McLaughlin v. Colvin

Filing 26

DECISION AND ORDER, the Administrative Law Judge's decision is reversed and remanded for additional proceedings before the Commissioner consistent with this opinion; the Clerk is directed to enter judgment for Mr. McLaughlin. Signed by Judge Sharon L Gleason on 9/26/14. (REW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

JOHN LEE MCLAUGHLIN,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

Case No. 2:13-cv-00780-SLG

DECISION AND ORDER
John Lee McLaughlin initiated this Social Security action in federal district court
after exhausting his administrative remedies. The matter has been fully briefed by Mr.
McLaughlin and Carolyn Colvin, Acting Commissioner of the Social Security
Administration. 1 Mr. McLaughlin requested oral argument, but it was not necessary to
the Court’s determination of this matter. For the reasons set forth below, the ALJ’s
decision will be reversed and remanded for further proceedings.

1

Docket 17 (McLaughlin Br.); Docket 18 (Def. Br.); Docket 24 (Reply).

FACTUAL AND PROCEDURAL BACKGROUND
Mr. McLaughlin is currently 41 years old. 2 He has a high school education and a
commercial driver’s license. His past relevant work includes approximately five years as
a garbage truck driver 3 and work as a day laborer, an aluminum siding assembler, and a
convenience store operator. 4 He alleges a disability onset date of August 20, 2007. 5
I.

Mr. McLaughlin’s Application for Disability Insurance Benefits and
Supplemental Security Income.
On March 5, 2008, Mr. McLaughlin filed an application for disability insurance
benefits (“DIB”) and an application for supplemental security income (“SSI”). 6 He was 34
years old at that time. He listed the following conditions as limiting his ability to work:
back injury, spinal stenosis, and bulging and ruptured discs. 7

The Social Security

Administration denied his initial applications for benefits, and also denied his applications
upon reconsideration. 8

2

See Administrative Record (herein “A.R.”) 16 (stating Mr. McLaughlin’s date of birth as June
10, 1973).
3

A.R. 153 (self-reporting work as a garbage truck driver between April 2002 and August 2007).

4

A.R. 16-20, 50, 153.

5

A.R. 117.

6

A.R. 43, 117-18, 119-25. The relevant regulations governing DIB and SSI are virtually
identical. Only the DIB regulations will be cited in this opinion. Parallel SSI regulations
correspond with the last digits of the DIB citation (e.g., 20 C.F.R. § 404.1520 corresponds with
20 C.F.R. § 416.920).

7

A.R. 135.

8

A.R. 57-60, 61-64, 70-72, 73-76.

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In January 2009 Mr. McLaughlin requested a hearing before an administrative law
judge (“ALJ”). 9 The hearing took place on March 28, 2011 in Phoenix, Arizona before
ALJ Ronald C. Dickinson. The ALJ, Mr. McLaughlin, his attorney, and vocational expert
(“VE”) Marilyn Kinnier were present at the hearing. Mr. McLaughlin and VE Kinnier
testified. 10
II.

The Administrative Record.
The administrative record before the ALJ reflects the following:
A. Medical Evidence.
1. Urgent Care in December 2007 and January 2008.
On December 28 and 31, 2007, Mr. McLaughlin was treated in the emergency

room at Banner Desert Medical Center. On December 28, he reported low back pain
radiating to his left leg, and on December 31, he reported pain “deep in the buttocks area
radiating down the back of the leg” but “denie[d] any back pain.”11 His medical records
indicate discharge with “sciatica, low back pain, and medication refill.” 12 On January 17,
2008, Mr. McLaughlin was treated at an urgent care facility for left side pain in his back,

9

A.R. 77.

10

See A.R. 10-35. The vocational expert’s name is spelled “Kanear” in the hearing transcript,
A.R. 30, but Kinnier in the ALJ’s decision, A.R. 43. The Court relies on the ALJ’s decision. See
A.R. 40-56.
11

A.R. 216-217.

12

A.R. 219.

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hip, thigh, leg, ankle, foot, and toe. 13 He was prescribed Percocet, Prednisone, and
Neurontin. 14
2. Treatment at Mission Family Medical Center with Colleen McCarter, FNP,
between January and March 2008.
On January 25, 2008, Mr. McLaughlin began treatment for chronic low back pain
with Colleen McCarter, Family Nurse Practitioner, at the Mission Family Medical Center.
Mr. McLaughlin reported his low back pain first began after a 2004 work injury but the
recent onset had been “sudden following no specific incident.” 15 He reported that the pain
was “severe, sharp [and] stabbing,” “aggravated by lifting, sitting, standing, and walking,”
and “relieved by bedrest.” 16
A February 2008 MRI revealed “mild spinal canal stenosis at the L5-S1 level,” “disc
extrusion with caudal migration of the fragment at the L5-S1 level,” “disc protrusion [at
the] L4-5 level,” and “[d]isc desiccation . . . at the L4-5 and L5-S1 levels.” 17
On March 20, 2008, Mr. McLaughlin again saw Nurse McCarter. Mr. McLaughlin
reported that his back pain was controlled with Lyrica and Percocet. Nurse McCarter
prescribed an anti-depressant “to satisfy [an] insurance plan requirement, although
clinically, he is not depressed.” 18

13

A.R. 213-215.

14

A.R. 215.

15

A.R. 236.

16

A.R. 230.

17

A.R. 256.

18

Nurse McCarter also noted that Mr. McLaughlin

A.R. 230.

