Gonzales v. Colvin

Filing 30

ORDER that the decision of the Commissioner is reversed and this matter is remanded for an award of benefits. Signed by Judge H Russel Holland on 2/4/2014. (LFIG)

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

VALERIE C. GONZALES,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, acting Commissioner )
of Social Security,
)
)
Defendant.
)
__________________________________________)

No. 2:13-cv-0849-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff has timely
filed her opening brief,1 to which defendant has responded.2

Oral argument was not

requested and is not deemed necessary.
Procedural Background
Plaintiff is Valerie C. Gonzales. Defendant is Carolyn W. Colvin, acting Commissioner of Social Security.

1

Docket No. 22.

2

Docket No. 25.
-1-

Plaintiff filed applications for disability benefits under Title II and Title XVI of the
Social Security Act, alleging that she became disabled on July 18, 2009. Plaintiff alleged that
she was disabled because of back pain, arthritis, migraine headaches, and obesity.
Plaintiff’s applications were denied initially and upon reconsideration. After a hearing on
July 28, 2011, an administrative law judge (ALJ) denied plaintiff’s claims. On March 1,
2013, the Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s
September 23, 2011 decision the final decision of the Commissioner. On April 26, 2013,
plaintiff commenced this action in which she asks the court to find that she is entitled to
disability benefits.
General Factual Background
Plaintiff was born on September 30, 1976. She was 34 years old at the time of the
hearing. Plaintiff attended eleven years of school but does not have a high school diploma
or GED. Plaintiff is married and lives with her husband, adult stepson, and eight-year old
granddaughter. Plaintiff’s past relevant work was as a dispatcher.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2011.”3

3

Admin. Rec. at 22.
-2-

The ALJ then applied the five-step sequential analysis used to determine whether
an individual is disabled.4 At step one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since July 18, 2009, the alleged onset date....”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
major depressive disorder, obesity, and degenerative disc disease of the lumbar spine....”6

4

The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit ... her ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform ... her past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow ... her to
adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5

Admin. Rec. at 22.

6

Admin. Rec. at 22.
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At step three, the ALJ found that plaintiff did “not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1....”7 The ALJ considered listing
1.04, disorders of the spine, and listing 12.04, affective disorders.8 The ALJ considered
whether plaintiff satisfied the “paragraph B” criteria and concluded that she did not
because she had no restrictions as to her activities of daily living, no difficulties as to social
functioning, and only moderate difficulties with regard to concentration, persistence, or
pace.9
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009).
The ALJ found that plaintiff had
the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) except she can
stand and walk for one hour at a time, four hours total in an
eight hour work day. She can sit for six hours; and is limited
to frequent climbing of ramps and stairs, as well as balancing,
and stooping. [Plaintiff] can occasionally climb ladders, ropes,
and scaffolds; and occasionally kneel, crouch, and crawl. She

7

Admin. Rec. at 22.

8

Admin. Rec. at 23.

9

Admin. Rec. at 23-24.
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should avoid concentrated exposure to workplace hazards.
She is also limited to simple, repetitive tasks.[10]
In assessing plaintiff’s RFC, the ALJ considered plaintiff’s statements concerning
“pain, numbness, and other symptoms” but found plaintiff’s “statements regarding
intensity, frequency, and duration, less than fully credible.”11 The ALJ first noted that the
April 2009 x-rays of plaintiff’s lumbar spine “revealed evidence of old, slight compression
deformities in the lower thoracic spine, but no acute findings ... to indicate an etiology for
back pain”12 and that no objective findings were reported the two times plaintiff presented
to the emergency room in 2009 complaining of back pain.13 The ALJ then discussed
plaintiff’s April 2009 MRI, emphasizing that this MRI showed “no evidence of nerve root
displacement or compression.”14
10

Admin. Rec. at 24.

11

Admin. Rec. at 25.

12

Admin. Rec. at 25.

