1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 CHRISTINE L. W., ) No. ED CV 19-1377-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER )

OF SOCIAL SECURITY )

16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Christine L. W.1 (“plaintiff”) filed this action on July 26, 2019, seeking review of the 22 Commissioner’s denial of her application for a period of disability and Disability Insurance Benefits 23 (“DIB”). The parties filed Consents to proceed before a Magistrate Judge on August 16, 2019, and 24 September 4, 2019. Pursuant to the Court’s Order, the parties filed a Joint Submission 25 (alternatively “JS”) on August 12, 2020, that addresses their positions concerning the disputed 26 27 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth 28 1 issues in the case. The Court has taken the Joint Submission under submission without oral 2 argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born in 1952. [Administrative Record (“AR”) at 158.] She has past relevant 7 work experience as a medical assistant. [Id. at 21, 59.] 8 On February 19, 2016, plaintiff protectively filed an application for a period of disability and 9 DIB alleging that she has been unable to work since November 19, 2011. [Id. at 14; see also id. 10 at 158-64.] After her application was denied initially and upon reconsideration, plaintiff timely filed 11 a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 101-02.] A hearing 12 was held onMay 1, 2018, at which time plaintiff appeared represented by an attorney, and testified 13 on her own behalf. [Id. at 26-65.] A vocational expert (“VE”) also testified. [Id. at 58-64.] On 14 August 16, 2018, the ALJ issued a decision concluding that plaintiff was not under a disability from 15 November 19, 2011, the alleged onset date, through December 31, 2014, the date last insured. 16 [Id. at 14-21.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. [Id. at 155- 17 57.] When the Appeals Council denied plaintiff’s request for review on June 1, 2019 [id. at 1-5], 18 the ALJ’s decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 19 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 20 21 III. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 26 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 27 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 28 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 1 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 2 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 3 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 4 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 5 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 6 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 7 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 8 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 9 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 10 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 11 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 12 be judged are those upon which the record discloses that its action was based.”). 13 14 IV. 15 THE EVALUATION OF DISABILITY 16 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 17 to engage in any substantial gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted or is expected to last for a continuous period of at 19 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 20 42 U.S.C. § 423(d)(1)(A)). 21 22 A. THE FIVE-STEP EVALUATION PROCESS 23 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 24 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 25 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 26 In the first step, the Commissioner must determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 28 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 1 second step requires the Commissioner to determine whether the claimant has a “severe” 2 impairment or combination of impairments significantly limiting her ability to do basic work 3 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 4 a “severe” impairment or combination of impairments, the third step requires the Commissioner 5 to determine whether the impairment or combination of impairments meets or equals an 6 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 7 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 8 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 9 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 10 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 11 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 12 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 13 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 14 the burden of establishing that the claimant is not disabled because there is other work existing 15 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 16 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 17 