Opinion
Case No. CV 13-0799-JPR
09-08-2014
ROBERT SAUCEDO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed May 23, 2014, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further proceedings.
II. BACKGROUND
Plaintiff was born on January 1, 1961. (AR 40, 44, 99, 110, 823.) He completed 11th grade. (AR 126.) He previously worked as a maintenance worker, carpet cleaner, and auto-body painter. (AR 122, 162-66.)
Plaintiff filed applications for DIB and SSI on August 27, 2009. (AR 99-102.) He alleged that he had been unable to work since November 17, 2004, because of a lower-back injury that affected him from his "neck down to leg." (AR 121, 418.) After his applications were denied, he requested a hearing before an Administrative Law Judge. (AR 61.)
Plaintiff also filed applications for DIB and SSI in December 2006, and they were denied initially and upon reconsideration. (AR 77-81.) He apparently did not seek further review.
A hearing was held on June 30, 2011. (AR 821-49.) Plaintiff, who was represented by counsel, testified, as did a medical expert and a vocational expert. (Id.) In a written decision issued August 19, 2011, the ALJ determined that Plaintiff was not disabled. (AR 19-31.) On March 29, 2013, the Appeals Council denied his request for review. (AR 7-10.) This action followed.
Although the decision is undated and unsigned, it was provided to Plaintiff as an attachment to a letter from the ALJ dated August 19, 2011. (AR 16.)
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.152 0(a)(4)(ii), 416.92 0(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since November 17, 2004. (AR 21.) At step two, he concluded that Plaintiff had severe impairments of "hypertension and degenerative disk disease of the lumbar spine." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a Listing. (Id.) At step four, he determined that Plaintiff had the RFC to perform "light work" with only occasional climbing, stooping, kneeling, and crouching (AR 22-23) and was unable to perform his past relevant work (AR 29-30). Based on the VE's testimony, however, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national and regional economies. (AR 30-31.) Thus, he found that Plaintiff was not disabled. (AR 31.)
V. DISCUSSION
Plaintiff argues that the ALJ erred in (1) failing to explicitly address the opinion of state-agency physician M. Yee, (2) assessing the opinions and findings of Plaintiff's treating and examining physicians, and (3) discounting Plaintiff's credibility. (J. Stip. at 3.)
A. The ALJ Failed to Properly Consider the Medical Evidence
Plaintiff contends that the ALJ erred in assessing the opinions and findings of his treating and examining physicians and in failing to address Dr. Yee's 2007 and 2009 opinions. (Id. at 4-5, 14-16, 17.)
1. Background
On November 17, 2004, Plaintiff was injured at work when an approximately 30-pound pole that he was carrying struck a sprinkler in the ceiling, fell from his hands, bounced off the floor, and struck Plaintiff in the head, lacerating his face and knocking him to the floor, where he fell partially across a pallet, possibly knocking him unconscious. (See AR 213-14, 258.) Plaintiff received treatment for his head injuries and was discharged (see AR 256-60) but soon thereafter began suffering low-back pain and numbness in his right leg (see AR 214, 251, 432) and missing work (see AR 218-19).
Plaintiff saw several doctors in an attempt to determine and treat the source of his pain, including primary-care physician Douglas Beseth (e.g., AR 226-29, 232, 235, 249, 261-65), orthopedic surgeon Gregory Heinen (AR 212-25), orthopedic surgeon David Wood (e.g., AR 197-207, 272-73, 437-52), neurologist Jeffrey Ries (e.g., AR 237-39, 241-43, 250-55, 348), pain- management specialist Peter White (e.g., AR 230-31, 233-34, 270-71, 337-39), orthopedic surgeon Darren Bergey (e.g., AR 431-35, 534-39), neurologist Scott Haldeman (AR 317-27), pain-management specialist Vance Johnson (AR 454-58), orthopedic surgeon Thomas Jackson (AR 492-500), rehabilitation specialist Larry Ming (AR 512-16), and internist Nick Mashouer (AR 502-08). (See generally AR 218-20, 320-23.)
A January 1, 2005 MRI was consistent with an annular tear or fissure of the disc between Plaintiff's L5 and S1 vertebrae. (AR 247.) Plaintiff's lumbar range of motion was limited. (See, e.g., AR 324, 332, 333, 438.) Attempts to treat Plaintiff's back pain and leg numbness with prescription medication, physical therapy, and injections proved inadequate. (See AR 211, 460; see also AR 201, 237, 240, 270, 319.) He was advised to remain off work. (See, e.g., AR 204, 206, 208, 218-19, 239, 355-56, 451; see also AR 348 (only light work).) A January 30, 2007 discogram identified the disc between Plaintiff's L5 and S1 vertebrae as the source of his pain. (AR 410-11.)
