Opinion
CV-20-00336-TUC-SHR (EJM)
01-31-2022
Kimberly J Davis, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markcovich, United States Magistrate Judge.
Plaintiff Kimberly Davis brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises two issues on appeal: 1) the Administrative Law Judge (“ALJ”) committed materially harmful error by failing to provide specific and legitimate reasons supported by substantial evidence to reject Dr. Wright's treating physician assessments; and 2) the ALJ committed materially harmful error by failing to provide clear and convincing reasons supported by substantial evidence to reject Plaintiff's subjective symptom testimony. (Doc. 26).
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 26, 29, & 30). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
I. Procedural History
Plaintiff filed an application for SSDIB in June 2015 and an application for SSI in July 2015. (Administrative Record (“AR”) 329-36). Plaintiff alleged disability beginning on April 24, 2014 based on kleptomania, back problems, depression, and obesity. (AR 97). Plaintiff's application was denied upon initial review (AR 96) and on reconsideration (AR 154).
A hearing was held on September 20, 2017 (AR 37), after which ALJ Laura Speck Havens found, at Step Five, that Plaintiff was not disabled because she was capable of performing other work existing in significant numbers in the national economy (AR 167- 68). Plaintiff appealed this decision and on January 17, 2019 the Appeals Council issued an order remanding the case back to an ALJ with instruction to correct specific errors. (AR 175-78). A second hearing was held on June 20, 2019 (AR 59), after which ALJ Laura Speck Havens again found, at Step Five, that Plaintiff was not disabled because she could perform other work (AR 26-28). On June 12, 2020 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).
Plaintiff's date last insured (“DLI”) for DIB purposes is June 30, 2015. (AR 97). Thus, in order to be eligible for DIB, Plaintiff must prove that she was disabled during the time period of her alleged onset date of April 24, 2014 and her DLI of June 30, 2015.
SSI benefits are based on economic need and eligibility for SSI is not affected by DLI.
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on April 8, 1965, making her 49 years old at the alleged onset date of her disability. (AR 97). She has an eighth-grade education and attended special education classes, and has past work as a truck driver. (AR 376-77).
A. Medical Testimony
i. Family Medical Center
The record documents Plaintiff's treatment with her primary care physician, Dr. Joel Wright, and several other providers at the Family Medical Center in Safford.
The record documents Plaintiff's treatment by Dr. Wright dating back to 2006, when she was seen for a workman's comp follow-up with a complaint of right knee pain. (AR 1246).
On January 2, 2011 Plaintiff complained of pain in her back, hip, and legs, fatigue, and said her weight was causing complications with work. (AR 1244).
On April 4, 2011 Plaintiff stated she was having a hard time standing with her back and pain meds weren't helping. (AR 1240). On exam Plaintiff had paraspinal spasm on palpation of the lower back and decreased range of motion on flexion and extension.
On April 21, 2011 Plaintiff complained of back pain 6+ months, moderate to severe, and aggravated by activity, tingling and numbness of the leg, and difficulty doing dishes and housework because of pain. (AR 1238). Dr. Damron noted MRI showed degenerative disc disease and facet arthropathy, and no significant central canal stenosis or neural foraminal narrowing.
On October 5, 2011 Plaintiff complained of right knee pain, back pain persisting despite tramadol and aspirin, and said pain seemed worse since PT completed. (AR 1236). On exam Plaintiff had paraspinal spasm on palpation of the lower back and decreased range of motion on flexion and extension, and right knee tenderness on the medial and lateral joint line and painful movements on range of motion.
On October 13, 2011 Plaintiff complained of bilateral knee pain and Dr. Wright noted x-rays showed bilateral medial compartment degeneration. (AR 1235). Exam showed tenderness to palpation on the medial and bilateral joint lines and painful movements on range of motion.
A February 15, 2012 MRI of the cervical spine showed multilevel degenerative disc disease, most pronounced at C5-C6; no compression abnormality; and abnormally low T1 marrow signal. (AR 686).
On February 24, 2012 Plaintiff complained of pain and numbness in her left hand. (AR 1231). On February 24, 2012 and April 13, 2012 ultrasounds showed no evidence of deep vein thrombosis. (AR 682, 678).
On May 10, 2012 x-rays of Plaintiff's left knee showed moderate joint effusion and medial arthritis (AR 673), and ultrasound showed no indication of deep vein thrombosis (AR 674).
On May 11, 2012 Plaintiff reported left knee swelling and Dr. Damron suspected an osteoarthritis flare and advised RICE (rest, ice, compression, and elevate). (AR 1223).
On July 18, 2012 Plaintiff reported a 6-month history of left shoulder pain, moderate to severe, getting worse, and radiating down her arm and hand. (AR 1217). Dr. Damron prescribed pain patches and referred Plaintiff to PT.
At a September 5, 2012 follow-up Plaintiff reported PT was improving range of motion of her shoulder but it was still painful and limited. (AR 1214). MRI showed evidence of partial tear of supraspinatus tendon.
On February 21, 2013 Plaintiff reported sharp pain in her shoulder and Dr. Damron assessed that it seemed to be more musculoskeletal than vascular. (AR 1206).
On October 31, 2013 Plaintiff complained of low back pain radiating to the left leg, knee pain, and sensation of knee giving out. (AR 1204). Exam showed tenderness across the lower back and decreased range of motion on flexion, extension, and rotation, and tenderness of the medial and lateral joint lines of the bilateral knees. Dr. Damron ordered MRI and noted Plaintiff's symptoms had progressed, and she should continue with back stretches and pain medications.
On April 11, 2014 Plaintiff reported mild to moderately severe shoulder pain for over 6 months, and Dr. Damron assessed arterial embolism and thrombosis of arteries of the upper extremity. (AR 511).
On September 3, 2014 Plaintiff reported low back pain radiating down her leg; she tried to return to truck driving, but the pain was too intense. (AR 506). She saw an industrial physician without relief of the pain and had tried epidural injections. Examination was normal with straight leg test positive at 45 degrees bilaterally, and Dr. Damron assessed lumbalgia and radiculopathy. He noted that Plaintiff's pain seemed to be muscular in nature and ordered x-rays. (AR 507). X-rays of the lumbar spine showed degenerative changes. (AR 547).
On October 8, 2014 Plaintiff's exam was normal with straight leg test positive at 45 degrees bilaterally and Dr. Damron prescribed oxycodone. (AR 505). X-rays showed a 5 mm mass in the spinal canal at L1-L2, and stable disc and facet degenerative changes in the lumbar spine. (AR 545-46).