13

Admin. Rec. at 25. Plaintiff actually presented to the emergency three times in 2009
complaining of back pain. On March 20, 2009, the physical exam of plaintiff’s back
revealed that she had “[n]ormal alignment. TTP bilat[eral] lumbar paraspinals and L.
buttock. pain with flexion > 30 degrees and pain with extension past vertical; no pain with
lateral bends.” Admin. Rec. at 282. On April 9, 2009, the physical exam of plaintiff’s back
showed a decreased range of motion and muscle spasms. Admin. Rec. at 295. On
November 23, 2009, plaintiff’s physical exam showed that she was in mild distress, limping,
and that her back had “[n]ormal alignment. Midline tenderness to palpation LS spine. TTP
Lt. LS paraspinas.” Admin. Rec. at 348.
14

Admin. Rec. at 26. The April 27, 2009 MRI of plaintiff’s lumbar spine showed that
(continued...)
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The ALJ found plaintiff’s statement that she needs to lay down five out of eight
hours per day15 less than credible because “the records do not show atrophy or significant
deconditioning. She remains neurologically intact although she demonstrated positive
straight leg raising.”16 The ALJ also stated that plaintiff “testified her last job ended
because she was allowed to perform ... it while using narcotic medication. She testified that
she had never been counselled [sic] or reprimanded over the quality of her work.”17

14

(...continued)
[a]t the L4-L5 level, there is degenerative disk, disk bulge and
small broad-based midline disk protrusion with annular tear
contacting the L5 nerve roots bilaterally. No evidence of nerve
root displacement or compression. Facet and ligamentum
flavum hypertrophy at this level without spinal canal or
foraminal stenosis. At the L5-S1 level, there is severe degenerative disk disease and a moderate broad-based midline disk
protrusion with annular tear contacting the S1 nerve roots
bilaterally. No evidence of nerve root displacement or compression. Mild facet hypertrophy at this level. There is mild
foraminal stenosis on the right.

Admin. Rec. at 313.
15

At the hearing, plaintiff testified that she needs to lay down for about five hours
per day between 9 a.m. and 5 p.m. Admin. Rec. at 57.
16

Admin. Rec. at 26.

17

Admin. Rec. at 26.
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The ALJ considered Dr. Ahmed’s opinion18 but did not state what weight she was
giving his opinion.19 The ALJ gave great weight20 to Drs. Pereyra’s21 and Fina’s22 opinions.
The ALJ gave some, but not great, weight23 to Dr. Aking’s opinion.24

18

On January 16, 2010, after examining plaintiff, Omar Ahmed, M.D., opined that
plaintiff could stand/walk for 4 hours; could sit for 4 hours; needed to use an assistive
device; could frequently lift 10 pounds and occasionally lift 20 pounds; could frequently
climb, stoop, and crawl; could occasionally kneel and crouch; had no limitations as to
reaching, handling, fingering, and feeling; could not work around heights and moving
machinery; and had no limitations as to working around extremes in temperatures,
dust/fumes/gas, and excessive noise. Admin. Rec. at 360-362.
19

Admin. Rec. at 26-27.

20

Admin. Rec. at 28.

21

On January 19, 2010, Rosalia Pereyra, Psy.D, opined that plaintiff was moderately
limited in her ability to understand, remember, and carry out detailed instructions and was
moderately limited in her ability to be aware of normal hazards and take appropriate
precautions but otherwise was not significantly limited in her mental capacity. Admin.
Rec. at 363-364. Pereyra opined that plaintiff was “capable of engaging in unskilled
repetitive work on a sustained basis.” Admin. Rec. at 365. Dr. Pereyra also opined that
plaintiff had no restriction of activities of daily living; no difficulties in maintaining social
functioning; and moderate limitations in maintaining concentration, persistence, and pace.
Admin. Rec. at 377.
22

On February 18, 2010, Charles Fina, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 4 hours; sit for 6 hours;
was unlimited in her ability to push/pull; could frequently climb ramp/stairs, balance, and
stoop; could occasionally climb ladder/rope/scaffolds, kneel, crouch, and crawl; and should
avoid concentrated exposure to hazards. Admin. Rec. at 382-385.
23

Admin. Rec. at 28.

24

Rodd Aking, M.D., was plaintiff’s primary care physician but his treatment notes
are not in the record. On July 28, 2011, Dr. Aking opined that plaintiff could occasionally
(continued...)
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At step four, the ALJ found that plaintiff “is unable to perform any past relevant
work....”25
At step five, the ALJ found that “[c]onsidering [plaintiff’s] age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers
in the national economy that [plaintiff] can perform.”26 The ALJ relied on the testimony
of the vocational expert who testified that plaintiff could work as a general office clerk or
cashier.27
The ALJ concluded that plaintiff “has not been under a disability, as defined in the
Social Security Act, from July 18, 2009, through the date of this decision....”28
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
24

(...continued)
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk less than 2 hours per day;
sit less than 6 hours per day; needs a hand-held assistive device for ambulation; needs to
alternate sitting/standing every half hour; can never climb, stoop, kneel, crouch, or crawl;
can occasionally balance; has no limitations as to handling, fine manipulation, feeling, or
reaching; and should avoid working around heights and moving machinery. Admin. Rec.
at 617-619.
25

Admin. Rec. at 28.

