Sproule v. Colvin
Filing
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ORDER that this case is remanded for an award of benefits. The Clerk is directed to enter judgment and terminate this action. Signed by Judge David G Campbell on 2/24/2014. (LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Deborah Marie Sproule,
Plaintiff,
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ORDER
v.
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No. CV-13-01427-PHX-DGC
Carolyn W Colvin,
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Defendant.
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Pursuant to 42 U.S.C. § 405(g), Plaintiff Deborah Marie Sproule seeks judicial
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review of the Commissioner’s decision finding her not disabled within the meaning of the
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Social Security Act. Doc. 19. For the reasons that follow, the Court will remand the case
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for an award of benefits.1
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I.
Background.
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Plaintiff applied for disability insurance benefits in September 2009, alleging
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disability beginning June 8, 2009. Doc. 20 at 1. After a hearing, an administrative law
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judge (“ALJ”) issued an opinion in December 2011 finding Plaintiff not disabled. Id.;
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A.R. 29-41. A request for review was denied by the Appeals Council and the ALJ’s
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opinion became the Commissioner’s final decision. Doc. 20 at 1.
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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
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II.
Legal Standard.
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Defendant’s decision to deny benefits will be vacated “only if it is not supported
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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d
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880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but
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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept
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as adequate to support a conclusion.”
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supported by substantial evidence, the Court must consider the record as a whole,
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weighing both the evidence that supports the decision and the evidence that detracts from
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it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to
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support the Commissioner’s determination, the Court cannot substitute its own
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determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).
Id.
In determining whether the decision is
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Determining whether a claimant is disabled involves a sequential five-step
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evaluation. The claimant must show (1) he is not currently engaged in substantial gainful
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employment, (2) he has a severe physical or mental impairment, and (3) the impairment
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meets or equals a listed impairment or (4) his residual functional capacity (“RFC”)
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precludes him from performing his past work.
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determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to
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step five. If the claimant establishes his burden through step four, the Commissioner
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bears the burden at step five of showing that the claimant has the RFC to perform other
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work that exists in substantial numbers in the national economy.
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§ 404.1520(a)(4)(i)-(v).
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III.
If at any step the Commissioner
See 20 C.F.R.
Analysis.
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Plaintiff advances several arguments as to why the ALJ’s decision was erroneous.
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First, she argues that the ALJ improperly discounted the opinion of her treating
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rheumatologist, Dr. Nolan. Doc. 19 at 15. Second, she argues that the ALJ improperly
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relied on the opinion of Dr. Kelly, a state agency physician. Id. at 22. Next, Plaintiff
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contends that the ALJ erred by improperly rejecting her subjective testimony without
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providing clear and convincing reasons supported by substantial evidence in the record.
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Id. at 24.
She also argues that the ALJ improperly relied on the opinion of a
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psychological consultative examiner. Id. at 29. Plaintiff finally contends that the Court
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should remand the case for an award of benefits based on the “credit-as-true” doctrine.
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Id. at 30. Because the Court finds that the ALJ improperly rejected the opinion of
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Plaintiff’s treating physician, the Court need not address Plaintiff’s other arguments.
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A.
Treating Physician Testimony.
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In weighing medical source opinions in Social Security cases, the Ninth Circuit
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distinguishes among three types of physicians: (1) treating physicians, who actually treat
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the claimant; (2) examining physicians, who examine but do not treat the claimant; and
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(3) non-examining physicians, who neither treat nor examine the claimant. Lester v.
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Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the
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opinion of a treating physician than to the opinions of non-treating physicians. Id. A
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treating physician’s opinion is afforded great weight because such physicians are
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“employed to cure and [have] a greater opportunity to observe and know the patient as an
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individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The controverted
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opinion of a treating or examining physician “can only be rejected for specific and
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legitimate reasons that are supported by substantial evidence in the record.” Lester, 81
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F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995)). “The
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ALJ can meet this burden by setting out a detailed and thorough summary of the facts and
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conflicting clinical evidence, stating his interpretation thereof, and making findings.”
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Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (citing Cotton v. Bowen, 799 F.2d
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1403, 1408 (9th Cir. 1986)).
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The ALJ afforded “some weight” to the opinion of Dr. Nolan, Plaintiff’s treating
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rheumatologist. A.R. 37. After summarizing Dr. Nolan’s opinion, the ALJ noted that his
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conclusions were “subjectively restrictive and grossly inconsistent with the greater
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evidence of record,” and “not supported by the claimant’s own activities.” Id. at 38. She
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also noted that Dr. Nolan’s July 2010 assessment “was filled out at [Plaintiff]’s counsel
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request (sic), with no examination conducted by Dr. Nolan.” Id. These are the only
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reasons the ALJ provided for partially discounting Dr. Nolan’s opinion. Id.
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As noted above, the ALJ must provide specific reasons for rejecting the opinion of
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a contradicted treating physician. Lester, 81 F.3d at 830-31. The ALJ meets this burden
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“by setting out a detailed and thorough summary of the facts and conflicting clinical
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evidence, stating his interpretation thereof, and making findings.” Embrey, 849 F.2d at
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421. The ALJ did set out the facts of Dr. Nolan’s opinion (A.R. 37-38), but failed to
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summarize conflicting evidence, state her interpretation thereof, or make findings. The
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ALJ noted that one of Dr. Nolan’s opinions was completed at the request of counsel,
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“with no examination conducted,” but does not explain why this fact undermines the
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credibility of the opinion. A.R. 38. The ALJ does not address the number of times Dr.
