(SS) Ballesteros v. Commissioner of Social Security

[7] 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ALICIA RICO BALLESTEROS, No. 2:21-CV-0506-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, [15] Defendant. [17] 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405 (g). 20 Pursuant to the written consent of all parties, ECF Nos. 7 and 25, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636 (c), see also ECF No. 26 (minute order reassigning case to Magistrate Judge). 23 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 21 and 22. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more 27 than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th 28 Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a 1 conclusion.” Richards on v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including 2 both the evidence that supports and detracts from the Commissioner’s conclusion, must be 3 considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. 4 Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, [6] 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or 7 if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is 8 conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the 9 evidence is susceptible to more than one rational interpretation, one of which supports the 10 Commissioner’s decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947 , 11 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in 12 weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 13 For the reasons discussed below, the matter will be remanded for further 14 proceedings. [15] 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied; 22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; [24] Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; [27] 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. [7] See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). [8] 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental impairment 13 of such severity the claimant is unable to engage in previous work and cannot, considering the 14 claimant’s age, education, and work experience, engage in any other kind of substantial gainful 15 work which exists in the national economy. See Quang Van Han v. Bower, 882 F.2d 1453 , 1456 16 (9th Cir. 1989). The claimant has the initial burden of proving the existence of a disability. See 17 Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450 , 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520 (f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 1335 , 23 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock v. 24 Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on April 19, 2016. See CAR 279, 286.1 3 In the application, Plaintiff claims disability began on October 25, 2008. See id. Plaintiff’s claim 4 was initially denied. Following denial of reconsideration, Plaintiff requested an administrative 5 hearing. Plaintiff’s first administrative hearing was held on April 10, 2018; however, Plaintiff was 6 granted a postponement for the purposes of obtaining representation. Her second hearing, in 7 which she also lacked counsel, was held on September 19, 2018, before Administrative Law 8 Judge (ALJ) Vincent A. Misenti. In a December 11, 2018, decision, the ALJ concluded plaintiff 9 is not disabled based on the following relevant findings: 10 1. The claimant has the following severe impairment(s): degenerative disc disease of the cervical and lumbar spine, rotator cuff tear of 11 the right shoulder, and obesity (20 CFR 404.1520(c) and 416.920(c)); [12] 2. The claimant does not have an impairment or combination of 13 impairments that meets or medically equals an impairment listed in the regulations; [14] 3. The claimant has the following residual functional capacity: she 15 can perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she has little or no English and is right hand 16 dominant. The claimant is limited to occasional right overhead reaching and occasional climbing of ramps, stairs, ladders, and 17 scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. The claimant cannot work around unprotected heights and 18 must avoid concentrated exposure to moving mechanical parts; 19 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 20 are jobs that exist in significant numbers in the national economy that the claimant can perform. [21] See id. at 31, 34-35. [22] 23 After the Appeals Council declined review on January 29, 2020, this appeal followed. 24 / / / 25 / / / [26] 1 Citations are to the Certified Administrative Record (CAR) lodged on October 26, 27 2021, ECF No. 9. The Administrative Law Judge indicated an application date of March 29, 2016. However, the copies of Plaintiff’s application included in the lodged administrative record 28 are dated April 19, 2016. 1 III. DISCUSSION 2 Plaintiff raises the following legal issues in her brief: 3 1. At Step 2, the ALJ failed to consider Plaintiff’s knee impairment, resulting in an incomplete residual functional capacity analysis 4 at Step 4. 5 2. At Step 4, the ALJ improperly rejected Plaintiff’s testimony and statements. [6] 3. At Step 4, the ALJ erred in rejecting medical opinion evidence 7 relating to Plaintiff’s worker’s compensation claim. 8 4. The ALJ failed to develop the record. 9 A. Severity Determination 10 To qualify for benefits, the plaintiff must have an impairment severe enough to 11 significantly limit the physical or mental ability to do basic work activities. See 20 C.F.R. §§ 12 404.1520(c), 416.920(c). In determining whether a claimant’s alleged impairment is sufficiently 13 severe to limit the ability to work, the Commissioner must consider the combined effect of all 14 impairments on the ability to function, without regard to whether each impairment alone would be 15 sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42 16 U.S.C. § 423 (d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment, or combination of 17 impairments, can only be found to be non-severe if the evidence establishes a slight abnormality 18 that has no more than a minimal effect on an individual’s ability to work. See Social Security 19 Ruling (SSR) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting 20 SSR 85-28). The plaintiff has the burden of establishing the severity of the impairment by 21 providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 22 C.F.R. §§ 404.1508 , 416.908. The plaintiff’s own statement of symptoms alone is insufficient. 23 See id. 24 At Step 2, the ALJ assessed the severity of Plaintiff’s mental and physical 25 impairments. See CAR 31-33. In this analysis, the ALJ did not discuss Plaintiff’s knee condition 26 or antalgic gait. See id. Plaintiff contends the ALJ erred by discussing only her degenerative disc 27 disease, rotator cuff tear, and obesity as severe physical impairments. See ECF No. 21, pg. 15. 28 She argues that the record includes ample support for also classifying her knee impairment as 1 severe. See id. Plaintif f maintains that, as a result of excluding her knee impairments from her list 2 of severe impairments, the ALJ could not have made an accurate residual functional capacity 3 (RFC) assessment of her restrictions, which affected the outcome of her case. See id. at 15-16 . 