1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE M. U. V., ) NO. ED CV 19-269-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 ANDREW SAUL, Commissioner of ) AND ORDER OF REMAND Social Security, ) 15 ) Defendant. ) 16 ____________________________________) 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on February 10, 2019, seeking review 26 of the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on March 12, 2019. 28 Plaintiff filed a motion for summary judgment on July 29, 2019. 1 Defendant filed a motion for summary judgment on August 28, 2019. The 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; “Order,” filed February 25, 2019. 4 5 BACKGROUND 6 7 Plaintiff applied for disability insurance benefits, asserting 8 disability since February 7, 2011, the time of a work-related back 9 injury (Administrative Record (“A.R.”) 44, 174, 201, 277, 292). 10 Plaintiff alleges he suffers from, inter alia, low back pain, 11 spondylosis, arthritis, stomach hernias and bone spurs on his left 12 foot. Id. Plaintiff claims that his conditions limit his ability to 13 reach, sit for “much time” or walk for more than 30 minutes (A.R. 14 201). 15 16 As detailed below, Plaintiff underwent spine fusion surgery in 17 January of 2013 and again in September of 2014 (A.R. 563-613, 680-89). 18 Between the first and second surgeries, treating orthopedist Dr. John 19 Steinmann opined that Plaintiff regained the ability to work, limited 20 to the lifting of no more than 15 pounds (prior to December, 2013) and 21 the lifting of no more than 30 pounds (as of December, 2013) (A.R. 22 824, 827, 835). By April of 2014, Plaintiff’s condition reportedly 23 had deteriorated, however, and Dr. Steinmann requested approval for a 24 second surgery (A.R. 940). After the second surgery, Dr. Steinmann 25 opined that Plaintiff regained the ability to do only “sedentary” work 26 (A.R. 924, 928, 933). Dr. Steinmann defined “sedentary” work as 27 lifting no more than 10 pounds. Id. 28 /// 1 An Administrative Law Judge (“ALJ”) reviewed the record and heard 2 testimony from Plaintiff and a vocational expert (A.R. 33-60). 3 Plaintiff testified to pain and limitations of allegedly disabling 4 severity (A.R. 45-53). The ALJ found that, through Plaintiff’s 5 December 31, 2016 date last insured, Plaintiff had severe degenerative 6 disc disease of the lumbar spine, status post fusion surgeries, H. 7 pylori and major depressive disorder (A.R. 12). However, the ALJ also 8 found that, through the date last insured, Plaintiff retained a 9 residual functional capacity for light work,1 limited to: (1) 10 occasionally pushing and pulling with the lower extremities; (2) 11 occasionally climbing ramps and stairs, but never climbing ladders or 12 scaffolds; (3) occasionally balancing, stooping, kneeling, crouching 13 and crawling; (4) avoiding concentrated exposure to vibration and 14 hazards; and (5) only unskilled work2 with occasional contact with co- 15 workers and no public contact. See A.R. 15-19 (giving “great weight” 16 to the consultative examiners’ opinions, “limited weight” to the state 17 agency physicians’ opinions, and rejecting Dr. Steinmann’s opinions 18 regarding sedentary limitations). 19 20 The ALJ identified certain light jobs Plaintiff assertedly could 21 perform, and, on that basis, denied disability benefits (A.R. 20-21 22 /// 23 24 1 Light work requires lifting and carrying 20 pounds 25 occasionally and 10 pounds frequently, standing and walking up to six hours in an eight-hour day and sitting up to six hours in an 26 eight hour day. See 20 C.F.R. § 404.1567(b). 27 2 Unskilled work is “work which needs little or no judgment to do simple duties that can be learned on the job in a 28 1| (adopting vocational expert testimony at A.R. 53-55)).* The Appeals 2|| Council denied review (A.R. 1-3). 3 4 STANDARD OF REVIEW 5 6 Under 42 U.S.C. section 405(g), this Court reviews the 7) Administration’s decision to determine if: (1) the Administration’s 8| findings are supported by substantial evidence; and (2) the 9] Administration used correct legal standards. See Carmickle v. 10) Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 11] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 13] relevant evidence as a reasonable mind might accept as adequate to 14] support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 15] (1971) (citation and quotations omitted); see also Widmark v. 16] Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 17 18 If the evidence can support either outcome, the court may 19 not substitute its judgment for that of the ALJ. But the 20 Commissioner’s decision cannot be affirmed simply by 21 isolating a specific quantum of supporting evidence. 