Thomas v. Commissioner of Social Security Administration

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Tanya Thomas, No. CV-18-04230-PHX-JZB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, — 13 — Defendant. — 14 — — 15 — 16 Plaintiff Tanya Thomas seeks review under 42 U.S.C. § 405 (g) of the final decision 17 of the Commissioner of Social Security (“the Commissioner”), which denied her disability 18 insurance benefits and supplemental security income under sections 216(i), 223(d), 19 and 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative 20 Law Judge (“ALJ”) is not supported by substantial evidence and is based on legal error, 21 the Commissioner’s decision will be vacated, and the matter remanded for an award of 22 benefits. 23 I. Background. 24 On October 31, 2014, Plaintiff applied for disability insurance benefits and 25 supplemental security income, alleging disability beginning July 1, 2014, which was later 26 amended to an onset date of August 26, 2016. On September 12, 2017, she appeared with 27 her attorney and testified at a hearing before the ALJ. A vocational expert also testified. 28 On March 13, 2018, the ALJ issued a decision that Plaintiff was not disabled within the 1 meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request for 2 review of the hearing decision, making the ALJ’s decision the Commissioner’s final 3 decision. 4 II. Legal Standard. 5 The district court reviews only those issues raised by the party challenging the ALJ’s 6 decision. See Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). The court may set 7 aside the Commissioner’s disability determination only if the determination is not 8 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 9 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 10 preponderance, and relevant evidence that a reasonable person might accept as adequate to 11 support a conclusion considering the record as a whole. Id. In determining whether 12 substantial evidence supports a decision, the court must consider the record as a whole and 13 may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a 14 general rule, “[w]here the evidence is susceptible to more than one rational interpretation, 15 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 16 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 17 Harmless error principles apply in the Social Security Act context. Molina v. 18 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 19 substantial evidence supporting the ALJ’s decision and the error does not affect the 20 ultimate non-disability determination. Id. The claimant usually bears the burden of showing 21 that an error is harmful. Id. at 1111 . 22 Here, Plaintiff raises two issues: (1) whether ALJ improperly found Ms. Tanya 23 Thomas to be only partially credible, and, (2) whether the ALJ improperly weighed the 24 assessment from the treating physician. The record indicates that Plaintiff’s argument 25 succeeds and the ruling of the ALJ will be vacated. 26 The ALJ is responsible for resolving conflicts in medical testimony, determining 27 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 28 Cir. 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties 1 for drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 2 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 3 III. The ALJ’s Five-Step Evaluation Process. 4 To determine whether a claimant is disabled for purposes of the Social Security Act, 5 the ALJ follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the 6 burden of proof on the first four steps, but at step five, the burden shifts to the 7 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 8 At the first step, the ALJ determines whether the claimant is engaging in substantial 9 gainful activity. 20 C.F.R. § 404.1520 (a)(4)(i). If so, the claimant is not disabled and the 10 inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” 11 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the 12 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 13 the claimant’s impairment or combination of impairments meets or medically equals an 14 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 15 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step 16 four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) 17 and determines whether the claimant is still capable of performing past relevant 18 work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If 19 not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant 20 can perform any other work based on the claimant’s