Pressley v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Gloria Denise Pressley, No. CV-20-01672-PHX-DGC 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [15] 16 Plaintiff Gloria Pressley seeks review under 42 U.S.C. § 405 (g) of the final decision 17 of the Commissioner of Social Security, which denied her disability insurance benefits 18 under §§ 216(i) and 223(d) of the Social Security Act. For the following reasons, the Court 19 will reverse the decision of the Administrative Law Judge (“ALJ”) and remand for 20 additional proceedings. 21 I. Background. 22 Plaintiff is a 58-year-old woman with a high school education. Doc. 13, A.R. 71, 23 223.1 She has worked at various semiskilled jobs, including as a nurse assistant, home 24 health aide, and customer order clerk. A.R. 23, 223. Plaintiff applied for disability benefits 25 on December 20, 2016, alleging disability beginning September 30, 2016. A.R. 13. 26 Plaintiff alleges that her mental health issues, including depression and anxiety, and [27] 1 “A.R.” refers to the administrative record in this case. For consistency, the Court, where 28 possible, will cite to portions of the record by administrative record page number rather than by exhibit numbers. 1 physical impairments, including degenerative disc disease, ischiofemoral impingement, 2 bilateral hand osteoarthritis, obesity, fibromyalgia, and vertigo, are so debilitating that she 3 is unable to work. Doc. 20 at 3. 4 On October 7, 2019, Plaintiff and a vocational expert (“VE”) appeared and testified 5 at a hearing before the ALJ. A.R. 31-69. On November 4, 2019, the ALJ issued an 6 unfavorable decision, finding that Plaintiff was not disabled within the meaning of the 7 Social Security Act. A.R. 10-24. The ALJ’s decision became Defendant’s final decision 8 with the Appeals Council denied review on June 25, 2020. A.R. 1-6. 9 II. Legal Standard. 10 The Court reviews only those issues raised by the party challenging the ALJ’s 11 decision. See Lewis v. Apfel, 236 F.3d 503 , 517 n.13 (9th Cir. 2001). The Court may set 12 aside the Commissioner’s disability determination only if it is not supported by substantial 13 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 14 Substantial evidence is more than a scintilla, less than a preponderance, and relevant 15 evidence that a reasonable person might accept as adequate to support a conclusion 16 considering the whole record. Id. The Court must consider the whole record and may not 17 affirm simply by isolating a “specific quantum of supporting evidence.” Id. (internal 18 citations and quotation marks omitted). As a general rule, “[w]here the evidence is 19 susceptible to more than one rational interpretation, one of which supports the ALJ’s 20 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 954 21 (9th Cir. 2002) (citations omitted). The ALJ is responsible for resolving conflicts in 22 medical testimony, determining credibility, and resolving ambiguities. Andrews v. 23 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ’s reasoning, the Court 24 is “not deprived of [its] faculties for drawing specific and legitimate inferences from the 25 ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 26 III. The ALJ’s Sequential Evaluation Process. 27 Whether a claimant is disabled is determined using a five-step evaluation process. 28 The claimant must show that (1) she is not currently working, (2) she has a severe 1 impairment, and (3) her impairment meets or equals a listed impairment or (4) her residual 2 functional capacity (“RFC”) precludes her from performing past work. If the claimant 3 meets her burden at step three, she is presumed disabled and the analysis ends. If the 4 claimant meets her burden at step four, the Commissioner must show at the fifth step that 5 the claimant is able to perform other work given her RFC, age, education, and work 6 experience. 20 C.F.R. § 416.920 (a)(4)(i)-(v); see Tackett v. Apfel, 180 F.3d 1094 , 1098 7 (9th Cir. 1999). 8 At step one, the ALJ found that Plaintiff met the insured status requirements of the 9 Social Security Act through June 30, 2019, and that she had not engaged in substantial 10 gainful activity since September 30, 2016. A.R. 16. At step two, the ALJ found that 11 Plaintiff has the following severe impairments: degenerative disc disease, ischiofemoral 12 impingement, bilateral hand osteoarthritis, obesity, fibromyalgia, and vertigo. Id. The ALJ 13 acknowledged that the record contained evidence of depressive disorder and anxiety, but 14 found that they were not severe impairments. A.R. 17. At step three, the ALJ determined 15 that Plaintiff did not have an impairment or combination of impairments that met or 16 medically equaled a listed impairment. A.R. 18. At step four, the ALJ determined that 17 Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b), except 18 she was never able to climb ladders, ropes, or scaffolds; she was occasionally able to climb 19 ramps and stairs, balance, stoop, crouch, kneel, or crawl; she was able to have no exposure 20 to dangerous machinery with moving mechanical parts or to unprotected heights; she was 21 unable to drive as part of her job duties; and she was able to frequently handle and finger 22 bilaterally. A.R. 19.2 The ALJ concluded that Plaintiff could perform her past relevant [24] 2 Regulations define “light work” as work that involves lifting no more than 20 pounds at 25 a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of 26 walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range 27 of light work, the patient must have the ability to do substantially all of these activities. If someone can do light work, the ALJ determines that he or she can also do sedentary work, 28 unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. 404.1567(b). 1 work as a customer order clerk and that she was not disabled within the meaning of the 2 Social Security Act from September 30, 2016, through June 30, 2019. A.R. 23-24. 3 IV. Discussion. 4 Plaintiff’s appeal focuses on the ALJ’s conclusions about her physical impairments. 5 Doc. 20 at 3. Plaintiff argues that the ALJ erred by failing to give specific and legitimate 6 reasons for discrediting the opinions of Plaintiff’s treating physicians, Drs. Kirk Puttlitz 7 and Michael Steingart, and by rejecting Plaintiff’s symptom testimony without specific, 8 clear, and convincing reasons supported by substantial evidence. Doc. 20 at 11-26. 9 A. Treating Provider Opinions. 10 1. Legal Standard. 11 The Commissioner is responsible for determining whether a claimant meets the 12 statutory definition of disability and need not credit a physician’s conclusion that a claimant 13 is “disabled” or “unable to work.” 20 C.F.R. § 404.1527 (d)(1). But the Commissioner 14 generally must defer to a physician’s medical opinion, including statements concerning the 15 nature or severity of the claimant’s impairments, what the claimant can do, and the 16 claimant’s physical or mental restrictions. § 404.1527(a)(2), (c). 