On January 19, 2015 Plaintiff's exam was normal with straight leg test positive at 45 degrees bilaterally. (AR 500). Dr. Damron noted Plaintiff seemed to be fairly stable and needed to continue with current care and back stretches.
On March 6, 2015 Plaintiff reported knee pain on the left side after falling, with diffuse swelling and feeling like her knee was giving out. (AR 499). Examination was normal and Dr. Damron noted that she seemed “to have a flare of some osteoarthritis with the fall” but was able to walk and had full range of motion so imaging was not needed.
On June 25, 2015 Plaintiff reported low back pain and shoulder pain and requested a referral to physical therapy. (AR 494). She was referred to Dr. Coury for pain management for radiculopathy, labs for hypothyroidism, and PT. (AR 495).
On July 8, 2015 Plaintiff reported right shoulder and arm pain and was worried if it was possibly a blood clot; Dr. Wright ordered x-rays and an ultrasound. (AR 493). Ultrasound showed no evidence of acute deep or superficial vein thrombosis of either upper extremity (AR 537), and x-rays showed no acute findings (AR 539). CT showed no subclavian or axillary artery stenosis or embolus, and no extrinsic mass effect or evidence of thoracic outlet obstruction. (AR 532).
On August 3, 2015 Plaintiff was seen for pain management. (AR 1188). Exam was generally normal with straight leg raise test positive at 45 degrees bilaterally.
At an August 5, 2015 PT evaluation Plaintiff reported right side low back pain for about 10 years; on exam she had pain with all lumbar motions. (AR 552). An August 21, 2015 PT discharge report states that Plaintiff was being discharged after no-showing twice. (AR 550).
On October 6, 2015 Plaintiff complained of left knee pain after a recent fall. (AR 1187). Exam showed mild tenderness to palpation on the medial joint line and mild crepitations of the patellofemoral joint.
An October 15, 2015 MRI of Plaintiff's left knee showed mild osteoarthritis, most pronounced in the medial and patellofemoral compartment; small undersurface tearing/fraying posterior horn medial meniscus near the posterior root; and small Baker cyst. (AR 605). On October 20, 2015 Dr. Damron reviewed Plaintiff's MRI and assessed primary osteoarthritis of both knees. (AR 1186).
A December 9, 2015 MRI of the lumbar spine showed a small 5 mm intradural nodule in the left anterior thecal sac at L1-L2, “nonspecific but most likely represents a small nerve sheath tumor.” (AR 569). The MRI also showed multilevel lumbar facet degeneration and mild degenerative spinal stenosis at T11-T12.
On December 10, 2015 Plaintiff's exam was normal with straight leg test positive at 45 degrees bilaterally. (AR 590). Dr. Damron referred Plaintiff to neurology for her nerve sheath tumor and prescribed a long-acting pain patch for her “significant discomfort secondary to pain.”
On February 11, 2016 Plaintiff was seen for pain management and stated she took 4 tablets of oxycodone per day for pain and also took 4 tramadol per day. (AR 577). Exam was generally normal with straight leg raise test positive at 45 degrees bilaterally, and sensory exam of the lower extremities abnormal, hyperesthesia. Dr. Wright refilled oxycodone and referred Plaintiff to follow-up with Dr. Coury for osteoarthritis of her knees. (AR 578).
On March 23, 2016 Plaintiff was seen for her low back pain and stated oxycodone was not enough for her pain, she was going through it too fast. (AR 1556). Plaintiff reported that the back specialist thought her nerve sheath tumor was not the major source of her pain. Exam was generally normal with straight leg raise positive at 45 degrees bilaterally, and knees tender to palpation over the medial and lateral joint lines and painful movements. Dr. Wright refilled oxycodone and increased cyclobenzaprine. (AR 1557).
On August 12, 2016 Dr. Wright noted Plaintiff had transferred pain med control to Dr. Coury, who changed Plaintiff to morphine. (AR 1551). Exam was normal with straight leg raise positive at 45 degrees bilaterally, and Dr. Wright prescribed trazadone for low back pain. (AR 1151-52).
A September 13, 2016 MRI of the lumbar spine showed a stable 5 mm enhancing intradural mass at L1-L2, unchanged in comparison to December 2015; no significant lumbar spinal stenosis; advanced multilevel lumbar facet degeneration; and mild degenerative spinal stenosis at T11-T12. (AR 697-98).
On November 22, 2016 Plaintiff stated she was down to oxycodone once a day for back pain and Dr. Wright stopped oxy and started tramadol and morphine. (AR 1545). Exam was normal with straight leg raise positive at 45 degrees bilaterally.
On June 15, 2017 Plaintiff reported laminectomy surgery helped her SI joint pain and her radiating pain was decreased, and she requested a referral for pain management consultation and postop recovery. (AR 1536). Dr. Wright documented a normal exam with expected postop soreness.
On July 10, 2017 examination of the bilateral knees showed osteoarthritic changes and tenderness of the medial and lateral joint lines. (AR 1534). Dr. Wright refilled morphine for low back pain. (AR 1535).
A July 28, 2017 MRI of the pelvis and lumbar spine showed stable mild lumbar degenerative changes; no significant abnormality in the sacrum or coccyx; and small mass in the left spinal canal at L1-L2, grossly unchanged from prior MRI. (AR 1678-80).
On August 22, 2017 Plaintiff complained of pain in her right hand and arm with numbness and tingling; Dr. Damron assessed carpal tunnel syndrome and provided exercise material. (AR 1531).
On September 13, 2017 Plaintiff reported low back pain, pain with standing, and bilateral knee pain, and needed a walker to have a place to sit while waiting in line. (AR 1795). A letter that same date from Dr. Wright states: “Please be advised that Ms. Davis requires the use of a walker for walking long distances and for stability with prolonged standing.” (AR 767).
An October 26, 2017 MRI of the cervical spine showed multilevel spondylosis, most severe at C3-4, C4-5, and C5-6; mild central canal stenosis at C5-6; mild to moderate right neural foraminal stenosis at C3-4; relatively mild right neural foraminal stenosis at C4-5 and mild left at C6-7; and no abnormal spinal cord signal. (AR 1675). Overall findings were not significantly changed from 2012 images. MRI of the thoracic spine showed relatively mild spondylosis and no findings to explain radiculopathy. (AR 1677).
On January 26, 2018 Plaintiff reported morphine caused fatigue and she wanted to try something that would keep her more alert. (AR 1791). On exam she had tenderness across the low back, and tenderness to the medial and lateral joint lines of the bilateral knees and painful movements. Dr. Wright stopped morphine, started tramadol, and refilled metoprolol tartrate. (AR 1792).
