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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 GREGORIO M.,1 Case No. 8:18-cv-01961-JC 12 Plaintiff, MEMORANDUM OPINION AND 13 ORDER OF REMAND v. 14 15 ANDREW SAUL,2 Commissioner of Social Security Administration, 16 Defendant. 17 18 I. SUMMARY 19 On November 1, 2018, plaintiff Gregorio M. filed a Complaint seeking 20 review of the Commissioner of Social Security’s denial of plaintiff’s application 21 for benefits. The parties have consented to proceed before the undersigned United 22 States Magistrate Judge. 23 /// 24 25 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 26 Administration and Case Management of the Judicial Conference of the United States. 27 2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul is hereby 28 substituted in as the defendant in this action. 1 1 This matter is before the Court on the parties’ cross motions for summary 2 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 3 (collectively “Motions”). The Court has taken the Motions under submission 4 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 26, 2018 5 Case Management Order ¶ 5. 6 Based on the record as a whole and the applicable law, the decision of the 7 Commissioner is REVERSED AND REMANDED for further proceedings 8 consistent with this Memorandum Opinion and Order of Remand. 9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 10 DECISION 11 On January 29, 2015, plaintiff filed an application for Disability Insurance 12 Benefits, alleging disability beginning on September 29, 20113 due to neck pain, 13 depression, left shoulder pain, low back pain, right hand pain, and headaches. 14 (Administrative Record (“AR”) 206, 251). The ALJ examined the medical record 15 and heard testimony from plaintiff (who was represented by counsel) and a 16 vocational expert. (AR 41-79). 17 On December 13, 2017, the ALJ determined that plaintiff was not disabled 18 through December 31, 2016, the date last insured. (AR 21-34). Specifically, the 19 ALJ found: (1) plaintiff suffered from the severe impairment of facet arthrosis of 20 the lumbar spine (AR 24); (2) plaintiff’s impairments, considered individually or 21 in combination, did not meet or medically equal a listed impairment (AR 25); 22 (3) plaintiff retained the residual functional capacity to perform medium work 23 /// 24 /// 25 26 3Plaintiff alleged a disability onset date of October 18, 2011 in his application for 27 Disability Insurance Benefits, but alleged a disability onset date of September 29, 2011 in his disability report and at the hearing. (AR 53, 206, 251). The 19-day difference is not material for 28 purposes of the Court’s analysis. 2 1 (20 C.F.R. § 404.1567(c)) with additional limitations4 (AR 25-26); (4) plaintiff 2 could perform past relevant work as a machine operator (AR 33-34); and 3 (5) plaintiff’s statements regarding the intensity, persistence, and limiting effects 4 of subjective symptoms were not entirely consistent with the medical evidence and 5 other evidence in the record (AR 26-33). 6 On September 24, 2018, the Appeals Council denied plaintiff’s application 7 for review. (AR 1-4). 8 III. APPLICABLE LEGAL STANDARDS 9 A. Administrative Evaluation of Disability Claims 10 To qualify for disability benefits, a claimant must show that he is unable “to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than 14 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 15 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R. 16 § 404.1505(a). To be considered disabled, a claimant must have an impairment of 17 such severity that he is incapable of performing work the claimant previously 18 performed (“past relevant work”) as well as any other “work which exists in the 19 national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 42 U.S.C. § 423(d)). 21 To assess whether a claimant is disabled, an ALJ is required to use the five- 22 step sequential evaluation process set forth in Social Security regulations. See 23 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 24 Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R. 25 26 4The ALJ also determined that plaintiff (i) could lift at least 50 pounds occasionally and 27 lift and carry up to 25 pounds frequently; (ii) could stand and/or walk and/or sit for at least six hours in an eight-hour workday; (iii) could climb, balance, stoop, kneel, crouch, or crawl 28 frequently; and (iv) could use ladders, ropes or scaffolds occasionally. (AR 25-26). 3 1 || § 404.1520). The claimant has the burden of proof at steps one through four — 7.e., 2 || determination of whether the claimant was engaging in substantial gainful activity 3 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or 4 || combination of impairments that meets or medically equals one of the conditions 5 || listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 6 || retains the residual functional capacity to perform past relevant work (step 4). 7 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 8 || Commissioner has the burden of proof at step five — i.e., establishing that the 9 || claimant could perform other work in the national economy. Id. 10 B. Federal Court Review of Social Security Disability Decisions 11 A federal court may set aside a denial of benefits only when the 12 || Commissioner’s “final decision” was “based on legal error or not supported by 13 |) substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 14 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 15 || standard of review in disability cases is “highly deferential.” Rounds v. 16 || Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 17 || 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 18 || upheld if the evidence could reasonably support either affirming or reversing the 19 || decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 20 || decision contains error, it must be affirmed if the error was harmless. See 21 || Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090, 22 || 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate 23 || nondisability determination; or (2) ALJ’s path may reasonably be discerned 24 || despite the error) (citation and quotation marks omitted). 25 Substantial evidence is “such relevant evidence as a reasonable mind might 26 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 27 || “substantial evidence” as “more than a mere scintilla, but less than a 28 || preponderance’’) (citation and quotation marks omitted). When determining

