Holden v. Astrue

Filing 22

ORDER - IT IS ORDERED: 1. Defendant's decision denying insurance benefits is reversed. 2. The case is remanded for further proceedings consistent with this order. 3. The Clerk is directed to enter judgment accordingly. 4. The Clerk shall terminate this matter. Signed by Judge David G Campbell on 1/25/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Garland Scott Holden, Plaintiff, 10 11 12 No. CV11-1726-PHX-DGC ORDER vs. Michael J. Astrue, Commissioner, Social Security Administration, 13 Defendant. 14 15 Plaintiff Garland Scott Holden applied for disability insurance benefits and 16 supplemental social security income on April 15, 2008, claiming to be disabled since 17 December 26, 2006. Tr. 127, 135. His claim was denied on July 17, 2008 (Tr. 52-53), 18 and upon reconsideration on January 12, 2009 (Tr. 54-55). 19 Administrative Law Judge (“ALJ”) was held on April 19, 2010. 20 prehearing letter dated April 2, 2010, Plaintiff moved to amend his alleged onset date to 21 June 3, 2008. Tr. 31, 212. The ALJ issued a written decision on July 21, 2010, finding 22 that Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 12-22. 23 The Appeals Council denied review (Tr. 1-5), making the ALJ’s decision the final 24 decision of Defendant for purposes of judicial review. Plaintiff commenced this action 25 pursuant to 42 U.S.C. § 405(g). Doc. 1. The parties have not requested oral argument. 26 I. A hearing before an Tr. 27-50. In a Background. 27 Plaintiff alleges disability since June 3, 2008, for chronic knee pain and a seizure 28 disorder. Tr. 31, 14. Plaintiff’s appeal is limited to the ALJ’s finding of no disability 1 with respect to Plaintiff’s seizure disorder. Doc. 20 at 4-8. 2 A. Medical Evidence. 3 On June 29, 2007, prior to Plaintiff’s alleged onset date, he presented to the 4 Department of Veteran Affairs (“VA”) with complaints of an alleged seizure disorder. 5 Tr. 18, 351. 6 Plaintiff admitted that he drank a 12-pack of alcohol a day. Tr. 18, 351. Plaintiff was 7 advised not to drive or operate machinery and to seek further testing. Tr. 18, 353-54. Plaintiff reported seizures occurring about one week apart. Tr. 351. 8 On August 3, 2007, Plaintiff was admitted to Payson Regional Hospital after 9 another seizure. Tr. 18, 257. He was treated by Dr. Michael Paulk who noted that 10 Plaintiff was intoxicated upon admission. Id. Dr. Paulk released Plaintiff with the 11 instructions to stop drinking alcohol and to follow-up with his primary care physician as 12 needed. Tr. 18, 264. 13 On October 24, 2007, Plaintiff returned to Payson Regional after experiencing 14 another seizure. Tr. 18, 224. Plaintiff was again treated by Dr. Paulk who noted that 15 Plaintiff had stopped taking his medication and had been drinking. Id. Dr. Paulk 16 released Plaintiff with the instructions to take his medications as prescribed and to stop 17 drinking alcohol. Tr. 18, 225. 18 On November 6, 2007, Plaintiff was treated by Dr. John Sorteberg at the VA. 19 Tr. 19, 343. Plaintiff reported having a seizure the day before and experiencing seizures 20 about every three weeks. 21 medications and that he was waiting to see a neurologist about an abnormal MRI. Id. Dr. 22 Sorteberg reviewed Plaintiff’s medical records and determined that his seizures were 23 likely the result of brain injury to frontal lobes and drinking alcohol. Id. Dr. Sorteberg 24 also noted that Plaintiff took medicine to minimize his withdrawal effects of alcohol. 25 Tr. 19, 343. Dr. Sorteberg advised Plaintiff not to drink anymore. Id. Tr. 343. Plaintiff reported not taking any anti-seizure 26 A VA note from November 13, 2007, indicates that Plaintiff presented with 27 generalized epilepsy, and that Plaintiff reported he had been drinking a 12-pack of beer, 28 but that he was no longer drinking. Tr. 19, 341. -2- 1 On June 3, 2008, the amended alleged onset date, Dr. Lawrence opined that 2 Plaintiff’s seizures were not well enough controlled to permit him to work, despite 3 medication. Tr. 19, 429-29. 