United States District Court, D. Arizona
Honorable Deborah M. Fine United States Magistrate Judge
Lily Cortez appeals from the denial of her application for
benefits from the Social Security Administration. This Court
has jurisdiction pursuant to 42 U.S.C. § 405(g) and,
with the parties' consent to Magistrate Judge
jurisdiction, pursuant to 28 U.S.C. § 636(c). As
detailed below, the Court concludes that the ALJ's
opinion contains non-harmless legal error and remands for
court must affirm the ALJ's findings if they are
supported by substantial evidence and are free from
reversible error. Marcia v. Sullivan, 900 F.2d 172,
174 (9thCir. 1990). Substantial evidence is more
than a mere scintilla, but less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In
determining whether substantial evidence supports the
ALJ's decision, the court considers the record as a
whole, weighing both the evidence that supports and that
which detracts from the ALJ's conclusions. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). If
there is sufficient evidence to support the ALJ's
determination, the Court cannot substitute its own
determination. See Young v. Sullivan, 911 F.2d 180,
184 (9thCir. 1990). Thus, the Court must affirm
the ALJ's decision where the evidence considered in its
entirety substantially supports it and the decision is free
from reversible error. 42 U.S.C. § 405(g); Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).
has a high school education and was 51 years old at her
amended onset date. (Tr. 14, 60) One of Cortez's
arguments is that the ALJ did not properly evaluate the
medical opinions from her treating physicians. (Doc. 16 at
11-19) The Court agrees.
treating physician's opinion “is contradicted by
another doctor's opinion, an ALJ may only reject it by
providing specific and legitimate reasons that are supported
by substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). “The
ALJ can meet this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings.” Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989) (quoting Cotton v.
Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).
See also Revels v. Berryhill, 874 F.3d 648, 654-55
opinion, the ALJ described some of the limitations detailed
by one of Cortez's treating providers, Dr. Brownsberger,
and then stated the following:
The undersigned assigns this opinion little weight because it
is inconsistent with the medical evidence. The evidence shows
that the claimant has multiple impairments including
degenerative disc disease and ambulated slowly (Exhibits 4F;
6F; 38F). In January 2015, treatment records indicate the
claimant's epidural injections provided five to six
months of relief (Exhibit 11F/1). She also alleged hip pain
and was diagnosed with trochanter bursitis (Exhibit 39F/53).
She underwent his bursectomies and recovered well (Exhibits
20F/3, 19, 23; 32F/14; 42F/3). In October 2015, the
claimant's treating provider stated the claimant's
bursitis improved (Exhibit 23F/1).
(Tr. 26) The opinion then restated these same six sentences.
(Tr. 26-27) The subsequent two paragraphs of the opinion
follow the same template: a description of limitations
outlined by Cortez's treating physicians, Dr. Ho and Dr.
Randazzo, followed by these same six sentences. (Tr. 27)
repeating the same sequence of sentences could ever satisfy
the ALJ's obligation to “provid[e] specific and
legitimate reasons that are supported by substantial
evidence, ” Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005), this attempt is
the ALJ acknowledges Cortez's “multiple
impairments.” This is consistent with the treating
physicians' statements. Then, the opinion states that her
“January 2015 treatment records indicate the
claimant's epidural injections provided five to six
months of relief (Exhibit 11F/1).” The Court notes that
this citation is to a medical record where Cortez reported
that an injection had provided relief three years earlier.
Moreover, the record shows that Cortez received epidural
injections on March 20, 2105, and then experienced such
emergent pain that she presented to the emergency department
on April 5, 2015. (Tr. 1074, 1948, 1962-63) This kind of
cherry-picking in the record is impermissible. Ghanim v.
Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014).
next sentence-that Cortez “alleged hip pain and was
diagnosed with trochanter bursitis”-is again consistent
with the opinions the ALJ was attempting to discount. The
final two sentences state that Cortez had surgeries,
recovered well, and implied that her treating provider
subsequently stated in October 2015 that her bursitis had
improved. First, the Court notes that the cited record was
from October 2014, predated her surgeries, and stated in
We last saw her in the clinic at the end of August with
complaints of worsening low back pain. I have been treating
Lily also for bilateral trochanteric bursitis, and she
responded well from that standpoint. She has had worsening
pain in her low back though, also with bilateral lower
extremity radiculopathy, left greater than right, in
predominately an L4 distribution. She ...