On March 20, 2007, Dr. Yee, an internist and state-agency consultant, completed a case analysis and RFC assessment of Plaintiff, finding him capable of "sedentary" work. (AR 420; see AR 413-20.) Dr. Yee opined that Plaintiff could lift up to 10 pounds; could stand or walk and sit for six hours each in an eight-hour day; could never balance but could occasionally climb, stoop, kneel, crouch, or crawl; and should avoid concentrated exposure to hazards and even moderate exposure to vibration. (AR 414-16.)
On November 1, 2007, Plaintiff underwent an anterior lumbar interbody fusion and posterior spinal fusion of his L5 and S1 vertebrae. (AR 519, 525.) On November 4, 2007, he underwent a left L5-S1 laminectomy, medial facetectomy, and removal of nonsegmental instrumentation. (AR 517, 525.) Plaintiff progressed well with therapy and was discharged from the hospital on November 6, 2007. (AR 525.)
Although he complained of "bad leg pain" at his November 17, 2007 follow-up appointment, by January 4, 2008, Plaintiff's leg pain was "essentially resolved" and his back pain was "minimal." (AR 541, 545.) Treatment notes from Plaintiff's spine surgeon, Dr. Bergey, reflect that although Plaintiff initially reported good results from his surgeries (see AR 547-51, 554-62), he began to experience right-thigh numbness (see AR 550, 558, 561), and upon returning to work, he complained of increasing low-back pain radiating into his right leg (see AR 563, 569, 572). Although Plaintiff briefly returned to work (see AR 561, 831), he missed work because of pain (see AR 561, 563) and stopped working on October 26, 2008 (see AR 594). An October 31, 2008 MRI revealed that the disc between his L3 and L4 vertebrae had collapsed, a possible annular tear, and moderate stenosis consistent with his radiculopathy. (AR 530-31, 567.) On December 16, 2008, Dr. Bergey deemed Plaintiff temporarily totally disabled. (AR 573.)
In addition to continuing treatment with Dr. Bergey, Plaintiff again was seen by other specialists, including Dr. Heinen (AR 655-82), Dr. Jackson (AR 606-14), and pain specialist James Rho (AR 710-18, 779-97). Plaintiff attempted to manage the new L3-L4 impairment with pain medication, including through treatment by Dr. Rho. (See, e.g., AR 584, 710-18.) But Plaintiff continued to suffer pain and reduced range of motion. (See, e.g., AR 569-70, 572-73, 585, 588-89, 597, 608, 610, 699.) His doctors noted positive straight-leg-raise test on several occasions. (See, e.g., AR 610, 658, 673, 700, 721.) A June 29, 2010 CT scan showed mild disc bulges and mild stenosis at L3-L4 and L4-L5. (AR 603-04.)
On October 25, 2009, Dr. Yee again completed a case analysis and RFC assessment on behalf of the agency and found Plaintiff capable of "at least sed[entary]" work. (AR 491; see AR 484-91.) Specifically, Dr. Yee found that Plaintiff could lift 10 pounds; could stand or walk for two hours each in an eight-hour day; could sit for six hours in an eight-hour day; could never balance but could occasionally climb, stoop, kneel, crouch, or crawl; and should avoid concentrated exposure to hazards or vibration. (AR 485-87.)
On July 12, 2010, Plaintiff was examined by orthopedic surgeon Payam Moazzaz on behalf of the agency. (AR 593-97.) Dr. Moazzaz noted reduced range of motion in Plaintiff's lumbar spine but found him neurologically intact. (AR 597.) Dr. Moazzaz opined that Plaintiff was capable of light work but only occasional climbing, stooping, kneeling, and crouching. (Id.)
On May 9, 2011, Dr. Bergey performed a right L3-L4 laminotomy, foraminotomy, and fusion. (AR 769.) Following the procedure, Plaintiff continued pain management with Dr. Rho. (See AR 772-78, 837-38.) At the June 30, 2011 hearing, Plaintiff testified that his recent surgery appeared to have addressed the numbness in his right leg and that he would begin physical therapy the following day. (AR 837.) Plaintiff's doctors had advised him to lift nothing heavier than a milk jug in the period immediately following the surgery; prior to the surgery, his doctors recommended that he lift no more than 30 pounds. (AR 838-39.)