22 Rather, a court must consider the record as a whole, 23 > At the time of the hearing, Plaintiff was 52 years old 24! and had not graduated from high school, but had attended college 25 classes (A.R. 39-40). If Plaintiff were limited to sedentary work and had no transferrable skills, or if Plaintiff’s education 26|| does not provide for direct entry into skilled work, Plaintiff would be disabled under the Grids. See 20 C.F.R. Pt. 404, Subpt. 27) P. App. 2 (“Grids”) §§ 201.12, 201.14; see also Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) (a conclusion of 28 disability, directed by the Grids, is irrebuttable). fl

1 weighing both evidence that supports and evidence that 2 detracts from the [administrative] conclusion. 3 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 5 quotations omitted). 6 7 DISCUSSION 8 9 After consideration of the record as a whole, the Court reverses 10 the Administration’s decision in part and remands the matter for 11 further administrative proceedings. As discussed below, the 12 Administration materially erred in evaluating the evidence of record. 13 14 I. Summary of Relevant Evidence 15 16 A. Plaintiff’s Testimony and Statements 17 18 At the administrative hearing, Plaintiff testified that he 19 injured himself at work while lifting a 180-pound box which caused a 20 “pop” in his back (A.R. 44). Plaintiff had undergone two back 21 surgeries, physical therapy, epidural injections and other management 22 for his back pain (A.R. 45-46, 52-53). Plaintiff’s surgeon advised 23 that there was nothing more the surgeon could do for him (A.R. 44). 24 Plaintiff testified that he has pain in his low back every four hours, 25 for which he has to take pain medication or lie down, which resolves 26 the pain only temporarily (A.R. 45-46, 52). Plaintiff was taking 27 Gabapentin and 800 milligram ibuprofen (A.R. 49). 28 /// 1 Plaintiff testified that he could walk for five to 10 minutes at 2 one time without a problem, could lift up to a gallon of milk, has 3 difficulty sitting due to pressure on his back, and regularly has used 4 a cane since his first back surgery in 2013 because he is afraid he 5 might trip on something (A.R. 46-47, 51-52).4 6 7 B. Records of Treatment for Plaintiff’s Back Injury 8 9 Plaintiff injured his back at work on December 13, 2010 and again 10 on February 7, 2011 (A.R. 252, 304, 320, 1100-01). A March, 2011 11 lumbar spine MRI showed lumbar spondylosis at L3-L4, L4-L5 and L5-S1, 12 degenerative retrolisthesis of L5 on S1 with a 5-millimeter posterior 13 osteophyte extending into the neural foramina, and small posterior 14 osteophytes at L3-L4 and L4-L5 (A.R. 257-58). In March of 2011, 15 Plaintiff’s doctor requested approval for an epidural injection at the 16 L5 level for lumbar muscle strain and spasm and lumbar radiculopathy 17 (A.R. 284). Plaintiff reportedly had failed conservative management 18 (i.e., physical therapy, work modification, medications, Medrol 19 Dosepak and trigger point injections) (A.R. 284).5 20 /// 21 22 4 Plaintiff testified that, on a typical day, he gets up, takes 20 minutes to dress, prepares breakfast, takes a pain pill, 23 sits for an hour to an hour and a half, walks for five to 10 minutes, and then lies down (A.R. 47). Plaintiff said he 24 sometimes needs help tying his shoes, does no chores at home, 25 accompanies his wife to grocery shop, and can travel to see family and friends in Rialto or Fontana (A.R. 48). Plaintiff 26 attends church on Sundays and sits where he can move around or stand up (A.R. 47). 27 5 A May, 2011 nerve conduction study was normal (A.R. 28 1 In August, October, and November of 2011 and in January of 2012, 2 Plaintiff went to the emergency room for his back pain, reporting that 3 his pain medication (Vicodin and Naprosyn) was not effective (A.R. 4 368-80, 434-38, 784-90). Plaintiff was given Toradol and Morphine 5 injections. Id. Plaintiff had been given a L5 lumbar epidural 6 steroid injection two days before his January, 2012 visit, and 7 reported that the injections gave him no relief (A.R. 376, 434; see 8 also A.R. 312-15 (records for epidurals given in December of 2011 and 9 January of 2012)). 