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 18 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 19 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 20 21 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity 23 during the period from November 19, 2011, the alleged onset date, through December 31, 2014, 24 the date last insured. [AR at 16.] At step two, the ALJ concluded that, through the date last 25 insured, plaintiff had the severe impairments of psoriatic arthritis; bilateral knee degenerative joint 26 disease, status post surgery; left shoulder rotator cuff tear, status post rotator cuff repair; and 27 interstitial cystitis. [Id.] At step three, the ALJ determined that, through the date last insured, 28 plaintiff did not have an impairment or a combination of impairments that meets or medically 1 equals any of the impairments in the Listing. [Id. at 17.] The ALJ further found that, through the 2 date last insured, plaintiff retained the residual functional capacity (“RFC”)2 to perform light work 3 as defined in 20 C.F.R. § 404.1567(b),3 as follows: 4 [She] was unable to crawl. She was able to occasionally climb ladders, ropes and scaffolds and kneel. She was able to frequently climb ramps and stairs, balance, 5 stoop, and crouch. She was able to frequently reach overhead with bilateral upper extremities. She needed to avoid extreme cold, vibration and hazards, including 6 unprotected heights and dangerous machinery. She needed to work in close proximity to a restroom. 7 8 [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded that 9 through the date last insured, plaintiff was able to perform her past relevant work as a medical 10 assistant. [Id. at 21.] Accordingly, the ALJ determined that plaintiff was not disabled at any time 11 from the alleged onset date of November 19, 2011, through December 31, 2014, the date last 12 insured. [Id.] 13 14 V. 15 THE ALJ’S DECISION 16 Plaintiff contends that the ALJ erred when he: (1) gave little weight to the opinions of 17 plaintiff’s treating physician, Raymond Press, M.D.; and (2) rejected plaintiff’s subjective symptom 18 testimony. [JS at 4.] As set forth below, the Court agrees with plaintiff, in part, and remands for 19 further proceedings. 20 2 RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9thCir. 1989). “Between steps 22 three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 23 1151 n.2 (9th Cir. 2007) (citation omitted). 24 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in 25 this category when it requires a good deal of walking or standing, or when it involves sitting most 26 of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of 27 these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for 28 1 A. MEDICAL OPINIONS 2 1. Legal Standard 3 “There are three types of medical opinions in social security cases: those from treating 4 physicians,examiningphysicians,andnon-examining physicians.” Valentine v. Comm’r Soc. Sec. 5 Admin.,574F.3d685,692(9thCir.2009);seealso 20 C.F.R. §§ 404.1502, 404.1527.4 TheNinth 6 Circuithasrecentlyreaffirmedthat“[t]hemedicalopinionofaclaimant’streatingphysicianisgiven 7 ‘controllingweight’solongasit‘iswell-supportedbymedicallyacceptableclinicalandlaboratory 8 diagnostictechniquesandisnotinconsistentwiththeothersubstantialevidencein[theclaimant’s] 9 case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 10 404.1527(c)(2))(secondalterationinoriginal). Thus, “[a]s a general rule, more weight should be 11 given to the opinion of a treating source than to the opinion of doctors who do not treat the 12 claimant.” Lester, 81 F.3d at 830; Garrison, 759 F.3d at 1012 (citing Bray v. Comm’r Soc. Sec. 13 Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009)); Turner v. Comm’r of Soc. Sec., 613 F.3d 14 1217, 1222 (9thCir. 2010). “The opinion of an examining physician is, in turn, entitled to greater 15 weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan v. Comm’r 16 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 17 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical 18 opinion based on clear and convincing reasons.” Trevizo, 871 F.3d at 675 (citing Ryan,528F.3d 19 at 1198). “Where such an opinion is contradicted, however, it may be rejected for specific and 20 legitimate reasons that are supported by substantial evidence in the record.” Id. (citing Ryan,528 21 F.3d at 1198). When a treating physician’s opinion is not controlling, the ALJ should weigh it 22 23 4 The Court notes that for all claims filed on or after March 27, 2017, the Rules in 20 C.F.R. § 404.1520c (not § 404.1527) shall apply. The new regulations provide that the Social Security 24 Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your 25 medical sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating 26 source,” as well as what is customarily known as the treating source or treating physician