4 Defendant contends that Plaintiff did not mention knee pain when she testified 5 before the ALJ about her neck, shoulder, and back pain, and that she often did the same when 6 speaking to medical providers. See ECF No. 22, pg. 9. Defendant also argues that the ALJ did in 7 fact properly consider Plaintiff’s antalgic gait and difficulties sitting and rising, and that the 8 evidence in the record demonstrated that these symptoms had resolved and Plaintiff had regained 9 a full range of motion. See id. at 10 . Defendant maintains that the ALJ nevertheless gave Plaintiff 10 the benefit of the doubt and credited her antalgic gait when determining her RFC. See id. at 10 . 11 In essence, Defendant argues that any error at Step 2 is harmless because the ALJ properly 12 considered Plaintiff’s limitations, including those related to gait and mobility, at Step 4 when 13 determining Plaintiff’s RFC. 14 The Ninth Circuit has applied harmless error analysis in social security cases in a 15 number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050 16 (9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness 17 testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the 18 testimony, could have reached a different disability determination.” Id. at 1056 ; see also Robbins 19 v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at 20 1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004), 21 the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s 22 testimony. Specifically, the court held: 23 However, in light of all the other reasons given by the ALJ for Batson’s lack of credibility and his residual functional capacity, and in light of the 24 objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ’s decision. Any error the ALJ may have 25 committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our 26 view harmless and does not negate the validity of the ALJ’s ultimate conclusion that Batson’s testimony was not credible. [27] Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127 , 1131 (9th Cir. 1990)). [28] 1 In Curr y, the Ninth Circuit applied the harmless error rule to the ALJ’s error with 2 respect to the claimant’s age and education. The Ninth Circuit also considered harmless error in 3 the context of the ALJ’s failure to provide legally sufficient reasons supported by the record for 4 rejecting a medical opinion. See Widmark v. Barnhart, 454 F.3d 1063 , 1069 n.4 (9th Cir. 2006). 5 The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d 6 1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court 7 stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility 8 finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless 9 error.” See id. at 1162. The court articulated the difference between harmless error standards set 10 forth in Stout and Batson as follows: 11 . . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether 12 the ALJ’s decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in 13 support of an adverse credibility determination, but that such error did not affect the ALJ’s decision, and therefore was harmless, because the ALJ’s 14 remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what 15 the ALJ would do if directed to reassess credibility on remand – we focused on whether the error impacted the validity of the ALJ’s decision. 16 Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that “in each case, the ALJ’s 17 error . . . was inconsequential to the ultimate nondisability determination.” 18 Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, in that case 19 the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine 20 whether the ALJ’s decision was adequately supported. 21 Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted). 22 Thus, where the ALJ errs in not providing any reasons supporting a particular 23 determination (i.e., by failing to consider lay witness testimony), the Stout standard applies and 24 the error is harmless if no reasonable ALJ could have reached a different conclusion had the error 25 not occurred. Otherwise, where the ALJ provides analysis but some part of that analysis is 26 flawed (i.e., some but not all of the reasons given for rejecting a claimant’s credibility are either 27 legally insufficient or unsupported by the record), the Batson standard applies and any error is 28 harmless if it is inconsequential to the ultimate decision because the ALJ’s disability 1 determination nonethe less remains valid. 2 Here, the Court applies the Stout standard because the ALJ provided no rationale 3 at Step 2 regarding the severity of Plaintiff’s knee impairment. As discussed above, the severity 4 determination at Step 2 applies a de minimis standard and is not an RFC finding. The failure to 5 consider an impairment at Step 2 can only affect the disability determination when limitations 6 associated with that impairment are also not considered at Step 4 in determining the claimant’s 7 RFC. Such is the case here. 8 At the outset, the Court rejects Defendant’s contention that, despite not 9 considering Plaintiff’s knee impairment at Step 2, the ALJ nonetheless accounted for associated 10 limitations at Step 4. In describing Plaintiff’s residual functional capacity at Step 4, the ALJ 11 stated: . . .To mitigate symptoms of an antalgic gait and musculoskeletal 12 tenderness, and to minimize aggravation to the claimant's spine, the residual functional capacity restricts the claimant to work at the light 13 exertional level, and limits climbing of ramps, stairs, ladders, and scaffolds to occasional. The residual functional capacity also restricts 14 balancing, stooping, kneeling, crouching, and crawling to occasional. Given the claimant's antalgic gait, the residual functional capacity 15 provides that the claimant cannot work around unprotected heights, and must avoid concentrated exposure to moving mechanical parts. Finally, to 16 accommodate the claimant's shoulder impairment, the residual functional capacity limits right overhead reaching to occasional. [17] CAR 36. [18] 19 While the ALJ does indeed account for limitations potentially associated with 20 Plaintiff’s knee impairment which was not considered at Step 2, such as limitations relating to 21 climbing, kneeling, and crawling, the ALJ does not account for possible limitations on sitting and 22 standing which Plaintiff’s claims are the result of her knee impairment. In fact, the ALJ has 23 provided no limitations to sitting and standing. Because such limitations would have been 24 considered at Step 4 absent the error here at Step 2, the Court cannot say that the ALJ’s error was 25 harmless. See Nadon v. Saul, 851 F. App'x 24 , 28 (9th Cir. 2021) (citing Marsh v. Colvin, 792 26 F.3d 1170, 1173 (9th Cir. 2015)). 27 / / / 28 / / / 1 It is po ssible that, had the error at Step 2 not occurred and had Plaintiff’s knee 2 impairment been considered severe and properly evaluated at Step 4, a reasonable ALJ could 3 have reached a different result. Therefore, the Court will remand this matter for a new 4 determination by the Commissioner in the first instance which considers all of Plaintiff’s 5 established impairments at Step 2 and limitations associated therewith at Step 4. 6 B. Evaluation of Plaintiff’s Subjective Statements and Testimony 7 The Commissioner determines the weight to be given to a claimant’s own 8 statements and testimony, and the court defers to the Commissioner’s discretion if the 9 Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 10 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons. 11 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. 