10 11 On August 10, 2012, Plaintiff consulted with worker’s 12 compensation orthopedic surgeon Dr. John Steinmann, complaining of 13 aching lumbar pain radiating to the bilateral legs, with numbness, 14 tingling and weakness, aggravated by walking, lifting or standing and 15 alleviated by rest or lying down (A.R. 528-29). Plaintiff was taking 16 Naproxen, Vicodin and Cephalexin (A.R. 529). On examination, 17 Plaintiff reportedly ambulated with a normal gait without an assistive 18 device, transferred from chair to standing and to the exam table with 19 apparent “ease,” but there was “moderate discomfort demonstrated,” and 20 Plaintiff had limited range of motion in the lumbar spine with 21 positive Gower sign (A.R. 532-33). A MRI study reportedly showed 22 advanced degenerative changes at L5-S1 (A.R. 534). Dr. Steinmann 23 diagnosed low back pain emanating from L5-S1 due to a lesion capable 24 of rendering Plaintiff’s back weak and chronically painful, and Dr. 25 Steinmann recommended L5-S1 fusion surgery with a request for second 26 opinion (A.R. 534). Dr. Steinmann found Plaintiff temporarily totally 27 disabled (A.R. 534). 28 /// 1 Plaintiff followed up with Dr. Steinmann on September 20, 2012, 2 reporting that he had gone to the emergency room for pain medication 3 on August 24, 2012 (A.R. 536-37). Dr. Steinmann again requested a 4 second opinion for the proposed surgery (A.R. 538). When Plaintiff 5 returned on October 29, 2012, he reported that his pain had gotten 6 worse and was excruciating and constant (A.R. 540). Plaintiff had 7 received a second opinion from Dr. Robert Horner, who agreed with the 8 proposed surgery, and so Dr. Steinmann requested approval for the 9 surgery (A.R. 541-42). Plaintiff returned on December 17, 2012, to 10 refill his Norco prescription pending the scheduled surgery (A.R. 543- 11 45). 12 13 On January 16, 2013, Plaintiff underwent spinal diskectomy and 14 fusion surgery at L5-S1 by Dr. Joseph Vanderlinden, with the 15 assistance of Dr. Steinmann (A.R. 563-607). Plaintiff returned to Dr. 16 Steinmann for a post-operative appointment on January 31, 2013, 17 reporting low back pain radiating to his buttocks and pain at the 18 surgical incision site (A.R. 546). Dr. Steinmann described Plaintiff 19 as “doing very well” and using a walker for ambulation (A.R. 547). 20 When Plaintiff returned on February 28, 2013, Dr. Steinmann 21 discontinued the use of Plaintiff’s walker, referred him for 22 “aggressive” physical therapy and continued his disability status 23 (A.R. 549-50). 24 25 On March 16, 2013, Plaintiff complained of increased lower back 26 pain and bilateral leg pain and reportedly had not started physical 27 therapy because the therapy had not been authorized (A.R. 553-54). 28 Plaintiff reportedly did not feel that he was “tremendously better” 1 than he was before surgery (A.R. 554). Dr. Steinmann described 2 Plaintiff’s progress as “slow” and noted that he would have expected 3 significant improvement by then (A.R. 554). Dr. Steinmann prescribed 4 Vicodin and Celebrex (A.R. 554).6 5 6 On April 20, 2013, Plaintiff reported significant pain in his low 7 back and hips, as well as numbness in his left great toe (A.R. 560- 8 61). Dr. Steinmann described Plaintiff as better than he had been 9 before surgery (A.R. 561). Dr. Steinmann then opined that Plaintiff 10 was capable of lifting no more than 15 pounds with no repetitive 11 bending or stooping (A.R. 561). On May 23, 2013, however, Plaintiff 12 reported continued, intolerable pain in his low back and hips 13 radiating to his left foot (A.R. 818-19). On examination, Plaintiff 14 had restricted range of motion (A.R. 819). Dr. Steinmann requested a 15 CT scan to evaluate the source of Plaintiff’s pain (A.R. 819). 16 17 On July 11, 2013, Plaintiff returned to Dr. Steinmann complaining 18 of back and leg pain which reportedly was “much better” than before 19 his back surgery but still precluded normal activity (A.R. 822). On 20 examination, Plaintiff reportedly ambulated normally without assistive 21 device, with “ease” but “mild to moderate discomfort demonstrated” on 22 transfers from chair to standing and to the examination table, 23 tenderness on lumbosacral palpation, and limited lumbar range of 24 motion (A.R. 822-23). A CT scan reportedly showed left pedicle screws 25 26 6 On March 27, 2013, Plaintiff had a physical therapy evaluation which reported significant movement dysfunction and 27 moderate soft tissue irritability (A.R. 557-58). Plaintiff was discharged from physical therapy on April 29, 2013, after 28 1 closer to the neuroforamen which Dr. Steinmann opined would not cause 2 any irritation (A.R. 823).7 Dr. Steinmann assessed status post 3 anterior and posterior fusion at L5-S1 with a “fair to good result” 4 (A.R. 823). Dr. Steinmann opined that Plaintiff had reached “maximum 5 medical improvement,” and released Plaintiff to return to work, 6 limited to lifting no more than 15 pounds and no repetitive bending, 7 stooping or climbing at unsafe heights (A.R. 824). 