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presented her with disability paperwork for completion. She completed a medical
assessment on that day opining that Mr. McLaughlin was not able to sit, stand, or walk
for more than one hour in each position in an eight-hour workday, and could not lift or
carry more than ten pounds. 19
3. Treatment, including surgery, with F. David Barranco, M.D., at Barrow
Neurosurgical Associates and follow up with Nurse McCarter.
In March 2008, Mr. McLaughlin had a neurosurgical consultation with F. David
Barranco, M.D. Mr. McLaughlin reported to Dr. Barranco that he injured his back while
working in a hurricane cleanup. After seeing a physician, obtaining pain pills, and taking
several weeks off from work, Mr. McLaughlin indicated that he had returned to work for
three more years in the garbage hauling business, during which time his pain continued
on and off, before he stopped working and moved to Arizona. 20 Mr. McLaughlin reported
that in December 2007 he “awoke with severe stabbing pain in the back that then began
radiating down his left” leg. 21 Since then, he reported that his leg pain had been constant,
accompanied by tingling and numbness, but that the pain was palliated by medications
and sitting or lying down. At the time of the hearing, Mr. McLaughlin reported he was
taking Oxycodone three times per day and Lyrica. 22 Dr. Barranco’s impression was
“Chronic back pain with disk desiccation at L4-5, L5-S1” and “Large left L5-S1 herniated

19

A.R. 245-46.

20

A.R. 204-06.

21

A.R. 204.

22

A.R. 205.

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disk with S1 radiculopathy.” 23 Dr. Barranco recommended a lumbar microdiscectomy for
the left L5-S1 disk, a type of back surgery. 24
On April 9, 2008 Mr. McLaughlin had back surgery pursuant to Dr. Barranco’s
recommendation. 25 Dr. Barranco’s notes of May 9, 2008 stated the following:
Postoperatively, [Mr. McLaughlin] states the pain is not as bad, but he still
has discomfort unless he takes his medications. It bothers him the most in
the morning, then when he takes his medications it feels much better, and
in comparison to what he had before surgery he can tell the difference when
he takes his medications. 26
Dr. Barranco noted that he “encouraged Mr. McLaughlin “to increase a walking program
and begin some water walking.” 27 A note from Dr. Barranco later that month indicates
that Mr. McLaughlin’s pain “is dramatically better” but that “his weakness and numbness
persists.” 28 Also in May 2008, Mr. McLaughlin reported to Nurse McCarter that he “ha[d]
improved mobility” and “[m]inimal pain in his back, but residual parathesia”; that Lyrica
“really helps” his nerve pain; that he had started walking therapy; and that he was “feeling
much better-not so depressed and stressed.” 29
In June 2008, Mr. McLaughlin reported to Nurse McCarter that he “now has more
good days than bad days and is experiencing decreased pain with increased [range of

23

A.R. 206.

24

A.R. 206.

25

A.R. 295-97.

26

A.R. 289.

27

A.R. 290.

28

A.R. 287.

29

A.R. 317.

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motion].”30

In July 2008, Mr. McLaughlin reported to Nurse McCarter that he had

problems with his left ankle, he wanted to discontinue narcotic pain medication, and was
“considering going in to computers as a job change.”31 Later that same month, Mr.
McLaughlin reported to Nurse McCarter that he was no longer taking any narcotic pain
medication. He also stated that he had a “mild exacerbation of low back pain” as a result
of assisting police officers in capturing someone who jumped into his backyard. 32
Mr. McLaughlin had 17 physical therapy sessions between June and September
2008. The therapist noted that Mr. McLaughlin declined further therapy because he “was
not making much progress” and had stated “it was going to be hard to get into PT because
of other commitments.” 33
4. Continued treatment at Mission Family Medical Center with Nurse
McCarter and Stacie Kagie, M.D., between August 2008 and February
2011, May 2009 treatment with Paul Lynch, M.D. at Arizona Pain
Specialists, and December 2010 consultation with Dr. Barranco.
In August 2008, Mr. McLaughlin reported to Nurse McCarter that he had
experienced increased anxiety over the past two months. 34 In September 2008, Mr.
McLaughlin reported he had continuing back pain and that he had increased pain when
he skipped Lyrica dosages.

30

A.R. 311.

31

A.R. 448-50.

32

A.R. 444.

33

A.R. 377, 405.

34

He also indicated that he had increased anxiety and

A.R. 441.

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emotional stress despite his medications. 35 However, he also reported that he could walk
for about a mile before his legs started to get tired. 36
In February 2009, Nurse McCarter’s notes state that Mr. McLaughlin had gained
ten pounds due to decreased activities and had not consistently been doing his back
exercises. 37 That same month, her notes state that Mr. McLaughlin was “unable to
exercise due to pending SS disability” and was “afraid to exercise much due to fear of
injuring his back.” 38 In March 2009, Nurse McCarter’s notes state that Mr. McLaughlin
reported “his left side radicular pain [wa]s slowly increasing.” 39 In April 2009, her notes
state that Mr. McLaughlin reported left leg spasming and intense radicular pain. 40 Mr.
McLaughlin saw Nurse McCarter again in May 2009 when she completed another
disability medical assessment, opining that Mr. McLaughlin could sit, stand, and walk for
less than one hour in an eight-hour workday, could lift ten to twenty pounds, and could
carry less than ten pounds. 41
On May 22, 2009, Mr. McLaughlin was seen by Paul Lynch, M.D., at Arizona Pain
Specialists. 42 At that time, Mr. McLaughlin rated his lower back pain as a 6 on a scale of

35

A.R. 438.

36

A.R. 438-40.

37

A.R. 500.

38

A.R. 571.

39

A.R. 566.

40

A.R. 564.

41

A.R. 507-08.

42

A.R. 609-11.

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0-10. Dr. Lynch evaluated Mr. McLaughlin for placement of a spinal column stimulator
and found that Mr. McLaughlin was a good candidate. Dr. Lynch found tenderness to
palpation over the facet joints and decreased range of motion, but normal strength in the
extremities. 43
In June 2009, Mr. McLaughlin reported to Nurse McCarter that he would not
proceed with placement of a spinal column stimulator because he was afraid of the
potential side effects and because he had “about 90% pain relief at th[at] time and
want[ed] to continue on his narcotic pain med.” 44
Between November 2009 and August 2010, Nurse McCarter’s notes reflect that
Mr. McLaughlin described his pain as “a dull ache,” but that he had “good relief” with pain
medications. 45 In June 2010, Nurse McCarter noted that Mr. McLaughlin’s treatment
would be transferred to Stacie Kagie, M.D., because of Nurse McCarter’s pending
departure from the practice. 46 She also noted that Mr. McLaughlin “has been extremely
compliant with his narcotic use, as well as his other medications, over the past two years
and is very stable on his current pain medication.” 47

43

A.R. 609-12.