12 See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify 13 what testimony is not afforded weight and what evidence undermines the testimony. See id. 14 Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s 15 reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also 16 Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, [17] 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 18 In weighing a claimant’s statements and testimony, the Commissioner may 19 consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other 20 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to 21 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and 22 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See 23 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 24 claimant cooperated during physical examinations or provided conflicting statements concerning 25 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 26 claimant testifies as to symptoms greater than would normally be produced by a given 27 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 28 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 1 At Step 4, the ALJ assessed Plaintiff’s subjective statements concerning the 2 intensity, persistence, and limiting effects of her alleged symptoms. See CAR 35-37. The ALJ 3 summarized Plaintiff’s statements and testimony as follows: 4 The claimant alleged that she had a right shoulder tear; pain in her right leg, neck, and back; and symptoms of weakness and dizziness (Exhibits 5 1E/2, 6E/1, 7E/1). At the hearing, she testified that she was unable to work due to pain and side effects of medication (Testimony). She testified 6 to difficulties moving her shoulder, neck, and back and to numbness in her neck (Id.). In addition, she continued, she had torn tendons in her right 7 shoulder and numbness in her left hand, which caused difficulty reaching (Id.). Functionally, she testified that she was able to sit for 20 minutes, 8 stand for 30-40 minutes, and lift a gallon of milk (Id.). However, she testified that she continues to drive, care for her disabled son, cook for her 9 children, and perform laundry (Id.). 10 CAR 35. 11 The ALJ concluded Plaintiff’s statements and testimony are inconstant with her 12 daily activities and the medical record as a whole. See id. at 35-36. Plaintiff challenges the 13 ALJ’s analysis as to both reasons. 14 1. Daily Activities 15 Regarding reliance on a claimant’s daily activities to discount testimony of 16 disabling pain, the Social Security Act does not require that disability claimants be utterly 17 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 18 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 19 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 20 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 21 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 22 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 23 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 24 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 25 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 26 activities are not easily transferable to what may be the more grueling environment of the 27 workplace, where it might be impossible to periodically rest or take medication”). Daily activities 28 must be such that they show that the claimant is “. . .able to spend a substantial part of his day 1 engaged in pursuits in volving the performance of physical functions that are transferable to a 2 work setting.” Fair, 885 F.2d at 603 . The ALJ must make specific findings in this regard before 3 relying on daily activities to discount a claimant’s pain testimony. See Burch v. Barnhart, 400 4 F.3d 676 , 681 (9th Cir. 2005). 5 As to Plaintiff’s daily activities, the ALJ stated: 6 After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be 7 expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of 8 these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. As 9 the claimant has testified, she continues to engage in activities indicative of normal functioning, including driving, caring for her disabled son, 10 cooking for her children, and performing laundry (Testimony). 11 Additionally, while she stated that she was limited to sitting for twenty minutes, she sat comfortably for the duration of the entire hearing (Id.). [12] CAR 35. [13] 14 Plaintiff argues that the ALJ erred by discrediting her symptom testimony based 15 on the day-to-day functions she is still able to perform. See ECF No. 21, pg. 16. Plaintiff submits 16 that the ALJ “failed to explain how these activities are inconsistent with Plaintiff’s alleged 17 limitations, and there is no evidence to suggest that performance of these activities requires 18 greater exertion than Plaintiff testified she can perform.” Id. Plaintiff further maintains that once 19 the threshold issue of whether her medically determinable impairments could cause the alleged 20 symptoms was met, the ALJ erred by rejecting her subjective symptom testimony without 21 satisfying the “clear and convincing reasons” standard for doing so. See id. Finally, Plaintiff notes 22 that “the ALJ fails to reconcile the alleged improvement cited to support his ruling . . . with the 23 regression that was consistently noted later in the record.” Id. at 17 (internal citation omitted). 24 Defendant asserts that substantial evidence supports the ALJ’s evaluation of 25 Plaintiff’s subjective complaints. See ECF No. 22, pg. 10. In particular, Defendant contends that 26 the evidence the ALJ considered included “objective medical evidence, improvement with 27 treatment, and Plaintiff’s daily activities.” See ECF No. 22, pg. 12. Defendant further maintains 28 that “Plaintiff’s argument to the contrary essentially amounts to a request that the Court reweigh 1 the evidence, which it may not do.” ECF No. 22, pg. 12 (citing Spears v. Berryhill, 720 F. App’x 2 358, 360 (9th Cir. 2017)). 3 The Court finds merit in Plaintiff’s contention that the ALJ erred by relying on the 4 day-to-day activities she was still able to perform. In this regard, the ALJ failed to make the 5 required specific findings with regards to Plaintiff’s ability to spend a substantial part of her day 6 engaged in physical activities transferable to a work setting. Instead, the ALJ merely summarized 7 the symptoms Plaintiff reported and some of the medical evidence in the record and held that the 8 medical evidence and her ability to perform basic household tasks were not “entirely” consistent 9 with her “statements concerning the intensity, persistence and limiting effects of these 10 symptoms.” CAR 35. 11 A recent Ninth Circuit case is particularly instructive. In Havens v. Kijakazi, No. 12 21-35022, 2022 U.S. App. LEXIS 16270 (9th Cir. June 13, 2022) (unpublished), the ALJ 13 similarly cited the plaintiff’s ability to attend to household chores and care for a family member 14 as reasons to discount his pain testimony. Id. at *3 . However, the Ninth Circuit observed that 15 “Havens never testified that he cared for his father, and indeed testified that he tried to help his 16 father with chores but was unable to do so. He also explained that because of his conditions, he 17 frequently had to take breaks or have his father take over his chores.” Id. at *3 . The court held 18 that “. . .our precedents [] urge caution in concluding that daily activities performed in this 19 manner are inconsistent with pain testimony. . . .” Havens, at *3-4 (citing Garrison v. Colvin, 759 20 F.3d 995 , 1014-15 (9th Cir. 2014)). 