17 Generally, an ALJ should give greatest weight to a treating physician’s opinion and 18 more weight to the opinion of an examining physician than a non-examining physician. 19 See Andrews, 53 F.3d at 1040-41 (9th Cir.1995); see also 20 C.F.R. § 404.1527 (c)(2)-(6). 20 If a treating or examining physician’s medical opinion is not contradicted by another 21 doctor, the opinion can be rejected only for clear and convincing reasons. Lester v. Chater, [22] 81 F.3d 821, 830 (9th Cir. 1995) (citation omitted). An opinion contradicted by another 23 doctor can be rejected “for specific and legitimate reasons that are supported by substantial 24 evidence in the record. Id. at 830-31 (citation omitted). This requires the ALJ to set out 25 “a detailed and thorough summary of the facts and conflicting clinical evidence, stating 26 [her] interpretation thereof, and making findings.” Magallanes, 881 F.2d at 751 . Under 27 either standard, “[t]he ALJ must do more than offer [her] conclusions. [She] must set forth [28] 1 [her] own interpretations and explain why they, rather than the doctors’, are correct.” 2 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). 3 2. Dr. Kirk Puttlitz. 4 Dr. Kirk Puttlitz, a pain management physician at the CORE Institute in Phoenix, 5 has treated Plaintiff since January 2017. 3 A.R. 444 . The ALJ gave Dr. Puttlitz’s opinion 6 little weight. A.R. 22. 7 a. Opinion. 8 On September 13, 2017, Dr. Puttlitz completed a check-box form indicating that 9 Plaintiff was impaired by thoracic and lumbar disc degeneration and lumbar radiculopathy 10 and that the impairments precluded an eight-hour work day. A.R. 742. He opined that 11 Plaintiff could sit, stand, or walk for less than two hours at a time during an eight-hour 12 work day; lift or carry less than ten pounds; bend, reach, or stoop in a work setting only 13 occasionally (21%-33%); and use her right and left hands and feet frequently (34%-66%). [14] Id. She would need to shift position every 21-45 minutes, take a break of at least 15 minutes 15 after shifting positions, and miss 6 or more days of work per month due to her impairments. 16 A.R. 742 -43. Additionally, Dr. Puttlitz noted that Plaintiff’s pain and fatigue would result 17 in moderately severe limitations, meaning she would be off task for 16%-20% of an eight18 hour work day. A.R. 743. He indicated that he considered and reviewed his own and other 19 treatment records in coming to this opinion and that the limitations he assessed resulted 20 from objective findings documented in Plaintiff’s medical records. Id. 21 On April 15, 2019, Dr. Puttlitz completed a second check-box form indicating that 22 Plaintiff’s impairments still precluded an eight-hour workday. A.R. 1170. He opined that 23 Plaintiff could sit more than three but less than four hours in an eight-hour day; stand or 24 walk less than two hours; carry or lift between 10 and 15 pounds; bend, reach, or stoop in 25 a work setting only occasionally (21%-33%); and use her right and left hands continuously 26 (67%-100%). Id. Plaintiff would need to shift positions every 1-20 minutes, take a break [27] 3 Plaintiff was a patient at the CORE Institute starting in October 2016, but was seen by a 28 different doctor until January 2017 , at which point Dr. Puttlitz assumed her care. See A.R. 465. 1 of at least 15 minutes after shifting positions, and miss 4-5 days of work per month due to 2 her impairments. A.R. at 1171. Dr. Puttlitz indicated that he considered and reviewed his 3 own and other treatment records in coming to this opinion and that the limitations he 4 assessed resulted from objective findings documented in Plaintiff’s medical records. Id. 5 b. ALJ’s Reasoning. 6 Dr. Puttlitz’s opinions regarding Plaintiff’s limitations were contradicted by other 7 physicians. His opinion that Plaintiff was limited in her ability to sit, stand, or walk in 8 work situations was contradicted by consultive examiner Dr. Cunningham, who assessed 9 no limitations on such activities for Plaintiff. A.R. 576. Similarly, the opinions of State 10 agency medical consultants Drs. Griffith and Battis contradict Dr. Puttlitz’s opinions 11 regarding Plaintiff’s limitations, assessing that she could stand, walk, or sit for about six 12 hours of an eight-hour work day. A.R. 81, 102. Because Dr. Puttlitz’s opinion was 13 contradicted by other doctors, the ALJ was required to provide specific and legitimate 14 reasons for rejecting it, supported by substantial evidence on the record. Lester, 81 F.3d at 15 830. 16 The ALJ identified three reasons for giving Dr. Puttlitz’s opinion little weight: (1) it 17 was inconsistent with the assessments of non-examining physicians Ernest Griffith and 18 Sandra Battis and of examining physician Keith W. Cunningham; (2) it was “extreme and 19 unsupported by the medical records,” including Dr. Puttlitz’s own clinical notes from the 20 relevant period, which “show mostly normal physical examinations;” and (3) Dr. Puttlitz’s 21 reliance on check-box forms “provides minimal explanations” for his assessed limitations. 22 A.R. 22 . 23 i. First Reason. 24 The ALJ found that the opinion of Dr. Puttlitz was inconsistent with the assessments 25 Drs. Griffith, Battis, and Cunningham. A.R. 22. Plaintiff argues that this is not a specific 26 or legitimate reason because the presence of contradictory opinions merely triggers the 27 specific-and-legitimate standard, as opposed to the higher standard that governs if the 28 opinion is uncontradicted. Doc. 20 at 13-14. If the mere presence of contradictory opinions 1 was a specific and legitimate reason, Plaintiff argues, “determining disability would be the 2 result of a democratic vote, treating all votes equally.” Id. at 14. 3 The Commissioner argues that the combination of the three contradicting opinions 4 is substantial evidence supporting the ALJ’s determination because the three doctors 5 supported their conclusions with notes about the record or, in the case of Dr. Cunningham, 6 examination findings. Doc. 21 at 12. The Commissioner also argues that Dr. Cunningham’s 7 opinion alone constitutes substantial evidence because it is based on his own independent 8 examination of Plaintiff. Id. (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 9 2001)). 10 The mere fact that a contradiction exists is not enough to justify discrediting the 11 treating physician’s opinion. See Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). 12 “Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not 13 reject this opinion without providing specific and legitimate reasons supported by 14 substantial evidence in the record.” Id. at 633 (citations and internal quotations omitted). 