44

A.R. 559-60.

45

A.R. 545 (11/4/09); A.R. 543 (12/2/09); A.R. 538 (12/20/09); A.R. 532 (1/27/10 and the
“course [of chronic back pain] has been decreasing”); A.R. 529 (2/24/10); A.R. 526-30 (3/23/10);
A.R. 523 (4/21/10); A.R. 520 (5/19/10); A.R. 518 (6/16/10); A.R. 514 (7/14/10); A.R. 511-15
(8/17/10).
46

A.R. 515.

47

Id.

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In September 2010, Mr. McLaughlin reported to Dr. Kagie that he had severely
increased back pain. He discussed an incident during which he was transported to an
emergency room by ambulance. 48 A September 2010 MRI revealed a “left paracentral
disc protrusion” at L4/5 and a “central disc protrusion with associated endplate ostephytic
spurring” at L5/S1. 49 A November 2010 MRI revealed similar findings.” 50
In December 2010, Dr. Barranco conducted a surgical consultation concerning
pain radiating into Mr. McLaughlin’s left leg. 51 Dr. Barranco recommended epidural block
injections and added “[o]nce the blocks help with the discomfort, he should be weaned
from the large dose of narcotics he is currently taking.” 52 According to Dr. Kagie’s notes,
Mr. McLaughlin declined the epidural block treatments for several reasons: he was
concerned about epidural injections because his father had had a bad experience; he
was worried about scarring; and he was experiencing good pain relief from medications. 53
In February 2011, Dr. Kagie completed a medical assessment and opined that in
an eight-hour work day, Mr. McLaughlin could sit, stand, and walk for less than two hours
each. She further opined that Mr. McLaughlin could not crawl or crouch at all; could

48

A.R. 509.

49

A.R. 599.

50

A.R. 607.

51

A.R. 601.

52

A.R. 606.

53

A.R. 596-97.

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occasionally bend, climb, reach, stoop, balance, kneel, and use his left foot; and could
frequently use his right foot. She did not evaluate his ability to lift or carry weight. 54
Dr. Kagie completed another medical assessment in July 2011 and again opined
that in an eight-hour work day, Mr. McLaughlin could sit, stand, and walk for less than two
hours each. She opined that Mr. McLaughlin could not crawl, climb, or crouch; could
occasionally bend, stoop, balance, and kneel; and could frequently use both feet. Again,
she did not evaluate his ability to lift or carry weight. 55
5. Psychological Consultation by Shelly K. Woodward, Ph.D.
At the request of the Arizona Disability Determination Service, Shelly K.
Woodward, Ph.D., examined Mr. McLaughlin on January 13, 2009 and prepared a
psychological report. 56 Dr. Woodward administered the Folstein Mini Mental Status
Examination and found that Mr. McLaughlin scored 100% on the exam. 57 Dr. Woodward
also found that Mr. McLaughlin’s short-term, intermediate, and remote memory appeared
intact. 58 Dr. Woodward diagnosed Mr. McLaughlin with adjustment disorder with mixed
anxiety and depressed mood; amphetamine dependence, sustained full remission;
nicotine dependence; and chronic back pain. 59

54

A.R. 594.

55

A.R. 673.

56

A.R. 476-70.

57

A.R. 479.

58

Id.

59

Id.

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Dr. Woodward also completed a psychological/psychiatric medical source
statement, in which she opined that Mr. McLaughlin did not appear to have any
impairment in understanding and memory, sustained concentration and persistence, or
social interaction, but that he may have difficulty responding appropriately to changes or
stressors in the work setting. 60
6. Opinions of State Agency Physicians.
State agency physician Ernest Griffith, M.D., reviewed the record and opined that
Mr. McLaughlin had the ability to stand, walk, or sit for about six hours in an eight-hour
workday. 61 State agency physician John Fahlberg, M.D., also reviewed the record and
summarily concurred with Dr. Griffith. 62 State agency psychologist Randall J. Garland,
Ph.D., also reviewed the record and determined that Mr. McLaughlin’s mental
impairments would impose no more than mild functional limitations. 63
B. Testimony at the Hearing.
Mr. McLaughlin testified that he has pain on his left side that “starts at [his] lumbar
spine and goes down the sciatic nerve all the way down to [his] left foot and, basically,
down to [his] pinky toe.” 64 He testified that his pain is “constant” and sometimes is “so

60

A.R. 480-81.

61

A.R. 355-62.

62

A.R. 475.

63

A.R. 483-93.

64

A.R. 22.

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severe that [he] can’t move, walk.” 65 He also suffers from anxiety and a “little bit of
depression from . . . being in this situation, and having to live at home again.”66
Mr. McLaughlin testified that on a good day, he can stand for 45 minutes to an
hour, but on a bad day, he can only stand for 15 minutes before he gets “very
uncomfortable, very painful” shooting pain in his left leg. 67 He testified that he can walk
between 45 minutes to an hour, but then his back will start aching and he has to sit or lie
down. 68 Mr. McLaughlin testified that he spends most of his time lying down—up to seven
hours per day—but limits the naps he takes to three or four times a week to two hours at
a time. 69 He testified that he cooks simple meals and cleans the bathroom two to three
times per week, but for under ten minutes at a time. 70 He can bend enough to place his
dishes in the dishwasher. 71
The ALJ asked Mr. McLaughlin about his April 2008 back surgery. The ALJ and
Mr. McLaughlin had the following exchange about that surgery:
ALJ. And did that help?
Mr. McLaughlin. All they did was remove some particles out of my back
from the cartilage that broke off. And, no, it did not help, because there was
too much nerve damage.

65

A.R. 23.

66

A.R. 26.

67

A.R. 24.

68

A.R. 26.

69

A.R. 27.

70

A.R. 28.

71

A.R. 29.