On March 16, 2018 Plaintiff complained of low back pain following her surgery and wanted to adjust her pain meds. (AR 1784). Exam of the low back showed tenderness to palpation, and Dr. Sampson stopped tramadol and morphine and prescribed oxycodone. (AR 1784-85).
On March 27, 2018 Plaintiff saw Dr. Wright and complained of chronic low back pain with inability to work and had tenderness to palpation across the low back. (AR 1782). Plaintiff rated her average pain 5/10, but 9/10 at its worst in the past 24 hours. (AR 1786). Medication gave 50% relief, and pain interfered with her activity, mood, walking ability, work and housework, relations with others, sleep, and enjoyment of life. Heat and medication made it better, and walking, sitting, standing, lifting, and movement made it worse. (AR 1787).
On April 17, 2018 Plaintiff saw Dr. Wright and complained of pain in both knees, worse on the right, right shoulder pain, and pain in both wrists with crocheting causing carpal tunnel syndrome. (AR 1780). Examination of the bilateral knees showed osteoarthritic changes, tenderness to palpation of the medial and lateral joint lines, and normal range of motion, and examination of the right shoulder showed tenderness to palpation, diminished strength due to pain, and full range of motion but with pain at extremes of rotation. (AR 1781).
On May 16, 2018 x-rays of the right shoulder were normal. (AR 1672). X-rays of the bilateral knees showed tricompartmental osteoarthritis, most pronounced in the right knee. (AR 1673).
On May 23, 2018 Plaintiff complained of chronic low back pain, right shoulder pain, and bilateral knee pain, worse on the right. (AR 1778). On palpation of the lower back she had tenderness and pain over the bilateral trochanteric area, and exam of the right knee showed osteoarthritic changes, tenderness to palpation of the medial and lateral joint lines, and restricted flexion beyond 90 degrees. Dr. Wright refilled oxycodone. (AR 1779).
On September 5, 2018 Plaintiff complained of bilateral knee pain, worse on the right, and dull aching, sharp, and shooting low back pain, worse with movement. (AR 1767). Plaintiff rated her pain 8/10 currently and average 7/10. (AR 1769). Medication gave 50% relief, and pain interfered with her activity, mood, walking ability, work and housework, relations with others, sleep, and enjoyment of life. Rest, heat, and medication made it better, and “everything” made it worse. (AR 1770). On palpation of the lower back she had tenderness and pain over the bilateral trochanteric area, and exam of the right knee showed osteoarthritic changes, tenderness to palpation of the medial and lateral joint lines, and restricted flexion beyond 90 degrees. (AR 1767).
On September 19, 2018 Plaintiff rated her pain 5/10 currently and average 4/10. (AR 1765). Medication gave 80% relief, and pain interfered with her activity, mood, walking ability, work and housework, relations with others, sleep, and enjoyment of life. Heat and medication made it better, and “everything” made it worse. (AR 1766). Plaintiff stated her low back pain seemed better with gabapentin and she wanted to discontinue oxycodone. (AR 1763). On palpation of the lower back she had tenderness and pain over the bilateral trochanteric area, and Dr. Wright assessed low back pain and primary osteoarthritis of both hands. (AR 1763-64).
On October 10, 2018 Plaintiff complained of pain and swelling in her right index finger; on exam she had enlargement of the right PIP joint and restricted and painful movements. (AR 1761). Dr. Wright referred her to rheumatology for ongoing inflammatory arthritis of the right DIP joint. (AR 1762).
An October 11, 2018 CT of the cervical spine was essentially negative with no acute fractures or dislocations and only very mild degenerative changes. (AR 1670).
On December 13, 2018 Plaintiff reported knee and back pain 8/10 currently and average 6/10. (AR 1755). Medications gave her 30% relief and pain interfered with her activity, walking ability, work and housework, relations with others, sleep, and enjoyment of life. Heat, medication, and rest made it better, and walking, lifting, standing, sitting, and “almost everything” made it worse. (AR 1756). Exam showed tenderness to the low back and pain over the bilateral trochanteric area, and tenderness on medial and lateral joint lines of the knees and painful movements on range of motion. (AR 1753). Dr. Wright refilled cyclobenzaprine, gabapentin, and oxycodone.
On February 4, 2019 Plaintiff complained of low back pain and knee pain and said she had to take frequent rests while walking and used a walker but it broke. (AR 1751). On exam she had paraspinal spasm with palpation of the lower back, gait guarded, bilateral knees McMurray test borderline positive, and bilateral knees crepitations. Dr. Sampson prescribed a walker and referred Plaintiff for MRIs. (AR 1752).
At a February 13, 2019 follow-up with Dr. Wright Plaintiff had diffuse tenderness in the hands and knees without erythema. (AR 1749).
On March 25, 2019 x-rays of the bilateral knees showed no acute findings. (AR 1852-53).
A March 27, 2019 MRI of the lumbar spine showed a stable small 0.5 cm enhancing intradural nodule at L1-L2, unchanged from comparison to September 13, 2016; patent lumbar spinal canal, no new nerve compressing disc herniations; advanced multilevel facet degeneration; and small left paracentral protrusion at T11-T12 without significant canal narrowing. (AR 1735).
On June 11, 2019 Dr. Wright completed a Medical Assessment of Ability to do Work Related Physical Activities form. (AR 1854). He listed Plaintiff's diagnosed impairments as chronic low back pain, chronic knee pain, hypertension, history of clotting disorder, history of MRSA, carpal tunnel right wrist, Hashimoto's thyroiditis, osteoarthritis of hands, nerve sheath tumor, chronic kidney disease stage III, and thyroid nodule. Dr.
The undersigned notes that Dr. Wright's handwriting is difficult to read and, in some cases, illegible.
Wright opined that Plaintiff could occasionally and frequently lift and carry less than 10 pounds, stand and/or walk less than 2 hours in an 8-hour workday, sit less than 1 hour, and was unable to stand for prolonged time. She could never kneel, crouch, or crawl; occasionally climb and stoop; frequently balance and use her hands for handling and fine manipulation; had no limits on using the hands for feeling or reaching; and had environmental limitations to moving machinery, temperature extremes, and dust. (AR 1855-56). Dr. Wright stated that the findings supporting the assessed limitations were primarily related to Plaintiff's lower extremity. (AR 1856).
The undersigned notes that this statement is only partial legible.
