Eleuterio Nevarez v. Kilolo Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 ELEUTERIO N., ) Case No. CV 18-9556-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 I. 19 INTRODUCTION 20 On November 12, 2018, plaintiff Eleuterio N. filed a complaint against 21 defendant, the Commissioner of the Social Security Administration 22 (“Commissioner”), seeking a review of a denial of a period of disability and 23 disability insurance benefits (“DIB”). The parties have fully briefed the matters in 24 dispute, and the court deems the matter suitable for adjudication without oral 25 argument. 26 Plaintiff presents three disputed issues for decision: (1) whether the 27 Administrative Law Judge (“ALJ”) properly considered the opinion of a treating [28] 1 physician; (2) whether the ALJ’s residual functional capacity (“RFC”) 2 determination was supported by substantial evidence; and (3) whether the ALJ 3 improperly rejected plaintiff’s subjective symptom testimony. Memorandum in 4 Support of Plaintiff’s Complaint (“P. Mem.”) at 2-7; see Memorandum in Support 5 of Defendant’s Answer (“D. Mem.”) at 1-9. 6 Having carefully studied the parties’ memoranda on the issues in dispute, the 7 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 8 that, as detailed herein, the ALJ properly considered the opinion of plaintiff’s 9 treating physician, but the ALJ’s RFC determination was not supported by 10 substantial evidence, and the ALJ erred in rejecting plaintiff’s subjective symptom 11 testimony. The court therefore remands this matter to the Commissioner in 12 accordance with the principles and instructions enunciated in this Memorandum 13 Opinion and Order. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was 52 years old on the alleged onset date, received a fifth 17 grade education in Mexico. AR at 44, 53. Plaintiff has past relevant work 18 experience as a construction miner. Id. at 50. 19 On June 4, 2015, plaintiff filed an application for DIB, alleging an onset date 20 of October 1, 2007 due to a left hip replacement in 2012, spinal injury and surgery 21 in 2011, skin cancer on his face and arms, and the need for a right hip replacement. 22 Id. at 53. The Commissioner denied plaintiff’s application initially, after which he 23 filed a request for a hearing. Id. at 60-65. 24 On May 10, 2017, plaintiff, represented by counsel, appeared and testified at 25 a hearing before the ALJ. Id. at 38-52. The ALJ also heard testimony from Abbe 26 May, a vocational expert. Id. at 50-51. On July 21, 2017, the ALJ denied 27 plaintiff’s claim for benefits. Id. at 21-28. [28] 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 found, at step one, that plaintiff had not engaged in substantial gainful activity 3 between October 1, 2007, the alleged onset date, and December 31, 2012, the date 4 last insured. Id. at 23. 5 At step two, the ALJ found plaintiff suffered from the following severe 6 impairments: degenerative disc disease of the lumbar spine with bulging, lipping, 7 stenosis, and radiculopathy; and degenerative joint disease of the left hip status 8 post total left arthroplasty. Id. At step three, the ALJ found plaintiff’s 9 impairments, whether individually or in combination, did not meet or medically 10 equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, 11 Appendix 1 (the “Listings”). Id. at 24. The ALJ then assessed plaintiff’s RFC,1 12 and determined that through the date last insured of December 31, 2012, plaintiff 13 had the RFC to perform the full range of medium work, with the limitations that he 14 could: lift and carry 50 pounds occasionally and 25 pounds frequently; stand or 15 walk for six hours in an eight-hour workday; and sit for six hours in an eight-hour 16 workday. Id. 17 The ALJ found, at step four, that through the date last insured, plaintiff was 18 unable to perform any past relevant work. Id. at 26. 19 At step five, the ALJ found – based on plaintiff’s age, education, work 20 experience, and RFC – there were jobs that existed in significant numbers in the 21 national economy that plaintiff could have performed. Id. at 27. Consequently, the 22 ALJ concluded that, for the relevant period, plaintiff did not suffer from a [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 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the [27] claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149 , 1151 28 n.2 (9th Cir. 2007). 1 disability as defined by the Social Security Act. Id. 2 Plaintiff filed a timely request for review of the ALJ’s decision, which was 3 denied by the Appeals Council. Id. at 1-8. The ALJ’s decision stands as the final 4 decision of the Commissioner. 5 III. 6 STANDARD OF REVIEW 7 This court is empowered to review decisions by the Commissioner to deny 8 benefits. 