15 When the findings of treating physicians and examining physicians are the same, but their 16 ultimate opinions differ, the conclusions of the examining physician are not substantial 17 evidence. Id. at 632 . But “when an examining physician provides ‘independent clinical 18 findings that differ from the findings of the treating physician,’ such findings are 19 ‘substantial evidence.’” Id. (citation omitted). “Independent clinical findings can be either 20 (1) diagnoses that differ from those offered by another physician and that are supported by 21 substantial evidence, or (2) findings based on objective medical tests that the treating 22 physician has not herself considered.” Id. (citation omitted). 23 “Even when contradicted by an opinion of an examining physician that constitutes 24 substantial evidence, the treating physician’s opinion is still entitled to deference.” Id. at 25 632-33 (citing S.S.R. 96–2p at 1, 4; 61 Fed. Reg. at 34,491). The opinions of nonexamining 26 physicians cannot by themselves constitute substantial evidence that justifies the rejection 27 of the opinion of a treating physician. Lester, 81 F.3d at 831 . But the opinions of [28] 1 nonexamining physicians can be substantial evidence if consistent with other independent 2 evidence in the record. Magallanes, 881 F.2d at 751 . 3 The ALJ did not discuss how the findings of Dr. Cunningham constitute substantial 4 evidence for discrediting Dr. Puttlitz. She did not discuss differences in their diagnoses, 5 methodologies, qualifications, or any other reasons for crediting a single examination of 6 Plaintiff over the treating assessment of Dr. Puttlitz. Indeed, many of Dr. Cunningham’s 7 observations in his evaluation notes are consistent with those of Dr. Puttlitz. Dr. 8 Cunningham documented Plaintiff’s abnormal gait, pain with palpation of her lumbar 9 spine, and reduced range of motion in her lumbar spine. A.R. 574-75. Dr. Cunningham 10 also apparently agreed with Plaintiff’s diagnosis of degenerative disc disease. A.R. 575. 11 It also does not appear that Dr. Cunningham based his opinions on any objective medical 12 tests that Dr. Puttlitz did not consider – it is not clear from his records that he even had the 13 benefit of reviewing the objective data produced by Dr. Puttlitz. Thus, it appears that the 14 difference between the assessments of Drs. Puttlitz and Cunningham is one of opinion 15 rather than of findings. As a result, Dr. Cunningham’s differing opinion is not substantial 16 evidence on which to reject Dr. Puttlitz’s opinion. Orn, 495 F.3d at 632 . 17 The opinions of nonexamining physicians Griffith and Battis cannot by themselves 18 constitute substantial evidence, but they can be substantial evidence if consistent with other 19 independent evidence in the record. Magallanes, 881 F.2d at 751 . The ALJ found the 20 opinions of Drs. Griffith and Battis consistent with each other and with Dr. Cunningham. 21 A.R. 22 . As noted above, however, the ALJ did not make clear how the findings of Dr. 22 Cunningham differed from those of Dr. Puttlitz such that they constitute substantial 23 evidence on which to reject Dr. Puttlitz’s assessments. It is likewise unclear whether the 24 ALJ found the opinions of Drs. Griffith and Battis to be consistent with other evidence in 25 the record so as to justify favoring their opinions over those of Dr. Puttlitz. 26 ii. Second Reason. 27 The ALJ found Dr. Puttlitz’s opinion to be “extreme and unsupported by the medical 28 records.” A.R. 22. She also found the opinion “contradicted by his own clinical notes 1 authored during the relevant period, which show mostly normal physical examinations.” [2] Id. Plaintiff argues that the ALJ mischaracterized what Dr. Puttlitz assessed and 3 overstepped her proper role. Doc. 20 at 14. The ALJ’s own view of the assessed limitations 4 as “extreme,” Plaintiff argues, is not substantial evidence on which to reject his assessment. [5] Id. 6 Plaintiff also argues that the ALJ’s conclusion that the assessed limitations were not 7 supported by the medical records is itself unsupported by the records in this case. Id. at 8 15-16. Plaintiff takes issue with the ALJ’s citations for her finding that Dr. Puttlitz’s own 9 clinical notes show “mostly normal” physical examinations, arguing that the ALJ neither 10 defines what “mostly normal” means nor provides any precise citations demonstrating 11 these “normal” examinations, citing instead to 150 pages of records generally. Id. at 16. 12 The Commissioner responds only by providing page cites within the larger exhibits 13 to which the ALJ cited. Doc. 21 at 13 (“The ALJ noted that Dr. Puttlitz’[s] opinion was 14 inconsistent with his own clinical notes, which showed mostly normal physical 15 examinations (AR 22 citing AR 873, 883-84, 888-89, 897-98, 902-03, 912-13, 928-29, 16 919-20, 938-39, 945-46, 954-55, 958-60, 991, 997-98, 1002-03, 1012-13, 1021-22, 102717 28, 1036-37)). But these specific citations were not provided by the ALJ in her opinion, 18 which cited only generally to exhibits 15F and 20F – spanning 94 and 56 pages 19 respectively. 4 A.R. 22 . The Commissioner did not respond to Plaintiff’s arguments about 20 the ALJ mischaracterizing limitations or usurping the role of the physician. 21 The ALJ’s general citations to portions of Dr. Puttlitz’s clinical notes fail to provide 22 specific and legitimate reasons for rejecting his medical opinion because she does not [23] 4 In other portions of her opinion, the ALJ did cite specifically to Exhibit 15F/6 (A.R. 873) 24 and Exhibit 20F/3-4, 33-34 (A.R. 991-92, 1021-22) as examples of normal physical examinations. A.R. 20. But she did not explain why these records should be considered 25 “normal” when they show, respectively: tenderness with palpation of the lumbosacral paraspinal and sacroiliac joint, tender lumbar extension range of motion, and a positive 26 quadrant loading maneuver test (A.R. 873); tender palpation over the paraspinal thoracic spine, sacral iliac joint, and lumbosacral paraspinals, a positive quadrant loading maneuver 27 test, and a “clinical scenario consisting of extension based axial lumbosacral paraspinal pain (likely implicating the facet joints as a pain generator)” (A.R. 991-92); and painful 28 range of motion and tenderness with palpation of paraspinal facets and posterior superior iliac spine (A.R. 1021). 1 explain how these reports contradict the opinion or otherwise render it extreme. The ALJ 2 cited generally to Exhibit 15F, which contains medical records from the CORE Institute 3 from October 18, 2016 to October 16, 2017, including the months leading up to Dr. 4 Puttlitz’s medical assessment on September 13, 2017. Throughout these records are 5 findings of Plaintiff’s worsening pain, reduced range of motion, and positive quadrant 6 loading maneuver tests.5 See, e.g., A.R. 873, 883, 888-89, 897, 902, 912, 919, 929, 939, 7 946. Also in these records are diagnostic imaging results showing Plaintiff’s degenerative 8 disc disease, disc protrusion, and spondylosis. A.R. 933, 936, 942, 943. The ALJ neither 9 acknowledges these findings nor explains why the records as a whole should be considered 10 “mostly normal” and inconsistent with Dr. Puttlitz’s first opinion. 