8 9 On October 11, 2013, Plaintiff went to the emergency room for 10 back pain radiating to his left knee and was given pain medication 11 (A.R. 668-69). Plaintiff went back to Dr. Steinmann on October 14, 12 2013, reporting that his symptoms were worse – he had constant severe 13 low back pain with left leg pain and numbness (A.R. 826). On 14 examination, Plaintiff again reportedly had limited range of lumbar 15 motion and tenderness to palpation (A.R. 827). Dr. Steinmann 16 indicated that the appropriate course would be “to observe and see how 17 he does over time” (A.R. 827-28). Dr. Steinmann again limited 18 Plaintiff to work lifting no more than 15 pounds with no repetitive 19 bending and stooping or climbing at unsafe heights. Id. 20 21 On November 21, 2013, Dr. Steinmann ordered a new MRI to rule out 22 adjacent segment deterioration after Plaintiff reported that his 23 symptoms continued (A.R. 830-32). On December 30, 2013, Plaintiff’s 24 examination results were unchanged (A.R. 835). Dr. Steinmann stated 25 26 7 A June, 2013 lumbar spine CT scan had shown status post 27 anterior and posterior fusion at L5-S1, lumbar spondylosis at L3- L4 and L4-L5, and a probable 4-millimeter disc protrustion at L4- 28 1 that the new MRI showed solid arthrodesis at L5-S1 and degenerative 2 changes at L4-L5, for which he recommended that Plaintiff not consider 3 surgery at that time and instead pursue low impact aerobic 4 conditioning, activity modification, and an occupation that does not 5 require significant stress on Plaintiff’s back (A.R. 835-36).8 Dr. 6 Steinmann then limited Plaintiff to lifting no more than 30 pounds 7 (A.R. 836). 8 9 On April 18, 2014, Plaintiff reported increased constant low back 10 pain and left leg pain radiating to the knee (A.R. 838). Plaintiff 11 was strongly requesting that something be done for his back pain and 12 stated that, following his prior surgery, he had done “very well” 13 until his pain worsened in or around November of 2013 (A.R. 840). 14 Dr. Steinmann found Plaintiff was a candidate for L4-L5 fusion surgery 15 (A.R. 840). In May and July of 2014, Dr. Steinmann requested a second 16 opinion regarding the surgery and, in August of 2014, Plaintiff was 17 scheduled for surgery (A.R. 846, 908, 911). 18 19 On September 17, 2014, Plaintiff underwent a second fusion 20 surgery on Plaintiff’s lumbar spine at L4-L5 by Drs. Vanderlinden and 21 /// 22 23 8 A December, 2013 lumbar spine MRI showed status post fusion at L5-S1, a 3-millimeter disc bulge at L3-L4 with mild 24 bilateral neural foraminal narrowing and bilateral facet joint hypertrophy, a 4-millimeter retrolisthesis of L4 on L5 with a 4- 25 to 5-millimeter disc bulge at L4-L5 with moderate bilateral 26 neural foraminal narrowing and bilateral facet joint hypertrophy with ligamentum flavum redundancy, and posterior bony spurring 27 extending into the bilateral foraminal zones at L5-S1 with moderate bilateral neural foraminal narrowing and prominent 28 1 Steinmann (A.R. 317, 680-99).9 As of two weeks following this 2 surgery, Plaintiff reportedly had full strength in his lower 3 extremities and intact sensation (A.R. 915). Plaintiff was instructed 4 to continue to walk daily, and his temporary total disability was 5 continued (A.R. 915). After eight weeks, Plaintiff reportedly was 6 doing well, happy with his surgery results and complained only of 7 stiffness and “low grade” pain (A.R. 919). Plaintiff reportedly was 8 ambulating with a normal gait independently without an assistive 9 device (A.R. 919). Dr. Steinmann referred Plaintiff for “aggressive” 10 rehabilitation with physical therapy three times a week for four 11 weeks, and Dr. Steinmann continued Plaintiff’s temporary total 12 disability (A.R. 920). 13 14 On December 19, 2014, Plaintiff reported that his pain had gotten 15 better, characterized as a three on a scale of one to 10, but 16 Plaintiff said the pain was still aggravated by prolonged walking, 17 standing and sitting, and radiated down his left leg with numbness and 18 weakness (A.R. 922). Plaintiff had not yet been approved for physical 19 therapy (A.R. 922). Plaintiff again reportedly ambulated with a 20 normal gait, without an assistive device (A.R. 923). On examination, 21 he had no tenderness to palpation and limited range of motion in the 22 lumbar spine due to stiffness and discomfort (A.R. 923-24). Dr. 23 Steinmann released Plaintiff for “sedentary” work (A.R. 924). 