21 Here, Plaintiff testified that, before her injury, she had helped her autistic son with 22 “dressing, bathing, grooming, and feeding,” but that following her injury she had to ask her son 23 for help and was reduced to going into the bathroom with him to “tell him what things he has to 24 do, so that he can get ready and take a bath.” CAR 77-78. Furthermore, it appears that the ALJ 25 was somewhat selective in referencing the daily activities Plaintiff was still capable of doing. 26 Although the ALJ listed her ability to drive as one of several “activities indicative of normal 27 functioning,” what Plaintiff actually testified was that although she did drive her son to and from 28 school, she was able to do so only with her left hand (Plaintiff is right-handed). See CAR 68, 76. 1 Additionally, Plaintiff testified that when driving, she could drive “maybe 20 to 25 minutes and 2 [she has] to stop and get out and rest.” CAR 76. Plaintiff also testified that she could only wash 3 her hair with her left hand and that writing was a disaster (because she is right-handed and had to 4 write with her left). See id. She explained that although she cooked for her family, she did not 5 wash the dishes because “[i]t takes [her] about two hours to just wash two or three dishes.” CAR 6 78. Although she did laundry, she did not clean the house, and although she went grocery 7 shopping, she always brought someone along to push the cart. See CAR 78-79. 8 This is a very different picture than the one the ALJ described when he cited 9 driving, cooking, doing laundry, and caring for Plaintiff’s disabled son as reasons to discount her 10 pain testimony, and puts the instant case squarely in line with Havens. Moreover, the ALJ made 11 no finding that Plaintiff was able to spend a substantial part of each day engaged in such pursuits, 12 nor that the skills or ability to engage in these specific activities would translate to the workplace. 13 Consequently, the Court finds that the ALJ erred by discounting Plaintiff’s pain testimony based 14 on her ability to perform a limited selection of household chores. 15 2. Medical Record 16 If there is objective medical evidence of an underlying impairment, the 17 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 18 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 19 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 20 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 21 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 22 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 23 be a reasonable inference, not a medically proven phenomenon. [24] 80 F.3d 1273 , 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). [25] 26 The Commissioner may, however, consider the nature of the symptoms alleged, including 27 aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 947 F.2d at 28 345-47. 1 In asses sing Plaintiff’s statements and testimony, the ALJ found they were 2 inconsistent with the medical evidence as a whole. See CAR 35-36. The ALJ found: 3 As for the claimant's statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent with the medical 4 evidence. The claimant as alleged limitations in her right shoulder, right leg, neck, and back (Exhibits lE/2, 6E/l, 7E/l, Testimony). In reviewing 5 her treatment history, the undersigned notes that she sustained a work injury ten years prior in December 2008, at which time she had difficulty 6 arising from a chair, an antalgic gait, restricted motion in her neck, and tenderness in her right shoulder, back, and lower extremities (Exhibit 7 4F/2-3). Objective MRI testing performed in conjunction with her injury indicated a small focal tear in the rotator cuff right shoulder in January 8 2009 (Exhibit 4F/183). Subsequent MRI imaging revealed mild disc desiccation and a mild annular bulge in her lumbar spine in March 2015 9 (Exhibit 8F/9) and severe stenosis at the C7-Tl level with impingement of the C8 nerve root in February 2016 (Exhibit 12F/6). The claimant's 10 November 2009 nerve conduction study also showed cervical radiculitis with left radial sensory neuropathy (Exhibit 8F /7). [11] However, her symptoms would respond positively to treatment. For 12 example, in January 2009, the claimant no longer had an antalgic gait, and no difficulties arising from a chair, or getting up and down the 13 examination table (Exhibit 4F/46-47). Additionally, her February 2016 right shoulder MRI revealed no discrete rotator cuff tear and mild 14 tendinosis (Exhibit 12F/8) while her May 2014 EMG was normal without evidence of cervical radiculopathy (Exhibit 5F/16). Subsequent 15 examinations would show generally preserved functionality. Notably, in March 2014, she had cervical tenderness and decreased range of motion in 16 her right shoulder, but otherwise maintained a normal gait, intact sensation, and generally full motor strength in all extremities bilaterally 17 (Exhibits 4F/221-222; 5F/4). Examinations in April and May 2015, and November 2016, would reveal a normal, non-antalgic gait, and the ability 18 to heel and toe walk normally (Exhibit 8F/l, 4). During her June 2016 consultative examination, examiner Shahid Ali, M.D. observed that 19 although the claimant had reduced sensation in her right upper extremity, she walked without assistance, sat comfortably, got on and off 20 the examining table with ease, and retained the dexterity to remove her shoes (Exhibit 16F/2). By September 2016, symptoms in the claimant's 21 spine and shoulders were mild, and she maintained normal range of motion in all extremities (Exhibit l 7F/13). At that time, the claimant 22 reported that she was able to perform full range of motion of her neck without pain (Exhibit l 7F/13). [23] The residual functional capacity accommodates the claimant's spinal and 24 shoulder impairments as follows: To mitigate symptoms of an antalgic gait and musculoskeletal tenderness, and to minimize aggravation to the 25 claimant's spine, the residual functional capacity restricts the claimant to work at the light exertional level, and limits climbing of ramps, stairs, 26 ladders, and scaffolds to occasional. The residual functional capacity also restricts balancing, stooping, kneeling, crouching, and crawling to 27 occasional. Given the claimant's antalgic gait, the residual functional capacity provides that the claimant cannot work around unprotected [28] 1 parts. F inally, to accommodate the claimant's shoulder impairment, the residual functional capacity limits right overhead reaching to occasional. [2] CAR 35-36. [3] Plaintiff asserts that the ALJ erred by failing to specifically state how the objective [4] medical findings contradicted her alleged limitations, and that the ALJ’s “vague assertions that [5] Plaintiff’s allegations are not supported by the record [are] insufficient.” ECF No. 21, pg. 17. She [6] also argues that the ALJ “fail[ed] to reconcile the alleged improvement cited to support his ruling [7] with the regression that was consistently noted later in the record.” Id. (internal citation omitted). [8] Defendant contends that the ALJ “compared Plaintiff’s allegations to the objective [9] medical evidence” and “accounted for Plaintiff’s right shoulder by limiting her to only occasional [10] overhead reaching.” ECF No. 22, pg. 12. Defendant also submits that the ALJ considered [11] evidence in the record that demonstrated an improvement in Plaintiff’s symptoms. See id. [12] Defendant concludes that the ALJ “properly weighed Plaintiff’s subjective complaints of [13] disability against the record.” Id. at 13. [14] As previously noted, an ALJ must “’specifically identify the testimony [from a [15] claimant] she or he finds not to be credible and . . . explain what evidence undermines that [16] testimony.’” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm'r [17] of SSA, 775 F.3d 1090, 1102 ) (brackets in original). Here, as in Lambert, “[t]he ALJ noted [18] generically that ‘the claimant's statements concerning the intensity, persistence and limiting [19] effects of [her] symptoms are not entirely consistent with the objective medical and other [20] evidence for the reasons explained in this decision.’” Lambert, 980 F.3d at 1277 . This [21] introductory statement, which is ‘“routinely include[d]’ in ALJ decisions denying benefits, did [22] not ‘identify what parts of the claimant's testimony were not credible and why.’” Id. (quoting [23] Treichler, 775 F.3d at 1102 ). [24] Furthermore, as in Lambert, “[a]lthough the ALJ did provide a relatively detailed [25] overview of [claimant]’s medical history, ‘providing a summary of medical evidence . . . is not [26] the same as providing clear and convincing reasons for finding the claimant's symptom testimony [27] not credible.’” Lambert, 980 F.3d at 1278 (quoting Brown-Hunter v. Colvin, 806 F.3d 487 , 494 [28] 1 (9th Cir. 2015)). Even setting aside the issue of whether or not the ALJ erred in disregarding 2 medical evidence of Plaintiff’s regression, the ALJ’s “discussion” of Plaintiff’s symptoms 3 “respond[ing] positively to treatment,” CAR 36, lacks any clear and convincing reasons – or any 4 reasons at all – for setting aside Plaintiff’s subjective pain testimony. Neither Plaintiff nor 5 Defendant dispute the ALJ’s finding that “the claimant's medically determinable impairments 6 could reasonably be expected to cause the alleged symptoms,” CAR 35, and as explained 7 previously, merely finding that Plaintiff’s pain testimony is inconsistent with objective medical 8 records cannot be used as grounds for rejecting that testimony; otherwise, there would be little 9 point in allowing pain testimony at all. The ALJ’s bare recitation of facts, prefaced by a generic 10 assertion of inconsistency, is clearly insufficient to discredit her pain testimony under the 11 standards discussed above. 12 Moreover, this error is not harmless. An ALJ “must provide sufficient reasoning 13 that allows us to perform our own review, because "the 'grounds upon which an administrative 14 order must be judged are those upon which the record discloses that its action was based.'" 15 Lambert, 980 F.3d at 1277 (quoting Treichler, 775 F.3d at 1102 ). Accordingly, the Court rejects 16 Defendant’s contention that “[b]ecause the ALJ considered valid factors and the findings are 17 supported by substantial evidence in the record, the Court may not engage in ‘second-guessing’,” 18 ECF No. 22, pg. 13. Here, “the ALJ did not provide enough ‘reasoning in order for us to 19 meaningfully determine whether the ALJ's conclusions were supported by substantial evidence,’ 20 [and] we cannot treat the error as harmless.” Lambert, 980 F.3d at 1278 (quoting Treichler, 775 21 F.3d at 1103). “Because ‘the agency's path’ cannot ‘reasonably be discerned,’” this Court cannot 22 affirm the ALJ’s credibility determination, and this compels remand. Treichler, 775 F.3d at 1103 23 (quoting Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). 24 C. Consideration of Workers’ Compensation Claim Opinions 25 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 26 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527 (b)). The ALJ errs by not explicitly 27 rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ 28 also errs by failing to set forth sufficient reasons for crediting one medical opinion over another. 1 See id. 2 Under the regulations, only “licensed physicians and certain qualified specialists” 3 are considered acceptable medical sources. 20 C.F.R. § 404.1513 (a); see also Molina v. Astrue, [4] 674 F.3d 1104, 1111 (9th Cir. 2012). The opinions of non-examining professionals may also 5 constitute substantial evidence when the opinions are consistent with independent clinical 6 findings or other evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 7 2002). Social workers are not considered an acceptable medical source. See Turner v. Comm’r of 8 Soc. Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician 9 assistants also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 10 2016). Opinions from “other sources” such as nurse practitioners, physician assistants, and social 11 workers may be discounted provided the ALJ provides reasons germane to each source for doing 12 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 F.3d 13 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527 (f)(1) and describing circumstance when 14 opinions from “other sources” may be considered acceptable medical opinions). 15 In addition to considering its source, to evaluate whether the Commissioner 16 properly rejected a medical opinion in a claim filed before March 27, 2017, the Court considers 17 whether: (1) contradictory opinions are in the record; and (2) clinical findings support the 18 opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining 19 medical professional only for “clear and convincing” reasons supported by substantial evidence in 20 the record. See Lester, 81 F.3d at 831 . While a treating professional’s opinion generally is 21 accorded superior weight, if it is contradicted by an examining professional’s opinion which is 22 supported by different independent clinical findings, the Commissioner may resolve the conflict. 23 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 24 A contradicted opinion of a treating or examining professional may be rejected 25 only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d 26 at 830 . This test is met if the Commissioner sets out a detailed and thorough summary of the facts 27 and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. 28 See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate 1 reasons, the Commiss ioner must defer to the opinion of a treating or examining professional. See 2 Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, 3 is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any 4 event, the Commissioner need not give weight to any conclusory opinion supported by minimal 5 clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating 6 physician’s conclusory, minimally supported opinion); see also Magallanes, 881 F.2d at 751 . 