steroid injections, opioids, chemotherapy, Methotrexate, and 22 physical therapy. 23 Second, the ALJ discounted plaintiff’s symptom testimony because it was 24 inconsistent with her work activities after the alleged onset date. AR at 629. The 25 ALJ found that plaintiff’s work as an Uber driver and her work at Amazon 26 delivering packages were inconsistent with her subjective complaints of pain from 27 lupus and other physical impairments preventing her from working. Id. But an [28] 1 “ALJ’s cursory summary of plaintiff’s work history, without more, does not clearly 2 and convincingly detract from her credibility.” McNeill v. Astrue, 2011 WL 3 871478, at *9 (C.D. Cal. Mar. 14, 2011). Although plaintiff testified she worked 4 for Amazon for two months, and sporadically worked for Uber for two years 5 making between $900 and $1,000 per month, she also stated that she did not make 6 this amount every month and was unable to work for seven to nine months during 7 the pandemic. AR at 658. She testified that although there were good days when 8 she could work, there were also bad days when she was unable to get out of bed. [9] Id. She also testified that she continues to receive injections for her pain 10 management and has gained weight as a result of her chemotherapy treatment. AR 11 at 658, 661. Plaintiff’s off and on (and ultimately unsuccessful) work efforts are 12 not inconsistent with her symptom testimony. 13 Accordingly, the ALJ failed to properly consider plaintiff’s subjective 14 complaints. The reasons provided for discounting plaintiff’s testimony were not 15 clear and convincing and supported by substantial evidence. 16 C. Grid Rule 201.10 17 Plaintiff also mentions that if she were found to be limited to sedentary 18 work, a finding of disability would have resulted under Grid Rule 201.10, and 19 argues the ALJ failed to appropriately consider the Grid Rules. P. Mem. at 5. Grid 20 Rule 201.10 directs a finding of disability for a claimant who meets certain age, 21 education, and previous work experience requirements and is limited to sedentary 22 work. 20 C.F.R. Part 404, Subpart P, App. 2, § 201.10. As discussed above, the 23 ALJ erred in evaluating the treating physician’s opinion and plaintiff’s symptom 24 testimony. This case will be remanded for the ALJ to reconsider the medical 25 opinion evidence and plaintiff’s symptom testimony, and then reassess plaintiff’s 26 RFC. The ALJ may then address the grids at step five and apply the rule that 27 corresponds with the new RFC determination [28] 1 V. 2 REMAND IS APPROPRIATE 3 The decision whether to remand for further proceedings or reverse and 4 award benefits is within the discretion of the district court. McAllister v. Sullivan, [5] 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 6 discretion to direct an immediate award of benefits where: “(1) the record has been 7 fully developed and further administrative proceedings would serve no useful 8 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 9 evidence, whether claimant testimony or medical opinions; and (3) if the 10 improperly discredited evidence were credited as true, the ALJ would be required 11 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995 , 1020 12 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 13 instructions to calculate and award benefits). But where there are outstanding 14 issues that must be resolved before a determination can be made, or it is not clear 15 from the record that the ALJ would be required to find a plaintiff disabled if all the 16 evidence were properly evaluated, remand for further proceedings is appropriate. 17 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, [18] 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 19 further proceedings when, even though all conditions of the credit-as-true rule are 20 satisfied, an evaluation of the record as a whole creates serious doubt that a 21 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021 . 22 Here, remand is required to permit the ALJ to reconsider the medical 23 evidence and opinions and plaintiff’s testimony, and either accept the opinions and 24 testimony or provide legally sufficient reasons to reject them. After doing so the 25 ALJ shall reassess plaintiff’s RFC and then proceed through steps four and five to 26 determine what work, if any, plaintiff was capable of performing during the 27 relevant period. [28] 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 | REVERSING the decision of the Commissioner denying benefits, and 5 || REMANDING the matter to the Commissioner for further administrative action 6 || consistent with this decision. [7] : Prey 9 || DATED: September 28, 2023 SHERI PYM 10 United States Magistrate Judge