RFC, age, education, and work 21 experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant 22 is disabled. Id. 23 At step one, the ALJ found that Plaintiff meets the insured status requirements of 24 the Social Security Act through December 31, 2019, and that she has not engaged in 25 substantial gainful activity since August 26, 2016, the amended onset date. (AR at 20.) At 26 step two, the ALJ found that Plaintiff has the following severe impairments: “obesity, 27 diabetes mellitus, hypertension, gastroesophageal reflux disease (GERD), plantar fasciitis, 28 fibromyalgia, obstructive sleep apnea, degenerative joint disease, osteoarthritis, 1 rheumatoid arthritis, history of [C]rohn’s disease, and irritable bowel syndrome.” (Id.) At 2 step three, the ALJ determined that Plaintiff does not have an impairment or combination 3 of impairments that meets or medically equals an impairment listed in Appendix 1 to 4 Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to 5 perform: 6 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can frequently stoop, kneel, crouch and occasionally crawl and climb ramps 7 and stairs but never ladders, ropes, or scaffolds. She can frequently reach, handle, and finger bilaterally. The claimant should avoid working around 8 hazards such as moving machinery and unprotected heights. 9 (Id. at 23.) 10 The ALJ further found that Plaintiff is unable to perform any of his past relevant 11 work. At step five, the ALJ concluded that, considering Plaintiff’s age, education, work 12 experience, and residual functional capacity, there are jobs that exist in significant numbers 13 in the national economy that Plaintiff could perform. (Id. at 28.) 14 IV. Analysis. 15 Plaintiff argues the ALJ’s decision is defective for two reasons: (1) the ALJ 16 improperly discounted Plaintiff’s symptom testimony without clear and convincing 17 reasons supported by the record as a whole; and (2) the ALJ errored in discounting 18 Plaintiff’s treating physician’s medical opinion without clear and convincing evidence, 19 when there are no other medical opinions rendered during the relevant time period. 20 (Doc. 13.) The Court will address each argument below. 21 A. The ALJ Did Err in Evaluating Plaintiff’s Credibility. 22 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 23 other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 24 whether the claimant presented objective medical evidence of an impairment that could 25 reasonably be expected to produce some degree of the pain or other symptoms alleged; 26 and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the 27 severity of the symptoms only by giving specific, clear, and convincing reasons for the 28 rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 1 First, the ALJ found that Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause the alleged symptoms. Second, the ALJ found Plaintiff’s 3 statements regarding the intensity, persistence, and limiting effects of the symptoms not 4 credible to the extent they are inconsistent with the ALJ’s residual functional capacity 5 assessment. In other words, the ALJ found Plaintiff’s testimony not credible to the extent 6 she claims she is unable to perform in a competitive work environment. 7 At the hearing, Plaintiff testified that she left her job at the sheriff’s office because 8 she never knew if she would be able to get herself to work. (AR 59.) Plaintiff also alleged 9 that she suffers from frequent bowel movements, which she struggles to control. 10 (AR 58-59.) Plaintiff claimed to require an hour of bed rest three times per day. (AR 58.) 11 She also testified that she struggles with walking one block, shopping for groceries, sitting 12 for more than a half hour, lifting more than five pounds on certain days, and using her 13 hands. (AR 57.) Plaintiff further claimed that she is in pain “all the time,” and that the pain 14 interferes with her sleep. (AR 56.) 15 The ALJ rejected Plaintiff’s symptom testimony as not credible. In support of her 16 decision, the ALJ provides the following reasons: (1) “[Plaintiff’s] allegations regarding 17 the severity of her physical symptoms and limitations are not supported by the objective 18 findings of record or her treatment history” (AR 24); (2) Plaintiff has not pursued 19 aggressive treatment of her conditions (AR 25); and (3) Plaintiff admits that “she had not 20 been compliant” with recommended treatments (AR 25). 21 1. Not Supported by Evidence in the Record. 