11 Exhibit 20F does not contain Dr. Puttlitz’s records leading up to his second medical 12 assessment on April 15, 2019 (they span approximately November 2017 to August 2018). 13 See A.R. 989-1044. The mere citation of Exhibit 20F is not a specific or legitimate reason 14 to reject Dr. Puttlitz’s opinion. References to Plaintiff’s pain, reduced range of motion, 15 and positive provocative tests are found throughout the exhibit. See, e.g., A.R. 991, 997, 16 1002, 1012, 1021, 1027, 1037, 1042. The ALJ provided no discussion of why these notes 17 are inconsistent with Dr. Puttlitz’s opinions or why other, more “normal” findings, were 18 more germane. 19 Exhibit 35F, not cited by the ALJ, documents Plaintiff’s pain, poor range of motion, 20 and repeated and numerous positive provocative tests in the months and days leading up to 21 Dr. Puttlitz’s second assessment form. See, e.g., A.R. 1403, 1408, 1416, 1427. The ALJ 22 neither acknowledged these records nor explained why they were unpersuasive in her 23 determination that Dr. Puttlitz’s clinical notes showed “mostly normal physical 24 examinations” during the relevant time periods. [25] 26 5 It is true that many of these pages also document more “normal” findings as well. See, e.g., A.R. 929 (detailing a physical examination of Plaintiff that revealed, on the one hand, 27 no swelling, 5/5 strength in lower limbs, and negative straight leg raising test, but, on the other hand, tender lumbar range of motion, tenderness with palpation of lumbar spine, and 28 positive quadrant loading maneuver test). The ALJ did not explain why some of these findings are more significant or persuasive than others. 1 In short, the ALJ provided no specific reasons for her conclusion that Dr. Puttlitz’s 2 opinion was extreme or that his treatment notes failed to support his opinions. Treating 3 physician opinions are entitled to deference and ALJs cannot usurp the role of doctors when 4 interpreting the medical evidence and weighing treating medical sources. Trevizo v. 5 Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (“The ALJ . . . reject[ed] the informed medical 6 opinion of [Plaintiff’s] primary treating physician and instead improperly substituted her 7 judgment for that of the doctor.”); Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 8 2014) (reiterating that “[t]he ALJ must set forth his own interpretations and explain why 9 they, rather than the doctors’, are correct”); see also Clifford v. Apfel, 227 F.3d 863 , 870 10 (7th Cir. 2000) (“As this Court has counseled on many occasions, ALJs must not succumb 11 to the temptation to play doctor and make their own independent medical findings.”). 12 iii. Third Reason. 13 The ALJ also relied on Dr. Puttlitz’s use of check-box forms and their minimal 14 explanations. A.R. 22. The Ninth Circuit has issued conflicting guidance on this issue, 15 stating that an “ALJ may permissibly reject check-off reports that do not contain any 16 explanation of the bases of their conclusions,” Molina v. Astrue, 674 F.3d 1104 , 1111-12 17 (9th Cir. 2012), and also that ALJs may not “reject the responses of a treating physician 18 without specific and legitimate reasons for doing so, even where those responses were 19 provided on a ‘check-the-box’ form, were not accompanied by comments, and did not 20 indicate to the ALJ the basis for the physician’s answers,” Trevizo, 871 F.3d at 677 n.4 (not 21 citing Molina). The Ninth Circuit has held, however, that ALJs err when they disregard a 22 treating physician’s check-box form that is consistent with the claimant’s testimony and 23 treatment notes. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). 24 Dr. Puttlitz’s two check-box opinions indicate that he considered his own treatment 25 history with Plaintiff. A.R. 743, 1171. The ALJ has not shown that Dr. Puttlitz’s clinical 26 notes fail to support his opinion concerning Plaintiff’s limitations and ability to work. As [28] 1 a result, Dr. Puttlitz’s opinions, though brief, were not unsupported by the record as a whole 2 and the ALJ’s third reason was not a legitimate basis for discounting them.6 3 3. Dr. Michael Steingart. 4 Dr. Michael Steingart is an orthopedic surgeon who treated Plaintiff from March 5 2019. See A.R. 1210. The ALJ gave Dr. Steingart’s opinion little weight. A.R. 22. 6 a. Opinion. 7 On August 13, 2019, Dr. Steingart completed a check-box form indicating that 8 Plaintiff was impaired by “thoracic disc, hip labral tear right, DJD [degenerative joint 9 disease] lumbar spine with L5-S1 spondylosis, sacroiliac joint arthropathy” and that, as a 10 result of these impairments, Plaintiff was precluded from an eight-hour work day. A.R. 11 1297. Dr. Steingart opined that Plaintiff could sit, stand, and walk less than two hours at a 12 time during an eight-hour work day; lift or carry less than ten pounds; bend or stoop less 13 than occasionally (0%-20%); reach occasionally (21%-33%); and use her left and right 14 hands frequently (34%-66%). Id. He indicated that Plaintiff would need to alternate her 15 position every 1-20 minutes and, following alternating her position, rest for at least 15 16 minutes. Id. Dr. Steingart also indicated that Plaintiff’s limitations would result in 17 moderately severe cognitive or pace limitations which would inhibit the completion of 18 more than one- or two-step duties in an eight-hour work day; that the impairments would 19 result in, cause or contribute to headaches or mental fatigue more than four times per month 20 which would result in Plaintiff needing to rest twenty minutes to an hour at a time; and that 21 Plaintiff would miss 4-5 days of work due to her impairments. A.R. 1298. Dr. Steingart 22 indicated that he considered and reviewed his own and other treatment records – including 23 MRI scans, radiology, physical therapy notes, and records from the CORE Institute – in 24 coming to his opinion and that the limitations he assessed resulted from objective findings 25 documented in Plaintiff’s medical records. Id. 26 / / / 27 6 Moreover, the Court notes that the opinion of Dr. Cunningham, the consultive examiner whose opinion the ALJ favored over Dr. Puttlitz’s, was also primarily provided on a brief 28 check-box form. See A.R. 575-77. The ALJ did not explain why this form was more reliable than the similar forms utilized by Dr. Puttlitz. 1 b. ALJ’s Reasoning. 