(SS) Jannicelli v. Commissioner of Social Security, 2:15-cv-02521

Plaintiff Tina Marie Jannicelli applied for Social Security disability benefits alleging onset May 15, 2007; initial ALJ denied benefits and this court previously remanded for reconsideration of treating physician Dr. Orman’s opinion.
On remand a second hearing (July 15, 2014) resulted in an ALJ decision (Aug. 8, 2014) finding severe impairments including fibromyalgia, migraines, left knee disease, depression, and anxiety but concluding plaintiff retained light work capacity with limitations.
The ALJ gave minimal weight to treating physician Dr. Orman’s January 2009 Medical Source Statement, characterizing it as a conclusory check-box form lacking objective support and inconsistent with other evidence.
The ALJ relied on examining and nonexamining opinions (Drs. Swillinger, Flanagan, Brovender) and plaintiff’s activity records to discount Dr. Orman and to assess credibility.
The magistrate judge found the ALJ repeated the same flawed reason for rejecting Dr. Orman’s opinion as in the prior remand, overlooked objective observations (e.g., trigger points, breakthrough pain, migraine hospitalizations), and recommended a sentence-four remand for further development and findings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Weight given to treating physician Dr. Orman’s MSS	ALJ improperly rejected Dr. Orman; his observations constitute objective support and were not adequately considered	ALJ permissibly discounted the check-box MSS as conclusory, unsupported by objective findings and inconsistent with other evidence	Remand — ALJ again erred by failing to account for Dr. Orman’s documented observations and prior remand instruction; further consideration required
Evaluation of migraine headaches	ALJ failed to adequately evaluate migraine evidence and effects on work capacity	Post-remand exam evidence (Dr. Flanagan) and expert testimony (Dr. Brovender) support ALJ’s assessment	No reversible error on migraines; court found ALJ did obtain and consider additional evidence
Credibility of plaintiff’s testimony	Plaintiff contends ALJ improperly discredited subjective symptom testimony	ALJ relied on inconsistent statements (e.g., cutting vs. breaking wood) and activity reports to impugn credibility	ALJ’s reliance on inconsistencies was permissible as a reason to question credibility, but overall remand required for medical-opinion error
Need for remand or further development	Plaintiff seeks reversal or benefits based on improperly rejected treating opinion	Commissioner supports denial based on substantial evidence and contradictions	Court recommends sentence-four remand to develop record and address deficiencies in ALJ’s treatment of Dr. Orman’s opinion

Lester v. Chater, 81 F.3d 821 (9th Cir.) (treating physician rule and required reasons to reject treating opinions)
Smolen v. Chater, 80 F.3d 1273 (9th Cir.) (symptom test and evaluation of subjective complaints)
Magallanes v. Bowen, 881 F.2d 747 (9th Cir.) (how to provide specific and legitimate reasons supported by substantial evidence)
Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.) (objective evidence and credibility of pain testimony)
Orn v. Astrue, 495 F.3d 625 (9th Cir.) (daily activities and credibility limits)
Carmickle v. Commissioner, 533 F.3d 1155 (9th Cir.) (ALJ may disbelieve testimony if specific findings support that conclusion)
Tackett v. Apfel, 180 F.3d 1094 (9th Cir.) (substantial-evidence standard in Social Security review)
Richardson v. Perales, 402 U.S. 389 (U.S.) (definition of substantial evidence)