On a Pain Function Capacity Questionnaire completed the same date, Dr. Wright indicated that Plaintiff had moderate to moderately severe pain that could reasonably be expected to result from objective clinical or diagnostic findings. (AR 1857). He opined that pain would frequently interfere with her attention and concentration, and that Plaintiff frequently experienced deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner. (AR 1857-58). Next to the box checked “frequently, ” Dr. Wright wrote “hx of ADD.” (AR 1858).
Plaintiff suggests that Dr. Wright wrote “DDD” for degenerative disc disease and that the ALJ's interpretation that Dr. Wright was referring to a history of ADD is “nonsensical.” (Doc. 26 at 13). The undersigned submits that Dr. Wright's handwriting is difficult to read, but the letters appear to be “ADD.”
ii. Orange Medical Pain Management
On May 28, 2014 Plaintiff was seen by Dr. Shah for evaluation of lower backache and left side low back pain radiating to the left leg and groin. (AR 710). Plaintiff first saw Dr. Shah on February 21, 2014 after her work injury in September 2013 and had shoulder, knee, and back pain; shoulder and knee pain had returned to baseline, but she still had moderate low back pain. Plaintiff previously had lumbar medial branch blocks, which worsened her pain, and did 2 months of PT without significant improvement. (AR 710- 11). After receiving a left SI joint injection on April 14, 2014 Plaintiff reported her leftside low back and buttock pain resolved 100%, but the relief only lasted 2 weeks. (AR 711). Dr. Shah offered Plaintiff a second injection, but she declined because it would not offer long-term relief. Plaintiff rated her pain 5/10, was no longer taking Norco, and was using Flexeril at night as needed for muscle spasm. On exam Plaintiff ambulated without a device and gait was normal. (AR 712). Examination of the lumbar spine showed restricted range of motion on flexion and extension; on palpation, paravertebral muscles, spasm, and tenderness on the left side; spinous process tenderness on L4 and L5; Gaenslen's positive; FABER test positive; pelvic compression test positive; and tenderness over the posterior iliac spine on the left side sacroiliac spine. (AR 712-13). Examination of the hip showed tenderness over the groin and SI joint; Gaenslen's positive; and FABER test positive. (AR 713). Dr. Shah opined that Plaintiff had reached maximal medical improvement for her treatment related to her work injury, that she would not need further PT or long-term narcotic medication management, and that she could use pain management and muscle relaxers as needed for flare-ups. (AR 713).
iii. Desert Sky Spine and Sports Medicine
On October 23, 2015 Dr. Coury performed a right SI joint injection. (AR 602).
A May 4, 2016 letter from Dr. Coury states that he had seen Plaintiff several times for low back and sacroiliac joint pain she experienced after her work injury, and that Plaintiff got about 2 weeks relief from an SI joint injection. (AR 594). Dr. Coury noted that the independent medical examiner determined Plaintiff's SI pain was due to weight gain and closed her case. Dr. Coury stated that he had reviewed the record and there was no evidence of weight gain following Plaintiff's work injury, and in fact she had lost some weight, and she did not have any pain prior to the injury. Dr. Coury stated that it was his opinion that Plaintiff's pain was related to the work injury and that she would benefit from SI joint interventions.
On June 3, 2016 Dr. Coury performed bilateral SI joint injections. (AR 599).
On August 5, 2016 Plaintiff reported worsening SI joint pain and that the injections had not helped, and that oxycodone and tramadol were not lasting her. (AR 841). On exam Plaintiff had antalgic gait, tenderness of the spinous process at L2 and the transverse process at L1, tenderness of the SI joints, tenderness of the paraspinal region at L2, pain with motion, and seated straight leg test positive. Tenderness of the SI joints bilaterally reproduced most of her typical pain. The PA recommended extended-release tramadol and decrease oxycodone.
iv. Banner UMC-Neurosurgery
On February 9, 2016 Plaintiff was seen by Dr. Kasoff for evaluation of low back pain and bilateral leg pain. (AR 588). Plaintiff reported a long history of low back pain that began to radiate to her legs in 2013 and described her pain as burning, throbbing, and pinching. She lost weight, tried PT, saw Dr. Coury in pain management, and had injections without relief. Plaintiff's exam was generally normal with positive paraspinal tenderness. Dr. Kasoff's impression was “[l]ow back pain and bilateral leg pain with multilevel degenerative disease without clear surgical target[; h]er enhancing lesion at L1/2 likely represents a small schwannoma or neurofibroma . . . [and] is highly unlikely to be contributing to her chief complaints.”
On a new patient questionnaire completed the same date, Plaintiff reported a 5-year history of mid and low back pain, constant, 9-10/10, and worse with walking, standing, and sitting for long periods. (AR 1180-81).
v. Comprehensive Pain Specialists
On November 2, 2016 Plaintiff had an independent medical examination for evaluation of her workplace injury. (AR 769). She reported constant low back pain, 7- 8/10, and sometimes worse than 10, and worse with any form of movement. (AR 771-72). Plaintiff stated that because of her pain, she could sit for 10-15 minutes, stand for 5 minutes, walk for 5 minutes, and lift/carry nothing heavier than a gallon of milk. (AR 772). She also had intermittent pain in her groin radiating to her legs, and said her condition was “way worse” than it was a year or two years ago because her pain was worse. On exam Plaintiff's “general disposition and demeanor during the course of the evaluation [were] not consistent with the reported level 10 out of 10 pain[]” and the “[n]euromuscular examination from an objective standpoint [was] entirely normal.” (AR 773). The only time Plaintiff “had back pain was with active resisted hip flexion while seated where she had non-radicular low back pain bilaterally.” (AR 774). Plaintiff also had mild non-radicular low back pain with straight leg raise while supine, and mild to moderate non-radicular groin pain with Faber maneuver while supine. Plaintiff's gait was slow but steady, she had diffuse subjective tenderness to palpation of the back, and mild to moderate painless patellofemoral crepitation in the knees. (AR 775). Dr. Dilla opined that “any treatment moving forward for the low back would be unrelated to the industrial incident” and that Plaintiff's “pain complains on examination are not consistent with sacroiliac mediated pain, as it is too diffuse and widespread.” (AR 783).