42 U.S.C. § 405 (g). The findings and decision of the Social Security 9 Administration must be upheld if they are free of legal error and supported by 10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 11 (as amended). But if the court determines the ALJ’s findings are based on legal 12 error or are not supported by substantial evidence in the record, the court may 13 reject the findings and set aside the decision to deny benefits. Aukland v. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 15 1144, 1147 (9th Cir. 2001). 16 “Substantial evidence is more than a mere scintilla, but less than a 17 preponderance.” Aukland, 257 F.3d at 1035 . Substantial evidence is such 18 “relevant evidence which a reasonable person might accept as adequate to support 19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 21 finding, the reviewing court must review the administrative record as a whole, 22 “weighing both the evidence that supports and the evidence that detracts from the 23 ALJ’s conclusion.” Mayes, 276 F.3d at 459 . The ALJ’s decision “‘cannot be 24 affirmed simply by isolating a specific quantum of supporting evidence.’” 25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that [28] 1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 A. The ALJ Properly Considered Dr. Park’s Opinion 6 Plaintiff argues the ALJ erred by rejecting the opinion of his treating 7 physician, Dr. Kevin Park. P. Mem. at 2-4. Specifically, plaintiff argues the ALJ 8 did not say what medical evidence was inconsistent with Dr. Park’s opinion, and 9 because Dr. Park provided the only medical opinion on plaintiff’s RFC in the 10 record, if his opinion is credited, plaintiff is unambiguously entitled to a finding of 11 disability. Id. 12 In determining whether a claimant has a medically determinable impairment, 13 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 14 § 404.1527(b).2 In evaluating medical opinions, the regulations distinguish among 15 three types of physicians: (1) treating physicians; (2) examining physicians; and 16 (3) non-examining physicians. 20 C.F.R. § 404.1527 (c), (e); Lester v. Chater, 81 17 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 18 opinion carries more weight than an examining physician’s, and an examining 19 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 20 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527 (c)(1)-(2). 21 The opinion of the treating physician is generally given the greatest weight because 22 the treating physician is employed to cure and has a greater opportunity to 23 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 24 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 25 Nevertheless, the ALJ is not bound by the opinion of the treating physician. [27] 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 1 Smolen, 80 F.3d at 1285 . If a treating physician’s opinion is uncontradicted, the 2 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 3 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 4 opinions, the ALJ must provide specific and legitimate reasons supported by 5 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 6 and legitimate reasons supported by substantial evidence for rejecting the 7 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 8 non-examining physician, standing alone, cannot constitute substantial evidence. 9 Widmark v. Barnhart, 454 F.3d 1063 , 1066 n.2 (9th Cir. 2006); Morgan v. 10 Comm’r, 169 F.3d 595, 602 (9th cir. 1999); see also Erickson v. Shalala, 9 F.3d 11 813, 818 n.7 (9th Cir. 1993). 12 Because Dr. Park was the only medical source to provide an opinion on 13 plaintiff’s RFC, the ALJ was required to provide a “clear and convincing” reason 14 for rejecting Dr. Park’s uncontroverted opinion. Lester, 81 F.3d at 830. The ALJ 15 rejected Dr. Park’s RFC determination, which was based solely on plaintiff’s 16 limitations after his right hip surgery. See AR at 26, 291, 370. Dr. Park opined 17 that, among other limitations, plaintiff could sit for more than two hours at a time, 18 stand for up to two hours at a time, would need to walk every ten minutes for about 19 five minutes at a time, would require a job that permits shifting positions at will, 20 could frequently lift and carry ten pounds, occasionally lift and carry 20 pounds, 21 and never lift or carry 50 pounds. Id. at 291-92, 373-74. The ALJ rejected Dr. 22 Park’s opinion for two reasons: (1) the opinion was inconsistent with the medical 23 evidence in that Dr. Park stated plaintiff had only mild hip pain, but limited 24 plaintiff to a reduced light RFC; and (2) Dr. Park amended his RFC assessment and 25 changed the onset date of plaintiff’s