22 The ALJ’s first reason for discounting Plaintiff’s testimony is that portions of that 23 testimony are not supported by evidence in the record. Specifically, the ALJ states 24 The claimant’s allegations regarding the severity of her physical symptoms and limitations are not supported by the objective findings of 25 record or her treatment history. She has testified to frequent bowel movements but the record does not corroborate. In fact, treatment records 26 show the claimant denied change in bowel habits. On February 24, 2015, intake notes from Estrella Gastroenterology revealed the claimant reported 27 she was doing well, but having ongoing diarrhea. She denied pain. The claimant indicated she was taking omeprazole for GERD and Azathioprine 28 for more than 2 years for rheumatoid arthritis. She stated she had been on Humira until about a year ago, when she lost her insurance. The claimant 1 explained she had been diagnosed with Crohn’s in 2004 based on a colonoscopy. In 2008, she had another colonoscopy, which was normal 2 without evidence of irritable bowel disease. She denied vomiting, change in bowel habits, rectal pain, constipation, abdominal distension, blood in stool, 3 and incontinence of stool. . . . On October 6, 2015, the claimant reported chronic diarrhea secondary to Crohn’s but also indicated her last 4 gastroenterologist told her she did not have Crohn’s. She explained she was on Cymbalta for fibromyalgia and Prozac for depression (Exhibit 15F/p. 20). 5 In November 2015, during a follow-up visit with her primary care physician, the claimant reported lower abdominal pain that had started the day prior. 6 She reported having some diarrhea, but denied nausea, vomiting, blood in stool, and fevers. On exam, the claimant was in no distress. Her abdominal 7 sounds were normal. There was generalized tenderness in the right upper quadrant but no CVA tenderness. She was diagnosed with acute cystitis 8 without hematuria and prescribed nitrofurantoin. . . . 9 She had emergent care in January 2016. The claimant reported worsening abdominal pain for the past 3 days. However, she reported no 10 abnormal bowel movements. She was treated with promethazine and prednisone. The claimant was released in stable condition (Exhibit 16F/pp. 11 125-128). On March 25, 2017, the claimant had emergent care secondary to suffering from diarrhea for two days, extremity pain, and emesis. On exam, 12 her abdomen was soft with normal bowel sounds. She exhibited no distention or mass. There was tenderness but no rebound or guarding. Her abdomen 13 ultrasound was unremarkable. She reported that she felt better after bentyl. She was discharged in stable condition (Exhibit 19F/pp. 18-23). — 14 — 15 (AR 24-25.) 16 “[A]n ALJ does not provide specific, clear, and convincing reasons for rejecting a 17 claimant’s testimony by simply reciting the medical evidence in support of his or her 18 residual functional capacity determination.” Brown-Hunter, 806 F.3d at 489. “[W]e require 19 the ALJ to specify which testimony she finds not credible, and then provide clear and 20 convincing reasons, supported by evidence in the record, to support that credibility 21 determination.” Id. 22 Here, The ALJ’s comprehensive summary of Plaintiff’s medical record, without 23 more, is insufficient to constitute a clear and convincing reason for discounting Plaintiff’s 24 testimony. See Guerrero v. Berryhill, No. CV-17-04258-PHX-HRH, 2018 WL 5276418 , 25 at *4 (D. Ariz. Oct. 24, 2018) (rejecting ALJ credibility determination because “the ALJ 26 did not link this medical evidence to her credibility findings. Instead, the ALJ simply 27 recited the medical evidence, which is not sufficient.”). To be sure, the ALJ attempts to 28 discuss one point of Plaintiff’s testimony the ALJ deemed inconsistent – stating that 1 Plaintiff “testified to frequent bowel movements but the record does not corroborate.” (AR 2 24.) But, in that same paragraph, the ALJ contradicts her own position, identifying no fewer 3 than four instances of Plaintiff reporting “ongoing diarrhea,” or “chronic diarrhea,” or 4 requesting referral to a specialist due to her symptoms. (See id.)1 5 The ALJ also summarized some treatment records regarding Plaintiff’s diabetes, 6 hypertension, episodes of chest pain, sleep apnea, and plantar fasciitis, but fails to connect 7 any of the cited information to anything in Plaintiff’s symptom testimony. (See AR 25-26.) 8 Because the ALJ fails to provide any other link between the medical evidence and the 9 ALJ’s credibility finding, the ALJ’s first reason for discounting Plaintiff’s symptom 10 testimony is not clear and convincing. See Brown-Hunter, 806 F.3d at 489. 