rule. See 20 C.F.R. § 404.1520c; see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). However, 27 the claim in the present case was filed before March 27, 2017, and the Court therefore analyzed plaintiff’s claim pursuant to the treating source rule set out herein. See also 20 C.F.R. § 404.1527 28 1 according to factors such as the nature, extent, and length of the physician-patient working 2 relationship, the frequency of examinations, whether the physician’s opinion is supported by and 3 consistent with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see 4 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the requisite specific and legitimate standard 5 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 6 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 7 Cir. 1998). The ALJ “must set forth his own interpretations and explain why they, rather than the 8 [treating or examining] doctors’, are correct.” Id. 9 Although the opinion of a non-examining physician “cannot by itself constitute substantial 10 evidence that justifies the rejection of the opinion of either an examining physician or a treating 11 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, 12 psychologists, and other medical specialists who are also experts in Social Security disability 13 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray, 554 14 F.3d at 1221, 1227 (the ALJ properly relied “in large part on the DDS physician’s assessment” in 15 determining the claimant’s RFC and in rejecting the treating doctor’s testimony regarding the 16 claimant’s functional limitations). Reports of non-examining medical experts “may serve as 17 substantial evidence when they are supported by other evidence in the record and are consistent 18 with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 19 20 2. Dr. Press 21 On November 7, 2016, almost two years after plaintiff’s date last insured, Dr. Press, who 22 treated plaintiff from July 2014 to “at least April 2018,” completed a physical residual functional 23 capacity questionnaire (“Questionnaire”), in which he opined that plaintiff had the RFC to perform 24 light work, with some postural limitations and a need to work in close proximity to a restroom. [JS 25 at 4; AR at 389-92.] In the Questionnaire, Dr. Press noted that he examined plaintiff every two 26 months for her psoriatic arthritis, and that her prognosis was fair. [AR at 389.] He stated she had 27 symptoms of fatigue, lower back pain, and bilateral knee pain, with mild to moderate lower back 28 pain resulting from her knee pain. [Id.] He referenced x-rays that reflected degenerative changes 1 in plaintiff’s knees and in her lower back, and stated that she was being treated with medications. 2 (Id. (noting x-ray showed changes in plaintiff’s “knees & L/S” and that she was being treated with 3 Simponi Aria (an intravenous infusion for psoriatic arthritis administered every two months (see 4 http://rxlist.com) and methotrexate)). He also stated that plaintiff’s depression and anxiety affect 5 her physical condition. [Id.] Dr. Press opined that plaintiff could only perform low stress jobs, with 6 an option to take naps [id. at 390]; her symptoms would frequently interfere with her attention and 7 concentration [id.]; she was limited to less than two hours of sitting or standing/walking in an eight- 8 hour workday [id.]; after sitting for thirty minutes she would need to get up and could not stand 9 more than twenty minutes before needing to sit down [id.]; and she needed to shift positions at will, 10 take hourly unscheduled breaks, and elevate her legs to 30 degrees when sitting for prolonged 11 periods. [Id. at 390-91.] Dr. Press also determined that plaintiff could rarely lift 10 or 20 pounds; 12 never lift 50 pounds; could rarely look down, turn her head right or left, look up, hold her head in 13 a static position, or twist; never stoop, crouch, climb ladders or stairs; could only use her bilateral 14 hands, fingers, and arms for 50% of an eight-hour workday; and would miss more than four days 15 of work per month as a result of her impairments or treatment. [Id. at 391.] He stated that plaintiff 16 had these limitations since at least July 2014. [Id. at 392.] 