limitations from January 2016 to May 2012, 26 but this change is inconsistent with evidence showing that plaintiff’s right hip 27 replacement surgery occurred in January 2016. Id. at 26. [28] 1 The ALJ’s first reason for rejecting Dr. Park’s opinion is not a clear and 2 convincing one. Dr. Park’s RFC assessment describes plaintiff as having “mild hip 3 pain,” but also includes notes that support a finding of more severe limitations, 4 such as that plaintiff has pain and decreased ambulation, his symptoms are often 5 severe enough to interfere with attention and concentration, and he can stand for no 6 more than two hours at a time. Id. at 370-76. “An ALJ may not cherry-pick a 7 doctor’s characterization of claimant’s issues.” Fleenor v. Berryhill, 752 Fed. 8 Appx. 451, 453 (9th Cir. 2018) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th 9 Cir. 2014)). Relying on one description of plaintiff’s symptoms to the exclusion of 10 Dr. Park’s other notes and findings is not a clear and convincing reason for 11 rejecting Dr. Park’s opinion. 12 But the ALJ’s second reason – that Dr. Park changed the onset date of 13 plaintiff’s limitations from January 2016 to May 2012 – is a clear and convincing 14 one that supports rejecting Dr. Park’s opinion. Dr. Park’s RFC assessment 15 expressly states the limitations he assessed are based on plaintiff’s right hip 16 replacement. Id. at 370. In the amended assessment, Dr. Park changed the onset 17 date of plaintiff’s limitations from a date in January 2016 to May 23, 2012. Id. at 18 376; see id. at 294. The ALJ correctly noted that the record indicates plaintiff’s 19 right hip replacement surgery occurred on January 4, 2016, which would explain 20 why Dr. Park first listed the onset date as one in that same month. See id. at 26, 21 345. Dr. Park’s change to the onset date was thus contradicted by medical 22 evidence showing that the limitations as assessed could not have existed in May 23 2012 because the cause of the limitations – the surgery – had not yet occurred. 24 “The ALJ need not accept the opinion of any physician, including a treating 25 physician, if that opinion is brief, conclusory, and inadequately supported by 26 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 27 Accordingly, although one of the ALJ’s cited reasons for giving Dr. Park’s [28] 1 opinion little weight was not clear and convincing, the other reason cited by the 2 ALJ was, and the ALJ properly considered and rejected Dr. Park’s opinion, 3 particularly given that plaintiff’s date last insured was December 31, 2012. 4 B. The ALJ’s RFC Determination Was Not Supported by Substantial 5 Evidence 6 Plaintiff argues the ALJ’s determination that plaintiff had the RFC to 7 perform a full range of medium work was not supported by substantial evidence. 8 P. Mem. at 4-6. 9 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 10 § 404.1545(a)(1)-(2). The ALJ reaches an RFC determination by reviewing and 11 considering all of the relevant evidence, including non-severe impairments. Id. 12 When the record is ambiguous, the Commissioner has a duty to develop the record. 13 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Mayes, 276 14 F.3d at 459-60 (ALJ has a duty to develop the record further only “when there is 15 ambiguous evidence or when the record is inadequate to allow for proper 16 evaluation of the evidence”); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) 17 (“If the ALJ thought he needed to know the basis of [a doctor’s] opinion[ ] in order 18 to evaluate [it], he had a duty to conduct an appropriate inquiry, for example, by 19 subpoenaing the physician[ ] or submitting further questions to [him or her].”). 20 This may include retaining a medical expert or ordering a consultative 21 examination. 20 C.F.R. § 404 .1519a(a). The Commissioner may order a 22 consultative examination when trying to resolve an inconsistency in evidence or 23 when the evidence is insufficient to make a determination. 20 C.F.R. 24 § 404.1519a(b). 25 1. Treating Physicians 26 Plaintiff’s medical records reflect that he was treated by Dr. Park, an 27 orthopedic surgeon, from March 19, 2007 through at least May 5, 2017. AR at [28] 1 247-96, 369-77. Plaintiff was also treated by Dr. Tomas Saucedo, an orthopedic 2 surgeon, from December 12, 2007 to August 16, 2010. Id. at 314-39. 