11 2. Conservative Treatment 12 The ALJ’s second reason for discounting Plaintiff’s symptom testimony is that 13 Plaintiff failed to pursue “more aggressive treatment.” (AR 24.) Specifically, the ALJ states 14 that “[t]he lack of more aggressive treatment, or treatment from a specialist suggests the 15 claimant’s symptoms and limitations were not as severe as she alleged.” (Id.) In some 16 circumstances, “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s 17 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th 18 Cir. 2007). Here, however, “no medical opinion in this record characterizes the treatment 19 of Plaintiff’s [impairments] as ‘conservative,’ nor does substantial evidence support that 20 conclusion.” Schultz v. Colvin, 32 F. Supp. 3d 1047, 1061 (N.D. Cal. 2014). 21 To the extent the ALJ suggests that Plaintiff failed to see a specialist regarding her 22 GI symptoms (AR 25), the ALJ is mistaken. The record shows that Plaintiff both sought 23 referral to specialist by her treating physician (AR 797), and was seen by a 24 gastroenterologist for her GI impairments (AR 567). Accordingly, the ALJ’s second reason 25 for discounting Plaintiff’s symptom testimony is not clear and convincing. — 26 — 1 The ALJ appears to be attempting to show that the etiology of Plaintiff’s symptom may 27 not be Chron’s disease, but it is the symptoms, not the underlying diagnosis that determines whether a claimant is disabled. See 20 C.F.R. § 404.1529 . To that end, the ALJ’s discussion 28 of Plaintiff’s medical record clearly supports the existence of symptoms identified in Plaintiff’s testimony. (See AR 24-25.) 1 3. Noncompliance with Recommended Treatment. 2 The ALJ’s third reason for discounting Plaintiff’s symptom testimony is that 3 Plaintiff failed to fully comply with recommended treatment of her diabetes mellitus and 4 hypertension. Specifically, the ALJ states “[a]lthough, there is no question that the medical 5 evidence shows some basis for the claimant’s alleged symptoms secondary to diabetes 6 mellitus and hypertension, the undersigned does not find these limitations precluded the 7 claimant from work because of her noncompliance with diet/checking her sugars and 8 failure to pursue specialized treatment through an endocrinologist or other specialist.” 9 (AR 25.) 10 Although an ALJ may consider “whether the claimant fails to follow, without 11 adequate explanation, a prescribed course of treatment,” Lingenfelter, 504 F.3d at 1040 12 (emphasis added), there is no evidence of such a failure in this case. Here, the sole act of 13 “noncompliance” upon which the ALJ relies to discount Plaintiff’s symptom testimony is 14 an August 2015 treatment note, where Plaintiff self-reports that she had not been testing 15 her blood sugar or following her diet well. (AR 760.) The Commissioner does not cite, and 16 the Court could not find, a single case in which a Plaintiff’s symptom testimony was 17 discredited for an isolated incident of failing to strictly comply with a diet recommendation. 18 Moreover, both the ALJ and the Commissioner ignore that Plaintiff’s diabetes is not 19 the sole source of her pain and other disabling symptoms; indeed, by the ALJ’s own 20 assessment, Plaintiff also suffers from: “obesity, . . . hypertension, gastroesophageal reflux 21 disease (GERD), plantar fasciitis, fibromyalgia, obstructive sleep apnea, degenerative joint 22 disease, osteoarthritis, rheumatoid arthritis, . . . and irritable bowel syndrome.” Thus, the 23 fact she failed to flawlessly follow a recommended diet is not inconsistent with her 24 testimony of disabling symptoms, which could be caused by her other impairments. See 25 Morris v. Astrue, 323 F. App’x 584, 586 (9th Cir. 2009) (finding a Plaintiff’s failure to 26 seek treatment for sleep apnea was not inconsistent with his symptom testimony, because 27 those symptoms could be caused by other impairments). 28 Accordingly, the Court finds that the ALJ’s third reason does not constitute a 1 specific clear and convincing reason for discounting Plaintiff’s symptom testimony. 2 B. Weighing of Medical Source Evidence. 3 Plaintiff argues that the ALJ improperly weighed the medical opinion of his treating 4 physician/rheumatologist, Dr. Ravi Bhalla, M.D. (Doc. 13 at 17-24.) 5 1. Legal Standard. 