Schlink v. Astrue

Filing 28

ORDER, the ALJ's decision is vacated and this case is remanded for an award of benefits; the Clerk is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 4/11/13. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Erin L. Schlink,

10

No. CV-11-02522-PHX-GMS
Plaintiff,
ORDER

11

vs.

12

Michael J. Astrue, Commissioner of the
Social Security Administration,

13

Defendant.

14
15
16
17

Pending before the Court is the appeal of Plaintiff Erin L. Schlink, which

18

challenges the Social Security Administration’s decision to deny benefits. (Doc. 18.)

19

For the reasons set forth below, the Court vacates that decision and remands for an award

20

of benefits.

21

BACKGROUND

22

On October 9, 2007, Schlink applied for disability insurance benefits, alleging a

23

disability onset date of July 30, 2007. (R. at 15.) Schlink’s date last insured (“DLI”) for

24

disability insurance benefits, and thus the date on or before which she must have been

25

disabled, was December 31, 2012. (Id. at 17.) Schlink’s claim was denied both initially

26

and upon reconsideration. (Id. at 15.) Schlink then appealed to an Administrative Law

27

Judge (“ALJ”). (Id.) The ALJ conducted a hearing on the matter on April 6, 2010, in

28

Phoenix, Arizona. (Id.) At the hearing, Schlink amended her alleged onset date of

1
2
3
4
5
6
7
8
9
10
11

disability to July 1, 2008. (Id.)
In evaluating whether Schlink was disabled, the ALJ undertook the five-step
sequential evaluation for determining disability.1 (Id. at 16–17.) At step one, the ALJ
determined that Schlink had not engaged in substantial gainful activity since the alleged
onset date. (Id. at 17.) At step two, the ALJ determined that Schlink suffered from the
severe impairments of fibromyalgia, lupus (stable), and history of lumbar surgery. (Id.)
At step three, the ALJ determined that none of these impairments, either alone or in
combination, met or equaled any of the Social Security Administration’s listed
impairments. (Id.)
At that point, the ALJ made a determination of Schlink’s residual functional
capacity (“RFC”),2 concluding that Schlink could perform light work as defined in 20

12
1

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The five-step sequential evaluation of disability is set out in 20 C.F.R. ' 04.1520
(governing disability insurance benefits) and 20 C.F.R. ' 416.920 (governing
supplemental security income). Under the test:
A claimant must be found disabled if she proves: (1) that she
is not presently engaged in a substantial gainful activity[,] (2)
that her disability is severe, and (3) that her impairment meets
or equals one of the specific impairments described in the
regulations. If the impairment does not meet or equal one of
the specific impairments described in the regulations, the
claimant can still establish a prima facie case of disability by
proving at step four that in addition to the first two
requirements, she is not able to perform any work that she has
done in the past. Once the claimant establishes a prima facie
case, the burden of proof shifts to the agency at step five to
demonstrate that the claimant can perform a significant
number of other jobs in the national economy. This step-five
determination is made on the basis of four factors: the
claimant’s residual functional capacity, age, work experience
and education.
Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and
quotations omitted).
2
RFC is the most a claimant can do despite the limitations caused by his
-2-

1
2
3
4
5
6
7
8
9
10

C.F.R. § 404.1567(b) except that she can sit for thirty to forty-five minutes at one time,
total about six out of eight hours; stand and walk for thirty to forty-five minutes at one
time, total six out of eight hours; stoop, kneel, crouch, crawl, and climb ramps and stairs
occasionally; balance frequently; but never climb ladders, ropes, or scaffolds; and should
avoid concentrated exposure to temperature extremes, vibration, airborne irritants, and
hazards. (Id. at 18.) The ALJ thus determined at step four that Schlink did not retain the
RFC to perform her past relevant work as a post office clerk. (Id. at 20.) The ALJ
therefore reached step five and determined that Schlink could perform a significant
number of other jobs in the national economy that met her RFC limitations. (Id. at 20–
21.) Given this analysis, the ALJ concluded that Schlink was not disabled. (Id.)

11
12
13
14

The Appeals Council declined to review the decision. (Id. at 1.) The Council
accepted the ALJ’s statements of the law, the issues in the case, and the evidentiary facts,
as well as the ALJ’s findings and ultimate conclusions regarding whether Schlink was
disabled. (Id. at 2.) The Council agreed that Schlink was not disabled. (Id. at 1.)