3 a. Dr. Kevin Park 4 On March 19, 2007, Dr. Park examined plaintiff based on plaintiff’s 5 complaints of low back pain radiating down to his legs, groin pain, and pain with 6 prolonged walking, and recommended an MRI of plaintiff’s lumbosacral spine for 7 possible epidural injections. Id. at 247. On March 22, 2007, Dr. Park reviewed the 8 results of the MRI and found multi-level disc protrusion with evidence of 9 spondylolisthesis with posterior disc bulge, mild to moderate lipping, and moderate 10 to severe neural foramina stenosis. Id. at 249. During this examination, Dr. Park 11 noted that plaintiff was requesting possible epidural injections, and recommended a 12 referral to a different doctor for evaluation and treatment. Id. 13 Dr. Park did not see plaintiff again until February 23, 2012, when plaintiff 14 complained of a three-year history of left hip pain. Id. at 250. Dr. Park diagnosed 15 degenerative joint disease of the left hip on this date, and noted that plaintiff 16 required left total hip arthroplasty. Id. On May 21, 2012, plaintiff presented for a 17 pre-operative visit for a left hip replacement surgery. Id. at 252. The record does 18 not indicate when plaintiff’s left hip replacement surgery took place. On July 13, 19 2012, plaintiff presented for a follow-up visit post left total hip arthroplasty. Id. at 20 253. At this visit, Dr. Park noted that plaintiff was doing fine and had an adequate 21 range of motion, and recommended plaintiff continue with his home exercise 22 program and follow up in three months for reassessment. Id. 23 On July 2, 2013, Dr. Park examined plaintiff based on his complaints of 24 right hip pain, which plaintiff reported as having started six months prior, and 25 lumbar spine pain. Id. at 254-56. Dr. Park diagnosed plaintiff as having 26 spondylolisthesis and severe degenerative disc disease in his spine, and moderate 27 to severe degenerative disc disease in his right hip. Id. [28] 1 Dr. Park did not see plaintiff again until December 15, 2014, when plaintiff 2 complained of ongoing right hip pain. Id. at 257-58. During this examination, Dr. 3 Park noted that plaintiff’s back was not bothering him, but recommended a right 4 total hip replacement with a follow-up visit to re-evaluate for surgery. Id. 5 On January 20, 2015, Dr. Park saw plaintiff based on his complaint of 6 moderate to severe back pain that, according to plaintiff, he had been experiencing 7 for the past five years. Id. at 259-61. During this visit, Dr. Park recommended 8 another MRI of plaintiff’s spine. Id. On February 20, 2015, Dr. Park reviewed the 9 results of the MRI and diagnosed spondylolisthesis. Id. at 262-65. At this visit, 10 Dr. Park discussed treatment options with plaintiff and plaintiff stated he would 11 like to proceed with spinal surgery. Id. at 264. On April 7, 2015, plaintiff 12 presented for a pre-operative visit for spinal surgery. Id. at 266-69. The spinal 13 surgery took place on April 8, 2015, and on April 22, 2015, plaintiff presented for 14 a post-operative visit. Id. at 270-72. At this visit, plaintiff reported experiencing 15 only mild pain and being very happy with his surgery, and Dr. Park instructed 16 plaintiff to follow up in 42 days to take x-rays of the affected area. Id. at 270-72. 17 On June 3, 2015, plaintiff presented for his second post-operative visit, and 18 reported that he still had some pain to his spine and was still wearing his brace, but 19 that he was very happy with his surgery and his leg symptoms had gone away. Id. 20 at 273-75. Dr. Park recommended that plaintiff could stop wearing his brace, but 21 would, on a permanent basis, be limited to lifting no more than 15 pounds, no 22 repeated bending, twisting, lifting or carrying, and no prolonged standing, sitting, 23 or walking. Id. at 275. 24 Dr. Park continued to see plaintiff in 2015 and 2016 for general 25 examinations for back and right hip pain, and prescribed medication for plaintiff’s 26 pain. Id. at 295-96, 345-65. On January 4, 2016, plaintiff had a right hip 27 replacement surgery. Id. at 345. On January 20, February 23, and April 5, 2016, [28] 1 plaintiff presented for post-operative visits in which Dr. Park assessed plaintiff as 2 doing well after the right hip replacement surgery, and recommended that plaintiff 3 continue with his home exercise plan and NSAIDs. Id. at 345-56. 4 On January 29, 2016, Dr. Park completed a Residual Functional Capacity 5 Questionnaire opining, as discussed above, that after plaintiff’s right hip surgery, 6 plaintiff could sit for more than two hours at a time, stand for up to two hours at a 7 time, would need to walk every ten minutes for about five minutes at a time, would 8 require a job that permits shifting positions at will, could frequently lift and carry 9 ten pounds, occasionally lift and carry 20 pounds, and never lift or carry 50 10 pounds. Id. at 291-92. Dr. Park also opined that plaintiff did not have significant 11 limitations in repetitive reaching, handling, or fingering, but would be able to bend 12 or twist less than 10 percent of the time in an eight-hour work day, had no 13 environmental restrictions other than avoiding concentrated exposure to extreme 14 cold, and would likely be absent from work more than three times a month. Id. at 15 292-93. Finally, Dr. Park opined that the earliest date these symptoms and 16 limitations applied was a date in January 2016. Id. at 294. As discussed above, on 17 May 5, 2017, Dr. Park amended the Residual Functional Capacity Questionnaire so 18 that the earliest date the relevant symptoms and limitations applied was May 23, 19 2012. Id. at 376. Dr. Park did not make any change to his substantive findings in 20 the Questionnaire. See id. at 370-76. 