6 The Ninth Circuit distinguishes between the opinions of treating physicians, 7 examining physicians, and non-examining physicians. See Lester v. Chater, 81 8 F.3d 821 , 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating 9 physician’s opinion and more weight to the opinion of an examining physician than to one 10 of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th 11 Cir. 1995); see also 20 C.F.R. § 404.1527 (c)(2)-(6) (listing factors to be considered when 12 evaluating opinion evidence, including length of examining or treating relationship, 13 frequency of examination, consistency with the record, and support from objective 14 evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating or 15 examining physician can be rejected only for “clear and convincing” reasons. Lester, 81 16 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted 17 opinion of a treating or examining physician “can only be rejected for specific and 18 legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d 19 at 830-31 (citing Andrews, 53 F.3d at 1043 ). 20 An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 21 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 22 interpretation thereof, and making findings.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 23 Cir. 2017) (quotations omitted). But “[t]he ALJ must do more than offer [his] conclusions. 24 [He] must set forth [his] own interpretations and explain why they, rather than the doctors’, 25 are correct.” Embrey, 849 F.2d at 421-22 . The Commissioner is responsible for 26 determining whether a claimant meets the statutory definition of disability and does not 27 give significance to a statement by a medical source that the claimant is “disabled” or 28 “unable to work.” 20 C.F.R. § 416.927 (d). 1 2. Dr. Ravi Bhalla, M.D. 2 On June 24, 2014, Dr. Ravi Bhalla, M.D. of Valley Arthritis Care, LLC, began 3 treating Plaintiff. (AR 544.) Between June 2014 and April 2017, Plaintiff was consistently 4 treated at Valley Arthritis Care by either Dr. Bhalla or his physician’s assistant, Brady 5 Nelson P.A.-C. (See AR at 544 (June 2014), 548 (October 2014), 552 (February 2015), 6 1193 (November 2015), 1189 (January 2016), 1183 (April 2016), 1177 (August 2016), 7 1171 (November 2016), 1165 (January 2017), 1158 (Janaury 2017).) On March 22, 2017, 8 Dr. Bhalla and PA Nelson signed an assessment that indicated their findings concerning 9 Plaintiff.2 (AR 1129.) Therein, Dr. Bhalla opines that Plaintiff’s “disability is based on 10 joint pains and stiffness, joint inflammation, fatigue, [and] muscle pain and weakness” and 11 that Plaintiff’s “limitation does involve but is not limited to simple grasping with hands, 12 lifting and carrying weights, [and] reaching.” (AR 1129.) Dr. Bhalla also states that “[t]he 13 exact number of hours for sitting, standing and the amount of weight the patient can lift is 14 not the scope of this practice” and notes that he did not conduct a “functional capacities 15 evaluation.” (AR 1129.) Ultimately, Dr. Bhalla concludes that Plaintiff “is disabled for all 16 competitive work requirements.” (AR 1129.) 17 Dr. Bhalla’s assessment is not contradicted by another medical source. As such, the 18 ALJ can reject Dr. Bhalla’s medical assessment only for “clear and convincing” reasons. 19 Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988.)) Here, 20 the ALJ discounts Dr. Bhalla’s medical opinion for three reasons: (1) Dr. Bhalla’s 21 statements “indicated they based their findings on the claimant’s subjective reports”; (2) 22 Dr. Bhalla’s opinion fails to explain Dr. Bhalla’s findings; and (3) Dr. Bhalla’s opinion 23 fails to detail Plaintiff’s specific limitations. (AR 27.) For the reasons discussed below, the 24 Court finds that the ALJ failed to provide specific, clear and convincing reasons to discount 25 the medical opinion of Dr. Bhalla. 26 a. Opinion Based on Plaintiff’s Subjective Reports. 27 2 On Dec. 1, 2014, Dr. Bhalla completed a disability assessment concerning Plaintiff. (AR 387.) This assessment took place before Plaintiff amended her date of initial disability. 28 This initial assessment was given minimal weight along with opinions from several state reviewing physicians from the same general time. 1 The ALJ’s first reason for discounting Dr. Bhalla’s medical opinion is that Dr. 2 Bhalla “indicated they based their findings on claimant’s subjective reports.” (AR 27.) A 3 physician’s reliance on a claimant’s “subjective complaints hardly undermines his opinion 4 as to her functional limitations, as a patient’s report of complaints, or history, is an essential 5 diagnostic tool.” Valdez-Canez v. Colvin, No. CV-16-02780-PHX-DGC, 2017 WL 6 2351664, at *5 (D. Ariz. May 31, 2017) (citing Green-Younger v. Barnhart, 335 F.3d 99 , 7 107 (2d Cir. 2003) (internal citations and quotations omitted)). But “[i]f a treating 8 provider’s opinions are based ‘to a large extent’ on an applicant’s self-reports and not on 9 clinical evidence,” and “the ALJ finds the applicant not credible, the ALJ may discount the 10 treating provider’s opinion.” Ghanim, 763 F.3d at 1162 (quoting Tommasetti v. Astrue, 533 11 F.3d 1035, 1041 (9th Cir. 2008)). 