17 The ALJ summarized Dr. Press’ treatment notes prior to plaintiff’s date last insured of 18 December 31, 2014, and gave his opinion “little weight”: 19 As for [plaintiff’s] psoriatic arthritis, through the date last insured, the record did not 20 support a finding that it was so severe to be disabling. Despite her allegation of severe fatigue and pain due to sporadic arthritis, the record appeared to indicate no 21 treatment for her psoriatic arthritis until July 2014, nearly three years after the alleged onset date. She presented to Dr. Raymond I. Press in July 2014 with 22 sudden complaints of bilateral knee pain. She continued to complain of bilateral knee pain in August 2014. She was started on methotraxate [sic]. She complained 23 of bilateral knee pain, and right elbow and hand pain in October 2014, but also reported that the pain was worse with the weather change. She reported that 24 methotrexate was not helping. She also reported [i]n December 2014 that she felt the medications were not helpful, however, treatment notes reveal that she reported 25 doing well. Although [plaintiff] reported that methotrexate was not helpful, the record also revealed that, [she] had been receiving treatment for her psoriatic arthritis for 26 only four months. As such, through the date last insured, the record did not establish that [her] psoriatic arthritis remained unabated despite prolonged 27 treatment. 28 . . . . 1 Dr. Press’ opinion is inconsistent with the record through the date last insured. As discussed above in detail, through the date last insured, the treatment notes, 2 including Dr. Press’ own treatment notes, failed to reveal any objective findings which would support the degree of limitations found by Dr. Press. 3 4 [Id. at 19, 20 (citing id. at 355-60).] 5 Plaintiff argues that Dr. Press’ opinion is consistent with his treatment notes dating from 6 2015 through 2018, which reflect that in 2015 he administered injections in her bilateral knees; that 7 after two sets of cortisone injections, plaintiff’s pain “was still so significant that she was unable 8 to sleep through the night or straighten her left knee due to an increase in arthritis pain and 9 inflammation”; and that even in April 2018, a note reflected that plaintiff’s pain was an 8 out of 10. 10 [JS at 6-7 (citing AR at 415, 417, 418, 421, 423, 426, 427, 429, 430).] She argues that “[t]his is 11 significant because [plaintiffs’] pain had not decreased amidst aggressive treatment lasting over 12 three years.” [Id. at 7.] Plaintiff submits, therefore, that Dr. Press’ Questionnaire findings took into 13 account his long-term treating relationship with plaintiff and was consistent with plaintiff’s history 14 of “bilateral knee pain and treatment.” [Id.] 15 Plaintiff further argues that Dr. Press’ opinion is consistent with the treatment notes from 16 plaintiff’s other treating providers. [Id.] For instance, David Chao, M.D., was plaintiff’s orthopedic 17 surgeon from December 2011-2015: on April 4, 2012, and November 28, 2012, respectively, he 18 performed a left and right knee arthroscopy, meniscectomy, and chondroplasty of the patella and 19 medial femoral condyle; post-surgery, Dr. Chao noted that plaintiff’s bone-on-bone pathology may 20 not improve even after surgical intervention; in December 2012, he performed a left shoulder 21 arthroscopy, debridement, decompression, and rotator cuff repair; and in May 2013, he noted that 22 plaintiff continued to experience bilateral knee pain and stated that “[u]ltimately, she is going to 23 need partial total replacement” and discussed palliative care with her. [Id. (citing AR at 283-314).] 24 Plaintiff submits, therefore, that Dr. Press’ opinions “are supported by surgical evidence and 25 medical opinions from Dr. Chao that date further back than Dr. Press’ own treating relationship” 26 with plaintiff. [Id.] She states that Dr. Press’ opinions “build on and continue the treating 27 relationship with Dr. Chao,” and plaintiff’s “[c]ontinuous treatment and symptoms lasting from 28 2013/2014 through 2016 articulate a consistent thread that demonstrates that Dr. Press’ opinions 1 were consistent with his own treatment notes and the notes of other treating physicians.” [Id. at 2 7-8.] Plaintiff concludes that the ALJ erred when he stated that Dr. Press’ opinions were not 3 supported by his own treatment notes, or by the records of plaintiff’s other physicians, and asserts 4 instead that “both Dr. Press’ own treatment notes and Dr. Chao’s treatment history reflect a need 5 for significant restrictions to be placed upon [plaintiff’s] residual functional capacity limitations.” 6 [Id. at 8.] She states that although the ALJ may have articulated “specific” reasons for rejecting 7 Dr. Press’ opinions, they were not legitimate reasons, “failed to provide a genuine justification for 8 the rejection of Dr. Press’ treating opinions,” and were not supported by substantial evidence. [Id. 9 at 8-9.] 