21 b. Dr. Tomas Saucedo 22 Although Dr. Saucedo’s handwritten records are not totally clear, it appears 23 Dr. Saucedo treated plaintiff for lower back pain and leg pain from December 12, 24 2007 to August 16, 2010 by prescribing medication. Id. at 314-39. Dr. Saucedo 25 also referred plaintiff to specialists for MRIs of his spine and left hip. See id. at 26 318-21. 27 On January 7, 2008, Dr. Saucedo completed a medical evaluation supporting [28] 1 plaintiff’s claim for state disability benefits opining plaintiff would be unable to 2 return to his regular or customary work from December 10, 2007 to April 15, 2008 3 because of his osteoarthritis. Id. at 322. On January 21, 2008, Dr. Saucedo 4 completed another medical evaluation supporting plaintiff’s claim for disability 5 benefits from a laborers’ union opining plaintiff would be totally disabled from 6 December 12, 2007 to June 1, 2008 because of his osteoarthritis. Id. at 326. In 7 April 2008, Dr. Saucedo completed a third medical evaluation supporting 8 plaintiff’s claim for disability benefits from a laborers’ union opining plaintiff’s 9 disability began on December 12, 2008 and would end on March 17, 2009. Id. at 10 331-32. On August 16, 2010, Dr. Saucedo completed a fourth medical evaluation 11 supporting plaintiff’s claim for state disability benefits opining plaintiff’s disability 12 began on December 12, 2007 and would end on December 1, 2010. Id. at 339. 13 2. Dermatology Records 14 Although plaintiff appears to have requested dermatology records from 15 October 2007 to December 2012, the medical provider returned the request, noting 16 “[patient] not seen at this location till [sic] 2015.” Id. at 284-85. Of the 17 dermatology records that are before this court, the earliest record dates back to 18 May 29, 2015 and none predates the date last insured of December 31, 2012. Id. at 19 298-311. 20 3. State Agency Physicians 21 As an initial matter, the parties appear to contest whether any state agency 22 physician reviewed plaintiff’s medical records. Plaintiff maintains the state agency 23 review was conducted by a “single decision maker” (“SDM”) who was not a 24 physician and whose opinion on plaintiff’s RFC would not be entitled to any 25 weight. P. Mem. at 2. Plaintiff further argues there were no consultative 26 examinations or testimony from a medical advisor at the hearing. Id. Defendant 27 does not directly address plaintiff’s argument, and contends the ALJ found, at least [28] 1 with respect to plaintiff’s right hip impairment, that no medically determinable 2 impairment existed, “[i]n accord with the State agency-reviewing physicians.” D. 3 Mem. at 1. 4 Plaintiff is correct that no state agency physician reviewed plaintiff’s 5 medical records. Plaintiff’s medical records were reviewed only by C. Oyeka, an 6 SDM, who opined that plaintiff had a medically determinable impairment under 7 Listing 1.04 (Spine Disorders) but that there was insufficient evidence to further 8 evaluate the claim. AR at 53-58. The SDM determined that plaintiff was not 9 disabled, but did not make an RFC determination or any other findings. Id. No 10 other state agency medical examiner provided a medical opinion, nor did a medical 11 expert testify at the hearing. 12 4. The ALJ’s Findings 13 The ALJ determined plaintiff had the ability to perform the full range of 14 medium work through the date last insured, including lifting and carrying 50 15 pounds occasionally and 25 pounds frequently, standing and walking for six hours 16 in an eight-hour workday, and sitting for six hours in an eight-hour day. Id. at 24. 17 In reaching this determination, the ALJ considered the objective medical evidence 18 about plaintiff’s degenerative joint disease in his spine, left hip, and right hip, 19 rejected the opinions of Dr. Park and Dr. Saucedo, and gave little weight to 20 plaintiff’s subjective symptom testimony. Id. at 24-26. The ALJ did not consider 21 opinions from any state agency physicians because there were no such opinions in 22 the record. The ALJ also determined that there was no medically determinable 23 right hip impairment prior to the date last insured. Id. at 25-26. 