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Nolan had seen Plaintiff, how recently he had examined her, or why he was incapable of
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providing a reliable diagnosis in July of 2010.
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The Court finds that the ALJ failed to offer anything more than conclusions in her
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analysis of Dr. Nolan’s opinion, and only referred generally to the opinion’s contradiction
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of other evidence in the record rather than identifying and interpreting the contradictory
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evidence. This is not sufficient to meet the standard required by the Ninth Circuit. See
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Embrey, 849 F.2d at 421-22 (“The ALJ must do more than offer his conclusions. He
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must set forth his own interpretations and explain why they, rather than the doctors’, are
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correct.”). Accordingly, the Court finds that the ALJ erred in her consideration of Dr.
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Nolan’s opinion. The Commissioner’s decision must therefore be vacated.
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B.
Remand.
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Having decided to vacate Defendant’s decision, the Court has the discretion to
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remand the case for further development of the record or for an award benefits. See
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Reddick, 157 F.3d at 728. In Smolen v. Chater, the Ninth Circuit held that evidence
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should be credited and an action remanded for an immediate award of benefits when the
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following three factors are satisfied: (1) the ALJ has failed to provide legally sufficient
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reasons for rejecting evidence, (2) there are no outstanding issues that must be resolved
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before a determination of disability can be made, and (3) it is clear from the record that
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the ALJ would be required to find the claimant disabled were such evidence credited. 80
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F.3d 1273, 1292 (9th Cir. 1996); see Varney v. Sec. of Health & Human Servs., 859 F.2d
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1396, 1400 (9th Cir. 1988) (“In cases where there are no outstanding issues that must be
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resolved before a proper determination can be made, and where it is clear from the record
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that the ALJ would be required to award benefits if the claimant’s excess pain testimony
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were credited, we will not remand solely to allow the ALJ to make specific findings
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regarding that testimony.”); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)
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(same); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (“In a recent case where
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the ALJ failed to provide clear and convincing reasons for discounting the opinion of
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claimant’s treating physician, we accepted the physician’s uncontradicted testimony as
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true and awarded benefits.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988));
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Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989) (extending Varney’s “credit as
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true” rule to a case with outstanding issues where the claimant already had experienced a
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long delay and a treating doctor supported the claimant’s testimony).
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Defendant argues that it would be contrary to the Act to remand for an award of
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benefits. Doc. 20 at 16. Defendant cites Strauss v. Commissioner of the Social Security
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Administration, 635 F.3d 1135, 1138 (9th Cir. 2011), as stating that “[a] claimant is not
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entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter
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how egregious the ALJ’s errors may be.” Defendant argues that “Plaintiff has not met
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her burden to prove that she was disabled during the period at issue, so an award of
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benefits is improper.” Doc. 20 at 17 (citing Strauss, 635 F.3d at 1137). Defendant
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further argues that “where ‘additional proceedings can remedy defects in the original
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administrative proceeding, a social security case should be remanded.’” Id. (quoting
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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). Defendant finally argues that
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because “the record contains evidence inconsistent with a finding of disability,” remand
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for an award of benefits is inappropriate. Id. at 18.
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The Court has found that the ALJ failed to provide legally sufficient reasons for
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rejecting the opinion of Dr. Nolan, one of Plaintiff’s treating physicians. During the
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hearing, the ALJ declined to ask the vocational expert any questions about Dr. Nolan’s
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opinion (A.R. 313-16), noting that if she were to accept Dr. Nolan’s opinion, “[she]
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would have to find there’s no work sustainable.” A.R. 77. Plaintiff’s counsel asked the
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vocational expert a question based on a fibromyalgia questionnaire completed by Dr.
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Nolan (A.R. 293-95), which revealed that if that questionnaire were accepted as true,
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Plaintiff would be precluded from all work. Id. at 78. The procedural error the Court
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finds in this case is precisely the type of error that the Ninth Circuit in Strauss confirmed
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requires remand for an award of benefits: one in which the ALJ erred in discrediting
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evidence and, absent any outstanding issues to be resolved, “it is clear from the record
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that the ALJ would be required to find the claimant disabled were such evidence
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credited.” Strauss, 635 F.3d at 1138 (quoting Benecke v. Barnhart, 379 F.3d 587, 593
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(9th Cir. 2004)).
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Moreover, the overwhelming authority in this Circuit makes clear that the “credit
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as true” doctrine is mandatory. See Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292;
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Reddick, 157 F.3d at 729; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); Moore
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v. Comm’r of Soc. Sec., 278 F.3d 920, 926 (9th Cir. 2002); McCartey v. Massanari, 298
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F.3d 1072, 1076-77 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir.
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2004); Benecke, 379 F.3d at 593-95; Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007);
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Lingenfelter v. Astrue, 504 F.3d. at 1041 (“[W]e will not remand for further proceedings
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where, taking the claimant’s testimony as true, the ALJ would clearly be required to
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award benefits[.]”).2
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Applying these cases, the Court concludes that the improperly rejected opinion of
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Dr. Nolan must be credited as true and, when credited as true and combined with the
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ALJ’s conclusion and the vocational expert’s opinion, requires an award of benefits.
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This Court disagrees with the Ninth Circuit’s credit as true doctrine. The Court
is bound, nonetheless, to follow Ninth Circuit precedent.
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IT IS ORDERED:
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This case is remanded for an award of benefits.
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The Clerk is directed to enter judgment and terminate this action.
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Dated this 24th day of February, 2014.
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