The undersigned notes that he clinical impressions and discussion sections of the report contain large amounts of blacked out text. (AR 781-83).
vi. Arizona Brain & Spine Center
On December 23, 2016 Plaintiff saw Dr. Yusupov and reported low back pain since her work injury in 2013, now radiating to the glutes and legs. (AR 735). Her pain was constant 9/10 in the lower back with medication, she had bilateral groin pain with walking, radiating pain in the lower extremities with any walking or standing, and gait instability with prolonged ambulation. Plaintiff had been treated with steroid injections, SI joint injections, and PT without relief. On exam Plaintiff had groin pain with external rotation of the hip, and tenderness 4+ over the lumbosacral spinous process, bilateral lumbar paraspinal muscles, bilateral SI joints, and bilateral glutes. (AR 736). Dr. Yusupov assessed low back pain, connective tissue and disc stenosis of intervertebral foramina-lumbar region, lumbar spondylolysis, sacroiliitis, hip bursitis, and lumbar radiculitis. (AR 737). Based on the severity of Plaintiff's pain, lack of improvement with conservative treatment, and imaging findings, Dr. Yusupov opined that surgical intervention was indicated and recommended a bilateral L5-S1 laminectomy for decompression.
A February 27, 2017 letter from Dr. Yusupov states that Plaintiff's leg pain had resolved after surgery and that “[t]his feedback is important since it validates that Ms. Davis had a significant component of her pain stemming from radiculopathy nerve root compression at L5-S1[]” and that “[n]one of the reports addressed this issue.” (AR 786). Dr. Yusupov further stated that he believed this problem was present prior to the closure of Plaintiff's work injury case on August 5, 2014, and that he disagreed with Dr. Dilla's report and decision because “[a]lthough Ms. Davis did have a pre-existing condition, low pack pain, her condition has severely aggravated and a new problem developed-bilateral S1 radiculopathy.”
On March 15, 2017 Plaintiff was seen 4-weeks post-op bilateral L5-S1 laminectomy and reported significant improvement and decrease in her preoperative symptoms, but had continued left SI and left gluteal pain, 6/10 with standing, walking, and stepping out of the car. (AR 732).
On June 7, 2017 Plaintiff reported significant improvement in radiation of pain to her lower extremities, but still had significant limitations from pain in the upper glutes. (AR 730). Her pain was worse with standing and transitioning from sitting to standing, and was sharp and at times severe. Examination showed tenderness 4+ over the lumbosacral spinous process, bilateral lumbar paraspinal muscles, left SI joint, and left glute. (AR 731). Dr. Yusupov noted that surgery had completely resolved Plaintiff's bilateral S1 radiculopathy, but she would be referred to PT and pain management for her ongoing SI joint pain.
vii. Arizona Arthritis and Rheumatology Associates
On January 14, 2019 Plaintiff was referred by Dr. Wright to rule out lupus. (AR 1845). She reported joint pain in her bilateral 3rd DIPs present for about a year and chronic back, hip, and knee pain. Exam was largely normal with no swelling, tenderness, or limitation in the IP, MCP, wrists, elbows, shoulders, hips, knees, ankles, or MTP joints; normal exam of the feet; normal exam of the spine; sacroiliac joints nontender; normal gait; tenderness of the DIP3 of the right and left hand; and Heberden's nodes on bilateral 3rd DIPs. (AR 1846). The plan was bloodwork to rule out potential autoimmune disease etiology and no medications were prescribed. (AR 1847).
On February 6, 2019 Plaintiff was seen for a follow-up and said she was still experiencing pain in her third DIPs and had no new symptoms. (AR 1836). She complained of extremity weakness, joint pain, and morning stiffness, and findings on exam were unchanged from her previous visit. (AR 1837-38). The assessment notes that Plaintiff's positive ANA may be due to her history of thyroid disease, that Lupus was not of suspicion, and that her symptoms were likely due to degenerative changes.
viii. Arizona Oncology
On May 1, 2019 Plaintiff was seen for a new patient consult on request by Dr. Wright. (AR 1859). Plaintiff reported failing vision, ankle swelling, difficulty controlling urine, skin tingling, problems walking, limited motion, difficulty with balance, dry mouth, night urination, sexual difficulties, thirsty all the time, unusually tired and sluggish, memory loss, multiple joint pains, easy bruising, generalized weakness, aches and pains, and skin rash and open sores. (AR 1860). Dr. Rafiyath noted that Plaintiff was positive for systemic lupus erythematosus antibodies including ANA primary pattern titer positive and Avise antibody positive, suggesting increased likelihood of systemic lupus erythematosus, and was antinuclear antibody IgG positive. (AR 1860). He assessed that Plaintiff:
had an arterial clot and had one antibody positive which may qualify her for lupus anticoagulant. However, this lupus anticoagulant needs to test repeatedly positive within three months. . . . If repeatedly positive, she may have lupus anticoagulant. However, lupus anticoagulant and arterial clone and data for arterial clot with anticoagulation is not strongly available for review. I think arterial clot may benefit from using antiplatelet agents more than anticoagulation. I recommend that we see whether she can tolerate an aspirin and then she could stay on an aspirin.
. . .
I think a systematic autoimmune disease needs to be ruled out. Her antibodies for systemic lupus erythematosus has shown some of them to be positive as well. She is going to discuss this with the rheumatologist. There can sometimes be overlap of lupus anticoagulant and systemic lupus erythematosus; however, lupus anticoagulant is not a systemic disease that usually affects the arterial and venous systems.
(AR 1860-61). Plaintiff was to return in 5-6 weeks to discuss results of the lupus anticoagulant workup. (AR 1861).
B. Plaintiff's Testimony
On a Function Report dated September 4, 2015 Plaintiff stated that she was limited in her ability to work because extreme pain limited her sitting, standing, and walking, and she could not lift over 5 pounds. (AR 386). Plaintiff also stated that her learning disabilities affected what her mind could take in, and that with her criminal background, sometimes things really tempted her. She spent her days taking pain medication, doing minor chores, and using the internet, and her mom helped take care of her and her dog. (AR 387). She had problems getting comfortable enough to sleep, had to sit in a shower chair and sit while getting dressed, and did not cook anymore because it was too hard to stand. (AR 388). She was able to do small loads of laundry and dishes while sitting on a stool but could not do other chores because she couldn't bend, pull, stretch, squat, or kneel. (AR 389). She was able to drive and shop in stores using an electric wheelchair, but sometimes spent days in bed due to pain. Plaintiff stated she could walk about 100 yards; i.e., after walking from the parking lot to a store she needed to sit and rest for 5-15 minutes. (AR 391). She used a cane that was prescribed in 2010, a wheelchair, and electric ride-ons when she went shopping or anywhere that required walking long distances. (AR 392).
Plaintiff's sister-in-law, Thonya Burger, completed a Function Report-Third Party and reported similar limitations. (AR 395-403).