Medical expert Steven Gerber testified that "based on my review of the entire file," Plaintiff was capable of "functional ability at the light level with occasional at all postural." (AR 826.) Dr. Gerber did not point to any specific bases in the medical evidence for his finding. (See AR 825-30.)
Postural activities include climbing, balancing, stooping, kneeling, crouching, and crawling. See §§ 404.1569a(c)(vi), 416.969a(c)(vi); (AR 485-86).
2. Applicable law
Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than that of an examining physician, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id.
This is true because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
When a treating or examining doctor's opinion is not contradicted by some evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When a treating or examining physician's opinion is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. The weight given an examining physician's opinion, moreover, depends on whether it is consistent with the record and accompanied by adequate explanation, among other things. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6).
3. Analysis
The ALJ formulated the RFC on the basis of "the opinions of Dr. Gerber . . . [and] Dr. Moazzaz, which [he] considered highly probative." (AR 28.) Yet nowhere in the decision did the ALJ explicitly weigh the opinions of the several other doctors who treated and examined Plaintiff's back and leg impairments in the seven years between the original injury and the decision. Nor did he address the findings of the state-agency physicians. Rather, as Plaintiff notes, the ALJ merely summarized in batches Plaintiff's medical evidence, including some findings, recommendations, and opinions of treating and examining physicians, then indicated that "[t]here [we]re no complications noted" or he "found no significant abnormalities, functional limitations, and diagnoses, as either the conditions mentioned were stable and/or well control[led]." (J. Stip. at 15; see, e.g., AR 23.)
An ALJ is required to "evaluate every medical opinion" in the record, "[r]egardless of its source," and provide an explanation supported by substantial evidence in the record for the weight given to each opinion. §§ 404.1527(c) & (e), 416.927(c) & (e); see also SSR 96-2p, 1996 WL 374188, at *2-3 (July 2, 1996); SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996). Because the ALJ did not give controlling weight to the opinions of Plaintiff's treating physicians, he was required to provide specific and legitimate reasons for discounting them. Carmickle, 533 F.3d at 1164; Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). But the ALJ omitted mention of the treating physicians' opinions almost entirely, making it unclear whether and to what extent he considered them. (See, e.g., AR 22 (naming doctors but not attributing findings or opinions to them); AR 24 (noting Dr. Bergey's findings but not indicating ALJ's assessment of them).) That was error. See Lingenfelter, 504 F.3d at 1038 n.10 (finding error when ALJ "only briefly mentioned" one treating physician and "did not acknowledge" another "at all"); Embrey v. Bowen, 849 F.2d 418, 422 n.3 (9th Cir. 1988) ("The ALJ must either accept the opinions of [claimant's] treating physicians or give specific and legitimate reasons for rejecting them.").
Nor did the ALJ meet his burden to provide specific and legitimate reasons "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999) (internal quotation marks omitted). His repeated statements that he "found no significant abnormalities, functional limitations, and diagnoses" in a given batch of records did not provide insight into his reasons for dismissing most of the substantial evidence of Plaintiff's impairments. See Embrey, 849 F.2d at 421 (noting level of specificity required of explanation for discounting treating doctor's medical opinion). Even if the ALJ found that the treating physicians' opinions were not entitled to controlling weight because they were contradicted by substantial evidence in the record, those opinions were "still entitled to deference" and should have been weighed according to the factors in §§ 404.1527 and 416.927. Lingenfelter, 504 F.3d at 1038 n.10; Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (internal quotation marks omitted).
The ALJ was also required to provide specific and legitimate reasons for apparently discounting the opinions of examining doctors. Carmickle, 533 F.3d at 1164; Lester, 81 F.3d at 830-31. As with the treating physicians, the ALJ largely ignored the opinions expressed by Plaintiff's examining doctors other than Dr. Moazzaz. (See, e.g., AR 22 (mentioning Dr. Heinen but not weighing his findings or opinion); AR 24-25 (noting Dr. Jackson's findings but not his opinion or the weight given to it).) The ALJ thus provided no indication why he chose to rely solely on Dr. Moazzaz among Plaintiff's examining doctors, despite the fact that some of the others, such as Drs. Heinen and Jackson, saw Plaintiff more than once, prepared extensive findings, and thus were more familiar with his medical history. See §§ 404.1527(c)(6), 416.927(c)(6) ("the extent to which an acceptable medical source is familiar with the other information in your case record" is "relevant factor[]" in assessing medical opinion); cf. §§ 4 04.1527(c)(2)(i) & (ii), 416.927(c)(2)(i) & (ii) (noting importance of length and nature of treatment relationship in weighing doctor's opinion); Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) ("Nothing in [one examining doctor's report] rules out [another examining doctor's] more extensive findings.").