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ALJ. Because I’m reading through the reports, and it says after you had the
surgery that pain is much better.
Mr. McLaughlin. It improved slightly, but it’s -- the nerve damage causes
my leg to just quit on me and I’ll fall to the ground, and then I have constant
pain all the time. 72
Mr. McLaughlin testified that he has not had injections in his lower back to help with the
pain because he’s “very scared of those.” 73
Mr. McLaughlin testified that he takes Percocet three times per day and that “it
takes the edge off, really, that’s about all it does.” 74 On bad days, he takes it four times. 75
The ALJ then posed hypothetical questions to the VE as to whether jobs exist in
the state of Arizona and the national economy for a 37-year-old person who has a high
school education and the ability to do light exertion level, unskilled work; who can lift 20
pounds occasionally and up to 10 pounds more frequently; who cannot crawl, crouch,
climb, squat, or kneel; who cannot use his legs or feet for pushing or pulling of foot or leg
controls; and who requires a job that allows for a sit/stand option. 76 The VE responded
that such a person could work as a cashier, parking lot attendant, or small products
assembler. 77

72

A.R. 22.

73

A.R. 23-24.

74

A.R. 25.

75

Id.

76

A.R. 31.

77

The ALJ noted that the Dictionary of Occupational Titles does not

A.R. 32.

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specifically refer to a sit/stand option, but the VE testified that she had seen these jobs
performed in that way. 78
Upon questioning by Mr. McLaughlin’s attorney, the VE testified that if this
hypothetical person had to take more breaks due to back pain than a normal employer
would provide (i.e., more than a morning, afternoon, and lunch break) the person could
not work in the national economy. 79 The VE also testified that a hypothetical person who
can sit less than one hour, stand less than one hour, walk less than one hour, and lift less
than ten pounds could not work in the national economy. 80
III.

The ALJ’s Decision and Mr. McLaughlin’s Appeal.
On April 27, 2011, the ALJ issued his decision, concluding that Mr. McLaughlin

had not been under a disability within the meaning of the Social Security Act from August
20, 2007 through the date of the decision. 81 Mr. McLaughlin filed a Request for Review
of Hearing Decision. 82 On March 12, 2013, the Appeals Council opted not to review the
denial and deemed the ALJ’s decision the final decision of the Commissioner of Social
Security. 83
Mr. McLaughlin timely filed this action on April 18, 2013, seeking reversal of the
Commissioner’s decision and remand for payment of DIB and SSI benefits together with

78

Id.

79

A.R. 33.

80

Id.

81

A.R. 40-56.

82

A.R. 7-9.

83

A.R. 1-6.

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costs and attorney’s fees. 84 The Commissioner opposes the requested relief and asks
the Court to dismiss the Complaint and affirm the ALJ’s decision. 85
STANDARD OF REVIEW
The ALJ’s denial of benefits to Mr. McLaughlin should be set aside “only if it is not
supported by substantial evidence or is based on legal error.” 86 An ALJ’s determination
is based on legal error if the ALJ failed to apply the proper legal standard. 87 Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support [the ALJ’s] conclusion.”88 A reviewing court “must consider the entire record as
a whole,” 89 and “[i]f the record considered as a whole can reasonably support either
affirming or reversing the [ALJ’s] decision, [the court] must affirm.”90 The Court applies
the same standard of review regardless of a claimant’s age. 91

84

Docket 1 (Compl.); Docket 17 at 30-31 (McLaughlin Br.).

85

Docket 10 at 2 (Answer); see also Docket 18 at 21 (Def. Br.).

86

Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)).

87

See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“We will affirm . . . if the ALJ
applied the proper legal standard . . . .”).

88

Id.

89

Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 2006)).

90

Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012) (quoting McCartey v. Massanari, 298
F.3d 1072, 1075 (9th Cir. 2002)).
91

The Commissioner suggests that the Court should “carefully scrutinize the employment
prospects of so young an individual before placing [him] on the disability rolls. Docket 18 at 9
(Def. Br.) (citing McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976)). But the
Commissioner nevertheless cites the correct standard of review, which does not take into
consideration a claimant’s age, see Docket 18 at 19, and that is the standard applied by this
Court.
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DISCUSSION
I.

The Five Step Analysis.
The Social Security Act provides for the payment of disability insurance benefits

and supplemental security income to individuals who have contributed to the social
security program and who suffer from a disability. 92 Disability is defined as an “inability
to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 93
The Commissioner has established a five-step process for determining disability. 94
At Steps 1 through 4, the claimant bears the burden of proving his “entitlement to disability
insurance benefits”; at Step 5, the burden shifts to the Commissioner to show that there
is gainful activity that the claimant can perform. 95
At Step 1, the claimant must show he is not currently engaged in substantial gainful
activity. 96 At Step 2, the claimant must demonstrate that his impairment is “severe,” i.e.,
it is an impairment that “significantly limits [her] physical or mental ability to do basic work
activities” that has lasted or will last for at least twelve months. 97 At Step 3, if the claimant

92

42 U.S.C. § 423(a).

93

42 U.S.C. § 423(d)(1)(A).

94

20 C.F.R. § 404.1520(a)(1).

95

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting Tidwell v. Apfel, 161 F.3d 599,
601 (9th Cir. 1998)).
96

20 C.F.R. § 404.1520(a)(4)(i).

97

20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R. § 404.1509.

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proves his impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, then the
ALJ must conclude the claimant is disabled. 98 If not, then the ALJ determines the
claimant’s residual functional capacity (“RFC”), or the most work the claimant can still do
despite his limitations. 99 At Step 4, the ALJ uses the RFC to determine whether the
claimant is capable of performing his past relevant work. 100 If the claimant proves he
cannot perform his past relevant work, then at Step 5, the Commissioner must show—
based on the claimant’s RFC, age, education, and work experience—that the claimant is
capable of performing other work that exists in the national economy. 101 If the claimant
can make an adjustment to other work, he is not disabled. If he cannot make such an
adjustment, then he is considered disabled. 102
In this case, at Step 1 the ALJ found that Mr. McLaughlin had not engaged in
substantial gainful activity since August 20, 2007, the alleged disability onset date. 103 At
Step 2, the ALJ found that Mr. McLaughlin suffered from the following impairments, which
he found are severe when considered in combination: status-post lumbar surgery, postlaminectomy syndrome, chronic lumbo-sacral pain, chronic pain syndrome, an anxiety

98

20 C.F.R. § 404.1520(a)(4)(iii).

99

20 C.F.R. § 404.1545(a)(1). The ALJ makes the RFC determination based on “all of the
relevant medical and other evidence,” including “descriptions and observations of [the
claimant’s] limitations” provided by the claimant and others. Id. § 404.1545(a)(3).
100

20 C.F.R. § 404.1520(a)(4)(iv).

101

20 C.F.R. § 404.1520(a)(4)(v).

102

Id.