At the September 20, 2017 hearing before the ALJ, Plaintiff testified that she did not cook or do laundry and that her roommate hired someone to do the household chores. (AR 43). Plaintiff was able to get out and do some grocery shopping since her laminectomy surgery; the surgery took away a lot of the pain in her lower legs. (AR 44).
Plaintiff stated she had been using a walker since 2013 when she reinjured her back at work; she used the walker when walking down a long hallway because she had to stop and her legs felt like they wouldn't hold up anymore. (AR 46). She had to use the walker if she was leaving the house because she couldn't guarantee she would have a place to sit, and it helped her with balance. (AR 52).
Plaintiff could stand 5-6 minutes at a time and did better with sitting because she could move around and stretch her back; while sitting she changed positions every 30 minutes. (AR 48). After about 15 minutes of sitting, she would shift her hips or lay back to rest her back, and usually laid on her side with pillows behind her back. (AR 50-51). It was hard for her to lift even the walker, which was about 5 pounds. (AR 48). She could drive for about 15 minutes max but couldn't do a “solid trip without stopping.” (AR 45). Plaintiff stated she only slept for 2.5-3 hours and then had to take more medicine. (AR 46).
Plaintiff stated that she had pain from the middle of her back down to her tailbone and in her knees. (AR 48-49). The pain in her lower back was constant, but only went down her legs if she was driving or walking or out moving around. (AR 49). After surgery and with medication, her pain was a 4.5-5. She still had problems with her knees. (AR 51).
At the June 20, 2019 hearing before the ALJ, Plaintiff testified that she was able to do a little bit more since the last hearing due to physical therapy after her surgery and because her friend got her a phone so she wasn't afraid to leave the house now if she fell. (AR 64). She was able to go to doctor appointments and do a small amount of shopping if a motorized wheelchair was available. (AR 64). If no wheelchair was available, she would just get what she needed for the moment and used her walker for sitting if her legs got tired. (AR 64-65). She was able to do the dishes sitting on a stool and could ride an exercise bike for 5-10 minutes. (AR 65).
Plaintiff testified that her laminectomy surgery in 2017 took away some of her pain-she could get up and move more because before it pushed on her sciatic nerve all the time, and now if she got really tired, then it really affected it. (AR 67). She could walk for about 5 minutes but did not need to use a cane as long as she knew there were chairs nearby. If she had pain walking or standing, she would sit down for 10-15 minutes before resuming walking. (AR 71). She still took her walker to the grocery store to sit, if the electric wheelchair wasn't available, because she couldn't make it to the center of the store and come back. (AR 67). Plaintiff had problems sitting for long periods; after 45 minutes to an hour, it was hard to stand. (AR 67-68). After sitting for 45-60 minutes, she would lay down on her right side for 2 hours to relieve the pain and take more pain pills. (AR 70- 71). She was “real strong” with her arms but couldn't lift with her back and legs; she could lift 5-10 pounds and then her knees would give out. (AR 68).
Plaintiff stated that she had pain in her back, hips, and knees all the time, but not as intense as it was; her pain was 6/10 with medication. (AR 68). She spent about 12 hours a day laying down on her side and got up to use the bathroom. (AR 69-70).
C. Vocational Testimony
At the June 20, 2019 hearing before the ALJ, Laurence Hughes testified as a vocational expert. (AR 71). The ALJ asked Hughes to assume an individual who could sit for 6 hours out of an 8-hour workday, stand for 6 hours, walk for 6 hours, occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, occasionally climb, balance, stoop, kneel, crouch, and crawl, overhead reaching on the left limited to frequent, and only occasional exposure to heights and moving machinery. (AR 72). Hughes testified that such an individual could not perform Plaintiff's past work as a truck driver but could perform other jobs such as photocopy machine operator, housekeeping/cleaner, and parking lot attendant. (AR 73). For the second hypothetical, the ALJ added a limitation that the individual would require a walker for ambulation. Hughes testified that a walker was a special accommodation and was not compatible with any work done on a competitive basis.
Plaintiff's attorney asked Hughes to assume an individual who could occasionally and frequently lift/carry less than 10 pounds, stand and walk for less than 2 hours total in an 8-hour workday, and sit for less than 1 hour. (AR 74). Hughes testified that these limitations would be preclusive of all jobs in the national economy.
D. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of degenerative disc disease, status post lumbar decompression, obesity, and hypothyroidism. (AR 18). The ALJ also considered the Paragraph B criteria set out in the social security disability regulations for evaluating mental disorders and found that Plaintiff had no more than mild limitations in understanding, remembering, or applying information, social interaction, concentrating, persisting, or maintaining pace, and adapting and managing oneself. (AR 19). Because the ALJ did not find “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning, the Paragraph B criteria were not satisfied and the ALJ found Plaintiff's mental impairment nonsevere. (AR 20).
The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence of record. (AR 22).
The ALJ gave reduced weight to the non-examining state agency physician opinions that Plaintiff could perform a wide range of light work because the evidence did not support certain assessed limitations such as reduced ability to reach overhead. (AR 25).
The ALJ gave little weight to the independent medical examiner opinion produced in conjunction with Plaintiff's work injury because significant portions of the opinion were blacked out and because the examination was conducted to determine if any of Plaintiff's impairments were work-related. (AR 25).
The ALJ gave reduced weight to Dr. Yusupov's February 27, 2017 opinion because it was also prepared for the purpose of parsing out which of Plaintiff's impairments were work-related. (AR 25).
The ALJ gave reduced weight to treating physician Dr. Wright's September 13, 2017 statement that Plaintiff required a walker for distance and stability with prolonged standing because Plaintiff “in fact reported that she did not require a walker for stability but rather if she had to walk [for an] extended period because she would get tired and would use the walker seat to rest.” (AR 25). The ALJ further stated that Dr. Wright issued this opinion shortly after Plaintiff's back surgery, but the letter did not indicate whether the limitations were secondary to her recovery or were permanent. The ALJ also noted that Plaintiff reported to her surgeon that her leg pain completely resolved after surgery, and that Plaintiff “was routinely observed ambulating with no difficulty and was not using any assistive device.” (AR 25).
The ALJ also gave reduced weight to Dr. Wright's June 11, 2019 opinion because he indicated that Plaintiff “was limited due to several conditions, including ones that are no longer symptomatic and/or that she received no treatment for during the period under consideration[.]” (AR 25). The ALJ further stated that “the objective findings from several physicians, as detailed herein, do not support the significant limitations given by Dr. Wright.” Id.