24 /// 25 /// 26 27 9 A September 15, 2014 lumbar spine MRI showed postsurgical changes with dorsal fusion of L5 and S1, and neural 28 1 By January 26, 2015, Plaintiff reported that he had constant pain 2 in both hips radiating down his left leg with numbness and tingling 3 and a change in neurologic function (A.R. 926). Plaintiff was due to 4 start physical therapy that week (A.R. 926). Plaintiff reportedly was 5 ambulating with a cane, but was able to transfer from chair to 6 standing and to the examination table with apparent ease and without 7 apparent discomfort (A.R. 927). Examination results were unchanged 8 (A.R. 927). Dr. Steinmann prescribed 800 milligram ibuprofen and 9 continued Plaintiff’s restriction to “sedentary” work (A.R. 928). 10 11 On February 23, 2015, Dr. Steinmann examined Plaintiff and 12 prepared a report re “maximum medical improvement” (A.R. 930-34, 996- 13 99). Plaintiff complained of worsening constant low back pain 14 radiating to his left leg, with numbness not helped by physical 15 therapy (A.R. 931, 996; see also A.R. 1010-11 (physical therapy 16 records)). Plaintiff rated his pain at four on a scale of one to 10 17 (A.R. 931, 996). Plaintiff reportedly ambulated with a normal gait, 18 without an assistive device, but his transfers from chair to standing 19 and to the examination table were slow, with pain in the low back and 20 left hip (A.R. 931; but see A.R. 997 (reporting transfers “with ease” 21 and “no discomfort”)). On examination, Plaintiff had tenderness on 22 lumbosacral palpation and significantly reduced lumbar range of motion 23 (A.R. 931-32; but see A.R. 997 (reporting no tenderness on 24 palpation)). Dr. Steinmann diagnosed status post anterior and 25 posterior fusion from L4 to the sacrum with a “fair” result and 26 declared Plaintiff “permanent and stationary” (A.R. 932, 998). 27 Plaintiff reportedly felt that his pain had improved since surgery but 28 also said that he still had significant limitations (A.R. 932). Dr. 1 Steinmann encouraged aerobic conditioning (A.R. 932). Dr. Steinmann 2 opined that Plaintiff had reached maximum medical improvement and 3 could compete on the open labor market, with restrictions from 4 repetitive bending and stooping, lifting greater than 10 pounds, and 5 working at heights or uneven walking (A.R. 932-33, 1007 (noting, “This 6 patient is largely best treated with strictly sedentary work.”)). 7 8 The record contains primary care physician treatment notes for 9 various conditions thereafter (A.R. 1289-1331). On July 7, 2015, 10 Plaintiff reportedly presented to his primary care physician for 11 removal of skin tags and a second opinion for his “fluctuating” 12 “intermittent” back pain, after Dr. Steinmann had opined that 13 Plaintiff reached maximum medical improvement and that physical 14 therapy no longer was beneficial (A.R. 1320). On examination, 15 Plaintiff had moderately reduced range of motion in the lumbar spine 16 (A.R. 1321). Plaintiff was referred for orthopedic surgery and 17 radiotherapy consults (A.R. 1322). On September 9, 2015, Plaintiff 18 complained of “occasional” worsening lower back pain, aggravated by 19 lifting, lying/rest, rolling over in bed and sitting, with numbness in 20 his left leg (A.R. 1328). Plaintiff reportedly was using a cane and 21 had tenderness and mildly reduced range of motion in the lumbar spine 22 (A.R. 1329). Plaintiff again was referred to an orthopedic surgeon 23 and was also referred to pain medicine (A.R. 1330). There are no 24 follow up records from these referrals. 25 26 On September 15, 2015, Plaintiff went to the emergency room for 27 back pain with radicular symptoms, reporting that his doctor no longer 28 would prescribe hydrocodone long term (A.R. 460-63). Plaintiff was 1 given a Morphine injection and prescribed a two-day supply of Norco 2 (A.R. 460-63). On January 14, 2016, Plaintiff returned to the 3 emergency room for pain in his left upper quadrant and lower back 4 after a fall in the shower (A.R. 1041-54). He was diagnosed with 5 abdominal pain and low back pain and prescribed Protonix (A.R. 1045). 