26

Admin. Rec. at 29.

27

Admin. Rec. at 70-72 (testimony of George Bluth, vocational expert).

28

Admin. Rec. at 30.
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the Commissioner....” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct
legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether
substantial evidence supports the ALJ’s decision, [the court] review[s] the administrative
record as a whole, weighing both the evidence that supports and that which detracts from
the ALJ’s conclusion.’” Id. If the evidence is susceptible to more than one reasonable
interpretation, the court must uphold the Commissioner’s decision.

Id.

But, the

Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred in giving Dr. Aking’s opinion little weight.
On July 28, 2011, Dr. Aking, who was plaintiff’s primary care physician, opined that
plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk
less than 2 hours per day; sit less than 6 hours per day; needs a hand-held assistive device
for ambulation; needs to alternate sitting/standing every half hour; can never climb, stoop,

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kneel, crouch, or crawl; can occasionally balance; has no limitations as to handling, fine
manipulation, feeling, or reaching; and should avoid working around heights and moving
machinery.29 Dr. Aking noted that his opinion was based on the fact that plaintiff “has 3
small disc bulges (objective) with subjective findings of severe pain.”30
“As a general rule, more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). “At least where the treating doctor’s opinion is not contradicted by
another doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id. (quoting
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor’s opinion
is contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the record
for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
Plaintiff argues that the ALJ was required to give clear and convincing reasons for
rejecting Dr. Aking’s opinion because his opinion was not contradicted by another
physician’s opinion. This argument fails because Dr. Aking’s opinion was contradicted by

29

Admin. Rec. at 617-619.

30

Admin. Rec. at 619.
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both examining Dr. Ahmed’s opinion31 and non-examining Dr. Fina’s opinion.32 Dr.
Ahmed and Dr. Fina both found plaintiff less restricted than Dr. Aking. Thus, the ALJ was
not required to provide clear and convincing reasons for rejecting Dr. Aking’s opinion. The
ALJ was only required to give specific and legitimate reasons for rejecting Dr. Aking’s
opinion.
The ALJ gave three reasons for rejecting Dr. Aking’s opinion: 1) “the medical
evidence of record does not support a finding that [plaintiff] cannot sit, stand, and walk for
a combined eight hours during a normal workday[;]” 2) “Dr. [A]king’s narrative recounted
[that plaintiff] had three small disc bulges (objective) with subjective findings of severe
pain, but did not offer any other explanations for such significant physical restrictions;” and
3) “[a]t the time Dr. [A]king offered his assessment, [plaintiff] reported that her pain was
only 6/10, and that it was infrequent.”33
Plaintiff argues that the first reason given by the ALJ, that “the medical evidence of
record does not support a finding that [plaintiff] cannot sit, stand, and walk for a combined
eight hours during a normal workday,”34 is nothing more than the ALJ’s medical opinion,

31

Admin. Rec. at 360-362.

32

Admin. Rec. at 382-385.

33

Admin. Rec. at 28.

34

Admin. Rec. at 28.
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an opinion that the ALJ is not qualified to give. An ALJ may not “substitute his own
layman’s opinion for the findings and opinion of a physician[.]” Gonzalez Perez v. Sec. of
Health & Human Servs., 812 F.2d 747, 749 (1st Cir. 1987). Moreover, plaintiff argues that
the ALJ’s opinion was wrong because the medical evidence supports the limitations
assessed by Dr. Aking. Plaintiff points out that her MRI results showed marked disc space
narrowing and bulging discs,35 which she contends are medically determinable impairments reasonably expected to account for her symptoms.
The court is not convinced that this was an improper medical opinion expressed by
the ALJ. Rather, it appears to be the ALJ’s assessment of the medical evidence, a task that
the ALJ is required to perform. See 20 C.F.R. § 416.945(a)(3).
Plaintiff argues that the second reason given by the ALJ, that “Dr. [A]king’s
narrative recounted [that plaintiff] had three small disc bulges (objective) with subjective
findings of severe pain, but did not offer any other explanations for such significant
physical restrictions[,]”36 was also not legitimate. Plaintiff argues that the ALJ could not
legitimately reject Dr. Aking’s opinion because he did not offer explanations for plaintiff’s
restrictions while at the same time accepting Dr. Fina’s opinion, which was also
unsupported. Dr. Fina offered little explanation on the RFC form he completed to support

35

Admin. Rec. at 313.

