Alcaida v. Social Security Administration Commissioner

Filing 19

ORDER the Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings. Signed by Judge H Russel Holland on 10/22/2014. (LFIG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

LAURIE LYNN ALCAIDA,

)
)
Plaintiff,
)
)
vs.
)
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)
__________________________________________)

No. 2:13-cv-2002-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434. 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 Laurie Lynn Alcaida. Defendant is the Commissioner of Social Security.

1

Docket No. 15.

2

Docket No. 17.
-1-

On February 9, 2010, plaintiff filed an application for disability benefits under Title
II of the Social Security Act, alleging that she became disabled on April 16, 2009. Plaintiff
alleged that she was disabled because of left ankle surgery, a broken tibia, stress,
depression, physical therapy, and migraines. Plaintiff’s application was denied initially
and upon reconsideration. After a hearing on April 11, 2012, an administrative law judge
(ALJ) denied plaintiff’s claim. On August 2, 2013, the Appeals Council denied plaintiff’s
request for review, thereby making the ALJ’s June 21, 2012 decision the final decision of the
Commissioner. On October 3, 2013 plaintiff commenced this action in which she asks the
court to find that she is entitled to benefits.
General Background
Plaintiff was born on September 4, 1963. She was 48 years old at the time of the
hearing. Plaintiff has a high school education. Plaintiff is married and lives with her
husband and son. Plaintiff’s past relevant work is as a casino cocktail waitress.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2013.”3 The ALJ then applied the five-step
sequential analysis used to determine whether an individual is disabled.4

3

Admin. Rec. at 92.

4

The five steps are as follows:
(continued...)
-2-

At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since April 16, 2009, the alleged onset date....”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
status post ankle/foot surgery x two; depression; headaches; and status post right shoulder
surgery x two....”6
At step three, the ALJ found that plaintiff “does not have an impairment or

4

(...continued)
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 92.

6

Admin. Rec. at 92.
-3-

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
“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
has the residual functional capacity to perform less than the
full range of sedentary work as defined in 20 CFR 404.1567(a).
Function by Function: lift and/or carry 10 pounds occasionally;
stand and/or walk for approximately two hours in an eighthour workday; sit for approximately six hours in an eight-hour
workday; frequent crouching and balancing; occasional
climbing ramps and stairs, stooping, kneeling and crawling but
never crawling or climbing ladders, ramps and scaffolds;
frequent reaching with the right dominant hand and needs to
avoid all exposure to hazardous machinery and unprotected
heights. Mentally, the claimant is limited to unskilled work
performing routine and simple repetitive tasks with occasional
interaction with the public and co-workers.[8]
The ALJ found plaintiff’s pain and symptom statements less than credible because
1) they were “not fully corroborated by objective medical evidence”, 2) she had not gotten
any treatment for her migraine headaches, 3) her “left ankle complaints are out of
proportion to objective findings” and “[t]he right ankle improved following surgery”, 4)

7

Admin. Rec. at 93.

8

Admin. Rec. at 94-95.
-4-

“Dr. Doss[9] reported that the claimant ambulated without assistance or assistive devices,
and actually moved with a perky and free gait” and observed plaintiff walking “briskly”
to her car,” 5) plaintiff had “not undergone any intensive therapy”, 6) the “course of
treatment” plaintiff received “has generally reflected a conservative approach”, 7) “[t]he
record reflects significant gaps in treatment”, 8) “no treating or examining physician has
opined that the claimant is totally and permanently disabled from all work” 9) plaintiff
“does not exhibit any significant ... muscle atrophy, loss of strength, or difficulty moving”,
10) plaintiff “is not currently receiving any mental health treatment”, and 11) plaintiff

9

On April 6, 2010, Minette Nance Doss, Ed.D., completed a psychiatric evaluation
of plaintiff. In her behavioral observations, Dr. Doss noted that plaintiff
arrived 30 minutes early for the appointment. She was driven
to the appointment by her parents, and they entered the office
with her. The parents waited in reception, while Laurie
participated solo in the evaluation. The claimant ambulated
without assistance or assistive devices, and actually moved
with a perky and free gait.
This individual was well proportioned for her height. Basically
Laurie looked her chronological age. She was dressed slightly
better than casually. This lady wore make up and was well
groomed. She was also able to make eye contact. This woman
was fully cooperative throughout the assessment. However,
Ms. Alcaida cried quietly off and on during the appointment....
All speech was logical and coherent. This lady was easy to
interview. She walked briskly to the car upon exiting the
office.
Admin. Rec. at 500.
-5-