15
16
17

Schlink filed the complaint underlying this action on December 20, 2011, seeking
this Court’s review of the ALJ’s denial of benefits.3 (Doc. 1.) The matter is now fully
briefed before this Court. (Docs. 18, 21, 27.)

18
19
20
21
22
23

DISCUSSION
I.

Standard of Review
A reviewing federal court will only address the issues raised by the claimant in the

appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir.
2001). A federal court may set aside a denial of disability benefits only if that denial is
either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart,

24
25
26
27
28

impairments. See S.S.R. 96-8p (July 2, 1996).
3
Plaintiff was authorized to file this action by 42 U.S.C. ' 405(g) (“Any
individual, after any final decision of the Commissioner of Social Security made after a
hearing to which he was a party . . . may obtain a review of such decision by a civil
action . . . .”).
-3-

1
2
3
4

278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less
than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence
which, considering the record as a whole, a reasonable person might accept as adequate
to support a conclusion.” Id. (quotation omitted).

5
6
7
8
9
10
11
12

However, the ALJ is responsible for resolving conflicts in testimony, determining
credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995). “When the evidence before the ALJ is subject to more than one rational
interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the
reviewing court must resolve conflicts in evidence, and if the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ.” Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted).

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Harmless errors in the ALJ’s decision do not warrant reversal. Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). Errors are harmless if they are
“inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008)). Thus, for example, an error is harmless if the record shows
that “the ALJ would have reached the same result absent the error” or “it was clear [the
errors] did not alter the ALJ’s decision.” Id. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
II.

Analysis
Schlink argues that the ALJ erred by: (1) failing to consider the effects of all the

impairments in combination in assessing Schlink’s RFC, (2) failing to articulate sufficient
reasons for rejecting Schlink’s subjective complaints, and (3) failing to articulate
sufficient reasons for rejecting Schlink’s treating physician’s opinion. The Court will
address each argument in turn.

28
-4-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

A.

Failure to Consider Effects of All Impairments in Combination

In making the RFC determination, the ALJ is required to consider both severe and
non-severe impairments. 20 C.F.R. § 404.1545(a)(2). Schlink asserts that the ALJ failed
to consider many of her severe impairments, including osteoporosis, bilateral foot
fractures, right rotator cuff tendonitis, bursitis, clavicle fracture, and degenerative joint
disease of the right knee. (Doc. 18 at 11.) Indeed, the record shows that Schlink suffers
from osteopenia or osteoporosis (R. at 404, 470), bilateral foot fractures (id. at 367), right
rotator cuff tendonitis as a result of a clavicle fracture (id. at 375–77), and degenerative
joint disease in her knees (id. at 404). None of these impairments were discussed by the
ALJ in making her determination of Schlink’s RFC. (See id. at 18–20.) Nor did the ALJ
explain why she did not consider these impairments. Thus, there is no substantial
evidence in the record supporting the ALJ’s failure to take these limitations into account,
whether they are severe or non-severe, in considering Schlink’s RFC. This is a ground on
which to vacate the ALJ’s decision.
The Commissioner does not dispute that the ALJ failed to consider these
impairments, but argues that the ALJ’s error was harmless because Schlink “has not
demonstrated that she was ultimately harmed by the ALJ’s finding of which impairments
were ‘severe.’” (Doc. 21 at 10.) However, Schlink’s argument is not that the ALJ erred in
finding the above impairments not severe at Step 2, but rather that the ALJ failed to
consider the impairments at all, including in determining Schlink’s RFC. (Doc. 18 at 11.)
The Commissioner additionally asserts the error is harmless because Schlink failed
to show that the above impairments “posed additional functional limitations that would
preclude the performance of a range of light work.” (Doc. 21 at 10.) However, at the
hearing, Schlink testified that her impairments caused severe limitations in her ability to
reach and stand or walk for extended periods of time. (R. at 36–37.) Evidence in the
record shows that Schlink’s rotator cuff tendonitis caused shoulder pain, weakening and