2 Dr. Steingart’s assessment of Plaintiff’s limitations was contradicted by the 3 assessments of Drs. Griffith, Battis, and Cunningham. The ALJ accordingly was required 4 to provide specific and legitimate reasons for rejecting it, supported by substantial evidence 5 on the record. Lester, 81 F.3d at 830 . 6 The ALJ gave four reasons: (1) Dr. Steingart’s opinion was inconsistent with the 7 opinions of Drs. Griffith, Battis, and Cunningham; (2) his opinion was “extreme and 8 unsupported by the medical records,” including his own clinical notes that showed “mostly 9 full strength, intact sensations, a normal gait, and no instability;” (3) Dr. Steingart noted 10 that the Plaintiff asked him to fill out forms “to make her disabled for free;” and (4) Dr. 11 Steingart’s reliance on check-box forms “provides minimal explanations” for his assessed 12 limitations. A.R. 22. 13 i. First Reason. 14 As discussed above, the bare fact that Dr. Steingart’s opinion was contradicted by 15 other physicians is not itself a specific and legitimate reason to discount Dr. Steingart’s 16 opinion. See Orn, 495 F.3d at 632-33 . “Even if the treating doctor’s opinion is contradicted 17 by another doctor, the ALJ may not reject this opinion without providing specific and 18 legitimate reasons supported by substantial evidence in the record.” Id. at 633 (citations 19 and internal quotations omitted). The ALJ did not discuss how or why the findings of Drs. 20 Griffith, Battis, and Cunningham contradicted Dr. Steingart’s, nor why the three opinions 21 constituted substantial evidence sufficient to set aside Dr. Steingart’s opinion. 22 ii. Second Reason. 23 Plaintiff argues that the ALJ’s second reason – that Dr. Steingart’s opinion was 24 extreme and unsupported by the medical records – amounts to impermissible cherry25 picking of the medical records. Doc. 20 at 17. The record cited by the ALJ for her 26 characterization of Dr. Steingart’s records, Plaintiff points out, also documents Plaintiff’s 27 pain, painful range of motion, and positive straight leg raising test. Id.; see also A.R. 1201. [28] 1 The Commissioner does not directly respond to Plaintiff’s cherry-picking argument, and 2 instead simply restates the ALJ’s reasoning. Doc. 21 at 13. 3 The ALJ’s characterization of Dr. Steingart’s records was not a specific and 4 legitimate reason to reject his opinion regarding Plaintiff’s limitations. As Plaintiff 5 correctly notes, the same record cited by the ALJ to support her assertion documents 6 Plaintiff’s pain, tender range of motion, and positive straight leg raising test. A.R. 1201-02. 7 The record cited by the ALJ also details Plaintiff’s complaint of severe pain after riding in 8 a car on a trip to Yuma, motor strength of 3-4 out of 5, and positive provocative testing on 9 Plaintiff’s right sacroiliac joint. A.R. 1202. Moreover, nearly every one of Dr. Steingart’s 10 records documenting an office visit by Plaintiff note severe pain (A.R. 1204, 1206, 1208, 11 1210), limitations on range of motion (A.R. 1204, 1206, 1208, 1210-11), diminished motor 12 strength (A.R. 1204, 1207-08, 1210-11), painful straight leg raise tests (A.R. 1204, 1206), 13 and impaired gait (A.R. 1208, 1210). The ALJ did not acknowledge these findings or 14 explain how Dr. Steingart’s opinion could be called “extreme” in light of them. 15 iii. Third Reason. 16 Plaintiff argues that the ALJ’s third reason – that Plaintiff asked Dr. Steingart to 17 make her disabled for free – is not a specific and legitimate reason because the ALJ did not 18 explain how this fact invalidated his opinion. Plaintiff argues that Dr. Steingart’s 19 completing the form without charging his full fee should bolster his credibility, not 20 undercut it. 21 In a record of Plaintiff’s office visit on May 24, 2019, Dr. Steingart did note that 22 Plaintiff “feels that since she is on Medicaid I should fill out all the forms to make her 23 disabled for free.” A.R. 1206. But the ALJ did not explain how this request, made almost 24 three months before Dr. Steingart completed his medical assessment August 13, 2019, 25 made his assessment doubtful. The Court cannot discern the ALJ’s reasoning, and 26 therefore finds that the ALJ’s third reason is not specific or legitimate. 27 / / / 28 / / / 1 iv. Fourth Reason. 2 An ALJ may discredit a treating physician’s opinion that is conclusory, brief, and 3 unsupported by the record as a whole or by objective medical findings. Burrell, 775 F.3d 4 at 1140 . Dr. Steingart’s opinion is brief, and the ALJ determined that it was unsupported 5 by Dr. Steingart’s clinical notes from the relevant period, which the ALJ described as 6 showing “mostly full strength, intact sensations, a normal gait, and no instability.” A.R. 7 22. As discussed in detail above, however, the ALJ has not shown that Dr. Steingart’s 8 clinical notes fail to support his opinion concerning Plaintiff’s limitations and ability to 9 work. As a result, Dr. Steingart’s opinions, though brief, were not unsupported by the 10 record as a whole and the ALJ’s fourth reason was not a legitimate basis for discounting it. 11 B. Evaluation of Plaintiff’s Symptom Testimony. 12 In evaluating a claimant’s symptom testimony, the ALJ must engage in a two-step 13 analysis. First, the ALJ must determine whether the claimant presented objective medical 14 evidence of an impairment that could reasonably be expected to produce the symptoms 15 alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not 16 required to show that his impairment could reasonably be expected to cause the severity of 17 the symptoms he has alleged, only that it could reasonably have caused some degree of the 18 symptoms. Id. Second, if there is no evidence of malingering, the ALJ may reject the 19 claimant’s symptom testimony only by giving specific, clear, and convincing reasons. Id. 20 at 1015. A finding that a claimant’s testimony is not credible “must be sufficiently specific 21 to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on 22 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 23 pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and quotation 24 marks omitted). 25 Plaintiff testified that she suffered from mid to lower back pain which radiated into 26 her leg. A.R. 50. Because of her back pain, she testified to often needing to lay down for 27 a couple hours at a time to relieve her pain (A.R. 56), being unable to vacuum or stand at 28 the sink or stove to cook more than a quick meal (id.), needing to use a rider cart in the 1 grocery store (A.R. 58), and feeling pain in her back when lifting a gallon of milk (id.). 2 Plaintiff testified that she could only stand for about 15 to 20 minutes before needing to sit 3 down and that she could only walk about half a block before needing a break. A.R. 57. 4 She also testified that her pain medications and injections gave her limited relief (A.R. 44 5 51), and that she was unable to continue getting injections in her mid-back because her 6 Medicaid insurance would no longer pay for her to be sedated during the injections and she 7 could not tolerate the pain of the injections without sedation (A.R. 50). 