4 On October 1, 2008, Plaintiff suffered a seizure in the backseat of a police car and 5 was taken to the emergency room. Tr. 19. Plaintiff was again treated by Dr. Paulk, who 6 noted that Plaintiff was intoxicated. Id. Dr. Paulk released Plaintiff with the instruction 7 to avoid alcohol and to take his prescription medications regularly. Id. 8 9 10 On October 29, 2008, Plaintiff called Dr. Lawrence, requesting to be released back to work because his seizures were under control. Based on Plaintiff’s report, Dr. Lawrence opined that Plaintiff could go back to work part-time. Tr. 19, 422. 11 On November 5, 2008, Plaintiff called the VA and reported that he was still 12 experiencing seizures. Tr. 19, 421. Plaintiff said he was taking his medication, but that 13 he did not take the full dosage because it caused him to get dizzy. Tr. 421. 14 On November 18, 2008, Dr. Lawrence noted that Plaintiff’s last seizure had been a 15 week earlier. Tr. 421, 468. Plaintiff reported not feeling well taking Carbamazepine and 16 forgetting to take that day’s dosage. Tr. 468. Dr. Lawrence indicated that he planned to 17 adjust Plaintiff’s medications and specifically increase his Dilantin dosage and taper him 18 off Carbamazepine. Id. Plaintiff sought treatment from Dr. Lawrence on December 3, 19 2008, to further adjust his medication. Id. On January 14, 2009, Plaintiff reported that 20 he was still having partial seizures. Tr. 468. 21 On January 26, 2009, Plaintiff was admitted to Payson Regional and complained 22 of a seizure disorder and alcohol withdrawal. Tr. 19, 612. At the time he was at 23 Community Bridges for alcohol therapy, but had difficulty obtaining his increased 24 Dilantin dosage and had a grand mal seizure the night before his admission. Tr. 612. 25 On March 15, 2009, Plaintiff was admitted to Payson Regional after having 26 consumed eight ounces of isopropyl alcohol in 45 minutes. Tr. 607. Plaintiff reported 27 that he was an alcoholic, had been in an alcohol withdrawal program, but had fallen off 28 the wagon. Id. At that time, Plaintiff reported taking both Dilantin and Carbamazepine. -3- 1 Id. Plaintiff was determined to have a seizure disorder secondary to alcohol abuse 2 presently stable. Tr. 608. 3 4 On September 29, 2009, Plaintiff reported drinking a six-pack of beer one day a week. Tr. 19, 714. 5 At the request of the Disability Determination Service Administration (“DDSA”), 6 Plaintiff attended a physical examination with Dr. Ketan Vora on June 27, 2008. Tr. 20, 7 403-408. 8 control (Tr. 407), and opined that Plaintiff should not operate any heavy machinery until 9 his seizure disorder stabilized “to prevent endangerment of his life or the life of others” 10 (Tr. 19, 408). Plaintiff was described as “an adequate historian” who provided a history 11 “consistent throughout” the examination, and who “was not noted to have exaggerated 12 any of his symptoms.” Tr. 406. Plaintiff reported seizures occurring at a rate of twice 13 per month for a year. Tr. 404. At the time, Plaintiff was taking Carbamazepine for his 14 seizures, and Plaintiff informed Dr. Vora that the dosage had recently been increased. Id. 15 Plaintiff admitted to drinking a six-pack of beer per day. Tr. 19, 405. Dr. Vora diagnosed Plaintiff with a seizure disorder, currently not under 16 In July 2008, state agency physician Dr. Charles Fina reviewed Plaintiff’s medical 17 records and completed an RFC assessment. Tr. 20, 408-416. The assessment indicated 18 that Plaintiff’s primary diagnosis was chronic alcoholism and a seizure disorder. Tr. 408. 19 The assessment indicated that functional capacity limits relative to Plaintiff’s seizures 20 would “be addressed in the body of the text” (Tr. 410), but Dr. Fina does not appear to 21 have addressed such limits in the assessment. 22 In January 2009, state agency physician Dr. Vivienne Kattapong reviewed 23 Plaintiff’s record and affirmed the previous RFC determinations. Tr. 20, 464. Dr. 24 Kattapong noted that Plaintiff’s “functional allegations are not credible,” that his seizures 25 appear related to alcohol abuse, and that he has a history of non-compliance. Id. 26 On November 20, 2009, Dr. L. Friedman, Plaintiff’s most recent treating 27 physician, assessed Plaintiff’s functional capacity. Tr. 20, 735-36. Dr. Friedman opined 28 that Plaintiff has intermittent and unpredictable grand mal and complex partial seizures at -4- 1 a rate of approximately “1/month.” Tr. 736. Dr. Friedman’s specific limitation for 2 Plaintiff was that he was not allowed to drive. Id. 3 B. Hearing Testimony. 4 At the April 19, 2010 hearing, Plaintiff testified that his seizures “happen about 5 still once a month or so.” Tr. 35. Plaintiff stated that he cannot describe the seizures 6 because he loses consciousness. Id. Plaintiff testified he sometimes loses consciousness 7 for about a half hour during a grand mal seizure (Tr. 35-36, 37), and then suffers from 8 severe fatigue for two to three days thereafter (Tr. 36, 37). Plaintiff testified he can 9 remember certain things about his petit mal seizures (Tr. 36), and that he suffers from 10 severe fatigue for the remainder of the day and sometimes the day after as well (Tr. 37- 11 38). Plaintiff testified he takes Dilantin to control his seizures. Id. Plaintiff stated that he 12 has been taking Dilantin for about three years, but the dosage has been changed over time 13 because he gets sick if the dosage is too large and still has seizures if the dosage is too 14 small. Id. Plaintiff testified that he stopped consuming alcohol six months before the 15 hearing, and that he continued to experience seizures during this time. Tr. 36-37. 16 The ALJ then noted that his problem with the case was that the record showed that 17 Plaintiff continued to drink significantly and stated that “I don’t pay people who . . . are 18 alcoholics.” Tr. 44. Plaintiff’s attorney responded by pointing to medical records from 19 after the amended alleged onset date and noting that they do not discuss whether 20 Plaintiff’s seizures are alcohol related. Id. The ALJ then asked Plaintiff if he had 21 undergone alcohol rehabilitation, and Plaintiff responded that he had a year earlier for 30 22 days, but he did not recall the exact date. Tr. 45. The ALJ responded by announcing that 23 “you know, when people stop drinking alcohol, you know, alcohol has been such a 24 significant thing in their life, they know when they stopped.” Id. The ALJ asked 25 Plaintiff about the 2009 medical records from Southwest Behavior and the Casa Regional 26 Medical Center regarding his alcohol consumption, and Plaintiff testified that those 27 records were wrong. Tr. 44-46. The ALJ concluded by noting “he’s not owning up to 28 the alcohol problem.” Tr. 46. -5- 1 The ALJ asked vocational expert, Mr. Bluth, about a hypothetical person of 2 Plaintiff’s age and education who is able to do unskilled sedentary work, with the further 3 limitations of no crawling, crouching, climbing, squatting, or kneeling; no exposure to 4 unprotected heights or moving machinery; and no use of extremities for pushing or 5 pulling, lifting and carrying ten pounds occasionally lifting, and carrying five pounds 6 frequently. Tr. 47. Mr. Bluth responded that there are jobs that exist in the national 7 economy for such a hypothetical person, and gave examples of cashiers and quality 8 control inspectors. Tr. 48. The ALJ asked if a person would be terminated if they missed 9 three or more days per month and Mr. Bluth responded affirmatively. Id. Claimant’s 10 attorney asked whether a person who missed two days a month on a regular basis would 11 have difficulty sustaining work and again Mr. Bluth responded that they would. Id. 12 II. Standard of Review. 13 Defendant’s decision to deny benefits will be vacated “only if it is not supported 14 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 15 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but 16 less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept 17 as adequate to support a conclusion.” 18 supported by substantial evidence, the Court must consider the record as a whole, 19 weighing both the evidence that supports the decision and the evidence that detracts from 20 it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). The Court cannot affirm the 21 decision “simply by isolating a specific quantum of supporting evidence.” 22 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); see Robbins, 466 F.3d at 882. 23 III. 24 Id. In determining whether the decision is Day v. Analysis. Whether a claimant is disabled is determined using a five-step sequential 25 evaluation process. The claimant bears the burden in steps one through four. 26 establish disability, the claimant must show (1) he is not currently working, (2) he has a 27 severe medically determinable physical or mental impairment, and (3) the impairment 28 meets or equals a listed impairment or (4) his residual functional capacity (“RFC”) -6- To 1 precludes him from performing his past work.1 At step five, the Commissioner bears the 2 burden of showing that the claimant has the RFC to perform other work that exists in 3 substantial numbers in the national economy. 20 C.F.R. § 416.920(a)(4)(i)-(iv); see 20 4 C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). “The Commissioner can meet 5 this burden through the testimony of a vocational expert or by reference to the Medical 6 Vocational Guidelines[.]” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (citing 7 Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999)). 8 Plaintiff has not worked since the alleged onset date of disability. Tr. 14, ¶ 2. The 9 ALJ found that although Plaintiff’s chronic knee pain and seizure disorder were severe 10 impairments when considered in combination (Tr. 14, ¶ 3), Plaintiff did not have an 11 impairment or combination of impairments severe enough to meet or equal one of the 12 listed impairments (Tr. 16-17, ¶ 4). The ALJ concluded that while Plaintiff is not able to 13 perform his past work (Tr. 20, ¶ 6), he is not disabled because he has the RFC to perform 14 unskilled sedentary work (Tr. 17, ¶ 5), including the jobs of assembler, cashier, and 15 quality control inspector (Tr. 21). 16 Plaintiff argues that the ALJ erred in failing to find that his impairments meet or 17 equal listing 11.02 (Doc. 20 at 6), failing properly to consider the effects of all of 18 Plaintiff’s impairments in determining RFC (id. at 4-5), rejecting the opinion of a treating 19 source (id. at 5), and failing properly to evaluate Plaintiff’s credibility (id. at 7). 20 Defendant contends that the ALJ’s decision is supported by substantial evidence and free 21 from legal error. Doc. 21 at 8. 22 A. 23 “The Commissioner has promulgated a ‘Listing of Impairments’ that are ‘so 24 severe that they are irrebuttably presumed disabling, without any specific finding as to 25 the claimant’s ability to perform [her] past relevant work or any other jobs.’” Frazier v. 26 27 28 Listing 11.02 – Epilepsy — Convulsive Epilepsy. 1 RFC is the most a claimant can do given the limitations caused by his impairments. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989); 20 C.F.R. § 416.927(a); SSR 96-8p, 1996 WL 374184 (July 2, 1996). -7- 1 Astrue, No. CV-09-3063-CI, 2010 WL 3910331, at *3 (E.D. Wash. Oct. 4, 2010) 2 (quoting Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995)). Listing 11.02 requires 3 “convulsive epilepsy (grand mal or psychomotor), documented by detailed description of 4 a typical seizure pattern, including all associated phenomena; occurring more frequently 5 than once a month in spite of at least 3 months of prescribed treatment” with either 6 (1) daytime episodes or (2) nocturnal episodes manifesting residuals which interfere 7 significantly with activity during the day. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02. 8 Section 11.00 of Appendix 1 provides further information about evaluation of listing 9 11.02: “Under 11.02 [], the criteria can be applied only if the impairment persists despite 10 the fact that the individual is following prescribed antiepileptic treatment.” 11 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00(A). “Where documentation shows that use 12 of alcohol or drugs affects adherence to prescribed therapy or may play a part in the 13 precipitation of seizures, this must also be considered in the overall assessment of 14 impairment level.” Id. 15 The ALJ found that Plaintiff did not meet listing 11.02. Tr. 17. Plaintiff argues 16 that the ALJ erred because the record demonstrates that he has been experiencing 17 seizures at a frequency of more than once per month since June 2008. Doc. 20 at 6. 18 Under listing 11.02, Plaintiff must prove that his grand mal seizures occurred more 19 than once a month. There is no indication from his medical records that the seizures 20 occurred this frequently, and Plaintiff stated in his own hearing testimony that he was 21 having seizures “about . . . once a month.” Tr. 35. Questionnaires submitted by Plaintiff 22 and his wife advising that Plaintiff was having two seizures a month in June of 2008 are 23 the only evidence of record which supports a finding of such frequency. Tr. 170, 173; 24 Doc. 20 at 6. These questionnaires do not specify whether the June 2008 seizures were 25 grand mal or petit mal and thus are too vague to indicate that Plaintiff met the frequency 26 and severity of seizures required under listing 11.02. 27 opinion that Plaintiff experienced seizures at a rate of approximately “1/month” (Tr. 736) 28 fails to satisfy the listing’s requirement of “more frequently than once a month.” 20 -8- Additionally, Dr. Friedman’s 1 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02. In sum, the record does not show that Plaintiff 2 experienced grand mal seizures at the frequency required to meet or equal listing 11.02. 3 B. 4 The ALJ concluded that Plaintiff can perform unskilled sedentary work with the 5 following additional limitations: no crawling, crouching, climbing, squatting, or kneeling; 6 no exposure to unprotected heights or moving machinery; no use of extremities for 7 pushing or pulling; and lifting and carrying limited to ten pounds occasionally and five 8 pounds frequently. Tr. 17, 18. Plaintiff argues that the ALJ erred in improperly rejecting 9 a medical opinion, misinterpreting medical evidence, and failing to consider all of his 10 The RFC Determination. seizure symptoms. Doc. 20 at 4. 11 The law is clear. In determining RFC, the ALJ must consider the combined 12 effects of all impairments. 42 U.S.C. ' 423(d)(2)(B); see also Macri v. Chater, 93 F.3d 13 540, 545 (9th Cir. 1996) (citation omitted). The ALJ found the combination of Plaintiff’s 14 seizure and knee conditions to be severe (Tr. 14, ¶ 3), but imposed no limitation with 15 respect to Plaintiff’s testimony that he had no functional capacity for one to three days 16 after a seizure. 17 18 1. Medical Opinion Evidence. a. Dr. William H. Lawrence. 19 The ALJ gave little weight to Dr. Lawrence’s June 3, 2008, opinion on the 20 grounds that his opinion simply stated that Plaintiff could not work and did not detail any 21 specific limitations, and that the opinion of disability is an issue reserved for the 22 Commissioner. Tr. 19. The ALJ did not specify what weight he gave to Dr. Lawrence’s 23 October 29, 2008, opinion, and Plaintiff argues that affording this opinion any weight 24 would constitute a misinterpretation of the evidence because the record shows Plaintiff 25 had experienced seizures earlier in October 2008 (Tr. 506), and again a few weeks after 26 Dr. Lawrence’s release (Tr. 421). Defendant submits that the ALJ presumably adopted 27 Dr. Lawrence’s October 29, 2008 opinion because it comports with the ALJ’s ultimate 28 determination that Plaintiff could perform work, and argues that the ALJ’s failure to state -9- 1 what weight he gave the opinion is harmless error. Doc. 21 at 12 (citing Tommasetti v. 2 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“the court will not reverse an ALJ’s 3 decision for harmless error, which exists when it is clear from the record that the ALJ’s 4 error was inconsequential to the ultimate nondisability determination.” (quotation marks 5 and citations omitted)). 6 Plaintiff’s disability claim, the Court finds that the ALJ committed harmless error when 7 he failed to specify the weight he gave to it. 8 b. Since Dr. Lawrence’s October opinion does not support Dr. L. Friedman. 9 Dr. Friedman completed a medical assessment form on November 20, 2009, 10 opining that due to “intermittent and unpredictable seizures” occurring approximately 11 “1/month” (Tr. 736), Plaintiff should not drive (id.). Plaintiff asserts that the ALJ erred 12 in rejecting Dr. Friedman’s opinion regarding his seizure frequency. Doc. 20 at 5. To the 13 contrary, the ALJ stated that he gave “significant weight” to Dr. Freidman’s opinion, and 14 adopted Dr. Friedman’s opinion in finding that Plaintiff’s RFC prohibits work near 15 moving machinery. Tr. 20. Consistent with Dr. Friedman’s assessment, the ALJ also 16 concluded that Plaintiff experiences seizures. Id. This does not constitute legal error. 17 c. Medical Opinion Summary. 18 The ALJ determined that Plaintiff’s “seizures are alcohol-induced and can be 19 controlled through a combination of sobriety and compliance with prescription 20 medications.” Tr. 20. Plaintiff submits that the record lacks any evidence indicating a 21 diagnosis of alcohol-induced seizures, and argues that the ALJ misinterpreted the 22 evidence in making a diagnosis unsupported by the record. Doc. 20 at 5. 23 The ALJ based his conclusion on a finding that the times Plaintiff suffered 24 seizures “were generally coupled with severe alcohol intoxication and/or noncompliance 25 with prescription medications.” 26 indicating Plaintiff experienced seizures when he consumed alcohol and did not take his 27 prescription medications. Tr. 18-20. For example, on November 6, 2007, Dr. Sorteberg 28 concluded that Plaintiff’s seizures were likely due “brain injury to frontal lobes and Tr. 20. The ALJ’s opinion cites to medical notes - 10 - 1 drinking alcohol.” Tr. 343. His plan for Plaintiff was: “Don’t drink alcohol anymore” 2 and see a neurologist. Id. On October 1, 2008, Plaintiff had a seizure while in custody in 3 the back of a police car and was taken to the hospital. Tr. 506-508. He was intoxicated 4 upon arrival. 5 medication and “don’t drink alcohol.” Tr. 507. These facts were noted by the ALJ. 6 Tr. 19. The ALJ also noted that Plaintiff attended alcohol therapy in January of 2009, but 7 was admitted to the hospital in March of that year after drinking isopropyl alcohol 8 because there was no beer in the house. Id. Special instructions given to Plaintiff on discharge were to take his 9 In addition to these and similar facts he recited, the ALJ gave significant weight to 10 state agency examiner Dr. Kattapong’s opinion that Plaintiff’s seizures are related to 11 alcohol abuse. Tr. 20, 464. No medical source opinion contradicts the assessment of Dr. 12 Kattapong, and much of Plaintiff’s history supports it. Because an examining physician’s 13 opinion that comports with other record evidence may constitute substantial evidence, the 14 ALJ’s conclusion that Plaintiff’s seizures are alcohol-related and controllable is 15 supported by substantial evidence. See Thomas, 278 F.3d at 957; see also Tonapetyan v. 16 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician=s opinion may 17 constitute substantial evidence supporting ALJ=s decision).2 2. 18 Plaintiff’s Testimony. 19 Plaintiff testified that seizures leave him too weak to work for one to three days 20 (Tr. 35-36, 37-38), but the ALJ found that his testimony concerning the limiting effects 21 of his symptoms were not credible (Tr. 20). In reaching this conclusion, the ALJ was 22 required to evaluate Plaintiff’s testimony using the two-step analysis established by the 23 Ninth Circuit. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Applying the 24 25 26 27 28 2 Plaintiff’s opening brief (he did not file a reply brief) takes a scatter-shot approach to its arguments, failing to identify defects in the ALJ’s decision with precision. Plaintiff does not specifically assert that the ALJ erred in rejecting his testimony that he had not been drinking for several months and yet continues to have seizures. Doc. 20 at 7. If Plaintiff were to make this argument, the Court would conclude that the ALJ’s discounting of this testimony is supported by the substantial evidence recited in his opinion, as described above, including Dr. Kattapong’s opinion. See Tr. 17-20. - 11 - 1 test of Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), the ALJ first determined that 2 Plaintiff’s impairments could reasonably produce some of the symptoms alleged. Tr. 20. 3 Given this conclusion, and because the ALJ found no evidence of malingering, the ALJ 4 was required to present “specific, clear and convincing reasons” for finding Plaintiff not 5 entirely credible. Smolen, 80 F.3d at 1281. This clear and convincing standard “is the 6 most demanding required in Social Security cases.” Moore v. Comm’r of SSA, 278 F.3d 7 920, 924 (9th Cir. 2002). 8 Unfortunately, in explaining his reasons for rejecting Plaintiff’s testimony, the 9 ALJ said only this: “Claimant’s statements concerning the intensity, persistence and 10 limiting effects of these symptoms are not credible to the extent they are inconsistent with 11 the above residual functional capacity assessment.” Tr. 20. No further explanation was 12 provided. The ALJ did not identify or discuss the evidence on which he was relying, did 13 not give specific, clear, and convincing reasons for his determination, and made no 14 specific findings. This constitutes legal error. See Parra v. Astrue, 481 F.3d 742, 750 15 (9th Cir. 2007) (general assertions that the claimant’s testimony is not credible are 16 insufficient because the ALJ must identify “what testimony is not credible and what 17 evidence undermines the claimant's complaints.”). 18 III. Remedy. 19 Defendant’s decision denying benefits must be reversed because it is based on 20 legal error. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (2008). This Circuit 21 has held that evidence should be credited as true, and an action remanded for an award of 22 benefits, where (1) the ALJ has failed to provide legally sufficient reasons for rejecting 23 evidence, (2) no outstanding issues remain that must be resolved before a determination 24 of disability can be made, and (3) it is clear from the record that the ALJ would be 25 required to find the claimant disabled were the rejected evidence credited as true. See, 26 e.g., Varney v. Sec’y of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988); Smolen, 80 F.3d at 27 1292; Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Orn v. Astrue, 495 F.3d 28 625, 640 (9th Cir. 2007). The second and third steps of this test are not satisfied here. - 12 - 1 Plaintiff testified that his seizures leave him unable to work for one to three days. The 2 vocational expert testified that an absenteeism rate of two days per month would make 3 sustained employment difficult, and that termination would result from missing three 4 days in any given month. Tr. 48. The Court has found, however, that substantial 5 evidence supports the ALJ’s determination that Plaintiff’s seizures are alcohol-related 6 and controllable. The record therefore does not show that Plaintiff would miss two or 7 three days per month as a result of his seizure condition if he took his medications and 8 stopped drinking. As a result, it is not clear from the record that the ALJ would be 9 required to find Plaintiff disabled if Plaintiff’s testimony about the effects of a seizure is 10 credited as true. Remand to the ALJ is appropriate to determine whether Plaintiff’s 11 condition, in a controllable state, would require a finding of disability. 12 IT IS ORDERED: 13 1. Defendant’s decision denying insurance benefits is reversed. 14 2. The case is remanded for further proceedings consistent with this order. 15 3. The Clerk is directed to enter judgment accordingly. 16 4. The Clerk shall terminate this matter. 17 Dated this 25th day of January, 2013. 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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