28
-5-

1
2
3
4
5
6
7
8
9
10
11
12
13
14

fatigue of the shoulder, and discomfort with overhead activity. (Id. at 375.) The
vocational expert (“VE”) subsequently testified that the jobs available for someone with
Schlink’s age, education, and work history, and some of Schlink’s limitations as set out
in a hypothetical by the ALJ, would be cashier, assembly worker, or quality control
positions. (Id. at 44–45.) Upon questioning by Schlink’s attorney, the VE testified that all
of these positions require frequent reaching. (Id. at 46.) Thus, if the ALJ had properly
considered Schlink’s rotator cuff injury, she may have found that there were no jobs
available for Schlink given her shoulder limitations. As such, the ALJ’s error in failing to
consider all of Schlink’s impairments in evaluating her RFC is not “inconsequential to
the ultimate nondisability determination.” Molina, 674 F.3d at 1115. The Court rejects
the Commissioner’s characterization of this error as harmless.
B.
Failure to Articulate Sufficient Reasons for Rejecting Schlink’s
Subjective Complaints
The ALJ must engage in a two-step analysis in determining whether a claimant’s

15

testimony regarding her subjective pain or symptoms is credible. Lingenfelter v. Astrue,

16

504 F.3d 1028, 1035–36 (9th Cir. 2007). The ALJ must first “determine whether the

17

claimant has presented objective medical evidence of an underlying impairment which

18

could reasonably be expected to produce the pain or other symptoms alleged.” Id. at

19

1036. If she has, and the ALJ has found no evidence of malingering, then the ALJ may

20

reject the claimant’s testimony “only by offering specific, clear and convincing reasons

21

for doing so.” Id.

22

The Commissioner disagrees that the appropriate standard for the ALJ in rejecting

23

claimant testimony is one that requires clear and convincing reasons. (Doc. 21 at 11.) She

24

relies on Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc), where the Ninth

25

Circuit set out to “determine the appropriate standard for evaluating subjective

26

complaints of pain in Social Security disability cases.” (Id. (citing Bunnell, 947 F.2d at

27

342).) The Bunnell Court opined that once there has been objective medical evidence of

28
-6-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

an underlying impairment, the ALJ must make specific findings, supported by the record,
for why he rejected the claimant’s testimony on the severity of the pain. 947 F.2d at 345–
46. This is to ensure that the ALJ “did not ‘arbitrarily discredit a claimant’s testimony
regarding pain.’” Id. (quoting Elam v. R.R. Retirement Bd., 921 F.2d 1210, 1215 (9th Cir.
1991)). Thus, the Commissioner claims that the standard governing credibility is a
specific finding standard, which it claims is more in line with the overall “substantial
evidence” standard that governs these cases.
Many panels of the Ninth Circuit have subsequently held, however, that if there is
objective medical evidence of an underlying impairment, “and there is no evidence of
malingering, then the ALJ must give ‘specific, clear and convincing reasons’ in order to
reject the claimant’s testimony about the severity of the symptoms.” Molina, 674 F.3d at
1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)); see also, e.g.,
Lingenfelter, 504 F.3d at 1036. The Commissioner claims that these cases have overruled
the standard articulated in Bunnell in violation of the Ninth Circuit rule that only en banc
panels can overrule existing precedent. (Doc. 21 at 11 (citing Saelee v. Chater, 94 F.3d
520, 523 (9th Cir. 1996).) That is not the case. Bunnell articulated a general standard for
dealing with claimant testimony. The many subsequent cases have addressed a subset of
cases where there is no evidence of claimant malingering. They have articulated a “clear
and convincing” standard for those situations. Thus, the Court will apply that standard to
the ALJ’s determination.
Here, at the first step, the ALJ found that Schlink’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms. (R. at 18.)
However, at the second step, the ALJ found that Schlink’s statements regarding the
intensity, persistence, and limiting effects of her symptoms were not credible. (Id.) The
ALJ did not state that she found any evidence of malingering; thus, her reasons for
rejecting Schlink’s symptom testimony must be clear and convincing. Lingenfelter, 504
F.3d at 1036. The ALJ set forth two reasons for finding Schlink’s testimony not credible:

28
-7-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

(1) her daily activities are not limited to the extent one would expect given Schlink’s
complaints of disabling symptoms and limitations, and (2) Schlink’s “longitudinal
medical history” is not consistent with her testimony. (Id. at 18–19.)
The ALJ found that Schlink’s daily activities were inconsistent with her subjective
complaints of pain. These activities include caring for her baby and pet dogs, attending
church weekly, going grocery shopping twice a week, doing laundry, sweeping,
vacuuming, preparing meals, managing household finances, and going to movies and
restaurants. (Id. at 19.) The ALJ stated that these activities were “suggestive of at least
light exertional capacity.” (Id.) The ALJ also relied on the opinion of a state examining
physician who found that Schlink’s activities were “generally unimpaired.” (Id.)
“[D]aily activities may be grounds for an adverse credibility finding ‘if a claimant
is able to spend a substantial part of his day engaged in pursuits involving the
performance of physical functions that are transferable to a work setting.’” Orn v. Astrue,
495 F.3d 625, 639 (9th Cir. 2007). However, the claimant “should not be penalized for
attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157
F.3d 715, 722 (9th Cir. 1998).
Schlink testified at the hearing that while she was “able to help out around the
house,” she did “very little” and that her husband did “most of the cleaning.” (R. at 39.)
She also testified that when she made meals, she only made microwaveable meals or
sandwiches. (Id.) In addition, she testified that her husband did most of the grocery
shopping. (Id. at 40.) Her care for her son consisted of turning the TV on for him, talking
to him, watching educational programs with him, and fixing him a sandwich or
microwaveable meal. (Id. at 41.) She testified that in order to hold him, she had to sit
down and have him crawl into her lap. (Id. at 42.) The ALJ found that this testimony was
unreliable because it conflicted with her report to a state agency physician in July 2008.
However, that physician reported that while Schlink was able to perform routine
household tasks, she sometimes needed “help with basic self-care when she has excessive

28
-8-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

pain.” (Id. at 291.) The physician did not state that Schlink was completely unlimited in
her ability to perform these tasks, and indeed her opinion is consistent with Schlink’s
testimony that she receives help from her husband. Furthermore, while the ALJ stated
that she relied on the state agency physician’s opinion that Schlink’s activities were
“generally unimpaired,” that physician was evaluating Schlink solely for mental or
psychological problems, and made no attempt to discern Schlink’s physical limitations.
(Id. at 292.)
The ALJ did not explain how Schlink’s daily activities translated into an ability to
perform regularly in the workplace, instead stating generally that the activities “are
suggestive of at least light exertional capacity.” See Orn, 495 F.3d at 639. This is not a
“specific, clear and convincing reason[]” for finding Schlink’s testimony not credible.
Lingenfelter, 504 F.3d at 1036. Moreover, the alleged inconsistency on which the ALJ
relies does not exist—as discussed above, Schlink’s daily activities as reported to the
state agency physician are not, in fact, incompatible with her testimony at the hearing. As
such, the ALJ’s first reason for rejecting Schlink’s subjective complaint testimony is not
supported by clear and convincing reasons.
The ALJ also found that Schlink’s testimony was not credible because it was
inconsistent with her “longitudinal medical history.” (R. at 19.) She cites to medical
opinions describing Schlink’s lupus and fibromyalgia as “stable,” “mild,” or “moderate.”
(R. at 19.) The Commissioner argues that inconsistency with the medical record is a
sufficient basis for rejecting a claimant’s subjective testimony. (Doc. 21 at 12 (citing
Carmickle, 533 F.3d at 1161).) However, the evidence cited by the ALJ does not
contradict Schlink’s testimony regarding her pain and impairments. The fact that doctors
consider Schlink’s condition to be “stable” does not mean that she suffers no limitations
on her ability to work. For example, on three occasions, Schlink’s treating physician Dr.
Jajoo described her lupus as “mild” and her fibromyalgia as “moderate” but noted that
she still suffered pain, fatigue, and morning stiffness. (R. at 405, 413, 419.) During

28
-9-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

another visit, Dr. Jajoo described Schlink’s lupus and fibromyalgia similarly but also
noted fatigue; neck, joint, and muscle pain; weakness and tingling in her musculature;
and depression. (Id. at 402–03.) Thus, these reasons given by the ALJ for rejecting
Schlink’s testimony are insufficient.
The ALJ also stated that Schlink “admitted . . . that physical therapy and the use of
a TNS unit have helped at times.” (Id. at 19.) She also pointed to evidence that
“medications have been effective in controlling [Schlink’s] symptoms.” (Id.) While it is
true that the effect of medication on a claimant is relevant, only “impairments that can be
controlled effectively with medication are not disabling for the purpose of determining
eligibility.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).
Here, Schlink testified at the hearing that her TNS unit “doesn’t always help but at times
it does.” (R. at 40.) The only other evidence offered by the ALJ is a statement by Dr.
Jajoo that Schlink’s “[a]ntiphospholipid antibody syndrome is under good control with
current medications.” (Id. at 418.) This statement does not address the other impairments
from which Schlink is suffering, and indeed in the same paragraph Dr. Jajoo notes that
Schlink’s fibromyalgia continues to cause symptoms. (Id.) Thus, this evidence does not
support the ALJ’s rejection of Schlink’s credibility, either.
None of the evidence cited by the ALJ constitutes “specific, clear and convincing
reasons” for rejecting Schlink’s subjective symptom testimony as not credible. The ALJ’s
rejection of Schlink’s testimony was legal error and thus is grounds for reversing the
decision.
C.