8 Plaintiff also testified that her ability to drive was limited because of the pain she 9 felt in her back, hip, and leg while sitting and because the pain made it difficult to look 10 backward. A.R. 43. When the ALJ asked Plaintiff about medical records indicating that 11 she had an “episode” on a drive to Yuma which caused her to not be able to get out of the 12 vehicle because of her pain, Plaintiff testified that she had been a passenger on the trip, not 13 the driver. A.R. 44. The ALJ also asked Plaintiff about portions of medical records 14 indicating that Plaintiff had acted as a caregiver to her sister before she passed away. A.R. 15 45. Plaintiff testified that her caregiving role was to “sit and hold her [sister’s] hand, and 16 just talk to her,” rather than lifting or otherwise physically helping her sister. A.R. 45-46. 17 The ALJ found that Plaintiff’s “medically determinable impairments could 18 reasonably be expected to have caused the alleged symptoms.” A.R. 20. The ALJ then 19 found that Plaintiff’s statements about the intensity, persistence, and limiting effects of her 20 symptoms “not entirely consistent with the medical evidence and other evidence in the 21 record.” A.R. 20. The ALJ gave three reasons: (1) Plaintiff’s symptom testimony was 22 unsupported by objective and clinical findings in the record (A.R. 20-21); (2) Plaintiff’s 23 treatment history “lack[ed] recommendations for aggressive surgical procedures,” and 24 Plaintiff managed her symptoms with medications (A.R. 21); and (3) other evidence – 25 specifically that Plaintiff drove independently and for long distances, engaged in 26 gardening, and served as a caregiver to her sister – highlighted inconsistencies in Plaintiff’s 27 subjective allegations (A.R. 21-22). 28 / / / 1 1. Not Supported by the Record. 2 “Pain of sufficient severity caused by a medically diagnosed ‘anatomical, 3 physiological, or psychological abnormality’ may provide the basis for determining that a 4 claimant is disabled.” Light v. Soc. Sec. Admin., 119 F.3d 789 , 792 (9th Cir. 1997) (citing [5] 42 U.S.C. § 423 (d)(5)(A); Bunnell v. Sullivan, 947 F.2d 341, 344-45 (9th Cir. 1991)). 6 “Once a claimant produces objective medical evidence of an underlying impairment, an 7 ALJ may not reject a claimant’s subjective complaints based solely on lack of objective 8 medical evidence to fully corroborate the alleged severity of pain.” Moisa v. Barnhart, [9] 367 F.3d 882, 885 (9th Cir. 2004) (citation and alterations omitted); see Smolen v. Chater, [10] 80 F.3d 1273, 1282 (9th Cir. 1996) (“The claimant need not produce objective medical 11 evidence of the pain . . . itself, or the severity thereof. Nor must the claimant produce 12 objective medical evidence of the causal relationship between the medically determinable 13 impairment and the symptom.”) (citing Bunnell, 947 F.2d at 345-48 ); 20 C.F.R. 14 § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and persistence 15 of your pain or other symptoms or about the effect your symptoms have on your ability to 16 work solely because the objective medical evidence does not substantiate your 17 statements.”); see also S.S.R. 95-5p, 1995 WL 670415 , at *1 (Oct. 31, 1995) (“Because 18 symptoms sometimes suggest a greater severity of impairment than can be shown by 19 objective medical evidence alone, careful consideration must be given to any available 20 information about symptoms.”). 21 Unless the ALJ “makes a finding of malingering based on affirmative evidence 22 thereof, [she] may only find [the claimant] not credible by making specific findings as to 23 credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec. Admin., [24] 466 F.3d 880, 883 (9th Cir. 2006) (citing Smolen, 80 F.3d at 1283-84 ). In this case, the 25 ALJ made no finding of malingering. The ALJ accordingly could discount Plaintiff’s 26 testimony only “by making specific findings as to credibility and stating clear and 27 convincing reasons for each. Id. at 883. “‘General findings are insufficient; rather, the 28 ALJ must identify what testimony is not credible and what evidence undermines the 1 claimant’s complaints.’” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting 2 Lester, 81 F.3d at 834 ); see Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (same). 3 Moreover, treatment records “must be viewed in light of the overall diagnostic record.” 4 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (finding ALJ’s credibility 5 determination unsupported in part because “[w]hen read as a whole, the treatment notes do 6 not undermine [the claimant’s] testimony.”). 7 The ALJ relied on imaging studies – an x-ray in January 2017 showing mid to upper 8 thoracic spondylosis and mild lumbar spondylosis; an MRI study in April 2018 showing 9 normal alignment of Plaintiff’s lumbar vertebral bodies, preserved vertebral body heights, 10 mild disc narrowing, and mild degenerative thoracic spondylosis; an MRI study on June 11 11, 2019, showing severe narrowing of the bilateral ischiofemoral intervals with patchy 12 impingement edema of the right quadratus femoris muscle; and a subsequent x-ray showing 13 mild degenerative changes in the hips with no acute findings. A.R. 20. These objective 14 findings, reasoned the ALJ, “show that the claimant was likely to have some pain and 15 limitations, but not to the extent alleged.” Id. As the cases above explain, however, the 16 ALJ may not discount Plaintiff’s testimony regarding the severity of her pain solely 17 because it is not borne out by objective medical evidence. Moisa, 367 F.3d at 885 ; Smolen, [18] 80 F.3d at 1282 ; Bunnell, 947 F.2d at 345-48 . Moreover, the ALJ is not a trained 19 radiologist and the Court does not find her interpretation of highly technical medical studies 20 to be clear and convincing. See Trevizo, 871 F.3d at 683 ; Garrison, 759 F.3d at 1013-14 ; 21 see also Clifford, 227 F.3d at 870 .7 22 The ALJ also relied on records of physical examinations that she characterized as 23 showing Plaintiff’s “normal gait, normal strength in her bilateral upper or lower 24 extremities, intact sensations, negative straight leg raising, negative musculoskeletal 25 findings, and a lack of hand pain or swelling.” A.R. 20. The Court does not find a list of 26 some “normal” findings in these examinations to be a clear and convincing reason to 27 7 It is true that the ALJ did not offer this as her sole reason to discount Plaintiff’s testimony. But because the Court determines below that the ALJ’s other proffered reasons are neither 28 clear nor convincing, that she considers Plaintiff’s symptom testimony to be unsupported by objective medical evidence cannot alone support discounting that testimony. 