36

Admin. Rec. at 28.
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his opinion, and he did not indicate what medical evidence he reviewed to reach his
opinion.37 Plaintiff insists that it was inconsistent for the ALJ to give Dr. Fina’s unsupported opinion great weight while giving Dr. Aking’s opinion little weight because he did
not explain the bases for his opinion.
This was a legitimate reason to reject Dr. Aking’s opinion. An ALJ must evaluate
a physician’s explanations for his opinion, and the weight given to an opinion depends on
the strength of such explanations. See 20 C.F.R. § 404.1527(c)(3) (“The better an explanation
a source provides for an opinion, the more weight we will give that opinion”). The only
explanation Dr. Aking provides for his opinion is that plaintiff has three small disc bulges.
This is insufficient support for a medical opinion that would render plaintiff disabled.
Plaintiff also seems to suggest that the ALJ relied solely on Dr. Fina’s opinion to
justify the rejection of Dr. Aking’s opinion.

Had the ALJ done so it would have been

improper because “[t]he opinion of a nonexamining physician cannot by itself constitute
substantial evidence that justifies the rejection of the opinion of either an examining
physician or a treating physician.” Lester, 81 F.3d at 831. But, here, the ALJ gave other
reasons for rejecting Dr. Aking’s opinion and she also relied on Dr. Ahmed’s opinion. It
may have been inconsistent for the ALJ to reject Dr. Aking’s opinion and credit Dr. Fina’s,

37

Admin. Rec. at 382-385.
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but that does not mean that the ALJ could not legitimately reject Dr. Aking’s opinion
because it was, in fact, unsupported.
Plaintiff does not address the other reason given by the ALJ for rejecting Dr. Aking’s
opinion, which was that “[a]t the time Dr. Aking offered his assessment, [plaintiff] reported
that her pain was only 6/10, and that it was infrequent.”38 But, this was not a legitimate
reason to reject Dr. Aking’s opinion. The record does show that on July 22, 2011, plaintiff
reported that her “pain is infrequent, dull, aching, throbbing, stabbing pain which is worse
with sitting, standing, and walking” and she rated her pain as a 6 on a scale of 10.39 But,
July 22, 2011 was the only time that plaintiff reported that her back pain was infrequent.
Throughout the rest of the record, she complained of constant pain that was usually more
severe than 6/10. For example, in April 2011, she reported to Dr. Zaveri40 that her pain was
constant,41 in May 2011, she reported that her pain was elevated over the past month,42 and
in June 2011, she reported that her pain was 8/10.43

38

Admin. Rec. at 28.

39

Admin. Rec. at 636.

40

Minesh Zaveri, D.O., began treating plaintiff for pain on June 30, 2010. Admin.
Rec. at 459-461; 483-524; & 630-661.
41

Admin. Rec. at 642.

42

Admin. Rec. at 640.

43

Admin. Rec. at 638.
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The ALJ gave two specific and legitimate reasons for rejecting Dr. Aking’s opinion.
Thus, her error as to the other reason may have been harmless. See Carmickle v. Comm’r
Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (harmless error applies where some
of the reasons the ALJ relied on to reject evidence are invalid). An error is harmless if there
remains substantial evidence supporting the ALJ’s conclusions, and the error does not
negate the validity of the ALJ’s ultimate conclusion. Id. at 1162-63.
Plaintiff argues the ALJ’s RFC is not supported by substantial evidence because Dr.
Fina’s opinion cannot constitute substantial evidence. Plaintiff argues that Dr. Fina’s
opinion is not substantial evidence because his opinion was formed a year and a half before
the ALJ’s decision, because he did not indicate what evidence he reviewed to reach his
opinion, and because he gave little to no explanation for his opinion.
But even if Dr. Fina’s opinion were not substantial evidence to support the ALJ’s
RFC, the ALJ’s error as to Dr. Aking’s opinion was still harmless. The ALJ discussed Dr.
Ahmed’s opinion, which was based on his examination of plaintiff, and his opinion
provides substantial evidence to support the ALJ’s RFC. See Tonapetyan v. Halter, 242
F.3d 1144, 1149 (9th Cir. 2001) (examining physician’s opinion on its own constituted
substantial evidence, because it rested on independent examination of claimant).
Plaintiff next argues that the ALJ erred in finding her pain and symptom statements
less than credible. “In evaluating the credibility of a claimant’s testimony regarding