Improperly Rejecting Treating Physician’s Opinion

“The medical opinion of a claimant’s treating physician is entitled to special
weight.” Walter v. Astrue, No. CV-09-1016-PHX-GMS, 2010 WL 1511666 at *7 (D.
Ariz. Apr. 15, 2010) (citing Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989))
(internal quotations omitted). This is because the treating physician “is employed to cure
and has a greater opportunity to know and observe the patient as an individual.” Andrews

28
- 10 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

v. Shalala, 53 F.3d 1035, 1040–41 (9th Cir. 1995). If the treating physician’s opinion is
supported by the record and not inconsistent with other evidence, it is accorded
controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Even if the opinion
is not given controlling weight, it is still entitled to deference. Id. at 632 (citing SSR 962p at 4, 61 Fed. Reg. at 34,491). “In many cases, a treating source’s medical opinion will
be entitled to the greatest weight and should be adopted, even if it does not meet the test
for controlling weight.” Id. Social Security regulations set out factors for determining the
amount of weight to give to a treating physician’s opinion. 20 CFR § 404.1527(c)(i)–(ii).
These factors include the length of the treatment and frequency of examination, medical
evidence provided to support the opinion, consistency with the record as a whole, and
specialization. Id.
Schlink’s treating physician, Dr. Bottner, twice opined that Schlink was unable to
work eight hours per day, five days a week. (R. at 400–01, 432–33.) However, the ALJ
“accord[ed] little weight to these assessments as they are inconsistent with the progress
notes of the treating specialist.” (Id. at 20.) The ALJ also cited inconsistency with the
DDS doctor’s opinion and the record of the claimant’s daily activities as reasons for
rejecting Dr. Bottner’s opinion. (Id.)
Schlink argues that, in fact, the progress notes of the treating specialist, Dr. Jajoo,
do not contradict Dr. Bottner’s opinion. The ALJ found it significant that Dr. Jajoo
“never placed restrictions on [Schlink].” (Id.) However, as Schlink points out, this
characterization is incorrect. In December 2006, Dr. Jajoo noted that Schlink was “having
trouble with work because of her fatigue and flare ups and fibromyalgia flare ups” and
that she sometimes had to miss up to a week of work at a time. (Id. at 223.) Thus, Dr.
Jajoo gave her an FMLA note that would allow her to stay home up to seven days a
month. (Id.) In June 2007, Dr. Jajoo recommended that Schlink only work four days a
week and have three consecutive days off. (Id. at 217.) Finally, in November 2007, Dr.
Jajoo recommended that Schlink stop working entirely. (Id. at 209.) In March 2008, Dr.

28
- 11 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Jajoo noted that Schlink was feeling “much better now that she is not working.” (Id. at
422.) Rather than contradicting Dr. Bottner’s opinion, Dr. Jajoo’s notes lend substantial
support to Dr. Bottner’s conclusion that Schlink is unable to work. As such, the ALJ’s
finding that Dr. Bottner’s opinion was contradicted by the progress notes of Dr. Jajoo is
not supported by substantial evidence.
The ALJ also stated that Dr. Bottner’s opinion was contradicted by the opinion of
the state DDS physician, who opined that Schlink retained the capacity to perform light
exertional work. (Id. at 297–304.) Even if the state DDS physician’s opinion constituted
substantial evidence contradicting Dr. Bottner’s opinion, however, Dr. Bottner’s opinion
as a treating physician is still entitled to deference. Orn, 495 F.3d 625, 633. “Even if the
treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this
opinion without providing ‘specific and legitimate’ reasons supported by substantial
evidence in the record.” Id. As set out above, § 404.1527 lists the factors to consider in
determining the weight to give a treating physician’s opinion. Here, the factors favor
giving more weight to Dr. Bottner’s opinion.
Dr. Bottner has been Schlink’s treating physician for twenty years. (R. at 33.) His
opinion that Schlink could not work, given in March 2010, is the most recent in the
record. (Id. at 433.) By contrast, the state physician saw Schlink in June 2008. (Id. at
304.) Furthermore, as discussed above, Dr. Bottner’s opinion is supported by the opinion
of Schlink’s treating specialist, Dr. Jajoo. Conversely, the state DDS physician appears to
have seen Schlink only once. He did not set forth independent clinical findings to support
his conclusion that Schlink was capable of light exertional work; rather, he simply filled
out a checklist of Schlink’s capabilities. (Id. at 297–304.) Indeed, the only factors he
relied on in forming his opinion appear to be Schlink’s age, height, weight, blood
pressure, and pulse. (Id. at 298.) Finally, the ALJ failed to give “specific and legitimate
reasons” for finding the state DDS physician’s opinion more credible than the opinion of
Schlink’s treating physician and specialist. She stated merely that Dr. Bottner’s opinion