The ALJ's failure to explicitly address Dr. Yee's opinion was also error. An ALJ is required to consider as opinion evidence the findings of state-agency medical consultants and to explain in his decision the weight given to such opinions. §§ 404.1527(e)(2)(i)-(ii), 416.927(e)(2)(i)-(ii); see also SSR 96-6p, 1996 WL 374180, at *2 (stating that ALJ "may not ignore" opinions of state-agency medical consultants "and must explain the weight given to the opinions in their decisions"); cf. Sawyer v. Astrue, 303 F. App'x 453, 455 (9th Cir. 2008) (reversing when ALJ failed to indicate weight given to opinions of state-agency medical consultants or incorporate their findings into RFC). As Plaintiff notes, the ALJ did not address Dr. Yee's 2007 opinion that Plaintiff should lift no more than 10 pounds nor his 2009 opinion that Plaintiff should lift no more than 10 pounds and stand or walk only two hours in an eight-hour day, both of which limited Plaintiff to sedentary work. Yet given that Plaintiff reached "advanced age" while his applications were pending, had an 11th-grade education, and lacked transferrable skills, a limitation to sedentary work would have made him disabled under the Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app. 2, R. 201.10. Thus, the ALJ's failure to address Dr. Yee's opinions cannot be said to be harmless, especially when the ALJ's analysis of the remaining medical evidence failed to highlight contrary findings and opinions. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (error only harmless when nonprejudicial to ultimate disability conclusion); id. at 1056 (finding, when ALJ gave no reasons for rejecting evidence, that decision left reviewing court "with nothing to review to determine whether the error materially impacted the ALJ's ultimate decision").
The Commissioner notes that Dr. Yee's initial assessment was "not strictly for sedentary work" because he opined that Plaintiff could stand or walk six hours in an eight-hour day. (J. Stip. at 10.) A claimant who cannot meet the exertion requirements of light work, however, is generally limited to sedentary work. See §§ 404.1567(b), 416.967(b) ("To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities."). Moreover, Dr. Yee characterized his 2007 finding as a limitation to sedentary work (AR 420) and, two years later, found that Plaintiff could walk only two hours in an eight-hour day (AR 485).
The Commissioner cites Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986), for the proposition that "the ALJ was not required to expressly discuss his reasons for rejecting the opinions of a non-treating physician." (J. Stip. at 9.) The Court in Nyman said no such thing, but instead found that it was clear from the record that "[n]o other doctor concurred" with the opinion at issue. Id. Here, by contrast, it is not clear that Plaintiff's other doctors would have disagreed with Dr. Yee's findings.
The Commissioner contends that the ALJ was entitled to rely on Dr. Gerber and Dr. Moazzaz, both of whom opined that Plaintiff was capable of light work with some additional limitations. (J. Stip. at 8-11; see AR 597, 826.) Even so, as noted above, the ALJ was required to specifically explain his reasons for relying on the opinions of these doctors instead of those of Plaintiff's treating doctors. Moreover, there are reasons to question the sufficiency of the opinions of Drs. Gerber and Moazzaz.
The Commissioner notes that Dr. Gerber reviewed the record, which included opinions from Plaintiff's treating and examining doctors and Dr. Yee, in formulating a recommended RFC. (J. Stip. at 10-11.) Like the ALJ, however, Dr. Gerber provided no explanation of his reasons for finding Plaintiff capable of light work, and the ALJ sought no explanation. An unsupported medical opinion is of little value. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings"); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Having found medical-expert evidence necessary, the ALJ was required to develop the record by eliciting from Dr. Gerber a basis for his recommendation of a light-work RFC. See Ickes v. Astrue, No. EDCV 09-1890 CW, 2010 WL 3001706, at *4 (C.D. Cal. July 29, 2010) (finding ALJ failed to satisfy duty to develop record when claimant "prejudiced by inadequate examination of the medical expert"); see also §§ 404.1527(e)(2)(iii), 416.927(e)(2)(iii) (medical experts' opinions to be evaluated according to same factors as other medical opinions). He did not do so.