103

A.R. 45.

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disorder, depression, and an adjustment disorder with mixed anxiety and depression. 104
At Step 3, the ALJ found that Mr. McLaughlin’s impairments do not meet the criteria of an
impairment or combination of impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 105 As to mental impairments, the ALJ found that Mr. McLaughlin had mild
restrictions in activities of daily living, mild difficulties in social functioning, and moderate
difficulties with regard to concentration, persistence, or pace. 106
The ALJ then determined that Mr. McLaughlin has the following RFC:
“[C]laimant has the residual functional capacity to perform light work with
restrictions . . . . The claimant should have the option to sit and stand at
will. He cannot crawl, crouch, climb, squat or kneel and cannot use his
lower extremities for pushing or pulling. In addition, the claimant can only
perform unskilled work. 107
At Step 4, the ALJ relied upon the testimony of the VE to conclude that Mr.
McLaughlin is unable to perform any of his past relevant work. 108
At Step 5, the ALJ found that “[c]onsidering [Mr. McLaughlin’s] age, education,
work experience, and residual function capacity, there are jobs that exist in significant
numbers in the national economy that [Mr. McLaughlin] could perform.” 109 Specifically,
based on the testimony of the VE, the ALJ concluded that Mr. McLaughlin could perform

104

A.R. 45.

105

A.R. 46.

106

Id.

107

A.R. 47.

108

A.R. 50.

109

Id.

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the jobs of cashier, parking lot attendant, and small products assembler. 110 Accordingly,
the ALJ concluded that Mr. McLaughlin was not disabled under the Social Security Act. 111
II.

Issues on Appeal
On appeal, Mr. McLaughlin asserts that the ALJ (1) erred in his consideration of

Mr. McLaughlin’s FMLA paperwork; (2) failed to adequately incorporate Dr. Woodward’s
assessment into the RFC; (3) failed to properly weigh Mr. McLaughlin’s subjective
symptom testimony; and (4) failed to properly weigh the medical opinions of Dr. Kagie
and Nurse McCarter. 112
III.

Analysis
A. The ALJ did not err in his consideration of Mr. McLaughlin’s FMLA
paperwork.
Mr. McLaughlin asserts that the ALJ erred in his evaluation of the Family Medical

Leave Act (“FMLA”) paperwork Nurse McCarter submitted in support of Mr. McLaughlin’s
applications. 113 In May 2008, Nurse McCarter completed FMLA paperwork, indicating
that Brenda McLaughlin needed to take off from work to care for Mr. McLaughlin for
approximately four months, from April 9 to August 1, 2008. And in October 2008, Nurse
McCarter completed paperwork indicating Ms. McLaughlin needed to take off from work
to care for Mr. McLaughlin between October 26, 2008 and October 26, 2009. 114 The ALJ

110

A.R. 50-51.

111

A.R. 51.

112

Docket 17 at 1, 7-8, 17–19 (McLaughlin Br.).

113

Docket 17 at 17 (McLaughlin Br.).

114

A.R. 328, 349, 460-62.

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assigned these forms little weight because they “related to periods of only temporary
disability less than twelve months.” 115 Mr. McLaughlin asserts that the documents reflect
disability over twelve months, and also that “a finding that Mr. McLaughlin no longer needs
a care giver is not evidence of a lack of disability.” 116

The Court agrees with Mr.

McLaughlin that a claimant is not required to be so disabled that he requires a caregiver
in order to obtain disability benefits. 117 However, the ALJ did not err by noting that the
FMLA forms reflect only short term disability and giving them little weight. The forms are
not determinative of DIB or SSI; they were simply pieces of evidence that were considered
by the ALJ.
B. The ALJ adequately accounted for the opinion of Shelly K. Woodward, Ph.D.,
Consulting Physician in his RFC assessment.
The ALJ’s decision states that “Dr. Woodward found that [Mr. McLaughlin] would
have difficulty responding appropriately to changes/stressor in a work setting.” 118 The
ALJ assigned Dr. Woodward’s opinion “significant weight” because “it is consistent with
the medical evidence related to [Mr. McLaughlin’s] mental impairments.”119 Because of
that opinion, the ALJ limited Mr. McLaughlin to unskilled work. 120

115

A.R. 49 (citing A.R. 328, 349, 460-62).

116

Docket 17 at 17-18 (McLaughlin Br.).

117

See Id. at 18 (citing cases).

118

A.R. 49 (citing A.R. 480).

119

Id.

120

Id.

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Mr. McLaughlin asserts that the ALJ erred because although he gave significant
weight to Dr. Woodward’s opinion, the ALJ “omits the effect of work stress from his RFC
assessment,” which constitutes legal error. 121 Mr. McLaughlin asserts that “the mentally
impaired may have difficulty meeting the requirement of even so-called ‘low-stress’
jobs.” 122
But Dr. Woodward opined that Mr. McLaughlin did not have difficulty in
understanding and memory, sustained concentration and persistence, or social
interaction. 123

And as to responding appropriately to changes or stressors in the work

setting, the ALJ noted that at various medical care visits, Mr. McLaughlin demonstrated
alert or normal mental status or indicated that medication managed his anxiety. 124 Mr.
McLaughlin does not provide any legal support for his argument that the ALJ committed
legal error in his assessment of Mr. McLaughlin’s mental impairment, after finding that he
had mild mental impairments as to activities of daily living and social functioning and
moderate difficulties as to concentration, persistence, or pace. 125 Accordingly, the Court
rejects Mr. McLaughlin’s assertion that the ALJ’s inadequately accounted for Dr.
Woodward’s opinion in the RFC.