28
- 12 -

1
2
3

was “at odds” with the state DDS physician’s opinion. (Id. at 20.) As such, the ALJ erred
in giving the state DDS physician’s opinion greater weight than the opinion of Schlink’s
treating physician of twenty years.

4
5
6
7
8
9
10
11
12
13

Finally, the ALJ relied on the inconsistency between Dr. Bottner’s opinion and
Schlink’s daily activities as a reason for giving less weight to Dr. Bottner’s opinion. (Id.
at 20.) However, as discussed in Part II.B above, Schlink’s testimony and the record of
her daily activities do not show that she was unimpaired. Rather, the testimony and
evidence show that while she could perform daily household activities, she was limited in
what she could do and often required help from her family members. Furthermore, there
is no evidence that the daily activities of which she was capable of performing were skills
that were transferable to the workplace. As such, the ALJ’s finding that Dr. Bottner’s
opinion is contradicted by Schlink’s daily activities is not supported by substantial
evidence.

14
15
16
17
18
19
20

In sum, none of the reasons cited by the ALJ for giving little weight to Dr.
Bottner’s opinion are supported by substantial evidence. Thus, the ALJ’s decision is
vacated for improperly rejecting the opinion of Schlink’s treating physician.
III.

Remedy
Having decided to vacate the ALJ’s decision, the Court has the discretion to

remand the case either for further proceedings or for an award of benefits. See Reddick,
157 F.3d at 728. The rule in this Circuit is that the Court should:

21
22
23
24
25
26
27
28

credit[] evidence and remand[] for an award of benefits where
(1) the ALJ has failed to provide legally sufficient reasons for
rejecting [certain] evidence, (2) there are no outstanding
issues that must be resolved before a determination of
disability can be made, and (3) it is clear from the record that
the ALJ would be required to find the claimant disabled were
such evidence credited.
Smolen, 80 F.3d at 1292.
Here, the ALJ has failed to provide legally sufficient reasons for ignoring
- 13 -

1
2
3
4

Schlink’s impairments of osteoporosis, foot fractures, right rotator cuff tendonitis, and
degenerative joint disease. In addition, she failed to provide legally sufficient reasons for
rejecting Schlink’s subjective symptom testimony and for giving little weight to the
opinion of Schlink’s treating physician, Dr. Bottner.

5
6
7
8
9
10

If the above evidence were credited, the ALJ would be required to find Schlink
disabled. The vocational expert testified at the hearing that if Schlink’s subjective
symptom testimony were credited, she would not be able to perform any of her past
work. (R. at 46.) In addition, there would be no other jobs in the national economy she
could perform. (Id.) Similarly, Dr. Bottner twice opined that Schlink was unable to work
a regular eight-hour, five-day work week. (Id. at 400–01, 432–33.)

11
12
13
14
15

Thus, it is “clear from the record that the ALJ would be required to find the
claimant disabled were such evidence credited,” and there remain [no] “outstanding
issues that must be resolved before a determination of disability can be made.” Smolen,
80 F.3d at 1292. Under these circumstances, the Court will remand for a computation of
benefits.

16

CONCLUSION

17
18
19
20
21
22
23
24
25
26
27

The ALJ erred in ignoring several of Schlink’s impairments and in rejecting
Schlink’s symptom testimony and the opinion of her treating physician. The ALJ’s
decision that Schlink is not disabled is not supported by substantial evidence.
///
///
///
///
///
///
///
///

28
- 14 -

1
2
3
4

IT IS THEREFORE ORDERED that the ALJ’s decision is VACATED and this
case is REMANDED for an award of benefits. The Clerk of the Court is directed to
enter judgment accordingly.
Dated this 11th day of April, 2013.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 -