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subjective pain, an ALJ must engage in a two-step analysis.” Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). “‘First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment which could reasonably
be expected to produce the pain or other symptoms alleged.’” Id. (quoting Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “If the claimant meets the first test and there
is no evidence of malingering, the ALJ can only reject the claimant’s testimony about the
severity of the symptoms if []he gives ‘specific, clear and convincing reasons’ for the
rejection.” Id. (quoting Lingenfelter, 504 F.3d at 1036). An ALJ’s credibility findings are
entitled to deference if they are supported by substantial evidence and are “sufficiently
specific to allow a reviewing court to conclude [that] the adjudicator rejected the claimant’s
testimony on permissible grounds and did not ‘arbitrarily discredit a claimant’s testimony
regarding pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (quoting Elam
v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (9th Cir. 1991)).
The ALJ gave three reasons for finding plaintiff’s pain and symptom testimony less
than credible. First, the ALJ found that the objective medical evidence did not support
plaintiff’s statements.44 Second, the ALJ found plaintiff’s statement that she needs to lay
down five out of eight hours per day incredible because “the records do not show atrophy
or significant deconditioning. She remains neurologically intact although she demon-

44

Admin. Rec. at 25-26.
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strated positive straight leg raising.”45 Thirdly, the ALJ stated that plaintiff “testified her
last job ended because she was allowed to perform ... it while using narcotic medication.
She testified that she had never been counselled [sic] or reprimanded over the quality of
her work.”46
Plaintiff argues that the first reason given by the ALJ, that her pain and symptom
statements were not supported by the medical evidence, was not a clear and convincing
reason because the ALJ did not explain how the medical evidence detracted from her
credibility. The ALJ noted that the April 2009 x-rays of plaintiff’s lumbar spine showed “no
acute findings ... to indicate an etiology for back pain”, that no objective findings were
reported the two times plaintiff presented to the emergency room in 2009 complaining of
back pain, and that plaintiff’s 2009 MRI of her lumbar spine showed “no evidence of nerve
root displacement or compression.”47 But, plaintiff argues that the ALJ did not explain how
this medical evidence made plaintiff’s pain and symptom statements less than credible.
The Social Security regulations provide that “[i]n determining whether you are
disabled, we consider all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective medical evidence

45

Admin. Rec. at 26.

46

Admin. Rec. at 26.

47

Admin. Rec. at 25-26.
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and other evidence.” 20 C.F.R. § 404.1529(a). More specifically, the ALJ may “consider
whether there are any inconsistencies in the evidence and the extent to which there are any
conflicts between your statements and the rest of the evidence, including your history, the
signs and laboratory findings, and statements by your treating or nontreating source or
other persons about how your symptoms affect you.” Id. § 404.1529(c)(4). Defendant
argues that all the ALJ did here was resolve conflicts between plaintiff’s statements and the
rest of the evidence.
Plaintiff disputes that there were any “inconsistencies” for the ALJ to resolve.
Plaintiff acknowledges that at times her pain decreased following certain treatment, such
as radiofrequency ablation,48 but she argues that the record does not suggest that she
enjoyed sustained improvement as a result of the numerous procedures she had done on
her back.
Even assuming that the lack of objective medical evidence was a clear and
convincing reason for the ALJ to find plaintiff’s pain and symptom statements less than
credible, the lack of objective medical evidence to support subjective symptom allegations
is not alone sufficient to discount a claimant's credibility. Burch v. Barnhart, 400 F.3d 676,