7 At Step 4, the ALJ considered the medical evidence in the record related to 8 Plaintiff’s workers’ compensation claim: 9 The undersigned also gives little weight to the various opinions contained in the claimant's medical record as to the claimant's requirement of work 10 restrictions, references to modified work duties, and statements that the claimant was off work (Exhibits 2F, 4F, 15F). A finding of disability is an 11 ultimate issue that is reserved to the Commissioner (20 CFR 404.1627(d), 416.927(d)). Because the issue is reserved, and because workers' 12 compensation cases utilize standards very different from Social Security, these opinions cannot be afforded controlling weight, but were 13 nevertheless duly considered pursuant to 20 CFR 404.1527(f), 416.927(f). These opinions are ultimately given little weight, as the claimant is able to 14 perform a reduced range of work at the light exertional level as discussed under Dr. Naiman. As indicated above, the claimant's severe physical 15 impairments resulted in reduced abilities following the alleged onset date, which are reflected in the assigned residual function capacity. [16] Additional limitations associated with the claimant's worker's 17 compensation claims are given little weight. The claimant was provided limitations as follows: she was limited to lifting and carrying ten pounds 18 intermittently and twenty-five pounds occasionally; she could not lift over twenty pounds; she could frequently bend, twist, and squat, and 19 intermittently reach above shoulder level bilaterally (Exhibit 4F/49, 105, 111-112, 118, 157, 176). These limitations are also given little weight, as 20 "intermittent" is a term associated with worker's compensation, and find no corresponding definition under the Regulations. In addition, the 21 claimant is limited to lifting and carrying a maximum of twenty pounds occasionally and performing postural activities on an occasional basis for 22 the reasons discussed under Dr. Naiman. These opinions can thereby not be evaluated under Social Security standards, but were duly considered 23 pursuant to 20 CFR 404.1527(f), 416.927(f). 24 CAR 37-38. 25 Plaintiff argues that the ALJ erred by not “offer[ing] legitimate reasons for 26 rejecting the supported opinions rendered relative to a concurrent claim for worker’s 27 compensation benefits.” ECF No. 21, pg 18. In particular, Plaintiff contends that the ALJ 28 discounted these opinions because the terms used were associated with workers’ compensation 1 and the ALJ could not find a corresponding social security definition. See id. Plaintiff asserts that 2 the ALJ offered “no other basis [for] discounting his assessment, aside from his earlier vague 3 conclusions that ‘on balance’ the evidence supports the assessed RFC.” Id. at 19. Consequently, 4 Plaintiff maintains that the ALJ did not state a proper basis for discounting opinion evidence that 5 conflicted with his determination of RFC, and that such a legal error compels remand. See id. 6 Conversely, Defendant argues that the ALJ properly considered these workers’ 7 compensation-related opinions. Defendant submits that “the ALJ properly concluded that the 8 opinions concerning work restrictions, modified work duties, and Plaintiff’s time off work were 9 issues reserved to the Commissioner,” and that these opinions do not constitute medical opinions. 10 ECF No. 22, pg. 14. Defendant further maintains that the ALJ properly gave little weight to 2008 11 and 2009 status reports from Dr. Han, which stated that Plaintiff could “lift up to 25 pounds 12 occasionally and up to 10 pounds intermittently, and bend, twist, squat, and reach above shoulder 13 intermittently and later frequently.” Id. Defendant also contends that, although the ALJ did note 14 that the term “intermittently” was associated with workers’ compensation rather than social 15 security, he did not use that discrepancy to reject these opinions. See id. Instead, Defendant 16 contends, the ALJ used the workers’ compensation documentation to soften Dr. Naiman’s 17 findings concerning Plaintiff’s physical limitations. See id. Consequently, Defendant contends 18 that no harm occurred in the ALJ’s consideration of these opinions. The Court agrees. 19 Although the ALJ could have been more specific as to his reasons for assigning 20 little weight to each workers’ compensation-related opinion, it appears that they were nonetheless 21 appropriately considered. Furthermore, to the extent that they were considered, they were cited 22 by the ALJ to Plaintiff’s benefit, rather than her detriment. Specifically, the ALJ relied on several 23 of these records in deciding what weight to assign to state consultant Dr. Naiman’s opinion. 24 Ultimately, Dr. Naiman concluded that Plaintiff could reach overhead bilaterally; frequently 25 climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance, 26 stoop, kneel, crouch, and crawl; and avoid concentrated exposure to hazards. See CAR 37; 12127 123. However, the ALJ found that the evidence supported a limitation to light work with 28 occasional right overhead reaching; occasional climbing of ramps and stairs; occasional 1 balancing, stooping, k neeling, crouching, and crawling; no work at unprotected heights; no 2 concentrated exposure to moving mechanical parts; lifting and carrying a maximum of twenty 3 pounds occasionally; and occasionally performing postural activities. In reaching this conclusion, 4 the ALJ cited several of Plaintiff’s workers’ compensation-related medical records (Exhibits 5 4F/2-3, 183, 221-222; 8F/7, 9; 12F/6). See CAR 38. 6 Plaintiff’s claim that the ALJ improperly discounted workers’ compensation 7 opinions, “including a limitation to lifting ten pounds intermittently and twenty-five pounds 8 occasionally, inability to lift over 20 pounds, only intermittent ability to bend or twist, and 9 records further document opinions of functional deficits in ability to reach or lift items weighing 10 over 5 pounds, as well as a preclusion from ‘all but occasional use of the right upper limb at or 11 above shoulder level, and from repetitive reaching activities,’” ECF No. 21, pg. 18, because they 12 were related to workers’ compensation opinions, is simply not supported by the record. As 13 previously discussed, the ALJ limited Plaintiff’s lifting capacity to twenty pounds occasionally. 14 This is consistent with both “a limitation to lifting ten pounds intermittently and twenty-five 15 pounds occasionally” and “inability to lift over 20 pounds” (these claims appear to be in conflict, 16 but the Court need not resolve it, as either claim fits into the ALJ’s restrictions). 17 While Plaintiff does reference a third lifting limitation from the workers’ 18 compensation records, a “functional deficit” in her ability to lift more than five pounds, see ECF 19 No. 21, pg 18, it is clear that all three limitations Plaintiff claims are supported by workers’ 20 compensation records cannot be true simultaneously. Furthermore, this limitation, which is the 21 only limitation not consistent with the ALJ’s findings, appears to be based on a single physical 22 therapy record. See CAR 657. Additionally, the ALJ specifically indicated his consideration of 23 Exhibit 4F, which contained the record in question. See CAR 38. Finally, as previously noted, 24 only “licensed physicians and certain qualified specialists” are considered acceptable medical 25 sources. A physical therapist is not considered such a source and is not entitled to the same 26 deference. See Valbush v. Kijakazi, No. 20-35131, 2021 U.S. App. LEXIS 37014 , at *4 (9th Cir. 27 Dec. 15, 2021) (unpublished). 