1 discount Plaintiff’s testimony when, as noted above, the record contains evidence of 2 Plaintiff’s pain, reduced range of motion, and other positive provocative testing. 3 Moreover, the ALJ never connected this discussion of the medical records to Plaintiff’s 4 testimony about her pain and the limitations it caused her, or stated that she rested her 5 adverse credibility determination on those findings. Burrell, 775 F.3d at 1139 (“Although 6 the ALJ made findings . . . he never stated that he rested his adverse credibility 7 determination on those findings. For that reason alone, we reject the government’s 8 argument that the history of treatment for headaches is a specific, clear, and convincing 9 reason to support the credibility finding.”). 10 2. Lack of Aggressive Surgical Recommendations. 11 The ALJ may consider “the type, dosage, effectiveness, and side effects of any 12 medication.” 20 C.F.R. § 404.1529 (c). An ALJ may “properly consider[ ] [a doctor’s] 13 failure to prescribe, and [Plaintiff’s] failure to request, any serious medical treatment 14 for . . . supposedly excruciating pain.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 15 1999). “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 16 testimony regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742 , 751 17 (9th Cir. 2007); Warre v. Comm’r of Social Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 18 2006) (“Impairments that can be controlled effectively with medication are not disabling 19 for the purpose of determining eligibility for SSI benefits.”). 20 The ALJ found that the absence of “recommendations for aggressive surgical 21 procedures . . . underscores the non-disabling nature of [Plaintiff’s] orthopedic 22 impairments.” A.R. 21. The ALJ noted that Plaintiff managed her symptoms through 23 medication and that her “receipt of facet injections reportedly improved her pain by over 24 80 percent.” Id. The ALJ also noted that Plaintiff’s symptoms were initially helped by 25 physical therapy, but that Plaintiff was “inconsistent and noncompliant” with those 26 treatments.8 Id. 27 8 The ALJ also found fault in this same discussion with the fact that Plaintiff “did not adhere to her doctor’s advice to stop smoking.” A.R. 21. Because the Commissioner 28 concedes that this was not a proper ground for the ALJ to discredit Plaintiff (Doc. 21 at 7 n.3, the Court will consider here only the other grounds the ALJ put forward. 1 Plaintiff argues that the ALJ erred by discrediting Plaintiff’s symptom testimony 2 because her doctors had not recommended surgery and that the ALJ mischaracterizes the 3 medical records by asserting that Plaintiff’s pain was successfully managed by medications 4 and injections. The Court agrees. First, it is not a requirement for disability that a 5 claimant’s doctors recommend aggressive surgical procedures – the lack of such 6 recommendation could indicate that Plaintiff’s symptoms are not sufficiently severe to 7 warrant surgery, but could also signify simply that her condition is not amenable to surgical 8 correction. The ALJ cites no authority to support her view that surgery is an available 9 remedy to all back pain, or that nerve blocks and spinal injections are not aggressive 10 treatment recommendations. Plaintiff’s failure to have had surgery is not a clear and 11 convincing reason to discredit her testimony. 12 Second, it is not at all clear from the medical records that pain medication and 13 injections were in fact adequately managing Plaintiff’s pain. Records suggest that Plaintiff 14 was recommended injections precisely because her pain medications were not managing 15 her pain. See A.R. 948 (detailing Plaintiff’s third office visit at the CORE Institute, Dr. 16 Puttlitz considers “taking over” Plaintiff’s pain medication prescription and, for the first 17 time, recommends injections as a treatment path). Moreover, the proposition that 18 Plaintiff’s pain improved by over 80 percent with injections is not entirely supported by 19 the record. It is true that the record cited by the ALJ for that proposition does state that 20 Plaintiff “reported >80% improvement of pains” after her first injection. A.R. 1019. But 21 nearly every other record considering the efficacy of the injections paints a different 22 picture. See, e.g., A.R. 1003 (“She states she derive[s] about 50% relief with her sacral 23 iliac joint injection lasting for about an hour.”); A.R. 1013 (“She reports greater than 80% 24 relief lasting for 2 days with her last diagnostic facet injections.”); A.R. 1455 (“She reports 25 greater than 80% relief with right lumbar transforaminal epidural lasting for 3 days.”); A.R. 26 8113 (“As a result of her initial lumbar transforaminal epidural she reported 80% better 27 with respect to her low back. At last visit her back and leg pain had started to 28 return. . . . Patient brought with her the pain diary from her bilateral . . . facet blocks. 1 Patient had 100% resolution of pain for approximately 3 hours, some return of pain when 2 the numbing medication wore off, and then good improvement back to 100% over the next 3 3 days with the steroid. Pain with activity gradually returned over the next 2-3 weeks.”). 4 Thus, the ALJ’s assertion that Plaintiff’s pain is well managed by pain medications and 5 injections is not a clear and convincing reason to discredit her testimony. 6 3. Inconsistency with Plaintiff’s Statements. 7 The ALJ may consider inconsistencies either in the claimant’s testimony or between 8 the testimony and the claimant’s conduct. Molina, 674 F.3d at 1112-13 . “[T]he ALJ may 9 discredit a claimant’s testimony when the claimant reports participation in everyday 10 activities indicating capacities that are transferable to a work setting. Even where those 11 activities suggest some difficulty functioning, they may be grounds for discrediting the 12 claimant’s testimony to the extent that they contradict claims of a totally debilitating 13 impairment.” Id. at 1113 (citations omitted). 14 The ALJ determined that evidence from “the objective records” showed that 15 Plaintiff “reportedly drove independently and for long distances, engaged in gardening, 16 and served as a caregiver in South Carolina for her sister until she passed.” A.R. 22. These 17 activities, reasoned the ALJ, “provide examples of her increased capacity to function in 18 contravention to her allegations of extremely restrictive exertional activities and her claims 19 that she cannot do anything.” Id. 20 Plaintiff argues that the ALJ’s references to driving, gardening, and caregiving in 21 the record are too vague to invalidate anything in Plaintiff’s testimony. Doc. 20 at 24. 22 Plaintiff also argues that the ALJ did not sufficiently link these activities to relevant work 23 duties or demonstrate that Plaintiff spent a substantial part of a typical day engaged in these 24 activities as required for a negative credibility determination based on a claimant’s 25 activities. Id. at 25 (citing Garrison, 759 F.3d at 1016 ; Vertigan v. Halter, 260 F.3d 1044 , 26 1049-50 (9th Cir. 2001)). 