121

Docket 17 at 19 (McLaughlin Br.).

122

Id. (quoting SSR 85-15).

123

A.R. 480-81.

124

A.R. 48 (citing A.R. 224, 234, 238, 312, 315, 317-18, 333, 336, 509, 519, 549, 551).

125

A.R. 46.

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C. The ALJ provided specific, clear, and convincing reasons for finding Mr.
McLaughlin’s statements concerning the intensity, persistence, and limiting
effects of his symptoms to be only partially credible.
“In assessing the credibility of a claimant’s testimony regarding subjective pain or
the intensity of symptoms, an ALJ engages in a two-step analysis.” 126 First, the ALJ
determines whether there is “objective medical evidence of an underlying impairment
which could reasonably be expected to produce the . . . symptoms alleged.” 127 In the
second step, unless there is affirmative evidence that the claimant is malingering, the ALJ
must give “specific, clear and convincing reasons” before discrediting the claimant’s
testimony. 128

“In evaluating the claimant’s testimony, the ALJ may use ‘ordinary

techniques of credibility evaluation.’” 129

For example, the ALJ may consider the

claimant’s reputation for truthfulness, prior inconsistent statements, inconsistencies
between the claimant’s testimony and his conduct, an unexplained or inadequately
explained failure to seek treatment, the claimant’s daily activities, the claimant’s work

126

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

127

Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

128

Id. (quoting Vasquez, 572 F.3d at 591). The Commissioner asserts the standard of review
that courts should apply to an ALJ’s credibility findings was articulated by the Ninth Circuit in
Bunnell v. Sullivan. Docket 18 at 10-11 (Def. Br.) (“An ALJ’s credibility findings, ‘properly
supported by the record, must be sufficiently specific to allow a reviewing court to conclude the
adjudicator rejected the claimant’s testimony on permissible grounds and did not arbitrarily
discredit a claimant’s testimony regarding pain.’” (quoting Bunnell v. Sullivan, 947 F.2d 341,
345-46 (9th Cir. 1991) (en banc) (internal quotation omitted)). The Commissioner maintains that
the “clear and convincing reasons” standard has been articulated by three-judge panels, but
only an en banc panel may overturn Bunnell. Docket 18 at 11 n.5 (Def. Br.). Courts in this
district have previously rejected this argument. See, e.g., Valenzuela v. Colvin, No. CV 11-812TUC-HCE, 2013 WL 1092886, at *4 n.4 (D. Ariz. Mar. 15, 2013); see also Garrison v. Colvin,
759 F.3d 995, 1015-16 (9th Cir. 2014).
129

Molina, 674 F.3d at 1112 (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3
(9th Cir. 2010)).
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record, and testimony from physicians and third parties concerning the nature, severity,
and effect of the claimant’s symptoms. 130
In this case, at step one of this analysis, the ALJ found that Mr. McLaughlin
reported that “he experiences severe pain. He cannot move or feel his left leg. He cannot
walk without pain. He further reported that it hurt to do anything including to sit or lay
down. He could not put much pressure on his left ankle because of nerve damage. It is
difficult for him to go up and down stairs as he is afraid he will fall.” 131 The ALJ found that
Mr. McLaughlin’s “medically determinable impairments could reasonably be expected to
cause only some of the alleged symptoms.” 132
In step two of the analysis, the ALJ concluded that “claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment.” 133 Under that RFC, as described above, the ALJ had concluded that Mr.
McLaughlin could perform light work at an unskilled job so long as he had an option to sit
and stand at will and was not required to “crawl, crouch, climb, squat or kneel,” or use his
lower extremities for pushing or pulling. 134 The ALJ also discussed evidence in the record
about the daily activities Mr. McLaughlin was able to perform:

130

See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Thomas v. Barnhart, 278 F.3d 947,
958–59 (9th Cir. 2002).
131

A.R. 47, citing 134-142 (Disability Report completed by Mr. McLaughlin).

132

A.R. 48.

133

A.R. 48.

134

A.R. 47.

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As far as [Mr. McLaughlin]’s credibility, the claimant has described daily
activities which are not limited to the extent one would expect, given the
complaints of disabling symptoms and limitations. For example, claimant
spends time on the computer, surfs the internet, listens to music, watches
movies, does his own laundry, loads the dishwasher, claimant drives, goes
shopping for food, walks about a mile a day and goes on dates. 135
In assessing Mr. McLaughlin’s credibility, the ALJ also noted that Mr. McLaughlin took
medications and had back surgery—factors that the ALJ noted would typically weigh in a
claimant’s favor—but that the medical records reflect that “the medications have been
relatively effective in controlling [his] symptoms” and “the surgery was generally
successful in relieving [his] symptoms.” 136 The ALJ also noted that Mr. McLaughlin told
his health care provider in 2008 that he was considering going into computers as a job
change. As the ALJ notes, this statement was made a year after his alleged disability
onset date. 137
Mr. McLaughlin makes four arguments as to why the ALJ’s adverse credibility
finding is not supported by “specific, clear and convincing reasons.” 138

135

A.R. 49 (citing A.R. 143, 477).

136

Id.

137

Id. (citing A.R. 287, 448).