10 Defendant responds that Dr. Press’ November 2016 opinion “is almost two years after 11 Plaintiff’s date last insured,” and the evidence “at best relates . . . to potential subsequent 12 worsening of Plaintiff’s condition, not to the relevant time period” at issue. [Id. at 9 (citations 13 omitted).] Defendant argues that the ALJ “correctly noted that Dr. Press’ own treatment notes do 14 not reflect objective findings consistent with his opinion that Plaintiff is almost completely 15 incapacitated.” [Id. (citing AR at 20, 389-92).] He states that the treatment notes prior to the date 16 last insured “reflect plaintiff’s complaints of pain in her bilateral knees but fail to include any 17 significant clinical findings,” and Dr. Press “did not at any time note that Plaintiff had difficulties with 18 muscle strength, range of motion, or ambulation,” or with depression or anxiety. [Id. (citing AR at 19 355-59).] Defendant also argues that Dr. Chao “did not provide any opinion in the record 20 regarding Plaintiff’s physical limitations,” and that the ALJ noted that five days after plaintiff’s left 21 knee surgery in April 2012, Dr. Chao stated plaintiff was “doing well,” was “ambulating with virtually 22 normal gait, with minimal swelling and trace effusion,” and “continued to do well a month after her 23 surgery, when she was walking fine in spite of her admission that she was not doing much 24 rehabilitation.” [Id. at 10 (citing AR at 18-19, 291-92, 304-06).] Similarly, a few days after 25 plaintiff’s right knee surgery in November 2012, plaintiff “stated that she was happy with her right 26 knee.” [Id. at 10-11 (citing AR at 18, 288).] Defendant finds it significant that despite Dr. Chao’s 27 May 2013 opinion that plaintiff would ultimately need partial total knee replacement, “he also found 28 that there were ‘no real changes’ and ‘no effusion’ upon examination.” [Id. at 11 (citing AR at 1 283).] Defendant finds it even more important that “Dr. Chao did not note any functional limitations 2 with respect to [plaintiff’s] knee, and did not indicate that she need [sic] knee replacement at that 3 time.” [Id. (citing AR at 283).] Defendant further argues that the ALJ’s rejection of Dr. Press’ 4 “extreme opinion” is further supported by the findings of the State agency reviewing physicians, 5 who opined in April and July 2016, respectively, that plaintiff could perform a range of medium 6 work. [Id. (citing AR at 20, 72-74, 84-86).] Although the ALJ gave these opinions “some weight,” 7 he further limited plaintiff to light work based on her testimony and treatment records. [Id. (citation 8 omitted).] Nevertheless, defendant notes that the ALJ properly gave greater weight to these 9 opinions than to the opinions of treating physician Dr. Press because the “Ninth Circuit has 10 repeatedly held that reviewing physicians are highly qualified experts whose opinions may provide 11 a substantial basis for an ALJ’s conclusions.” [Id. (citations omitted).] Defendant concludes that 12 the ALJ’s RFC determination was supported by substantial evidence and free from legal error and 13 his “interpretation of the evidence was reasonable.” [Id. at 12 (citation omitted).] 14 Plaintiff replies that notwithstanding that some of the evidence presented by Dr. Press falls 15 beyond plaintiff’s date last insured, “the material evidence presented from Dr. Press and Dr. Chao 16 from before the date last insured is still significant enough to warrant a finding that the ALJ failed 17 to properly consider the opinions of [plaintiff’s] treating physicians.” [Id.] She argues that although 18 Dr. Chao did not provide any limitations with regard to plaintiff’s impairments, by February 2013 -- 19 after her surgeries -- plaintiff “had already received five Supartz injections in her right knee,” and 20 Dr. Chao opined that plaintiff “was unsure as to how well the injections helped her and that [her] 21 pain was chronic along the medial compartment to the right knee and left knee.” [Id. at 13 (citing 22 AR at 283-84).] He also noted that six months after plaintiff’s knee surgery, there were “no real 23 changes,” which plaintiff interprets to mean that plaintiff “was still in significant pain after the 24 surgery.” [Id. (citing AR at 283).] Plaintiff states that “[a] knee that had been surgically repaired 25 to the point that it no longer provides physical limitations is not a knee that needs five Supartz 26 injections post-surgery,” and argues that the ALJ’s argument that Dr. Chao’s treatment notes did 27 not discuss any physical limitations “is unfounded and does not make sense,” as an individual who 28 is in “such significant pain that two knee surgeries and multiple [post-surgery] injections are not 1 able to remedy that pain will undoubtedly have physical limitations.” [Id. (citations omitted).] 2 Plaintiff also argues that Dr. Chao’s statement that plaintiff will need a partial total knee 3 replacement and palliative care “sufficiently demonstrates” plaintiff’s physical limitations prior to 4 her date last insured and also provides support for Dr. Press’ opinions. [Id. at 13-14 (citing AR at 5 283).] 6 7 3. Analysis 8 In December 2011, more than three years prior to plaintiff’s date last insured, the record 9 reflects that she sought treatment from Dr. Chao complaining of pain in both knees. Dr. Chao 10 performed surgery on the left knee in February 2012, and on the right knee in November 2012. 