28 / / / 1 Plaintif f has made no substantive argument as to why a physical therapist’s single 2 report of a five-pound weight limit on June 6, 2009 (CAR 657), should take precedence over, or 3 be weighed equally to, the acceptable medical opinions in the record. While the ALJ should have 4 provided a specific reason for discounting the physical therapist’s opinion, see Popa v. Berryhill, [5] 872 F.3d 901, 906 (9th Cir. 2017), the other evidence in the record overwhelmingly supports the 6 ALJ’s finding of a twenty-pound weight limitation. It is not apparent that a more specific citation 7 to a workers’ compensation opinion would have produced a different result, as the ALJ’s finding 8 is consistent with two out of three of the weight limitations Plaintiff herself claims. 9 Moreover, while “bending” and “twisting” are terms associated with workers’ 10 compensation rather than social security, the ALJ did find that Plaintiff could balance, stoop, 11 kneel, crouch, and crawl only occasionally, and the two workers’ compensation records Plaintiff 12 cites (CAR 657 and 872) do not contradict this finding. Finally, the ALJ’s finding that Plaintiff 13 could perform occasional right overhead reaching is highly consistent with Plaintiff’s contention 14 regarding what he should have found in the workers’ compensation records, namely a preclusion 15 from all but occasional use of the right upper limb at or above shoulder level or repetitive 16 reaching activities. See ECF No. 21, pg. 18. 17 Consequently, Plaintiff has not demonstrated that the ALJ actually disregarded 18 these opinions, or, more significantly, that Plaintiff was prejudiced by such lack of regard if it in 19 fact occurred. This is not to say, however, that the Court finds the ALJ’s current RFC 20 determination to be without error. As discussed above, the Court finds an error at Step 2 which is 21 not harmless, specifically the ALJ’s failure to evaluate Plaintiff’s knee impairment. Had this 22 error not occurred, it may very well be that the ultimate RFC assessment would include additional 23 limitations not set forth in the current hearing decision. 24 D. Duty to Develop the Record 25 The ALJ has an independent duty to fully and fairly develop the record and assure 26 the claimant’s interests are considered. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 27 2001). When the claimant is not represented by counsel, this duty requires the ALJ to be 28 especially diligent in seeking all relevant facts. See id. This requires the ALJ to “scrupulously and 1 conscientiously probe into, inquire of, and explore for all the relevant facts.” Cox v. Califano, 587 2 F.2d 988, 991 (9th Cir. 1978). Ambiguous evidence or the ALJ’s own finding that the record is 3 inadequate triggers this duty. See Tonapetyan, 242 F.3d at 1150 . The ALJ may discharge the duty 4 to develop the record by subpoenaing the claimant’s physicians, submitting questions to the 5 claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to 6 allow for supplementation of the record. See id. (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th 7 Cir. 1998)). 8 Furthermore, as previously noted, the ALJ errs by not explicitly rejecting a 9 medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). A case may be 10 remanded to the agency for the consideration of new evidence if the evidence is material and good 11 cause exists for the absence of the evidence from the prior record. See Sanchez v. Secretary of 12 Health and Human Services, 812 F.2d 509, 511-12 (9th Cir. 1987) (citing 42 U.S.C. § 405 (g)). In 13 order for new evidence to be “material,” the Court must find that, had the agency considered this 14 evidence, the decision might have been different. See Clem v. Sullivan, 894 F.2d 328, 332 (9th 15 Cir. 1990). The Court need only find a reasonable possibility that the new evidence would have 16 changed the outcome of the case. See Booz v. Secretary of Health and Human Services, 734 F.2d 17 1378, 1380-81 (9th Cir. 1984). The new evidence, however, must be probative of the claimant’s 18 condition as it existed at or before the time of the disability hearing. See Sanchez 812 F.2d at 511 19 (citing 42 U.S.C. § 416 (i)(2)(G)). In Sanchez, for example, the court concluded that the new 20 evidence in question was not material because it indicated “at most, mental deterioration after the 21 hearing, which would be material to a new application, but not probative of his condition at the 22 hearing.” Id. at 512 (citing Ward v. Schweiker, 686 F.2d 762, 765-66 (9th Cir. 1982)). 23 Plaintiff makes several contentions regarding the ALJ’s development of the record. 24 First, Plaintiff argues that more than two years passed between the date of the last medical record 25 in evidence and the date of the first hearing, and that the medical records in evidence at that time 26 “reveal[] that there were many missing records during the period between the application date and 27 the hearing date.” ECF No. 21, pg. 12. Plaintiff also claims that she submitted additional medical 28 evidence at both her first and second hearings which “demonstrated the existence of many new 1 objective test results, t herapy, and treatment that occurred between the last record and the hearing 2 date,” but that this evidence was unexhibited. See id. at 12-13. 3 Plaintiff further contends that her non-represented status and functional illiteracy 4 in the English language gave her a limited ability to protect her own interests and should have put 5 the ALJ on notice that additional care would be required to ensure that the record was fully and 6 fairly developed. See id. at 12. Plaintiff argues that it “is evident that none of the reviewing or 7 examining doctor[s], nor the ALJ himself reviewed any of the voluminous outstanding evidence.” 8 See id. at 13. Therefore, Plaintiff submits that the record was necessarily inadequate to render a 9 determination, particularly as to additional limitations to her right upper extremity and right knee 10 and the worsening of Plaintiff’s symptoms after a January 2017 motor vehicle accident. See id. 11 Defendant notes that the administrative record exceeds one thousand pages and 12 argues that the record contained sufficient evidence for the ALJ to render a decision. See ECF 13 No. 22, pg. 6. Conceding that this Court must also consider the evidence Plaintiff claims to have 14 presented at her hearing, but which entered the administrative record as part of her submission to 15 the Appeals Council, Defendant nevertheless maintains that the Commissioner’s decision was 16 supported by substantial evidence, which would require this Court to affirm the ALJ’s decision. 17 See id. at 7. Defendant apparently does not dispute Plaintiff’s contention that she was unable to 18 fully represent her own interests due to her lack of representation and difficulty with the English 19 language. 20 Furthermore, Plaintiff and Defendant heavily dispute the availability of Plaintiff’s 21 additional medical records at the time of her hearings. While Plaintiff contends that the reports 22 from Dr. Sommer and Dr. Saleem were presented at the time of the time of her hearing and were 23 thus available to the ALJ at that time, Defendant argues that these reports were submitted after 24 the hearings. See ECF No. 21, pgs. 12-13; ECF No. 22, pgs. 6-7. It is not necessary for this Court 25 to resolve this factual dispute; either party’s version of events would compel remand. 