1 || whether substantial evidence supports an ALJ’s finding, a court “must consider the 2 || entire record as a whole, weighing both the evidence that supports and the 3 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 4 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 5 Federal courts review only the reasoning the ALJ provided, and may not 6 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 7 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 8 | not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 9 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 10 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 11 A reviewing court may not conclude that an error was harmless based on 12 || independent findings gleaned from the administrative record. Brown-Hunter, 806 13 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently 14 || conclude that an error was harmless, a remand for additional investigation or 15 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 16 || (9th Cir. 2015) (citations omitted).

IV. DISCUSSION

18 Plaintiff contends that the ALJ improperly rejected the opinion of treating 19 || physician, Dr. Michael Moheimani, specifically, the limitation of pushing, pulling 20 || or lifting no more than ten pounds. (Plaintiff's Motion at 1-5). The Court agrees 21 || that the ALJ erred in considering Dr. Moheimani’s opinion. As the Court cannot 22 || find that the ALJ’s error was harmless, a remand is warranted. 23 A. Pertinent Law 24 In Social Security cases, the amount of weight given to medical opinions 25 || generally varies depending on the type of medical professional who provided the 26 || opinions, namely “treating physicians,” “examining physicians,” and 27 || “nonexamining physicians.” 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 28 | 404.1513(a); Garrison, 759 F.3d at 1012 (citation and quotation marks omitted).

1 | A treating physician’s opinion is generally given the most weight, and may be 2 || “controlling” if it 1s “well-supported by medically acceptable clinical and 3 || laboratory diagnostic techniques and is not inconsistent with the other substantial 4 || evidence in [the clatmant’s] case record[.]” 20 C.F.R. § 404.1527(c)(2); Revels v. 5 || Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). In turn, an 6 | examining, but non-treating physician’s opinion is entitled to less weight than a 7 || treating physician’s, but more weight than a nonexamining physician’s opinion. 8 || Garrison, 759 F.3d at 1012 (citation omitted). 9 A treating physician’s opinion is not necessarily conclusive as to either a 10 || physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 11 | F.2d 747, 751 (9th Cir. 1989) (citation omitted). An ALJ may reject the 12 | uncontroverted opinion of a treating physician by providing “clear and convincing 13 || reasons that are supported by substantial evidence” for doing so. Bayliss v. 14 || Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). Where a treating 15 || physician’s opinion is contradicted by another doctor’s opinion, an ALJ may reject 16 || such opinion only “by providing specific and legitimate reasons that are supported 17 || by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and footnote 18 || omitted). An ALJ may provide “substantial evidence” for rejecting such a medical 19 || opinion by “setting out a detailed and thorough summary of the facts and 20 || conflicting clinical evidence, stating his interpretation thereof, and making 21 | findings.” Id. (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)) 22 || (quotation marks omitted). Nonetheless, an ALJ must provide more than mere 23 || “conclusions” or “broad and vague” reasons for rejecting a treating physician’s 24 | opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (citation 25 || omitted). “[The ALJ] must set forth his own interpretations and explain why they, 26 || rather than the [physician’s], are correct.” Embrey v. Bowen, 849 F.2d 418, 27 | 421-22 (9th Cir. 1988). 28 | ///