27 The Court agrees that the ALJ failed to demonstrate that Plaintiff spent a substantial 28 part of her day engaged in pursuits involving the performance of physical functions that 1 are transferable to a work setting. Orn, 495 F.3d at 639 . The citations provided by the 2 ALJ for each activity considered – driving, gardening, and caregiving – are ambiguous and 3 do not establish the level of engagement required in this Circuit for an adverse credibility 4 determination. 5 First, the record cited by the ALJ with regard to Plaintiff’s ability to drive 6 independently and for long distances is a record detailing a June 20, 2019, appointment 7 with Dr. Steingart which states: “patient had an episode driving to Yuma could not get out 8 of her vehicle because of right-sided discomfort,” and later “states after a trip to [Y]uma 9 this weekend she started to have pain in the LT hip and pain increased in the RT hip.” 10 A.R. 1201 . As Plaintiff points out, it is ambiguous from these notes whether Plaintiff was 11 indeed the driver on this trip – a fact denied by Plaintiff in her testimony, where she said 12 that she was just a passenger in the car. A.R. 44. Nor does this record reflect, even if 13 Plaintiff had been the driver, that she is able to drive herself independently and for long 14 distances. Rather, it reflects that when Plaintiff attempted to do so she was in so much pain 15 she could not get out of her car and afterward sought medical attention.9 16 Second, it is not clear what the ALJ means when she says that Plaintiff engaged in 17 gardening. The citation provided by the ALJ on that point does not reference gardening. 18 See A.R. 1062. The Court, in its review of the record in this case, has likewise found no 19 reference to gardening that would explain the ALJ’s assertion. Gardening is referenced 20 once in a mental health record dated May 23, 2018: “She . . . does find pleasure in 21 gardening and spending time with her husband.” A.R. 1067. But the record does not 22 indicate what “gardening” entails or how often Plaintiff engaged in that activity. The other 23 references to “gardening” the Court has found in the record have been frequent reports that 24 Plaintiff has complained that her pain limits her ability to garden. See, e.g., A.R. 989 (listing 25 “shopping, gardening” under “limitations due to pain” heading and “activities/hobbies” [26] 9 The Court additionally notes that the ALJ herself, in her assessment of Plaintiff’s RFC, 27 found that Plaintiff was “unable to drive as part of her job duties.” A.R. 19. It is not clear, in light of that assessment, the significance to the ALJ of Plaintiff’s supposed ability to 28 drive independently and for long distances and how that ability would transfer to a work setting. 1 subheading), 995 (same), 1000 (same), 1010 (same), 1019 (same), 1026 (same), 1035 2 (same), 1040 (same). 3 Finally, the Court is not persuaded that Plaintiff’s caregiving for her sister for 4 approximately one month leading up to her sister’s death demonstrates that Plaintiff spends 5 a substantial part of her days engaging in activity transferrable to a work environment. The 6 ALJ cited two records, both from Plaintiff’s mental health treatment provider, in support 7 of her assertion that Plaintiff acted as caregiver for her sister. See A.R. 22. The first, from 8 a psychotherapy visit on March 23, 2018, states: Plaintiff “was able to spend a month with 9 her sister and was present the moment she died . . . . She learned that despite her chronic 10 pain, she was able to physically care for her sister – ‘I moved through the pain.’ She was 11 able to transfer that realization to areas of her daily living.” A.R. 1104. The second record 12 cited by the ALJ, dated April 18, 2018, states in relevant part: “The pt travelled to SC where 13 she was her str’s caregiver until she passed. Pt was in SC a little more than a month.” A.R. 14 1093. At the hearing, the ALJ asked Plaintiff about caring for her sister and Plaintiff 15 reported that her role was providing emotional support and sitting with her sister during 16 her illness. A.R. 45-46. The record does not reveal, and the ALJ did not make any specific 17 findings regarding, what activities Plaintiff performed as a caregiver and whether those 18 activities are inconsistent with her symptom testimony. 19 The ALJ never made specific findings about what these activities consisted of, how 20 they were transferrable to a work setting, or how much time Plaintiff spent engaged in these 21 activities in a day. None of the three apparent inconsistencies cited by the ALJ – driving, 22 gardening, or caregiving – are clear or convincing reasons to discredit her symptom 23 testimony. 24 C. Scope of Remand. 25 The ALJ erred in discrediting the opinions of Drs. Puttlitz and Steingart and 26 Plaintiff’s symptom testimony. Plaintiff contends that, crediting this evidence as true, the 27 Court must remand for an award of benefits. Doc. 20 at 26. The Commissioner argues 28 that remand is a more appropriate remedy. Doc. 21 at 15-16. 1 “When the ALJ denies benefits and the court finds error, the court ordinarily must □□ remand to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). But under a “rare exception” to this rule, the Court may remand for an immediate award of benefits if (1) the record has been fully 5 || developed and further administrative proceedings would serve no useful purpose; (2) the 6|| ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether || claimant testimony or medical opinion; and (3) the ALJ would be required to find the 8 || claimant disabled if the improperly discredited evidence were credited as true. /d. (internal || quotations and citations omitted). 10 The second factor is satisfied; as discussed above, the ALJ failed to provide legally || sufficient reasons for rejecting the opinions of treating physicians and Plaintiff's symptom || testimony. But the first factor is not present to justify the remedy Plaintiff seeks. The 13 || record is mixed, creating a doubt as to Plaintiffs disability, and further proceedings to 14]| properly weigh the conflicting opinions and findings would be useful. This case does not || present the rare circumstance in which an immediate award of benefits would be 16 || appropriate. 17 IT IS ORDERED: 18 1. The decision of the Commissioner of Social Security to deny Plaintiff disability insurance benefits 1s reversed and remanded for further proceedings consistent 20 || with this Order. 21 2. The Clerk shall enter judgment accordingly and terminate this action. 22 Dated this 9th day of November, 2021. [23] David G. Campbell 26 Senior United States District Judge [28] - 24 -