“was able to participate in the administrative hearing and respond to the questioning
without any apparent difficulties.”10
The ALJ gave no weight to the testimony of plaintiff’s mother, Linda Kelsey,11
because “she is not medically trained to make exacting observations as to dates,
frequencies, types and degrees of medical signs and symptoms, or of the intensity of
unusual moods or mannerisms” and because she “cannot be considered a disinterested
third party witness whose report would not tend to be colored by affection for the claimant
and a natural tendency to agree with the symptoms and limitations she alleges.”12 The ALJ
also gave Kelsey’s testimony little weight because it was not consistent with the
preponderance of the medical evidence.13
The ALJ gave significant weight14 to Dr. Radkowsky’s15 opinion and to Dr. Griffith’s

10

Admin. Rec. at 95-96.

11

Kelsey completed third-party function reports on February 26, 2010 and on August
25, 2010. Admin. Rec. at 191-198 & 256-263.
12

Admin. Rec. at 97.

13

Admin. Rec. at 97.

14

Admin. Rec. at 97.

15

On April 8, 2010, Allen Radkowsky, 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;
occasionally push and pull with left lower extremities; occasionally climb ramps/stairs and
kneel; never climb ladders/ropes/scaffolds or crawl; frequently balance, stoop, and crouch;
and should avoid concentrated exposure to hazards such as machinery and heights.
(continued...)
-6-

opinion.16 The ALJ also gave significant weight17 to the opinions of Dr. Doss,18 Dr. Zuess,19
15

(...continued)
Admin. Rec. at 63-65.
16

On October 19, 2010, Ernest Griffith, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk for 2 hours; sit for 6 hours;
could occasionally push and pull with left lower extremities; could occasionally climb
ramps/stairs and kneel; could never climb ladders/ropes/scaffolds or crawl; could
frequently balance, stoop, and crouch; and should avoid concentrated exposure to hazards
such as machinery and heights. Admin. Rec. at 80-81.
17

Admin. Rec. at 97.

18

Dr. Doss opined that plaintiff had the “ability to learn simple and moderately
complex tasks;” that plaintiff’s sustained concentration and persistence was “[i]mpaired
due to the anxiety overlay” but that plaintiff “can maintain a normal routine in her
household”; that in terms of social interaction, plaintiff had “some emotional lability[,]
[i]nfrequent grooming and hygiene[, w]ould respond well to supervision[,] and was weepy
and tense;” was “[f]airly well functioning in her home environment[, w]ould be aware of
normal hazards and could take appropriate action, [but] anxiety may impair her ability to
respond to changes in the environment and work setting.” Admin. Rec. at 503.
19

On May 15, 2010, Dr. Jonathan Zuess, M.D., opined that plaintiff was
able to carry out simple and detailed instructions, follow
simple work-like procedures, and make simple work-related
decisions. [Plaintiff] appears to have a moderately impaired
ability to sustain attention throughout extended periods of
time. [Plaintiff] appears to have a moderately impaired ability
to perform at a consistent pace and maintain a regular 40 hour
work schedule without interference from cognitively-based
symptoms.... [Plaintiff] has a fair ability to interact appropriately with the general public and co-workers due to appearing
depressed and anxious. [Plaintiff] appears to have a good
ability to respond to supervisors.... [Plaintiff] has a fair ability
to respond appropriately to basic work setting changes due to
anxiety. [Plaintiff] likely has a good ability to take appropriate
(continued...)
-7-

and Dr. Yandell.20
At step four, the ALJ found that plaintiff could not perform any of her past relevant

19

(...continued)
precautions in hazardous situations and utilize transportation.
[Plaintiff] likely is able to independently set goals.... [T]he
available evidence indicates that [plaintiff] has the basic mental
functional capacities necessary to perform at least simple work
on a sustained basis.