1 B. Pertinent Facts 2 Plaintiff alleges that he became disabled in September 2011 due to injuries 3 sustained at work. (AR 54). He was thereafter examined and treated by multiple 4 medical providers as part of his workers’ compensation claim for right hand injury 5 sustained in July 2011; back pain since September 2011; and neck, head, right foot 6 and ankle pain since October 2011, when he was involved in a vehicle accident 7 while traveling to the industrial medical clinic. (AR 54-69, 603). 8 One of plaintiff’s treating physicians was Michael Moheimani, M.D., an 9 orthopaedic surgeon/Qualified Medical Evaluator who treated plaintiff between 10 August 2012 and at least November 2014 in connection with plaintiff’s workers’ 11 compensation claim.5 (AR 603-50, 988-1001, 1045-48, 1064-67). During an 12 initial orthopaedic consultation in August 2012, Dr. Moheimani examined plaintiff 13 and reviewed MRI reports of plaintiff’s lumbar spine, cervical spine, right hand 14 and right ankle. (AR 605-09). His findings included tenderness in the left 15 paravertebral muscles and trapezius of the cervical spine; reduced extension, 16 lateral bending and left rotation of the cervical spine; tenderness and reduced 17 range of motion of the thoracolumbar spine; and positive straight leg raise 18 bilaterally. (AR 605-08). He diagnosed plaintiff with multilevel cervical disc 19 herniations, multilevel lumbar disc herniations with radicular symptoms, and 20 sprain of the right middle and index fingers with loss of motion. (AR 609). He 21 opined that plaintiff could return to modified work with no pushing, pulling or 22 lifting of more than ten pounds; no overhead work; and no repetitive bending and 23 stooping. (AR 609). He requested physical therapy to rehabilitate plaintiff’s 24 injuries and provided naproxen and Vicodin for pain. 25 /// 26 27 5Plaintiff apparently continued seeing Dr. Moheimani after his workers’ compensation 28 claim was settled, and paid Dr. Moheimani out-of-pocket. (AR 49-50). 7 1 Dr. Moheimani examined and treated plaintiff on at least ten occasions after 2 the August 2012 consultation. (AR 603-50, 988-1067). In October 2012, Dr. 3 Moheimani diagnosed worst disc herniation C6-C7, lumbar disc herniation L2-L3 4 with retrolisthesis, lumbar disc herniation L3-4 and L4-5, L5 radiculopathy, 5 multilevel lumbar disc herniations with radicular symptoms, and sprain of the right 6 middle and index fingers with loss of motion. (AR 632-33). He presented the 7 treatment option of surgery, consisting of cervical fusion and lumbar fusion, which 8 plaintiff wished to defer. (AR 633). Plaintiff’s work restrictions remained the 9 same through the Permanent and Stationary report in November 2012 and 10 subsequent progress reports. (AR 620, 624-46, 648-50, 988-1001, 1045-48, 1064- 11 67). 12 C. Analysis 13 Here, the ALJ cited Dr. Moheimani’s examination findings and functional 14 limitations in the decision, but did not expressly address the weight given to Dr. 15 Moheimani’s opinion, expressly reject any functional limitations reflected in Dr. 16 Moheimani’s findings, or include any of Dr. Moheimani’s limitations in the 17 residual functional capacity assessment. (AR 28-33). Instead, the ALJ stated that 18 he gave “significant weight” to the opinions of the consultative examiner and the 19 State agency medical consultants regarding plaintiff’s ability to perform medium 20 exertion because they were “consistent with the evidence of record.” (AR 30). 21 Defendant argues that because the decision “establishes that the ALJ was aware of 22 Dr. Moheimani’s lifting limitation, and that the ALJ found the opinions of [the 23 consultative examiner] and the State agency reviewing physicians best supported 24 by the record,” the ALJ gave a sufficient reason for rejecting Dr. Moheimani’s 25 functional limitations. (Defendant’s Motion at 4-5). The Court disagrees. 26 By failing to include the functional limitations opined by Dr. Moheimani in 27 his residual functional capacity assessment, the ALJ implicitly rejected Dr. 28 Moheimani’s opinion. See Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996) 8 1 | (‘By disregarding [treating physician’s and specialist’s] opinions and making 2 || contrary findings, [the ALJ] effectively rejected them.”). The ALJ’s failure to 3 || provide a sufficient explanation for the implicit rejection of Dr. Moheimani’s 4 || opinion was legal error.