The ALJ found that Plaintiff had the RFC to perform light work with the following limitations: lift/carry 20 pounds occasionally and 10 pounds frequently; sit, stand, or walk for 6 hours each per 8-hour workday; occasionally climb, balance, stoop, kneel, crouch, or crawl; and occasional exposure to moving machinery and heights. (AR 21). Based on the testimony by the VE, the ALJ found that Plaintiff was capable of performing jobs existing in significant numbers in the national economy. (AR 26-27). The ALJ therefore concluded that Plaintiff was not disabled. (AR 28).
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) the claimant's RFC precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (internal quotations and citation omitted), and is “more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998). “Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)). An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citations omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). . . .
IV. Discussion
Plaintiff argues that the ALJ erred by failing to provide specific and legitimate reasons supported by substantial evidence in the record to reject Dr. Wright's June 2019 assessments. (Doc. 26 at 12). Plaintiff further contends that the VE testimony establishes that the limitations assessed by Dr. Wright would preclude all work and thus remand for an award of benefits is appropriate. Id. at 14. Plaintiff further argues that the ALJ failed to provide clear and convincing reasons supported by substantial evidence in the record to discount her subjective symptom testimony, and that this error was harmful because her self-reported limitations are inconsistent with the ability to perform even sedentary work on a sustained basis. Id. at 14, 18.
The Commissioner contends that substantial evidence supports the ALJ's evaluation of Dr. Wright's opinion because it was on a check-box form, lacked supportive findings, and was inconsistent with the objective medical evidence. (Doc. 29 at 5-6). The Commissioner further argues that the ALJ appropriately discounted Plaintiff's subjective symptom testimony as not properly supported by the record based upon the objective medical evidence and her activities of daily living. Id. at 10. The Commissioner contends that remand for payment of benefits is unwarranted because the record as a whole creates serious doubt as to whether Plaintiff was actually disabled, and that should this Court find error, the proper remedy is remand for further administrative proceedings. Id. at 14-15.
The ALJ did not state that she assigned Dr. Wright's opinion reduced weight because it was on a check-box form or because it lacked supportive findings. The undersigned thus declines to further address the Commissioner's arguments on these points. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (“We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”).
The undersigned has considered the parties' arguments and thoroughly reviewed the record in this matter. For the reasons explained below, the undersigned finds that the ALJ failed to provide legally sufficient reasons to discount Dr. Wright's June 2019 treating physician opinion. This error impacted the ALJ's RFC assessment and the hypotheticals posed to the VE. Consequently, the error was not harmless because it ultimately impacted the ALJ's Step Five nondisability finding. Because questions remain regarding whether in fact Plaintiff was disabled within the meaning of the SSA during the relevant time period, and because Plaintiff's subjective symptom testimony is best reassessed in light of the record as a whole, the undersigned finds that remand for further administrative proceedings is appropriate.
Because the undersigned recommends that this matter be remanded for further administrative proceedings on an open record, the undersigned declines to address the other issues raised by Plaintiff in her appeal.
In weighing medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Garrison, 759 F.3d at 1012 (quoting Lester, 81 F.3d at 830). “Courts afford the medical opinions of treating physicians superior weight because these physicians are in a better position to know plaintiffs as individuals, and because the continuity of their treatment improves their ability to understand and assess an individual's medical concerns.” Potter v. Colvin, 2015 WL 1966715, at *13 (N.D. Cal. Apr. 29, 2015). “While the opinion of a treating physician is thus entitled to greater weight than that of an examining physician, the opinion of an examining physician is entitled to greater weight than that of a non-examining physician.” Garrison, 759 F.3d at 1012.
For disability claims filed on or after March 27, 2017, medical opinions are evaluated pursuant to the factors set forth in 20 C.F.R. § 416.920c. Because Plaintiff's applications were filed prior to March 2017, the old regulations apply. See Alonzo v. Comm'r of Soc. Sec. Admin., 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) (“Since 1991, the Ninth Circuit has distinguished between the opinions of treating physicians, examining physicians, and non-examining physicians. This distinction was known as the ‘treating physician rule.' In March of 2017, The Social Security Administration amended their regulations to abrogate the treating physician rule, among other changes.” (internal quotations and citations omitted)).
Where a treating physician's opinion is not contradicted by another physician, it may be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence. This is so because, even when contradicted, a treating or examining physician's opinion is still owed deference and will often be entitled to the greatest weight . . . even if it does not meet the test for controlling weight.” Garrison, 759 F.3d at 1012 (internal quotations and citations omitted). Specific, legitimate reasons for rejecting a physician's opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency with the medical records, inconsistency with a claimant's testimony, or inconsistency with a claimant's ADL. Tommassetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). “An ALJ can satisfy the substantial evidence requirement by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Id. However, “when evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Finally, if the ALJ determines that the plaintiff's subjective complaints are not credible, this is a sufficient reason for discounting a physician's opinion that is based on those subjective complaints. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).
Here, Dr. Wright's June 2019 opinion was contradicted by the examining and non-examining physician opinions. Thus, the ALJ was required to provide specific and legitimate reasons to discount Dr. Wright's opinion. The undersigned finds that the ALJ failed to meet that standard.
The ALJ found that Dr. Wright's June 2019 opinion should be given reduced weight because Dr. Wright indicated that Plaintiff “was limited due to several conditions, including ones that are no longer symptomatic and/or that she received no treatment for during the period under consideration, such as history of carpal tunnel syndrome, history of ADD, chronic knee pain, history of MRSA and chronic kidney disease, etc.” (AR 25). The undersigned rejects this reasoning. The portion of the form the ALJ refers to states: “Please list your patient's diagnosed physical impairments[.]” (AR 1854). The form does not ask the physician to only list the impairments that caused limitations, to only list impairments that were currently symptomatic, or to only list impairments that the claimant was treated for during a certain time period. Dr. Wright's compliance with the form's directive to “list your patient's diagnosed physical impairments” cannot serve as a legitimate reason to reject his assessment of Plaintiff's exertional limitations.
The ALJ further stated that “the objective findings from several physicians, as detailed herein, do not support the significant limitations given by Dr. Wright.” (AR 25). However, the ALJ failed to cite to any specific record that contradicted Dr. Wright's opinion. Nor did the ALJ specify which of the assessed limitations she disagreed with. The Court cannot meaningfully review the ALJ's decision when the ALJ fails to set forth her reasoning. While the Commissioner is not required to “discuss all evidence” the Commissioner is required to “make fairly detailed findings in support of administrative decisions to permit courts to review those decisions intelligently” and “must explain why significant probative evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (internal quotations and citation omitted); see also Garrison, 759 F.3d at 1012-1013 (“When an ALJ does not explicitly reject a medical opinion or set forth specific legitimate reasons for crediting one medical opinion over another, he errs. In other words, an ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”). Dr. Wright's assessment of Plaintiff's exertional limitations cannot reasonably be characterized as insignificant because it speaks directly to Plaintiff's ability to work and maintain employment. See Potter, 2015 WL 1966715 at *18. Nor may the ALJ cherry-pick the evidence to support a finding of non-disability. See Garrison, 759 F.3d at 1014.