48

Plaintiff had radiofrequency ablation on October 18, 2010; October 25, 2010; June
21, 2011; and July 7, 2011. Admin. Rec. at 499, 501, 630, & 633. She reported “some benefit”
after one treatment and Dr. Zaveri once noted that she had “excellent benefit” from this
procedure. Admin. Rec. at 638 & 641.
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681 (9th Cir. 2005). As will be discussed below, the other reasons given by the ALJ were
not clear and convincing and thus the ALJ erred as to plaintiff’s credibility.
The ALJ found plaintiff’s statement that she needs to lay down five out of eight
hours per day less than credible because “the records do not show atrophy or significant
deconditioning. She remains neurologically intact although she demonstrated positive
straight leg raising.”49 This was not a not a clear and convincing reason to find plaintiff’s
statements less than credible because the ALJ is providing her own medical opinion. The
ALJ expressed a medical opinion when she stated that the severity of plaintiff’s condition
was belied because “the records do not show atrophy or significant deconditioning.”50
Muscle atrophy or deconditioning is not necessarily required to corroborate the severity
of plaintiff’s condition. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (court found
that “the ALJ made his own medical conclusions” because the ALJ stated that “[i]t would
seem reasonable that disabling symptoms that allegedly preclude any significant walking,
standing, sitting, lifting, and carrying would result in observable findings of atrophy or
muscle tone loss”).
The third reason given by the ALJ was that plaintiff testified that she had been
allowed to perform her job while taking narcotic medication and had never been

49

Admin. Rec. at 26.

50

Admin. Rec. at 26.
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reprimanded or counseled about the quality of her work. While plaintiff testified that she
told her employer she was taking narcotic pain medication, she did not testified that she
was never counseled or reprimanded for problems at work. Rather, she testified that
towards the end of her employment she was counseled or reprimanded because she “sent
an ambulance to Maricopa County Hospital instead of the Urgent Care.”51 Plaintiff also
testified that she was terminated because she could not perform her job duties due to the
pain medication.52 Thus, this was not a clear and convincing reason to find plaintiff’s pain
and symptom statements less than credible.
There is some discussion by the parties as to a statement made by the ALJ that
plaintiff “was able to perform some of the instrumental activities of daily living at home,
including cooking and doing the dishes, for which she has to lean forward.”53 Defendant
argues that this was a clear and convincing reason to find plaintiff’s pain and symptom
testimony less than credible. While an ALJ may consider a claimant’s ability to perform
daily activities when assessing credibility, the ALJ did not do so here. Rather, in discussing
Dr. Ahmed’s opinion, the ALJ noted that plaintiff told Dr. Ahmed that her pain was a 10/10

51

Admin. Rec. at 44.

52

Admin. Rec. at 43.

53

Admin. Rec. at 26.
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but she was independent as to personal care and could do some cooking and the dishes.54
But, the ALJ did not find plaintiff’s pain and symptom statements less than credible
because of plaintiff’s ability to perform daily activities.
Because the ALJ erred in finding plaintiff’s pain and symptom statements less than
credible, the court must consider whether to remand this matter for further proceedings
or for an award of benefits. “Remand for further administrative proceedings is appropriate
if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th
Cir. 2004) (emphasis omitted). “Conversely, where the record has been developed fully
and further administrative proceedings would serve no useful purpose, the district court
should remand for an immediate award of benefits.” Id.
More specifically, the district court should credit evidence that
was rejected during the administrative process and remand for
an immediate award of benefits if (1) the ALJ failed to provide
legally sufficient reasons for rejecting the 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.
Id.
“[T]he Commissioner must accept, as a matter of law, a claimant’s subjective pain
testimony if the ALJ fails to articulate sufficient reasons for refusing to credit it.” Vasquez,
572 F.3d at 593. This “credit-as-true” rule applies only “to cases ‘where there are no
54

Admin. Rec. at 26.
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outstanding issues that must be resolved before a proper disability determination can be
made, and where it is clear from the administrative record that the ALJ would be required
to award benefits if the claimant’s excess pain testimony were credited.’” Id. (quoting
Varney v. Sec. of Health and Human Srvcs., 859 F.2d 1396, 1401 (9th Cir. 1988)). Here,
there are no outstanding issues that must be resolved and it is clear from the record that
the ALJ would be required to award benefits if plaintiff’s pain and symptom testimony is
credited as true. The vocational expert testified that if plaintiff’s testimony were accepted,
particularly the testimony that she had to lay down five out eight hours per day, then there
would be no work that plaintiff could perform.55 Thus, a remand for an award of benefits
is appropriate in this case. See Lingenfelter, 504 F.3d at 1041 n.12 (“Further proceedings
are unnecessary because the ALJ did not provide a legally sufficient basis for rejecting
Lingenfelter’s testimony, which alone establishes that he is entitled to benefits”).
Conclusion
Based on the foregoing, the decision of the Commissioner is reversed, and this
matter is remanded for an award of benefits.
DATED at Anchorage, Alaska, this 4th day of February, 2014.
/s/ H. Russel Holland
United States District Judge

55

Admin. Rec. at 74.
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