6 7 C. Opinions of Consultative Examiner and State Agency 8 Physicians 9 10 Consultative examiner Dr. Vincent Bernabe reviewed a March, 2012 11 lumbar spine MRI and a February, 2013 abdomen x-ray, examined 12 Plaintiff and prepared a report dated November 20, 2014 (A.R. 942-46). 13 Dr. Bernabe’s report occurred after Plaintiff’s two surgeries but 14 before Dr. Steinmann’s report re maximum medical improvement following 15 the second surgery (A.R. 942-46). Plaintiff complained of sharp, 16 throbbing, burning low back pain exacerbated by prolonged sitting, 17 standing, walking, bending and lifting (A.R. 942-43). Plaintiff was 18 using a cane for ambulation, wearing a brace and taking Norco (A.R. 19 942-43). However, Plaintiff reportedly could walk without a cane, 20 with a slow deliberate pace (A.R. 943). Dr. Bernabe opined that the 21 cane was not medically necessary (A.R. 943). On examination, 22 Plaintiff had significant tenderness on lumbosacral palpation, muscle 23 spasm on the right side, limited range of motion and positive straight 24 leg raising (A.R. 943-45). Dr. Bernabe diagnosed degenerative disc 25 disease of the lumbar spine, status post posterior lumbar fusion, 26 lumbar radiculitis and lumbar musculoligamentous strain (A.R. 945-46). 27 Dr. Bernabe opined that Plaintiff would be able to perform light work 28 with occasional pushing and pulling, walking on uneven terrain, 1 climbing ladders, working at heights, bending, crouching, stooping and 2 crawling (A.R. 946). 3 4 State agency physicians reviewed the available records in 5 January, April, July and August of 2015 and opined that Plaintiff had 6 severe degenerative disc disease and an affective disorder (A.R. 69- 7 75, 85-91). The state agency physicians opined that Plaintiff retains 8 a residual functional capacity for light work with occasional lower 9 extremity pushing and pulling, stair/ramp climbing, balancing, 10 stooping, kneeling, crouching and crawling, no concentrated exposure 11 to vibration or hazards, limited to simple repetitive tasks, 12 “partially interact[ing]” with supervisors and co-workers and the 13 public in a service capacity, making simple work-related decisions, 14 adhering to basis safety rules, and adjusting to changes in routine in 15 a typical non-public unskilled setting (A.R. 69-75, 85-91 (giving 16 great weight to the opinions of Dr. Bernabe and “other weight” to the 17 opinion of Dr. Steinmann that Plaintiff was limited to sedentary 18 work)). 19 20 II. The ALJ Materially Erred in the Evaluation of the Medical 21 Evidence. 22 23 In assessing Plaintiff’s residual functional capacity, the ALJ 24 gave “some weight” to Dr. Steinmann’s opinion that Plaintiff would be 25 limited to no repetitive bending and stooping, but rejected Dr. 26 Steinmann’s opinion that Plaintiff would be limited to “sedentary 27 work” (A.R. 17). The ALJ stated: 28 /// 1 [T]he record does not fully support a sedentary range of 2 limitations . . . since other examinations after the 3 claimant’s surgeries including [Dr. Steinmann’s] own 4 contemporaneous clinical findings have shown greater ability 5 that is more consistent with light restrictions. The 6 claimant himself admits to being better than prior to his 7 surgery, despite some residual mild to moderate discomfort 8 [citing A.R. 822 (Plaintiff’s report to Dr. Steinmann 9 July 11, 2013 that he was “much better than he was before 10 surgery but still has discomfort that precludes him from 11 doing his normal activities”)]. Even medical source 12 statements provided by Dr. Steinmann himself included 13 greater levels of functioning, such as greater levels of 14 lifting that are more consistent with the record and given 15 some weight as well [citing A.R. 824 (Dr. Steinmann’s 16 July 11, 2013 opinion that Plaintiff had reached maximum 17 medical improvement with “ongoing low grade discomfort” 18 following the first surgery, and was capable of work limited 19 to lifting no more than 15 pounds)]. Dr. Steinmann failed 20 to provide any explanation to why his later opinions show 21 greater levels of limitations despite noted improvement by 22 the claimant and objective findings, as well as no 23 intervening or subsequent injuries. 24 25 (A.R. 17) (emphasis added). 