138

Docket 17 at 21-29 (McLaughlin Br.) (quoting Vasquez, 572 F.3d at 591). The
Commissioner asserts the standard of review that courts should apply to an ALJ’s credibility
findings was articulated by the Ninth Circuit in Bunnell v. Sullivan. Docket 18 at 10-11 (Def. Br.)
(“An ALJ’s credibility findings, ‘properly supported by the record, must be sufficiently specific to
allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on
permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’”
(quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc) (internal quotation
omitted)). The Commissioner maintains that the “clear and convincing reasons” standard has
been articulated by three-judge panels, but only an en banc panel may overturn Bunnell.
Docket 18 at 11 n.5 (Def. Br.). Courts in this district have previously rejected this argument.
See, e.g., Valenzuela v. Colvin, No. CV 11-812-TUC-HCE, 2013 WL 1092886, at *4 n.4 (D. Ariz.
Mar. 15, 2013).
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First, Mr. McLaughlin asserts that “the ALJ does not explain which reported
symptom[s] could reasonably be caused by Mr. McLaughlin’s medically determinable
impairments, and which could not.” 139 As noted above, after identifying Mr. McLaughlin’s
overriding symptom as severe pain, the ALJ lists various subjective symptoms that Mr.
McLaughlin had identified as stemming from that pain. The ALJ then states that “only
some” of those alleged symptoms could be caused by Mr. McLaughlin’s medically
determinable impairments. The Ninth Circuit requires that an “ALJ must state specifically
which symptom testimony is not credible and what facts in the record lead to that
conclusion.” 140 Here, the ALJ did not specifically identify which of Mr. McLaughlin’s
specific symptoms could be caused by the impairments. For example, the ALJ did not
explain whether he found not credible Mr. McLaughlin’s testimony that he cannot move
or feel his left leg, and/or his testimony that he cannot go up or down stairs. But the Court
finds that the overriding symptom that Mr. McLaughlin described was one of severe pain.
Read in its entirety, the ALJ’s decision makes clear that he found only partially credible
Mr. McLaughlin’s evidence regarding the severity of that pain. The ALJ provided an
adequate correlation between the severity of Mr. McLaughlin’s pain symptoms and the
partial adverse credibility finding.
Second, Mr. McLaughlin objects to the ALJ’s conclusion that his activities of daily
living conflict with his reported limitations and disability. 141 As discussed supra, the ALJ

139

Docket 17 at 23 (McLaughlin Br.).

140

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

141

Docket 17 at 25 (McLaughlin Br.).

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noted that Mr. McLaughlin spends time on the computer, watches movies, does laundry,
loads the dishwasher, drives, shops, walks about a mile a day, and goes on dates. 142 Mr.
McLaughlin asserts that these activities of daily living are not inconsistent with disability
because Mr. McLaughlin prepares only easy meals, does dishes and laundry only twice
a week, limits his physical activity to ten to fifteen minute intervals, shops only once a
month, and conducts limited complete personal hygiene care due to pain. 143 An ALJ may
consider daily living activities in his credibility analysis, particularly if a claimant engages
in numerous daily activities involving skills that could be transferred to the workplace. 144
On the other hand, a claimant “does not need to be ‘utterly incapacitated’ in order to be
disabled.” 145 The daily living activities described here do not necessarily transfer easily
to the workplace, and alone, they might not support an adverse credibility finding.
Nonetheless, the ALJ did not err in relying on those activities to support his partial adverse
credibility finding.
Third, Mr. McLaughlin asserts that the ALJ inaccurately concluded that his
medications and surgeries “were generally successful in controlling his symptoms.”146
Mr. McLaughlin asserts that medical records not cited by the ALJ reflect that he
“continue[d] to experience pain, left leg numbness, and decrease[d] range of motion

142

A.R. 49.

143

Docket 17 at 25 (McLaughlin Br.) (citing A.R. 144-46, 477); but see A.R. 26 (Mr.
McLaughlin’s testimony that he can sustain 45 minutes to an hour of walking).

144

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

145

Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683
(9th Cir. 2005).
146

Docket 17 at 27 (McLaughlin Br.).

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(despite surgery and medications).”147 There is no doubt that Mr. McLaughlin continues
to suffer some degree of pain—indeed, the ALJ found that he had a significant
impairment. 148

But the ALJ accurately referred to medical records reflecting

improvements in Mr. McLaughlin’s condition and a reduction in pain. The question in the
proceedings before the ALJ was not whether Mr. McLaughlin continues to have pain, but
whether he has an “inability to engage in any substantial gainful activity” because of an
impairment that has or can last more than twelve months. 149 The ALJ found that the
record demonstrated that Mr. McLaughlin’s medications and surgery were relatively
effective in controlling his symptoms. There was substantial evidence in the record to
support this finding, which weighed in favor of the ALJ’s partial adverse credibility finding
regarding Mr. McLaughlin’s reported symptoms of severely disabling pain.
Fourth, Mr. McLaughlin asserts the ALJ erred by relying on Mr. McLaughlin’s
statement that he was considering going into computers as a job change a year after his
disability onset date to support the adverse credibility finding. 150 A desire to work or even
a failed effort to work “in and of itself . . . is not a sufficient basis for [an] ALJ’s adverse
credibility finding, 151 However, consideration of this evidence as one factor in determining
symptom credibility is not error. Overall, the ALJ otherwise provided the requisite specific,

147

Id. (citing A.R. 224, 287-89, 473-74, 564-65, 556-67, 571-73, 609-11).

148

See A.R. 45 (step 2 analysis).

149

42 U.S.C. § 423(d)(1)(A).

150

Docket 17 at 27-28 (McLaughlin Br.).

151

Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007).

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clear and convincing reasons for finding Mr. McLaughlin not fully credible with respect to
the severity of his pain symptoms.
D. The ALJ failed to provide specific and legitimate reasons supported by
substantial evidence in the record for giving little weight to the opinion of Dr.
Kagie.
An ALJ may reject the contradicted opinion of a treating physician only after
providing “specific and legitimate reasons that are supported by substantial evidence in
the record.”152

A non-examining physician’s opinion “cannot by itself constitute

substantial evidence that justifies rejection of the opinion of either an examining physician
or a treating examining physician. 153
As noted above, in February 2011 and July 2011, Dr. Kagie completed medical
assessments opining that in an eight-hour work day, Mr. McLaughlin could sit, stand, and
walk less than two hours each and that he had various other physical restrictions. 154 The
ALJ stated that Dr. Kagie’s “medical statement noting that the claimant could perform less
than sedentary work . . . contrasts sharply with the other evidence or record, which
renders it less persuasive,” and assigned it little weight. 155 But no further explanation or
interpretation is included in the ALJ’s decision; nor does the ALJ specifically identify the
other evidence in the record that he found to be in sharp contrast with Dr. Kagie’s

152

Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 692 (2009) (quoting Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Examples of specific and legitimate reasons
supported by substantial evidence in the record might include laboratory test results, a
nonexamining physician’s testimony, and testimony from a claimant that conflicts with a treating
physician’s opinion. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

153

Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995).