24 The issue here is whether the ALJ could solely rely on his own interpretation 25 of the medical records in order to make an RFC determination or had a duty to 26 develop the record. Apart from Dr. Park, whose opinion the ALJ rejected, no other 27 physician reviewed plaintiff’s medical records and provided an opinion about his [28] 1 RFC. Thus, the ALJ’s RFC determination concerning the severity and effect of 2 plaintiff’s spinal, left hip, and right hip impairments was solely based on his 3 interpretation of plaintiff’s treatment notes. But an ALJ may not act as his own 4 medical expert because he is “simply not qualified to interpret raw medical data in 5 functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); see Day v. 6 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not make his “own 7 exploration and assessment” as to a claimant’s impairments); Rohan v. Chater, 98 8 F.3d 966 , 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play 9 doctor and make their own independent medical findings.”); Miller v. Astrue, 695 10 F. Supp. 2d 1042, 1048 (C.D. Cal. 2010) (it is improper for the ALJ to act as the 11 medical expert); Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) 12 (ALJ is not qualified to extrapolate functional limitations from raw medical data); 13 Afanador v. Barnhart, 2002 WL 31497570 , at *4 (N.D. Cal. Nov. 6, 2002) (ALJ 14 failed to develop the record when she did not obtain a medical opinion concerning 15 claimant’s specific diagnosis). 16 The absence of a medical opinion is not necessarily fatal, but the RFC 17 determination still must be supported by substantial evidence. See Tackett v. Apfel, [18] 180 F.3d 1094, 1102-03 (9th Cir. 1999) (ALJ must provide evidentiary support for 19 his interpretation of medical evidence). Defendant argues the ALJ based plaintiff’s 20 RFC on the totality of the record, and thus properly determined that plaintiff had 21 the ability to perform at a medium exertional level, including lifting and carrying 22 50 pounds occasionally and 25 pounds frequently, prior to December 2012. D. 23 Mem. at 4-6. The court disagrees. This was not a matter of the ALJ synthesizing 24 all the medical evidence and opinions to reach an RFC determination. Plaintiff’s 25 treatment records, which are admittedly scant for some of the relevant time period, 26 do not provide sufficient indications of plaintiff’s functional limitations, and it is 27 not clear how the ALJ determined plaintiff’s RFC in the absence of any other [28] 1 medical opinion. By the ALJ’s own account, the RFC determination was based 2 solely on: (1) the objective medical evidence; and (2) plaintiff’s testimony about 3 his limitations. Id. at 24-26. 4 It is thus unclear how the ALJ concluded plaintiff is capable of a full range 5 of medium work. Once the ALJ rejected the opinion of Dr. Park, there was no 6 other medical opinion in the record about plaintiff’s functional limitations. It was 7 improper for the ALJ to make an RFC determination based on his own lay 8 interpretation of the medical evidence. 9 Accordingly, because the ALJ was not qualified to translate plaintiff’s 10 treatment notes into functional limitations, the RFC determination was not 11 supported by substantial evidence. 12 C. The ALJ Failed to Properly Consider Plaintiff’s Subjective Complaints 13 Plaintiff also argues the ALJ erred by rejecting plaintiff’s subjective 14 symptom testimony on the ground that it was not supported by the objective 15 medical evidence. P. Mem. at 6-7. Plaintiff argues this reason alone is not a clear 16 and convincing reason for discounting his testimony, and also lacks specificity. Id. 17 The ALJ must clearly articulate specific reasons for the weight given to a 18 claimant’s alleged symptoms, supported by the record. Social Security Ruling 19 (“SSR”) 16-3p. To determine whether testimony concerning symptoms is credible, 20 the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028 , 21 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant 22 produced objective medical evidence of an underlying impairment “‘which could 23 reasonably be expected to produce the pain or other symptoms alleged.’” Id. at 24 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 25 Second, if there is no evidence of malingering, an “ALJ can reject the claimant’s 26 testimony about the severity of her symptoms only by offering specific, clear and 27 convincing reasons for doing so.” Smolen, 80 F.3d at 1281 ; Benton v. Barnhart, [1] 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in 2 weighing a claimant’s testimony, including: (1) ordinary techniques of credibility 3 evaluation such as a claimant’s reputation for lying; (2) the failure to seek 4 treatment or follow a prescribed course of treatment; and (3) a claimant’s daily 5 activities. Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346-47 . 6 At the first step, the ALJ found that plaintiff’s medically determinable 7 impairments could reasonably be expected to cause the symptoms alleged. AR at 8 24. At the second step, because the ALJ did not find any evidence of malingering, 9 the ALJ was required to provide clear and convincing reasons for discounting 10 plaintiff’s testimony. Here, the ALJ discounted plaintiff’s testimony because 11 plaintiff’s statements about the intensity, persistence, and limiting effects of his 12 symptoms were not entirely consistent with the objective medical evidence. Id.; 13 see id. at 26 (“the objective evidence does not support the claimant’s allegations of 14 severity prior to the DLI”). 15 The lack of supporting objective medical evidence is a factor that may be 16 considered when evaluating the credibility of a claimant’s subjective complaints, 17 but it is insufficient by itself. See Rollins v. Massanari, 261 F.3d 853, 857 (9th 18 Cir. 2001) (lack of corroborative objective medicine may be one factor in 19 evaluating credibility); Bunnell, 947 F.2d at 345 (an ALJ “may not reject a 20 claimant’s subjective complaints based solely on a lack of objective medical 21 evidence to fully corroborate the alleged severity of pain”). Here, the ALJ only 22 cited lack of objective medical evidence, and therefore his reasoning is insufficient. 23 Moreover, apart from stating that plaintiff’s symptoms were not consistent with the 24 medical evidence and other evidence in the record, the ALJ did not specifically 25 identify which of plaintiff’s statements he found to be not credible. See Lester, 81 26 F.3d at 834 (“General findings are insufficient; rather, the ALJ must identify what 27 testimony is not credible and what evidence undermines the claimant's [28] 1 complaints.”). 2 Accordingly, the ALJ failed to cite a clear and convincing reason supported 3 by substantial evidence to find plaintiff’s subjective complaints less than fully 4 credible. 5 V. 6 REMAND IS APPROPRIATE 7 The decision whether to remand for further proceedings or reverse and 8 award benefits is within the discretion of the district court. McAllister v. Sullivan, [9] 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 10 discretion to direct an immediate award of benefits where: “(1) the record has been 11 fully developed and further administrative proceedings would serve no useful 12 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 13 evidence, whether claimant testimony or medical opinions; and (3) if the 14 improperly discredited evidence were credited as true, the ALJ would be required 15 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995 , 1020 16 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 17 instructions to calculate and award benefits). But where there are outstanding 18 issues that must be resolved before a determination can be made, or it is not clear 19 from the record that the ALJ would be required to find a plaintiff disabled if all the 20 evidence were properly evaluated, remand for further proceedings is appropriate. 21 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, [22] 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 23 further proceedings when, even though all conditions of the credit-as-true rule are 24 satisfied, an evaluation of the record as a whole creates serious doubt that a 25 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021 . 26 Here, remand is required because the record must be more fully developed 27 on remand before a disability determination can be made. On remand, the ALJ [28] 1 | shall further develop the record such as by retaining a consultative examiner or 2 || medical expert, and either credit the opinions or provide legally sufficient reasons 3 || supported by substantial evidence for rejecting them. The ALJ shall also 4 | reconsider plaintiff's testimony, and either credit his subjective complaints or 5 || provide clear and convincing reasons for rejecting them. The ALJ shall then 6 || reassess plaintiff's RFC, and proceed through steps four and five to determine what 7 || work, if any, plaintiff was capable of performing during the relevant period. 8 VI. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that Judgment shall be entered 11 | REVERSING the decision of the Commissioner denying benefits, and 12 | REMANDING the matter to the Commissioner for further administrative action 13 |] consistent with this decision. [14] 15 | DATED: March 20, 2020 LRP [16] 17 United States Magistrate Judge