26 27 A treating physician’s conclusions “must be given substantial 28 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 2| give sufficient weight to the subjective aspects of a doctor’s opinion. . . . This is especially true when the opinion is that of a treating physician”) (citation omitted); see also Garrison v. Colvin, 5] 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to the opinions of treating and examining physicians). Even where the treating physician’s opinions are contradicted, as here, “if the ALJ 8] wishes to disregard the opinion[s] of the treating physician he... must make findings setting forth specific, legitimate reasons for 10] doing so that are based on substantial evidence in the record.” 11] Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 13] 762 (“The ALJ may disregard the treating physician’s opinion, but only 14] by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence”) (citation and 16] quotations omitted). 17 18 The reasons the ALJ stated for rejecting Dr. Steinmann’s opinion 19] do not comport with these authorities. An ALJ properly may discount a 20] treating physician’s opinions that are in conflict with treatment records or are unsupported by objective clinical findings. See 22|| Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (conflict 23|| between treating physician’s assessment and the treating physician’s 24] own clinical notes can justify rejection of assessment); Batson v. 25| Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may 26| discredit treating physicians’ opinions that are conclusory, brief, 27| and unsupported by the record as a whole .. . or by objective medical findings”); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 12

1 (treating physician’s opinion properly rejected where physician’s 2 treatment notes “provide no basis for the functional restrictions he 3 opined should be imposed on [the claimant]”); see also Rollins v. 4 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly may reject 5 treating physician’s opinions that “were so extreme as to be 6 implausible and were not supported by any findings made by any doctor 7 . . .”); 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in 8 weighing treating source opinion include the supportability of the 9 opinion by medical signs and laboratory findings as well as the 10 opinion’s consistency with the record as a whole). 11 12 In the present case, however, no physician discerned any specific 13 inconsistency between Dr. Steinmann’s clinical findings and his 14 opinion that, after Plaintiff had reached maximum medical improvement 15 following the second surgery, Plaintiff was limited to sedentary work 16 (i.e., lifting no more than 10 pounds). Plaintiff’s condition plainly 17 deteriorated after Dr. Steinmann’s opinion that Plaintiff had reached 18 maximum medical improvement from the first surgery. In fact, Dr. 19 Steinmann ultimately recommended and performed a second surgery for 20 Plaintiff’s deteriorating back condition. As had happened following 21 the first surgery, Plaintiff initially reported improvement, but later 22 complained of worsening pain. After Plaintiff had reached maximum 23 medical improvement following the second surgery, Dr. Steinmann opined 24 in February of 2015 that Plaintiff was limited to lifting no more than 25 10 pounds. 26 27 If the ALJ thought that Dr. Steinman’s February, 2015 opinion did 28 not adequately explain the reasons for finding Plaintiff more limited after the second surgery than after the first surgery, the ALJ should 2| have inquired further of Dr. Steinmann. “The ALJ has a special duty 3) to fully and fairly develop the record and to assure that the 4) claimant’s interests are considered. This duty exists even when the 5| claimant is represented by counsel.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); accord Garcia v. Commissioner, 768 F.3d 925, 930 7 (9th Cir. 2014); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) 8] (“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and 10] develop the arguments both for and against granting benefits. .. ."”); 11] Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (while it is 12] a claimant’s duty to provide the evidence to be used in making a 13] residual functional capacity determination, “the ALJ should not be a 14] mere umpire during disability proceedings”) (citations and internal 15] quotations omitted); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 16] 1996) (“If the ALJ thought he needed to know the basis of Dr. 17] Hoeflich’s opinions in order to evaluate them, he had a duty to 18] conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record.”) (citations 21] omitted). 22 23 The other physicians’ opinions do not adequately support the 24| ALJ’s rejection of Dr. Steinmann’s February, 2015 opinion. Dr. Bernabe’s opinion predates the February, 2015 opinion and consequently 26| does not even mention it. The state agency physicians also did not 27|| discuss specifically Dr. Steinmann’s February, 2015 opinion. See A.R. 28] 85 (summarizing Dr. Steinmann’s records and noting only, “Multiple MSS Of)