Moreover, a nonexamining physician's opinion only constitutes substantial evidence if consistent with the record. Morgan, 169 F.3d at 600. The ALJ stated that Dr. Gerber's opinion was consistent with the record and the "great weight of the treating physicians' opinions" (AR 28), but the ALJ's failure to explicitly interpret the objective evidence and weigh the other medical opinions makes it difficult to judge whether that finding was proper. See Stout, 454 F.3d at 1056.
Because the Court finds that Dr. Gerber's testimony was inadequate, it need not address the parties' dispute as to the completeness of his review of the record. (See J. Stip. at 6-7, 10-11.)
There are also reasons to question the ALJ's reliance on Dr. Moazzaz's opinion. Shortly after he deemed Plaintiff capable of light work, Plaintiff underwent a third surgery in hopes of alleviating low-back and radicular pain that had not responded to prescription medication or injections. That Plaintiff was willing and his longtime treating doctors advised him to undergo spinal surgery highlights the need for explanation of the ALJ's reliance on Dr. Moazzaz's opinion instead of those of doctors better acquainted with Plaintiff's ailments. See Smolen, 80 F.3d at 1285 ("Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are given greater weight than the opinions of other physicians."). It also suggests a need for further development of the record, which could have been held open to permit evidence of Plaintiff's response to the procedure and, if necessary, a postsurgical orthopedic examination on behalf of the agency. See Sepulveda v. Astrue, No. EDCV 09-2034 RNB, 2010 WL 2990111, at *1 (C.D. Cal. July 28, 2010) (finding ALJ erred by not ordering consultative examination when records included no assessment of claimant's postsurgery functional limitations; medical evidence was thus insufficient and ALJ's decision was "based on pure conjecture"). It was not held open, perhaps because the ALJ mistakenly believed that Plaintiff's last surgery was in 2009 (see AR 29), leading him to conclude, erroneously, that the gap between that surgery and Plaintiff's scheduled commencement of physical therapy shortly after the hearing indicated that his impairments were not as serious as he claimed (id.).
In sum, the ALJ erred in his consideration of the medical opinion evidence, and remand is warranted.
Because the ALJ will likely reassess Plaintiff's credibility in light of the opinions of his treating and examining doctors, including Dr. Yee, the Court need not decide that issue now. Notably, however, Dr. Yee found Plaintiff not fully credible. (AR 420.)
B. Remand for Further Proceedings Is Appropriate
When, as here, the Court finds that the ALJ improperly discredited medical opinion evidence, the Court generally has discretion to remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be served by further administrative proceedings, however, or when the record has been fully developed, it is appropriate under the "credit-as-true" rule to direct an immediate award of benefits. Id. at 1179 (noting that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"); see also Garrison v. Colvin, ___ F.3d ___, 2014 WL 3397218, at *20 (9th Cir. July 14, 2014) (noting that credit-as-true rule applies to medical opinion evidence).
Under the credit-as-true framework, three circumstances must be present before the Court may remand to the ALJ with instructions to award benefits: "(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, 2014 WL 3397218, at *20. When, however, the ALJ's findings are so "insufficient" that the Court cannot determine whether the rejected testimony should be credited as true, the Court has "some flexibility" in applying the credit-as-true rule. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also Garrison, 2014 WL 3397218, at *22 (noting that Connett established that credit-as-true rule may not be dispositive in all cases). This flexibility should be exercised "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act." Garrison, 2014 WL 3397218, at *21.
Plaintiff had surgery shortly before the ALJ hearing and was to begin physical therapy immediately after it. The record thus does not reveal whether that surgery and Plaintiff's subsequent treatment stemming from it resolved all or some of his medical issues. Accordingly, the first of the three requirements for a remand for benefits has not been met here. Put another way, serious doubt exists here as to whether Plaintiff is disabled given the unknown results of his third surgery (and Dr. Yee's finding that he was not fully credible). Therefore, remand is appropriate for the ALJ to consider Plaintiff's limitations in light of the opinions of his treating and examining physicians, the opinions of the state-agency consultants, and his May 2011 surgery.
No additional evidence was submitted to the Appeals Council. (See AR 6.)
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VI. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. DATED: September 8,2014
/s/________
JEAN ROSENBLUTH
U.S. Magistrate Judge