11 On February 21, 2012, Dr. Chao noted that his treatment plan was to proceed with the left knee 12 surgery to address plaintiff’s meniscal tear; he also informed plaintiff that “once the inflammation 13 has calmed down,” plaintiff would need to consider “Supartz steroid injections for the leg to 14 address the arthritis.” [AR at 295.] He also informed plaintiff that the surgery and subsequent 15 injections “will not give her a normal knee, but the goal [is] to give her an improved knee, and that 16 she “would likely need Supartz or Synvisc in her right knee in addition.” [Id.] In his April 4, 2012, 17 surgical note, Dr. Chao stated that he had explained to plaintiff that “any pain from her meniscus 18 tear would be remedied with [the] meniscectomy, however pain that was generated from her 19 arthritic change may only be temporarily alleviated.” [Id. at 305.] Similarly, with respect to the 20 November 28, 2012, surgery on her right knee -- also to repair a meniscal tear -- Dr. Chao noted, 21 among other things, that upon “entering into the medial compartment . . . there was grade 4 22 arthritis of the medial femoral condyle . . . with grade 4 arthritis [of approximately 50%] of the 23 medial tibial plateau,” and grade 2 arthritis of the patella and femoral trochlea. [Id. at 302-03.] Dr. 24 Chao also noted, post-surgery, that plaintiff had bone-on-bone pathology that may not improve 25 even after surgical intervention. [Id. at 288.] Accordingly, the ALJ’s determination that Dr. Press’ 26 opinions were not supported by the treatment notes from other treating physicians was not a 27 specific and legitimate reason supported by substantial evidence for discounting those opinions. 28 With respect to the ALJ’s determination that Dr. Press’ opinions were not consistent with 1 his own treatment records, those records reflect that in July 2014, plaintiff complained of chronic 2 bilateral knee pain and Dr. Press noted bilateral knee effusions [id. at 359]; in August 2014, based 3 on plaintiff’s complaint of chronic bilateral knee pain, x-rays ordered by Dr. Press reflected mild- 4 moderate osteoarthritic changes [id. at 315, 358]; in October 2014, he reported plaintiff was 5 experiencing bilateral knee pain, right elbow pain, right hand pain -- “hand worse with the weather 6 change,”5 and that plaintiff’s methotrexate was not working [id. at 357]; and in December 2014, 7 Dr. Press again noted effusion in plaintiff’s knees [id. at 355]. In 2015 Dr. Press administered 8 injections in plaintiff’s bilateral knees; even after two sets of cortisone injections, plaintiff’s pain 9 “was still so significant that she was unable to sleep through the night or straighten her left knee 10 due to an increase in arthritis pain and inflammation”; and even in April 2018, a note reflected that 11 plaintiff’s pain was an 8 out of 10. [JS at 6-7 (citing AR at 415, 417, 418, 421, 423, 426, 427, 429, 12 430.] In short, Dr. Press’ treatment of plaintiff, both prior to and after plaintiff’s date last insured, 13 reflects that -- despite plaintiff’s surgeries and aggressive treatment from Dr. Chao even post- 14 surgery -- Dr. Press also treated plaintiff’s knee pain aggressively for several years and that his 15 notes and treatment were consistent with the treatment plaintiff previously received from Dr. Chao, 16 and with the opinions Dr. Press expressed in the Questionnaire. Accordingly, this was not a 17 specific and legitimate reason supported by substantial evidence for discounting Dr. Press’ 18 opinions, which were supported by his own treatment records. 19 In discounting the intensity, persistence, and limiting effects of plaintiff’s symptoms and, 20 therefore, by implication, Dr. Press’ opinions, the ALJ reasoned that plaintiff’s surgery was 21 evidence that her “symptoms were genuine,” but that the “record reflects that the surgery was 22 generally successful in relieving the symptoms.” [AR at 18.] In support, he cited two treatment 23 notes shortly after the April 2012 surgery (five days after, and one month after) that reflected 24 plaintiff “was overall doing well,” “happy with her results so far,” and “feeling very good.” [Id. (citing 25 26 5 The ALJ stated that plaintiff “complained of bilateral knee pain, and right elbow and hand pain in October 2014, but also reported that the pain was worse with the weather change,” 27 implying that Dr. Press stated all of plaintiff’s pain was worse with the weather change. [AR at 19.] This mischaracterizes Dr. Press’ treatment note, which clearly reflects that plaintiff complained that 28 1 id. at 291, 292).] Similarly, “a few days” after the November 2012 surgery, the ALJ noted that 2 plaintiff reported that she “was happy with the right knee.” [Id. (citing id. at 289).] By May 2013, 3 however, the ALJ observed that Dr. Chao’s May 2013 notes reflect that plaintiff “continued to 4 complain of bilateral knee