The ALJ's weight finding also ignores Plaintiff's longstanding treatment relationship with Dr. Wright. If the ALJ does not give a treating physician's opinion controlling weight, then the ALJ must evaluate any medical opinion according to the requirements set out in 20 C.F.R. § 404.1527(c). Thus, in determining what weight to afford Dr. Wright's opinion, the ALJ was required to consider (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the consistency of the opinion and the record as a whole; (4) whether the doctor is a specialist; and (5) other factors that would support or contradict the opinion. “Generally, the longer a treating source has treated [the claimant] and the more times [the claimant has] been seen by a treating source, the more weight [the Commissioner] will give to the source's medical opinion.” 20 C.F.R. § 404.1527(c)(2)(i). The record reflects Plaintiff's treatment by Dr. Wright dating from 2006-2019; notably, the ALJ did not mention that Dr. Wright consistently documented Plaintiff's complaints of pain and her limited response to treatment with narcotics, SI joint injections, and PT, and that Plaintiff requested referrals to other providers to obtain better pain relief. See, e.g., Garrison, 759 F.3d at 1013 (records showed “consistent cervical and lumbar radiculopathy that responded only very briefly and partially to treatment”).
In sum, the undersigned finds that the ALJ erred by failing to set forth legally sufficient reasons supported by substantial evidence to discount Dr. Wright's June 2019 opinion. Further, the ALJ failed to address the factors set out in 20 C.F.R. § 404.1527(c), particularly the frequency of examination and the length, nature, and extent of the treatment relationship. This error is not harmless because it affected the ALJ's RFC assessment and the ultimate nondisability finding at Step Five. See Marsh v. Colvin, 792 F.3d 1170, 1172- 73 (9th Cir. 2015) (noting that “a reviewing court cannot consider an error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination[, ]” and finding harmful error requiring remand where ALJ failed to mention treating source opinion (quoting Stout, 454 F.3d at 1055-56)). Accordingly, the undersigned recommends that this matter should be remanded for further administrative proceedings to reassess the medical evidence of record and continue the five-step sequential evaluation process.
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690.
“[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.” Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Conversely, remand for an award of benefits is appropriate where:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison, 759 F.3d 995 at 1020. “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).
“[T]he required analysis centers on what the record evidence shows about the existence or non-existence of a disability.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). “Administrative proceedings are generally useful where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further evidence may well prove enlightening in light of the passage of time.” Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations and citations omitted). “Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id.
“In evaluating [whether further administrative proceedings would be useful, the Court considers] whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the claimant's entitlement to benefits is clear under the applicable legal rules.” Id. at 1103-04. “This requirement will not be satisfied if ‘the record raises crucial questions as to the extent of [a claimant's] impairment given inconsistencies between his testimony and the medical evidence in the record,' because ‘[t]hese are exactly the sort of issues that should be remanded to the agency for further proceedings.'” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1105).
Here, the undersigned finds that “[r]emand for further administrative proceedings is appropriate [because] enhancement of the record would be useful.” Benecke, 379 F.3d at 593; see also Burrell, 775 F.3d at 1141 (court retains flexibility in determining the appropriate remedy). The ALJ erred by failing to set forth legally sufficient reasons supported by substantial evidence in the record to assign reduced weight to Dr. Wright's treating physician opinion. Consequently, issues remain regarding Plaintiff's RFC and her ability to perform work existing in significant numbers in the national economy during the relevant time period. However, although Plaintiff's conditions may be considered severe, the undersigned offers no opinion as to whether Plaintiff is disabled within the meaning of the Act. “The touchstone for an award of benefits is the existence of a disability, not the agency's legal error.” Brown-Hunter, 806 F.3d at 495. Plaintiffs RFC and subjective symptom testimony are best reassessed in consideration of the entire record, and on remand the undersigned recommends that the ALJ give further consideration to all of the previously submitted medical testimony and lay testimony and continue the sequential evaluation process to determine whether Plaintiff is in fact disabled.
Because the ALJ fully rejected Dr. Wright's opinion without considering any of the specific limitations Dr. Wright assessed or stating what limitations the ALJ found were or were not supported by the record-and similarly rejected Plaintiff's subjective symptom testimony without stating which of Plaintiff's complaints were unsupported by the record-it is wholly unclear what Plaintiff's abilities are and whether she is able to perform any work. See Hill v. Astrue, 698 F.3d 1153, 1162-63 (9th Cir. 2012) (remand for further proceedings appropriate where ALJ's RFC determination was flawed and hypothetical to VE was incomplete and included incorrect assumptions); Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (finding VE opinion could not be relied on where ALJ failed to provide clear and convincing reasons to reject claimant's testimony and did not include claimant's subjective limitations in the RFC); see also Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.”); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (“the ALJ can reject the claimant's testimony about the severity of the symptoms only by offering specific, clear and convincing reasons for doing so”); id. at 1284 (“ALJ must state specifically what symptom testimony is not credible and what facts in the record lead to that conclusion”); A.B. v. Saul, 2019 WL 6139163, at *7 (C.D. Cal. July 23, 2019) (ALJ “committed error by failing to discuss which of Plaintiff's symptom statements were contradicted by the objective medical evidence in the record” and failed to “link specific parts of Plaintiff's testimony ‘to the particular parts of the record' to support his rejection of Plaintiff's testimony.” (citation omitted)). The undersigned further notes that to the extent the ALJ finds any portions of Dr. Wright's opinion unclear or illegible, or there are questions as to what time period the assessed limitations apply to, remand is the appropriate remedy to resolve conflicts and ambiguities. See Treichler, 775 F.3d at 1101; 1103-04.
“Viewing the record as a whole [the undersigned] conclude[s] that Claimant may be disabled. But, because the record also contains cause for serious doubt, [the undersigned recommends] . . . that the district court remand to the ALJ for further proceedings on an open record.” Burrell, 775 F.3d at 1141-42. The undersigned expresses no view as to the appropriate result on remand.
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No. reply to any response shall be filed. See Id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).