12 As discussed above, the Court has found that the ALJ improperly discounted 13 Plaintiff’s credibility. Accordingly, the ALJ may not discount Dr. Bhalla’s medical opinion 14 solely because it is based on Plaintiff’s subjective complaints. Accordingly, the ALJ’s first 15 reason for discounting Dr. Bhalla’s medical opinion does not constitute clear and 16 convincing evidence. 17 b. Failed to Explain Findings. 18 The ALJ’s second reason for discounting Dr. Bhalla’s medical opinion is that it fails 19 to explain Dr. Bhalla’s findings. “An ALJ may discredit treating physicians’ opinions that 20 are conclusory, brief, and unsupported by the record as a whole or by objective medical 21 findings.” Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). 22 However, a physician’s check-box opinion need not explain each finding if those 23 findings are supported by the record as a whole. See id. (finding that an ALJ’s rejection of 24 a physician’s conclusory check-box opinion was improper because the physicians findings 25 were consistent with the claimant’s testimony and the physician’s other treatment notes in 26 the record). See also Trevizo v. Berryhill, 871 F.3d 664 , 677 n.4 (9th Cir. 2017) (ALJs may 27 not “reject the responses of a treating physician without specific and legitimate reasons for 28 doing so, even where those responses were provided on a ‘check-the-box’ form, were not 1 accompanied by comments, and did not indicate to the ALJ the basis for the physician’s 2 answers.”). But here, the record plainly supports Dr. Bhalla’s findings.3 Accordingly, the 3 Court finds the ALJ’s second reason for discounting Dr. Bhalla’s medical opinion is not 4 clear and convincing. 5 c. Failed to Provide Specific Limitations. 6 The ALJ’s third reason for discounting Dr. Bhalla’s medical opinion is it fails to 7 provide specific limitations. (AR 27.) Specifically, the ALJ states that a number of medical 8 records “showed mostly normal gait, strength, tone, and range of motion without 9 tenderness, swelling, or deformity.” (AR 27.) But these findings are not mutually exclusive 10 with debilitating pain; in fact, fibromyalgia, which the ALJ cites as one of Plaintiff’s severe 11 impairments, is a disease that causes severe pain without symptoms such as muscle 12 weakness, unusual sensory functions, or abnormal reflexes. Revels v. Berryhill, 874 F.3d 13 648, 656 (9th Cir. 2017). See also Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) 14 (finding that fibromyalgia is diagnosed “entirely on the basis of the patients’ reports of pain 15 and other symptoms”). Moreover, the ALJ’s finding that Plaintiff experienced no 16 tenderness is directly refuted by Dr. Bhalla and PA Nelson’s findings when checking 17 fibromyalgia trigger points. (AR at 1161, 1168, 1174, 1180, 1191, 1195.) 18 The Commissioner implies that Dr. Bhalla relied only on Thomas’ self-reported 19 symptoms. (Doc. 15 at 13.) But the record shows that Dr. Bhalla relied on his own findings 20 and treatments in conjunction with Plaintiff’s self-reports to make his medical 21 determination. (See, e.g., AR 1129; supra at n.3.) And while the ALJ notes that Dr. Bhalla 22 did not offer any explanation for his findings in his assessment and failed to offer any 23 specific functional capacity determination (AR 27), Dr. Bhalla’s failure to provide a 24 specific RFC determination does not inherently render his opinion of little or no weight. 25 See Simser v. Comm’r of Soc. Sec. Admin., 2018 WL 3416995 , at *6 (D. Ariz. July 13, — 26 — 3 See, e.g., AR 550 (summary of Plaintiff’s pain); 552-55 (report of ongoing fibromyalgia 27 symptoms and record of medical treatment); 669-72 (same); 673-76 (start of narcotic pain treatment); 1193-96 (reports of failed medications and new treatments tried); 1183-88 28 (multiple fibromyalgia trigger points found on exam); 1177-81 (same); 1147-53 (March 2017 emergency room visit with diarrhea and generalized pain). 1 2018).4 As a treating physician, Dr. Bhalla and his office have provided several treatment 2 records to corroborate his assessment. (AR 550-55, 669-76, 1158-96.) In his opinion, 3 Dr. Bhalla even instructs the reader to refer to his treatment notes. (AR 1129.) Furthermore, 4 even if Dr. Bhalla’s check-the-box opinion were devoid of explanation, it would be 5 improper for the ALJ to reject those responses without specific and legitimate reasons for 6 doing so. See Trevizo, 871 F.3d at 677 n.4 (ALJs may not “reject the responses of a treating 7 physician without specific and legitimate reasons for doing so, even where those responses 8 were provided on a ‘check-the-box’ form, were not accompanied by comments, and did 9 not indicate to the ALJ the basis for the physician’s answers.”). See also Pontzious v. 10 Berryhill, 2017 WL 6276371 , at *4 (D. Ariz. Dec. 11, 2017) (“the Ninth Circuit has noted 11 that “there is no authority that a ‘check-the-box’ form is any less reliable than any other 12 type of form.”). 13 Accordingly, the Court finds that the ALJ failed to provide specific, clear, and 14 convincing evidence that Dr. Bhalla’s opinion should be given minimal weight. 15 C. Remand. 16 Where an ALJ fails to provide adequate reasons for rejecting the opinion of a 17 physician, the Court must credit that opinion as true. Lester, 81 F.3d at 834. An action 18 should be remanded for an immediate award of benefits when the following three factors 19 are satisfied: (1) the record has been fully developed and further administrative proceedings — 20 — 4 The Court in Simsir was also required to review an opinion by Dr. Bhalla. And while 21 the case at hand requires a “clear and convincing” standard, the Court in Simsir found that the ALJ could not discount Dr. Bhalla’s opinion under the lower standard of “specific and 22 legitimate” reasons for failing to give a specific functional assessment. 23 The Court finds that the lack of specific limitations is a specific and legitimate reason to discredit Dr. Bhalla’s functional assessments. But the 24 Court cannot conclude that this reason alone is sufficient to justify a blanket rejection of Dr. Bhalla’s opinions, which corroborate Plaintiff’s testimony 25 and are based on 15 years of treating Plaintiff in Dr. Bhalla’s field of specialty. . . . The ALJ stated that Dr. Bhalla’s opinions were inconsistent 26 with certain treatment records, but as explained above, the ALJ failed to support this statement with substantial evidence in the record. The ALJ erred 27 in rejecting Dr. Bhalla’s opinions on the sole basis that his assessments did not provide specific functional limitations. — 28 — Simser, 2018 WL 3416995 , at *6 (D. Ariz. July 13, 2018) (internal citations omitted). 1 || would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 2|| for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 3 || improperly discredited evidence were credited as true, the ALJ would be required to find 4|| the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) || (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008), Lingenfelter v. 6|| Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), Orn, 495 F.3d at 640, Benecke v. || Barnhart, 379 F.3d 587, 595 (9th Cir. 2004), and Smolen v. Chater, 80 F.3d 1273 , 1292 || (9th Cir. 1996)). There is “flexibility” which allows “courts to remand for further 9|| proceedings when, even though all conditions of the credit-as-true rule are satisfied, an 10|| evaluation of the record as a whole creates serious doubt that a claimant is, in fact, || disabled.” Garrison, 759 F.3d at 1020 . 12 Here, the record is fully developed and the ALJ has already made a ruling based on 13 || all available facts. The ALJ failed to provide a legally sufficient reason for rejecting the opinion of Dr. Bhalla. This medical opinion will be credited as true, and Plaintiff's severe 15 || physical limitations detailed by Dr. Bhalla will be accepted as fact. Relying on Dr. Bhalla’s || assessment, the ALJ would be required to find that Plaintiff is disabled. Moreover, the ALJ also committed error by discounting Plaintiffs testimony concerning the extent of her 18 || disabilities without sufficient reason. Relying on Plaintiff's testimony, the Court notes that Plaintiff's symptoms preclude her from competitive work assignments. Lastly, when || viewed in its entirety, this case does not raise serious doubt that Plaintiff is actually disabled. 22 IT IS ORDERED that the final decision of the Commissioner of Social Security is 23 || vacated and this case is remanded for an award of benefits. The Clerk shall enter judgment 24 || accordingly and terminate this case. 25 Dated this 2nd day of March, 2020. — 26 — 27 S LN 28 Uolted States Magisteste Judee -14-