pain,” that she questioned the effectiveness of the injections, and that 5 examination showed “crepitance medially and medial pseudolaxity in the bilateral knees.” [Id.] 6 The ALJ then stated, “[h]owever, there was no effusion,” and no other “abnormal objective findings 7 due to her bilateral knee pain, such as gait abnormality,” without providing an explanation as to 8 the relevance of these observations to plaintiff’s ongoing bilateral knee pain and Dr. Chao’s clinical 9 observations of crepitance and pseudolaxity. [Id. at 18-19 (citing id. at 283-87).] Indeed, Dr. Chao 10 did not express surprise or consternation that he observed no effusion and a normal gait; in fact, 11 he also noted that there had been “[n]o real changes” as a result of the surgery, that plaintiff would 12 ultimately need a partial total replacement and palliative care, and proceeded with additional 13 Supartz injections for a number of visits. [Id. at 283.] Moreover, to the extent that the ALJ also 14 implied that plaintiff’s knee pain was in remission for a period of time and that she presented to 15 Dr. Press in July 2014 “with sudden complaints of bilateral knee pain,” it is clear from Dr. Chao’s 16 records that these complaints were likely ongoing and not all that “sudden.”6 17 The Court also notes that the ALJ commented on the fact that plaintiff stopped working in 18 August 2010 “for reasons not related to the allegedly disability impairments,” and “reported in her 19 disability report that she stopped working in August 2010 due to her client passing away.” [Id. at 20 21 6 In discounting plaintiff’s subjective symptom testimony, the ALJ commented on the fact that 22 there appears to be a gap in the treatment record between May 2013 (Dr. Chao’s final treatment note in the record) and July 2014 (Dr. Press’ first treatment note in the record). [AR at 19.] See 23 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Dir. 2008) (in assessing the credibility of an individual’s subjective symptom testimony, an ALJ may consider any inadequately explained or 24 unexplained failure to pursue or follow treatment) (citation omitted). In this case, however, the ALJ did not seek an explanation from plaintiff as to the reason for this apparent break in service and 25 the parties point to nothing in the record to explain this gap. In any event, this “reason” was used 26 to discount plaintiff’s testimony, and, if at all, only impliedly to discount Dr. Press’ opinions. Indeed, although there is no treatment evidence during this time period, there is also no evidence 27 reflecting that plaintiff’s symptoms had disappeared. Accordingly, in light of the record herein, the Court does not consider this to be a specific and legitimate reason supported by substantial 28 1 20 (citation omitted).] To the extent the ALJ intended this observation to be a reason to discount 2 Dr. Press’ opinions, the ALJ did not explain how this “evidence” in any way bears on the opinions 3 of Dr. Press, on Dr. Chao’s findings, and/or even on plaintiff’s subjective symptom testimony. 4 Indeed, the Court is hard-pressed to make any such connection given that plaintiff alleged an 5 onset date that is more than a year after the death of her former client. The Court finds, therefore, 6 that this was not a specific and legitimate reason supported by substantial evidence to discount 7 Dr. Press’ opinions. 8 Finally, the ALJ gave “some” weight to the opinions of the State agency consultants in April 9 2016 and July 2016 (without the benefit of Dr. Press’ November 2016 opinions), both of whom 10 found plaintiff capable of medium-level exertional work, and that she could occasionally climb 11 ladders, ropes, and scaffolds; frequently climb ramps and stairs; frequently balance, stoop, kneel, 12 crouch, and crawl; and that she was capable of limited overhead reaching with the left upper 13 extremity. [Id. at 20 (citations omitted).] The ALJ, however, found these RFC determinations to 14 be “less restricting than the record supports,” and limited plaintiff instead to a range of work at the 15 light exertional level, finding she could never crawl; occasionally climb ladders, ropes, and 16 scaffolds, and kneel; frequently climb ramps and stairs, balance, stoop, and crouch; frequently 17 reach overhead bilaterally7; never be exposed to extreme cold, vibration, and hazards; and that 18 she needed to work in close proximity to a restroom. [Id.] Thus, because the consulting 19 reviewers’ opinions were not supported by and consistent with other evidence in the record, they 20 may not serve as substantial evidence. Andrews, 53 F.3d at 1041. 21 Based on the foregoing, the ALJ’s reasons for discounting Dr. Press’ opinions were not 22 specific and legitimate. Remand is warranted on this issue. 