26 Assuming arguendo the accuracy of Plaintiff’s contentions, that Dr. Sommer’s 27 January 23, 2018, report were presented at the time of the hearing, that report raises questions 28 about additional physical conditions not discussed in the ALJ’s hearing decision, including 1 Plaintiff’s asserted rig ht knee injury, which Dr. Sommer diagnosed as a “medial meniscal tear,” 2 and diminished grip strength. See CAR 105-106. Dr. Sommer also made the following 3 observations: 4 In the neck active movement is down by 25% through the ranges with slight tenderness over the mid and caudal cervical spinous processes. 5 At the right shoulder there is limitation with extension to 20, flexion to 100, abduction to 110, adduction to 30. Internal and external rotation are 6 full. There is a mildly positive overhead impingement sign on the right. At the lumbar spine active movement is two thirds of expected full. There is 7 tenderness in the midline between L4 and the sacrum, but not over the sciatic notch or nerve on either side. There is spinal tenderness in the 8 upper thoracic midline as well. The upper extremity exam is normal on the left. On the right the patient has subjective reduction of touch and pin 9 sensibility about the thumb and index finger, as well as the little finger. 10 CAR 105. 11 Dr. Sommer indicated that he had reviewed eighteen sets of records from Dr. 12 Wisner, sixteen pages of records from Dr. Askew, and one set of records each from Drs. 13 Kobayashi, Choo, Clair, and Manchester. See CAR 106. Some, but not all, of these records 14 appear in the administrative record, and reports from Drs. Kobayashi and Manchester do not 15 appear to be included at all. Furthermore, the ALJ’s assertion that Plaintiff’s symptoms appeared 16 to have diminished or resolved is inconsistent with both Dr. Sommer’s report, which reflects an 17 examination that took place several years after the last report the ALJ considered, and the medical 18 records the ALJ cites in support of his contention. In fact, what the exhibits the ALJ identified 19 show is that Plaintiff’s symptoms have fluctuated up and down over time. This is particularly true 20 considering that Plaintiff was involved in an automobile accident, sustaining additional injuries, 21 either on September 16, 2016, in January 2017, or both. See AR 947; ECF No. 21, pg. 10. 22 Conversely, even if Defendant’s version of events are accepted and the records 23 from Dr. Sommer were not presented to the ALJ at or before Plaintiff’s hearing, the ALJ erred by 24 not seeking out medical records for more recent care. The list of exhibits attached to the ALJ’s 25 decision (CAR 41-46) includes a Report of Recent Medical Treatment dated September 19, 2018. 26 In that report, Plaintiff listed visits with Doctors Kobayashi, Clair, Manchester, and Sommer, as 27 well as updated diagnostic imaging. See CAR 405. These include the previously discussed 28 January 23, 2018, visit with Dr. Sommer, as well as an appointment with Dr. Wisner as recently 1 as September 6, 2018, but it does not appear that the ALJ sought out or considered a number of 2 these medical records in reaching his decision. See CAR 405. The medical records in the ALJ’s 3 exhibit list, which otherwise show a highly consistent pattern of regular medical visits, do not go 4 beyond October (physical medicine) or November (psychiatric medicine) of 2016. See CAR 406. 5 Particularly considering that Plaintiff was unrepresented at her hearing, see CAR 49, and that she 6 appeared to have difficulty describing her medical conditions even with a translator present, see 7 CAR 74, the ALJ had an obligation to seek out these missing records and review them as part of 8 his decision. 9 Defendant’s contention that additional records are not material and would simply 10 be cumulative, because substantial evidence supports the ALJ’s decision, see ECF No. 22 pg. 7, is 11 not well-taken. The absence of many of these records renders the ALJ’s initial decision 12 fundamentally flawed. The ALJ could not possibly have made an accurate decision about 13 Plaintiff’s impairments without considering the entirety of her physical conditions, rather than a 14 selective subset. Even considering only Dr. Sommer’s 2018 report, there is a reasonable 15 possibility that consideration of the impairments described in that document, many of which were 16 not acknowledged in the ALJ’s opinion, would result in a different outcome, which is all that this 17 Court needs to find to justify remand. 18 Defendant’s mention of the Appeals Council having considered Dr. Sommer’s 19 January 2018 report, see ECF No. 22 pg. 6, is also poorly taken. The Appeals Council summarily 20 dismissed that report not on the merits, but on the basis that the ALJ decided Plaintiff’s case only 21 through December 2018, and thus Dr. Sommer’s report was beyond the relevant time period. See 22 CAR 8. Although this Court does not formally review the decision of the Appeals Council, the 23 Court cannot help but note that January 2018 preceded December 2018, so the report from Dr. 24 Sommer was properly before the Appeals Council – and should have been before the ALJ – for 25 evaluation on the merits. Their summary assessment is not persuasive to this Court. 26 Defendant further contends that Dr. Sommer’s 2018 report does not constitute a 27 material update, because in his 2018 report he indicated a 17% “whole person impairment,” while 28 in previous reports he indicated an 18% “whole person impairment.” See ECF No. 22, pg. 7 1 (internal citations omi tted). However, Defendant later states that the ALJ “properly concluded 2 that the opinions concerning work restrictions, modified work duties, and Plaintiff’s time off 3 work were issues reserved to the Commissioner,” and “correctly noted that the term ‘intermittent’ 4 was associated with workers compensation, rather than Social Security regulations.” CAR 22, pg. 5 14. Defendant cannot have it both ways. Either the idiosyncratic disability verbiage and 6 terminology of workers compensation is translatable to the context of Social Security, or it is not. 7 If, as the ALJ wrote, “workers' compensation cases utilize standards very different from Social 8 Security,” CAR 38, then the distinction between 17% and 18% “whole person impairment” does 9 not necessarily require that Plaintiff’s level of disability was materially the same between the two 10 reports, and the latter report must still be duly considered. 11 For the reasons previously described, there is a reasonable possibility that 12 consideration of these additional records might have resulted in a different outcome. The ALJ’s 13 failure to do so compels remand, and on remand the ALJ is advised to take notice of, and duly 14 evaluate, these additional records. 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / [1] 2 IV. CONCLUSION 3 For the foregoing reasons, this matter will be remanded under sentence four of 42 4 | U.S.C. § 405(g) for further development of the record and/or further findings addressing the 5 | deficiencies noted above. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff's motion for summary judgment (ECF No. 21) is granted; 8 2. Defendant’s motion for summary judgment (ECF No. 22) is denied; 9 3. The Commissioner’s final decision is reversed and this matter is remanded 10 | for further proceedings consistent with this order; and 11 4. The Clerk of the Court is directed to enter judgment and close this file. [12] 13 | Dated: August 3, 2022 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE