Stevens v. Astrue
Filing
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ORDER that the Defendant's decision denying benefits is reversed. The Clerk is directed to remand the case for an award of benefits. Signed by Judge David G Campbell on 6/4/12. (LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Manuel Stevens III,
Plaintiff,
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No. CV11-1978-PHX-DGC
ORDER
v.
Michael J. Astrue, Commissioner of the
Social Security Administration,
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Defendant.
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In December 2007 and April 2008, Plaintiff applied for disability income benefits
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and supplemental security income, alleging disability beginning October 29, 2007.
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Tr. 17. The Social Security Administration denied these claims on June 3, 2008, and
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affirmed its denial on August 13, 2008. Id. Plaintiff appealed, and Administrative Law
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Judge (“ALJ”) Ronald C. Dickinson held a hearing on January 25, 2010. Tr. 38. The
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ALJ issued a written decision on March 15, 2010, finding that Plaintiff was not disabled
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under the terms of the Social Security Act. Tr. 17-28. This became the final agency
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decision when the Appeals Council denied review. Tr. 1-3. Plaintiff filed a motion for
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judicial review, requesting remand for an award of benefits. Doc. 13. Defendant filed a
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memorandum in opposition (Doc. 14), and Plaintiff filed a reply. Doc. 15. For the
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reasons that follow, the Court will grant Plaintiff’s motion, vacate Defendant’s decision,
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and remand for an award of benefits.1
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Plaintiff’s request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court=s decision. See Fed. R. Civ. P. 78(b).
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I.
Standard of Review.
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Defendant=s decision to deny benefits will be vacated “only if it is not supported
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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d
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880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but
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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept
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as adequate to support a conclusion.”
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supported by substantial evidence, the Court must consider the record as a whole,
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weighing both the evidence that supports the decision and the evidence that detracts from
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it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence
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to support the Commissioner’s determination, the Court cannot substitute its own
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determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).
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II.
Id.
In determining whether the decision is
Analysis.
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Determining whether a claimant is disabled involves a sequential five-step
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evaluation process. The claimant must show (1) he is not currently working, (2) he has a
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severe physical or mental impairment, and (3) the impairment meets or equals a listed
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impairment or (4) his residual functional capacity (“RFC”) precludes him from
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performing his past work. If at any step the Commission determines that a claimant is or
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is not disabled, the analysis ends; otherwise it proceeds to the next step. If the claimant
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establishes his burden through step four, the Commissioner bears the burden at step five
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of showing that the claimant has the RFC to perform other work that exists in substantial
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numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
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The ALJ found that Plaintiff had not worked since October 29, 2007. Tr. 19. The
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ALJ found that Plaintiff suffered from the following severe combination of impairments:
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status-post L5-S1 fusion surgery, low back pain, apnea, hypertension, obesity, insomnia,
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depression, anxiety disorder, and a history of narcotic abuse. Id. The ALJ found that
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Plaintiff’s impairments did not meet or equal one of the listed impairments. Tr. 20. The
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ALJ found Plaintiff to have the RFC to perform light and sedentary work and to be able
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to perform unskilled work that does not involve crawling, crouching, squatting, kneeling,
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or the use of his legs or feet to push or pull, and that would allow him to alternate
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between sitting and standing. Tr. 21. The ALJ concluded that Plaintiff would not be able
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to perform his past work, but that his RFC, in consideration with his work experience,
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age, and education, would allow him to perform other work that exists in significant
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numbers in the national economy. Tr. 26-27.
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Plaintiff asserts that the ALJ erred by (1) rejecting the assessments of his treating
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physician, Alicia Guice, M.D., (2) rejecting Plaintiff’s subjective complaints about his
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symptoms without giving clear and convincing reasons for doing so, and (3) determining
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Plaintiff’s RFC without stating any basis on the record. Doc. 13 at 9-21. Defendant
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responds that the ALJ’s decision was based on substantial evidence and the ALJ properly
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considered medical source evidence and Plaintiff’s subjective complaints in finding that
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he was capable of light or sedentary work. Doc. 14 at 10-25.
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A.
Dr. Guice’s Opinion.
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“The medical opinion of a claimant=s treating physician is entitled to ‘special
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weight.’” Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (quoting Embrey v.
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Bowen, 849 F.2d 418, 421 (9th Cir. 1988)). “The rationale for giving the treating
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physician=s opinion special weight is that he is employed to cure and has a greater
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opportunity to know and observe the patient as an individual.” McCallister v. Sullivan,
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888 F.2d 599, 602 (9th Cir. 1989) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.
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1987)). An ALJ may reject “the treating physician’s opinion, but only by setting forth
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‘specific, legitimate reasons for doing so, and this decision must itself be based on
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substantial evidence.’” Rodriguez, 876 F.2d at 762 (quoting Cotton v. Bowen, 799 F.2d
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1403, 1408 (1986)). The ALJ can meet this burden “by setting out a detailed and
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thorough summary of the facts and conflicting clinical evidence, stating his interpretation
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thereof, and making findings.” Reddick, 157 F.3d at 725. Furthermore, where the
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treating physician’s opinion is not contradicted by another physician, the ALJ’s reasons
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for rejecting the opinion must be “clear and convincing.” Rodriguez, 876 F.2d at 762; see
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Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (“[A]n ALJ may reject a treating
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doctor’s medical opinion, if no other doctor has contradicted it, only for ‘clear and
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convincing’ reasons supported by substantial evidence.”) (citing Reddick, 157 F.3d at
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725). Similarly, clear and convincing reasons are required to reject a treating physician’s
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subjective judgments and ultimate conclusions. See Lester v. Chater, 81 F.3d 821, 830-
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33 (9th Cir. 1996); Embrey, 849 F.2d at 422 (“The subjective judgments of treating
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physicians are important, and properly play a part in their medical evaluations.
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Accordingly, the ultimate conclusions of those physicians must be given substantial
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weight; they cannot be disregarded unless clear and convincing reasons for doing so exist
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and are set forth in proper detail.”).
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Plaintiff testified that he had been seeing Dr. Guice for about seven or eight years.
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Tr. 56. The record contains reports from January 22, 2009 through December 30, 2009,
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showing that Dr. Guice treated Plaintiff over that period primarily for low back pain,
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anxiety, depression, and insomnia. Tr. 478-489. On December 30, 2009, Dr. Guice
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completed an RFC questionnaire on Plaintiff’s pain and ability to work. Tr. 528-32. Dr.
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Guice assessed Plaintiff’s pain as moderately severe and sufficient to interfere frequently
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with his attention and concentration. Tr. 528. She also stated that he could frequently lift
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or carry 10 pounds, could stand less than 2 hours a day and sit less than 6 hours a day in
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an 8 hour workday, and that he must alternate between sitting and standing. Tr. 529.
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Additionally, he could not climb, kneel, crouch, or crawl, and could occasionally balance
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or stoop. Tr. 530.
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The ALJ stated that he gave “some weight” to Dr. Guice’s opinion “to the extent
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that it is consistent with the record as a whole.” Tr. 25. The ALJ did not specify which
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parts of Dr. Guice’s opinion he found either consistent or inconsistent with the record.
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The Court is thus left to determine what parts of Dr. Guice’s opinion the ALJ accepted.
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In his RFC assessment, the ALJ stated that Plaintiff was capable of performing
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light and sedentary work with some restrictions. Tr. 21. The ALJ incorporated similar
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postural limitations to those in Dr. Guice’s assessment, but did not include Dr. Guice’s
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opinion that Plaintiff’s pain was sufficiently severe to interfere frequently with his
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attention and concentration, nor her assessment that Plaintiff could stand or walk less
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than 2 hours and sit less than 6 hours in an 8 hour workday. Id. When questioning the
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vocational expert (“VE”) about Plaintiff’s ability to work, the ALJ used a hypothetical
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that did not include these limitations, and concluded that Plaintiff was capable of light
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jobs such as cashier and parking lot attendant or sedentary jobs such as packaging.
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Tr. 62-63.
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Plaintiff argues that, unlike the ALJ’s hypothetical, the limitations noted in Dr.
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Guice’s assessment are inconsistent with full-time light work and sedentary work.
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Doc. 13 at 10, 12-13. Plaintiff notes that the combined total of less than 8 hours a day
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would not permit Plaintiff to sustain work-related activities “on a regular and continuing
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basis.” Doc. 15 at 4, citing 20 C.F.R. §§ 404.15459(b)-(c), 416.945(b)-(c). Plaintiff also
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notes that when asked at the hearing whether an individual would be able to sustain work
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in a competitive environment while experiencing pain that frequently interfered with
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attention and concentration, the vocational expert testified: “I don’t think they’d be able
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to.” Doc. 13 at 12-13, n. 13; see Tr. 65. Plaintiff asserts that the ALJ needed either to
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accept Dr. Guice’s limitations or state specific and legitimate reasons for rejecting them.
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Doc. 13 at 13. Defendant responds that SSA regulations require the ALJ to make a RFC
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assessment based on all the records, not just the opinion of the treating physician, and
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that the ALJ articulated reasons for discounting portions of Dr. Guice’s opinion. Doc. 14
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at 16.
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The Court agrees that the ALJ was required to give specific reasons for rejecting
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the limitations in Dr. Guice’s assessment. As the Ninth Circuit has explained, “[t]he ALJ
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must do more than offer his conclusions. He must set forth his own interpretations and
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explain why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418,
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421-22. Here, the ALJ made an RFC assessment that did not incorporate Dr. Guice’s
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assessment that Plaintiff’s pain was sufficiently severe to interfere frequently with his
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attention and concentration, nor her assessment that Plaintiff could stand or walk less
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than 2 hours and sit less than 6 hours in an 8 hour workday. See Tr. 21. Although
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Defendant argues that the ALJ explained his reasons for rejecting parts of Dr. Guice’s
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assessment, the Court finds no such explanation in the ALJ’s opinion.
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Defendant argues on the basis of Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.
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1989), that the ALJ gave legally sufficient reasons for discounting Dr. Guice’s
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assessment of Plaintiff’s disabling pain based on Plaintiff’s subjective complaints.
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Doc. 14 at 15-16. In Fair, the Ninth Circuit found that the ALJ had properly discounted
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claimant’s testimony of excess pain and that this constituted a “specific, legitimate reason
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for rejecting the opinion of a treating physician.” 885 F.2d at 605. The ALJ in Fair
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specifically noted that the treating physician based his opinion on his belief in the
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testimony the ALJ rejected. Id. The ALJ in this case provided no similar explanation.
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Moreover, Dr. Guice’s assessments do not appear to be based solely on Plaintiff’s
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assertions – they do not entirely mirror the severity of Plaintiff’s subjective complaints.
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Compare Tr. 528-32 with Tr. 52-53. Additionally, the physician in Fair explicitly stated
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that claimant should be restricted to occupations that did not require him “to exceed his
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own description of his symptoms and limitations.” Id. (emphasis added). No such
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statement exists in this case. Dr. Guice was asked to assess Plaintiff’s pain and ability to
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work based on her “independent clinical judgment.” See Tr. 528, 529. While it may
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appear from the record that Dr. Guice based her opinion on her belief in subjective
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testimony the ALJ deemed not credible, the ALJ never stated that this was his reason for
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rejecting parts of Dr. Guice’s opinion. If this was the reason, the ALJ was required to say
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so.
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conclusions of a treating physician are entitled to substantial weight and “cannot be
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disregarded unless clear and convincing reasons for doing so exist and are set forth in
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proper detail.”) (emphasis added).
See Embrey, 849 F.2d at 22 (stating that the subjective opinions and ultimate
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Opinions of non-treating physicians may also serve as substantial evidence for
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discounting the opinions of a treating physician “when the opinions are consistent with
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independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278
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F.3d 947, 957 (9th Cir. 2002). If a treating physician=s opinion is controverted by a non-6-
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treating physician=s opinion, however, the ALJ must still make findings setting forth
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“‘specific, legitimate reasons’ supported by substantial evidence in the record” for
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rejecting it. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (quoting Murray v.
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Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); see Thomas, 278 F.3d at 957. Here, as the
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ALJ noted, state agency medical consultants and consultative examiner Dr. William
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Chaffee opined, in part, that Plaintiff could frequently lift or carry 20 pounds and could
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stand or walk up to 6 hours in an 8 hour day. Tr. at 25. It does not appear, however, that
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the ALJ relied on these less restrictive functional assessments as the basis for discounting
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Dr. Guice’s opinion. In fact, the ALJ stated that he gave “limited weight” to these
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opinions, also because they were “inconsistent with the record as a whole.” Id.
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Absent any discussion of what parts of Dr. Guice’s opinion were unsupported by
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the record or clearly contradicted by other evidence, and absent any clear explanation of
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why he was rejecting some parts of the opinion, the Court finds that the ALJ erred in
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rejecting those parts that were inconsistent with an ability to do light or sedentary work.
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B.
Plaintiff’s Subjective Complaints.
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Plaintiff made a number of subjective complaints concerning both his physical and
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mental impairments that the ALJ found not to be credible. Tr. 22-26. Because Plaintiff’s
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appeal focusses only on his spinal issues, including those leading to spinal fusion surgery
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and the residual effects Plaintiff allegedly suffered thereafter (see Doc. 13 at 4), the Court
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will limit its analysis to these symptoms.
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Plaintiff reported that he had chronic back pain that interfered with his ability to
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lift anything or do housework. Tr. 156. At the hearing in January 2010, Plaintiff testified
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that he could only stand for about 20 minutes and sit for about 30 minutes before his back
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started hurting or his feet started tingling, and he would have to lie down. Tr. 52-53. He
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estimated that he had to lie down for about 8 hours in a 10 hour day and that his condition
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worsened after having spinal fusion surgery, before which he would lie down for 6 to 7
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hours during the day. Tr. 53, 55. Plaintiff also testified that he could only walk for 10 or
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15 minutes before having to sit or lie down. Tr. 58.
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The ALJ evaluated Plaintiff=s testimony using the two-step analysis established by
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the Ninth Circuit. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Applying
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the test of Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), the ALJ determined that
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Plaintiff=s impairments could reasonably produce some symptoms. Tr. 22. Given this
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conclusion, and because there is no evidence of malingering, the ALJ was required to
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present “specific, clear and convincing reasons” for finding Plaintiff not entirely credible.
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Smolen, 80 F.3d at 1281. Plaintiff argues that the ALJ failed to meet this burden.
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Doc. 13 at 18. The Court does not agree.
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The ALJ noted that when Plaintiff sought treatment for extreme back pain in July
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2007, the examining physician found Plaintiff’s symptoms inconsistent with his clinical
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exam and refused to prescribe narcotics. Tr. 22; see Tr. 290. The ALJ also cited
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evidence that before Plainfiff’s surgery, he was consistently seen ambulating normally
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and assessed as having normal motor strength and a full range of motion in his lower
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extremities. Tr. 23; see Tr. 321, 350, 405, 433, 434. Although a physical examination
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conducted by consultative examiner Dr. William Chaffee revealed a decrease in range of
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motion in the lumbar region and straight leg raise testing was positive bilaterally at 80
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degrees, the ALJ noted that Dr. Chaffee found normal motor strength in the lower
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extremities and only slight lumbar tenderness with no deformity. Tr. 23; see Tr. 433-34.
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After Plaintiff’s surgery on December 17, 2008, the ALJ noted that Plaintiff
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continued to complain of back pain and ask for narcotics (see Tr. 496), but a post-surgery
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follow up exam noted that he was able to walk upright without a cane or walker (see
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Tr. 538), and Dr. Guice noted tenderness and back spasms only once (Tr. 23; see Tr. 478-
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497). A review of Dr. Guice’s records shows that she noted lumbar tenderness in back
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brace and post-surgical tenderness and back spasms twice (see Tr. 488, 497), but the
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records otherwise indicate that he had “normal range of motion without pain.” Tr. 478-
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497. The ALJ also noted that Plaintiff’s orthopedist, Dr. Waldrip, stated he was done
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prescribing anti-spasmodics and pain medications and that Plaintiff should take extra
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strength Tylenol. Tr. 23; see Tr. 537. Finally, the ALJ noted that when Plaintiff went to
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the emergency room on January 1, 2010, complaining of back pain and stating that he
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was out of his prescribed pain killers, he was observed as being “ambulatory with a
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steady gait.” Tr. 23; see Tr. 547.
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Plaintiff correctly notes that an ALJ may not reject a claimant=s subjective
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complaints based solely on lack of objective medical evidence to fully corroborate the
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complaints (Doc. 13 at 17-18), but the ALJ did not make this error. Instead, the ALJ
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specifically found that the objective medical evidence on record conflicted with
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Plaintiff=s statements of disabling pain and functional limitations. Tr. 22-23. The Court
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finds that the reasons provided by the ALJ are sufficiently specific, clear and convincing
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to affirm the ALJ=s decision not to fully credit Plaintiff=s testimony.
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C.
The ALJ’s RFC Assessment.
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“Residual functional capacity” is the most a claimant can do despite the limitations
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caused by physical and/or mental impairments. See Rodriguez v. Bowen, 876 F.2d 759,
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762 (9th Cir. 1989); 20 C.F.R. '' 404.1545(a), 416.927(a); SSR 96-8p, 1996 WL 374184
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(July 2, 1996). The ALJ is responsible for assessing the claimant’s RFC “based on all of
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the relevant medical and other evidence.” 20 C.F.R. ' 404.1545(a)(3). The ALJ must
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“explain how any material inconsistencies or ambiguities in the evidence in the case
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record were considered and resolved.” SSR 96-8p, 1996 WL 374184, *7. Additionally,
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“[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator
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must explain why the opinion was not adopted.” Id.
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Plaintiff asserts that the ALJ erred by determining Plaintiff’s RFC without any
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basis in the record. Doc. 13 at 19. Plaintiff argues that the ALJ provided his own RFC
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and posed it in the form of a standard, habitually-used hypothetical without any
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discussion of how the medical evidence supported it. Id. at 19-20. Defendant responds
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that the ALJ was responsible for resolving conflicts in the evidence and the fact that he
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disagreed with Dr. Guice’s opinion in some respects is not grounds to find his RFC in
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error where the ALJ is required to consider all the medical evidence. Doc. 14 at 16.
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As discussed in Section A above, the ALJ made an RFC assessment – upon which
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he based his hypothetical question to the VE – that differed in key respects from the
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opinion of Dr. Guice, Plaintiff’s treating physician whose opinion was entitled to special
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significance. See SSR 96-8p, 1996 WL 374184, *7 (“Medical opinions from treating
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sources about the nature and severity of an individual’s impairment(s) are entitled to
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special significance and may be entitled to controlling weight.”). The Court agrees with
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Defendant that the RFC must be based on all relevant medical and other evidence and
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that it is the ALJ’s role to resolve any conflicts. As the Court found above, however, the
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ALJ failed to articulate any conflict with Dr. Guice’s opinion; nor did he state the basis
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for accepting parts of her opinion and rejecting others when assessing Plaintiff’s RFC and
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using it as a basis for determining Plaintiff’s ability to do other work. For the reasons
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already discussed, the Court finds this to be legal error.
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III.
Remedy.
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Having decided to vacate Defendant’s decision, the Court has the discretion to
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remand the case for further development of the record or for an award benefits. See
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Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). In Smolen v. Chater, the Ninth
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Circuit held that evidence should be credited and an action remanded for an immediate
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award of benefits when the following three factors are satisfied: (1) the ALJ has failed to
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provide legally sufficient reasons for rejecting evidence, (2) there are no outstanding
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issues that must be resolved before a determination of disability can be made, and (3) it is
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clear from the record that the ALJ would be required to find the claimant disabled were
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such evidence credited. 80 F.3d 1273, 1292 (9th Cir. 1996); see Varney v. Sec. of Health
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& Human Servs., 859 F.2d 1396, 1400 (9th Cir. 1988) (Varney II) (“In cases where there
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are no outstanding issues that must be resolved before a proper determination can be
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made, and where it is clear from the record that the ALJ would be required to award
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benefits if the claimant’s excess pain testimony were credited, we will not remand solely
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to allow the ALJ to make specific findings regarding that testimony.”); Swenson v.
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Sullivan, 876 F.2d 683, 689 (9th Cir. 1989) (same); Rodriguez v. Bowen, 876 F.2d 759,
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763 (9th Cir. 1989) (“In a recent case where the ALJ failed to provide clear and
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convincing reasons for discounting the opinion of claimant=s treating physician, we
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accepted the physician=s uncontradicted testimony as true and awarded benefits.”) (citing
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Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988)); Hammock v. Bowen, 879 F.2d 498,
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503 (9th Cir. 1989) (extending Varney II=s “credit as true” rule to a case with outstanding
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issues where the claimant already had experienced a long delay and a treating doctor
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supported the claimant=s testimony).
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The Court has found that the ALJ failed to provide legally sufficient reasons for
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rejecting in part the testimony of Plaintiff’s treating physician, Dr. Guice. Defendant has
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not presented and there do not appear to be any outstanding issues to be resolved.
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Further, the testimony of the VE in response to queries related to Dr. Guice’s assessment
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shows that the ALJ would be required to find Plaintiff incapable of past or other full time
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work and thus disabled if Dr. Guice’s opinion were credited as true.
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This case presents an anomaly in which the ALJ has stated legally sufficient
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reasons for finding not credible Plaintiff’s subjective complaints about his symptoms and
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limitations, but has failed to articulate legally sufficient reasons for rejecting a treating
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physician’s assessment of Plaintiff’s pain and functional limitations which appear to be
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based on – though they do not entirely mirror – those same subjective complaints.
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Defendant argues that it would be contrary to the Act to remand for an award of
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benefits where the ALJ has not resolved evidentiary conflicts or determined that a
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claimant is disabled. Doc. 14 at 25-26. Defendant cites Strauss v. Comm’r of the Soc.
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Sec. Admin, as stating that “[a] claimant is not entitled to benefits under the statute unless
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the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Id.
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quoting Strauss, 635 F.3d 1135, 1138 (9th Cir. 2011) (citing Briscoe ex rel. Taylor v.
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Barnhart, 425 F.3d 345, 357(7th Cir. 2005)). Defendant argues that if the Court reverses
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the Commissioner’s final decision, further proceedings would be required, presumably to
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determine whether Plaintiff is, in fact, disabled. Doc. 14 at 26.
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Defendant’s reliance on Strauss is misplaced. Strauss did not involve procedural
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error with respect to the ALJ’s disability determination on the merits. Rather, it involved
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the ALJ’s failure to develop the record as required by a prior court order. Strauss, 635
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F.3d at 1137. Thus, the district court in Strauss did not undertake to determine whether
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claimant was entitled to benefits under the statute, nor did it credit as true evidence that
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the ALJ had improperly excluded. Id. at 1128. Instead, the court remanded for an award
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of benefits based solely on the ALJ’s failure to follow the court’s prior orders. Id. It was
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in this context that the Ninth Circuit held that the district court may not remand for a
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payment of benefits “without the intermediate step of analyzing whether, in fact, the
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claimant is disabled.” Id.
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The procedural error this Court finds is precisely the error that the Ninth Circuit in
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Strauss confirmed requires remand for an award of benefits: one in which the ALJ erred
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in discrediting evidence and, absent any outstanding issues to be resolved, “it is clear
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from the record that the ALJ would be required to find the claimant disabled were such
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evidence credited.” Id. quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
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Defendant’s reliance on Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990), is
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also unavailing. See Doc. 14 at 25. In that case, the Ninth Circuit found that the ALJ had
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erred in rejecting the opinion of claimant’s treating physician “without any specific
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reference as to why he disregarded it.” Salvador, 917 F.2d at 15. The court reversed and
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remanded, but exercised its discretion not to require an award of benefits “because there
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may be evidence in the record to which the ALJ can point to provide the requisite specific
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legitimate reasons for disregarding [the physician’s] opinions.” Id. In so doing, the
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Ninth Circuit relied on McAllister v. Sullivan, 888 F.2d 599, 603 (1989), in which it had
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similarly remanded for further proceedings for the Secretary to determine whether the
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record contained specific and legitimate reasons for disregarding a treating physician’s
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testimony.
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Secretary of Health and Human Services, 859 F.2d 1396 (9th Cir. 1988), holding that in
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cases where there are no outstanding issues to be resolved, and where it is clear from the
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record that the ALJ would be required to award benefits if the claimant’s testimony were
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credited as true, the court may “not remand solely to allow the ALJ to make specific
Neither of these cases cited to the Ninth Circuit’s ruling in Varney v.
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findings regarding that testimony.” 859 F.2d at 1400.
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Since Varney was decided, the overwhelming authority in this Circuit makes clear
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that the “credit as true” doctrine is mandatory. See Lester v. Chater, 81 F.3d 821, 834
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(9th Cir. 1995); Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Reddick v.
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Charter, 157 F.3d 715, 729 (9th Cir. 1998); Harman v. Apfel, 211 F.3d 1172, 1178 (9th
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Cir. 2000); Moore v. Comm=r of Soc. Sec., 278 F.3d 920, 926 (9th Cir. 2002); McCartey
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v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882,
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887 (9th Cir. 2004); Benecke v. Barnhart, 379 F.3d 587, 593-95 (9th Cir. 2004); Orn v.
9
Astrue, 495 F.3d 625, 640 (9th Cir. 2007); Lingenfelter v. Astrue, 504 F.3d. 1028, 1041
10
(9th Cir. Oct. 4, 2007) (A[W]e will not remand for further proceedings where, taking the
11
claimant=s testimony as true, the ALJ would clearly be required to award benefits[.]@)
12
(citing Varney).2
13
Applying these cases, the Court concludes that the improperly rejected testimony
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and statements of disabling impairments by Dr. Guice should be credited as true and,
15
when they are credited as true, the case remanded for an award of benefits.
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IT IS ORDERED:
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1.
Defendant=s decision denying benefits is reversed.
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2.
The Clerk is directed to remand the case for an award of benefits.
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Dated this 4th day of June, 2012.
20
21
22
23
24
25
26
27
2
28
This Court disagrees with the Ninth Circuit’s credit as true doctrine. The Court
is bound, nonetheless, to follow Ninth Circuit precedent.
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