23 24 25 7 Despite stating that the State agency consultant’s findings were “less restricting than the 26 record supports,” the ALJ’s finding that plaintiff was able to frequently reach overhead bilaterally as “surgery was generally successful in relieving [plaintiff’s] symptoms,” was actually a reduction 27 in the upper left extremity limitation found by the State agency consultants, who, after reviewing the record, determined plaintiff was limited in her ability to reach overhead with her left upper 28 1 B. SUBJECTIVE SYMPTOM TESTIMONY 2 Plaintiff argues that none of the reasons provided by the ALJ for discounting her subjective 3 symptom testimony is clear and convincing, and defendant counters those arguments. Because 4 the matter is being remanded for reconsideration of the medical opinions, and the ALJ on remand 5 as a result must reconsider plaintiff’s RFC in light of the record evidence, the ALJ must also 6 reconsider on remand, pursuant to Social Security Ruling (“SSR”)8 16-3p,9 plaintiff’s subjective 7 symptom testimony and, based on his reconsideration of plaintiff’s RFC, provide specific, clear and 8 convincing reasons for discounting plaintiff’s subjective symptom testimony if warranted. See 9 Trevizo, 871 F.3d at 678 n.5; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th 10 Cir. 2014) (citation omitted) (the “ALJ must identify the testimony that was not credible, and specify 11 ‘what evidence undermines the claimant’s complaints.’”); Brown-Hunter v. Colvin, 806 F.3d 487, 12 493-94 (9th Cir. 2015) (the ALJ must identify the testimony he found not credible and “link that 13 testimony to the particular parts of the record” supporting his non-credibility determination). 14 15 VI. 16 REMAND FOR FURTHER PROCEEDINGS 17 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 18 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where 19 the record has been fully developed, it is appropriate to exercise this discretion to direct an 20 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding 21 22 8 “SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs 23 if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). 24 9 The Ninth Circuit in Trevizo noted that SSR 16-3p, which went into effect on March 28, 2016, 25 “makes clear what our precedent already required: that assessments of an individual’s testimony 26 by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be 27 expected to produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.’” Trevizo, 871 F.3d at 687 n.5 (citing SSR 16-3p). 28 1 issues that must be resolved before a determination can be made, and it is not clear from the 2 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 3 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 4 In this case, there are outstanding issues that must be resolved before a final determination 5 can be made. In an effort to expedite these proceedings and to avoid any confusion or 6 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 7 proceedings. First, because the ALJ failed to provide specific and legitimate reasons for 8 discounting the opinions of Dr. Press, the ALJ on remand shall reassess the medical opinions of 9 record, including the opinions of Dr. Press. The ALJ must explain the weight afforded to each 10 opinion and provide legally adequate reasons for any portion of an opinion that the ALJ discounts 11 or rejects. Second, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s 12 subjective allegations and either credit her testimony as true, or provide specific, clear and 13 convincing reasons, supported by substantial evidence in the case record, for discounting or 14 rejecting any testimony. Finally, if warranted, the ALJ shall reassess plaintiff’s RFC10 and 15 determine at step four, with the assistance of a VE if necessary, whether plaintiff is capable of 16 performing her past relevant work as a medical assistant. If plaintiff is not so capable, or if the ALJ 17 determines to make an alternative finding at step five, then the ALJ shall proceed to step five and 18 determine, with the assistance of a VE if necessary, whether there are jobs existing in significant 19 numbers in the regional and national economy that plaintiff can still perform. 20 / 21 / 22 / 23 / 24 / 25 26 10 Nothing in this Order is intended to disrupt the ALJ’s finding that, at the least, through the 27 date last insured, plaintiff has the severe impairments of psoriatic arthritis; bilateral knee degenerative joint disease, status post surgery; left shoulder rotator cuff tear, status post rotator 28 1 VIL. 2 CONCLUSION 3 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. 6 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. 8 This Memorandum Opinion and Order is not intended for publication, nor is it 9] intended to be included in or submitted to any online service such as Westlaw or Lexis. "0 Salk. rama DATED: September _! , 2020

PAUL L. ABRAMS

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AQ