° See Garrison, 759 F.3d at 1012-13 (“[A]n ALJ errs when 5 || he rejects a medical opinion or assigns it little weight while doing nothing more 6 || than ignoring it [or] asserting without explanation that another medical opinion is 7 || more persuasive... .”) (citation omitted); see also Vincent v. Heckler, 739 F.2d 8 | 1393, 1394-95 (9th Cir. 1984) (An ALJ must provide an explanation when he 9 || rejects “significant probative evidence.’’) (citation omitted). 10 The Court cannot confidently conclude that the ALJ’s error was harmless. 11 || For example, at the administrative hearing, the vocational expert testified that a 12 13 °The ALJ rejected “the chiropractor’s assessed functional limitations” as “ inconsistent 14 with the objective evidence as a whole which supports a conclusion that [plaintiff] could do work with the limitations noted.” (AR 30). Even if the ALJ meant to refer to Dr. Moheimani, who is 15 || not a chiropractor, the ALJ’s explanation does not meet the level of specificity required by case law. See, e.g., Embrey, 849 F.2d at 422 (Merely listing the objective findings and stating that 16 these factors point toward an adverse conclusion, without relating the objective findings to the 17 || specific medical opinions being rejected, is “inadequate.”); McAllister, 888 F.2d at 602 (The ALJ’s rejection of the treating physician’s opinion on the ground that it was contrary to clinical 18 findings in the record was “broad and vague, failing to specify why the ALJ felt the treating 19 physician’s opinion was flawed.”). The ALJ also rejected these functional limitations on the ground that “the chiropractor examined [plaintiff] solely in the context of a workers’ 20 || compensation claim which impacts the persuasiveness and relevance of his opinions.” (AR 30). An ALJ may not disregard a medical opinion simply because it was generated for a workers’ 21 compensation case, but rather must evaluate any objective medical findings in such opinions 22 || “just as he or she would [for] any other medical opinion.” Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105-06 (C.D. Cal. 2002) (citing Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); 23 || Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). In 74 addition, a Social Security decision must reflect that the ALJ actually took into account the pertinent distinctions between the applicable state and federal statutory schemes when evaluating 25 || medical opinion evidence provided in a workers’ compensation case. See Knorr v. Berryhill, 254 %6 F, Supp. 3d 1196, 1212 (C.D. Cal. 2017) (“While the ALJ’s decision need not contain an explicit ‘translation,’ it should at least indicate that the ALJ recognized the differences between the 27 || relevant state workers’ compensation terminology, on the one hand, and the relevant Social Security disability terminology, on the other hand, and took those differences into account in 28 evaluating the medical evidence.”) (citations omitted).

1 hypothetical person with plaintiff’s characteristics could not perform plaintiff’s 2 past work if that person could occasionally lift 20 pounds and frequently lift and 3 carry ten pounds. (AR 72). Considering the foregoing specifically, and the 4 overall record as a whole, the Court cannot say that the ALJ would have 5 necessarily reached the same result absent the error regarding the consideration of 6 Dr. Moheimani’s opinion. 7 Accordingly, a remand is warranted, at least, so that the ALJ can reevaluate 8 the medical opinion evidence.7 9 V. CONCLUSION 10 For the foregoing reasons, the decision of the Commissioner of Social 11 Security is REVERSED and this matter is REMANDED for further administrative 12 action consistent with this Opinion.8 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: August 23, 2019 16 17 _____________/s/____________________ Honorable Jacqueline Chooljian 18

UNITED STATES MAGISTRATE JUDGE

19 20 21 22 23 7The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s 24 decision, except insofar as to determine that a reversal and remand for immediate payment of benefits based thereon would not be appropriate. 25 8When a court reverses an administrative determination, “the proper course, except in rare 26 circumstances, is to remand to the agency for additional investigation or explanation.” 27 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in 28 Social Security cases) (citations omitted). 10