154

A.R. 594-95, 673-74.

155

A.R. 49.

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assessments. Because Dr. Kagie’s opinion was contradicted by the opinions of nonexamining state agency physicians Drs. Griffith and Fahlberg, 156 the ALJ was required to
provide specific and legitimate reasons supported by substantial evidence in the record
for declining to give Dr. Kagie’s opinion controlling weight.
Mr. McLaughlin asserts that “[t]he ALJ’s conclusion is not a specific and legitimate
reason for rejecting [a] treating physician[’s] opinion, and is not supported by citation to
substantial evidence of record.” 157 He asserts that “no conflicting medical findings or
clinical data is cited by the ALJ,” and “even if there were conflicting medical signs and
clinical data cited by the ALJ, the paucity of reasons offered by the ALJ for giving little
weight to the treating physician[’s] opinion demonstrates legal error.” 158
Mr. McLaughlin is correct. In Thomas v. Barnhart, the Ninth Circuit set out how an
ALJ is to approach conflicting evidence between treating and examining physicians,
explaining:
Although the treating physician's opinion is given deference,
the ALJ may reject the opinion of a treating physician in favor
of a conflicting opinion of an examining physician if the ALJ
makes findings setting forth specific, legitimate reasons for
doing so that are based on substantial evidence in the record.
The ALJ can meet this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical

156

A.R. 355-62, 475. Mr. McLaughlin asserts that the ALJ does not cite the conflicting opinions
in his decision, see Docket 24 at 5 (Reply), but the ALJ notes the conflicting state agency
opinions at A.R. 49.

157

Docket 17 at 13 (McLaughlin Br.).

158

Id. at 14 (McLaughlin Br.) (citing Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006);
20 C.F.R. § 404.1527).
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evidence, stating his interpretation thereof, and making
findings. 159
Here, the ALJ may have intended to meet these requirements by discussing the medical
evidence that precedes his statement regarding Dr. Kagie’s assessments, but his
conclusory statement rejecting her opinions without interpretation or specific findings is
inadequate.
The opinion of a treating physician is typically given great weight because “[s]he is
employed to cure and has a greater opportunity to know and observe the patient as an
individual.” 160 Accordingly, the “specific and legitimate” reasons requirement assures
reviewing courts, claimants, and agency officials alike that the ALJ has carefully
considered and evaluated the evidence before him before discounting the opinion of a
claimant’s own physician. Here, although the ALJ summarized the clinical evidence, he
did not identify and interpret the specific conflicts between Dr. Kagie’s assessments and
the rest of the record that he had determined existed and make the requisite findings of
“specific and legitimate” reasons. This was error. 161

159

278 F.3d 947, 957 (9th Cir. 2002) (emphasis added, internal citations and quotation marks
omitted).
160

Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987).

161

Mr. McLaughlin has made a similar argument about the conclusory discounting of Nurse
McCarter’s opinions. Docket 17 at 17 (McLaughlin Br.). Because the ALJ will be permitted to
reconsider the medical opinion evidence in this case, the Court does not reach the issue of
whether that dismissal constituted a reason “germane” to Nurse McCarter. See Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224
(9th Cir. 2010)).

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IV.

Remedy
In cases where a medical opinion is erroneously discredited, the Ninth Circuit has

established a “credit-as-true rule” which strongly favors remand for a calculation and
award of benefits “[w]here remand [for further proceedings] would unnecessarily delay
the receipt of benefits.” 162 The Court of Appeals has recently articulated a three-part
standard to determine whether that remedy is appropriate, asking whether:
(1) the record has been fully developed and further
administrative proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant
disabled on remand. 163
The Ninth Circuit’s recent decision in Garrison recognizes that where “the record
as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the
meaning of the Social Security Act,” a court has flexibility to remand for further
proceedings before the Commissioner “even though all conditions of the credit-as-true
rule are satisfied.” 164 Garrison recognizes that Social Security proceedings should focus
“on what the record evidence shows about the existence or non-existence of a
disability.” 165 In this case, the ALJ’s inadequate explanation of his reasons for discounting
Dr. Kagie’s opinion does not overshadow the considerable weight of the medical
evidence. This Court’s evaluation of the record as a whole, including that medical
162

Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988).

163

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).

164

Id. at 1021 (citing Connett v. Barnhart, 340 F. 3d 871 (9th Cir. 2003)).

165

Id. (quoting Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011)).

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evidence, creates serious doubt as to whether Mr. McLaughlin is, in fact, disabled within
the meaning of the Social Security Act. Specifically, the medical records discussed above
demonstrate that Mr. McLaughlin’s symptoms have been generally well managed by pain
medication. 166 And this Court has upheld the ALJ’s partial adverse credibility finding as
to Mr. McLaughlin’s reports of the severity of his symptoms. As a result, the Court finds
that this is an appropriate case in which to decline to apply the credit-as-true rule and
remand for additional proceedings before the Commissioner. 167
CONCLUSION
The ALJ’s decision contains legal error because it does not provide specific and
legitimate reasons for according little weight to Dr. Kagie’s assessments. However,
because this Court’s evaluation of the record as a whole creates serious doubt as to
whether Mr. McLaughlin is, in fact, disabled within the meaning of the Social Security Act,
the ALJ’s decision is REVERSED and REMANDED for additional proceedings before the
Commissioner consistent with this opinion.

The Clerk of Court is directed to enter

judgment for Mr. McLaughlin.
DATED this 26th day of September, 2014.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

166

See, e.g., A.R. 601; (Note from Dr. Barranco in December 2010: After the back surgery in
early 2008, Mr. McLaughlin “states that he has done well up until about two months ago when his
back went out on him”).

167

Garrison, 759 F.3d at 1020–23 (9th Cir. 2014).

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