1 [medical source statements]; that mention P&S [permanent and 2 stationary]; reserved for the Commissioner”). The ALJ’s lay 3 discernment of an asserted inconsistency between Dr. Steinmann’s 4 clinical findings and his opinion cannot constitute substantial 5 evidence. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an 6 “ALJ cannot arbitrarily substitute his own judgment for competent 7 medical opinion”) (internal quotation and citation omitted); Rohan v. 8 Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to 9 the temptation to play doctor and make their own independent medical 10 findings”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an 11 ALJ is forbidden from making his or her own medical assessment beyond 12 that demonstrated by the record). 13 14 Neither the ALJ nor this Court possesses the medical expertise to 15 know whether the objective medical evidence is inconsistent with the 16 limitations Dr. Steinmann found to exist. The ALJ’s lay inferences 17 from Plaintiff’s reported periods of improvement following surgery, 18 followed by periods of decline, cannot properly impugn the medical 19 opinions in this case. Moreover, “[w]ith a degenerative disease, ‘one 20 would expect the Plaintiff’s condition would worsen over time.’” 21 Bullock v. Saul, 2019 WL 4034412, at *5 (E.D. Cal. Aug. 27, 2019) 22 (quoting Geary v. Berryhill, 2018 WL 6182186, at *12 (E.D. Cal. 23 Nov. 27, 2018)). 24 /// 25 /// 26 /// 27 /// 28 /// 1] IIL. The Court is Unable to Deem the ALJ’s Errors Harmless; Remand for 2 Further Administrative Proceedings is Appropriate. 3 4 The Court is unable to conclude that the ALJ’s errors were 5| harmless. See Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this case, an ALJ makes a legal error, but 7) the record is uncertain and ambiguous, the proper approach is to remand the case to the agency”); see also Molina v. Astrue, 674 F.3d 9) 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is 10] inconsequential to the ultimate non-disability determination”) 11] (citations and quotations omitted); McLeod v. Astrue, 640 F.3d 881, 12] 887 (9th Cir. 2011) (error not harmless where “the reviewing court can 13] determine from the ‘circumstances of the case’ that further 14] administrative review is needed to determine whether there was 15] prejudice from the error”). 16 17 Remand is appropriate because the circumstances of this case 18] suggest that further administrative review could remedy the ALJ’s 19] errors. McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 20] 537 U.S. 12, 16 (2002) (upon reversal of an administrative 21| determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Dominguez 23] v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 24|| court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide 26| benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 27| for further administrative proceedings is the proper remedy “in all 28] but the rarest cases”); Garrison v. Colvin, 759 F.3d at 1020 (court YO

1 will credit-as-true medical opinion evidence only where, inter alia, 2 “the record has been fully developed and further administrative 3 proceedings would serve no useful purpose”); Harman v. Apfel, 211 F.3d 4 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand 5 for further proceedings rather than for the immediate payment of 6 benefits is appropriate where there are “sufficient unanswered 7 questions in the record”). There remain significant unanswered 8 questions in the present record, particularly with regard to: (1) the 9 bases for the Dr. Steinmann’s February, 2015 opinion; and (2) the 10 issue of whether Plaintiff would be deemed disabled for all or part of 11 the claimed disability period if Dr. Steinmann’s opinions are 12 credited. 13 14 CONCLUSION 15 16 For all of the foregoing reasons,10 Plaintiff’s and Defendant’s 17 motions for summary judgment are denied and this matter is remanded 18 for further administrative action consistent with this Opinion. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 22 DATED: September 26, 2019. 23 /s/ 24 CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

25 26 10 The Court has not reached any other issue raised by 27 Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be 28