Admin. Rec. at 65-66.
20

On October 14, 2010, David Yandell, Ph.D., opined that plaintiff was
able to carry out simple and detailed instructions, follow
simple work-like procedures, and make simple work-related
decisions. [Plaintiff] appears to have a moderately impaired
ability to sustain attention throughout extended periods of
time. [Plaintiff] appears to have a moderately impaired ability
to perform at a consistent pace and maintain a regular 40 hour
work schedule without interference from cognitively-based
symptoms.... [Plaintiff] has a fair ability to interact appropriately with the general public and co-workers due to appearing
depressed and anxious. [Plaintiff] appears to have a good
ability to respond to supervisors.... [Plaintiff] has a fair ability
to respond appropriately to basic work setting changes due to
anxiety. [Plaintiff] likely has a good ability to take appropriate
precautions in hazardous situations and utilize transportation.
[Plaintiff] likely is able to independently set goals.... [T]he
available evidence indicates that [plaintiff] has the basic mental
functional capacities necessary to perform at least simple work
on a sustained basis.

Admin. Rec. at 82-83.
-8-

work.21
At step five, the ALJ found that “there are jobs that exist in significant numbers in
the national economy that the claimant can perform” such as a call-out operator,
addressing clerk, or document preparer.22 This finding was based on the testimony of
Shirley Ripp, the vocational expert who testified at the hearing.23
The ALJ thus concluded that plaintiff “has not been under a disability, as defined
in the Social Security Act, from April 16, 2009, through the date of this decision....”24
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
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.

21

Admin. Rec. at 97.

22

Admin. Rec. at 98-99.

23

Admin. Rec. at 52-53.

24

Admin. Rec. at 99.
-9-

(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 because the ALJ’s RFC was incomplete.
Plaintiff argues that the ALJ failed to include any limitations flowing from plaintiff’s
migraines headaches. In assessing a claimant’s RFC, the ALJ must take “into account those
limitations for which there was record support....” Bayliss v. Barnhart, 427 F.3d 1211, 1217
(9th Cir. 2005). This includes taking into account all nonexertional limitations supported
by the record. SSR 85-16. Plaintiff testified that when she has a migraine she has to lay
down in the dark for up to three days and that she has migraines one to two times per
month.25 Plaintiff argues that the ALJ should have included this limitation in her RFC and
that the ALJ failed to explain why she did not include this limitation. Plaintiff further

25

Admin. Rec. at 43.
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argues that the ALJ’s failure to include this limitation in her RFC was not harmless because
the vocational expert testified that there would be no work for someone who had more
than one unexcused absence per month.26 An error is harmless if it is “inconsequential to
the ultimate nondisability determination.” Stout, 454 F.3d at 1055.
The ALJ did not err in failing to include a limitation related to plaintiff’s migraines
in plaintiff’s RFC. Although there is much evidence in the record that plaintiff had
frequent, if not daily, headaches,27 she testified that she gets migraines 1-2 times a month
and that they might last from 6 hours to 3 days.28 Based on this evidence, the ALJ could
have reasonably concluded that not all of plaintiff’s migraines would happen during the
work week and that not all of them would last for several days.
Plaintiff next argues that the ALJ erred in finding her pain and symptom statements
less than credible. “An ALJ engages in a two-step analysis to determine whether a
claimant’s testimony regarding subjective pain or symptoms is credible.” Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).

“‘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.

26

Admin. Rec. at 53.

27

Admin. Rec. at 319, 326, 350, 357, 989, 1108, 1154, & 1177.

28

Admin. Rec. at 43-44.
-11-

(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis,
the claimant is not required to show ‘that h[is] impairment could reasonably be expected
to cause the severity of the symptom []he has alleged; []he need only show that it could
reasonably have caused some degree of the symptom.’” Id. (quoting Smolen v. Chater, 80
F.3d 1273, 1282 (9th Cir. 1996)). “Nor must a claimant produce ‘objective medical evidence
of the pain or fatigue itself, or the severity thereof.’” Id. (quoting Smolen, 80 F.3d at 1281).
“If the claimant satisfies the first step of this analysis, and there is no evidence of
malingering, ‘the ALJ can reject the claimant's testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.’” Id. at
1014-15 (quoting Smolen, 80 F.3d at 1281). “This is not an easy requirement to meet: ‘The
clear and convincing standard is the most demanding required in Social Security cases.’”
Id. at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
“In evaluating the claimant’s testimony, the ALJ may use ‘ordinary techniques of credibility
evaluation.’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Turner v.
Comm’r of Social Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ may
consider inconsistencies either in the claimant’s testimony or between the testimony and
the claimant’s conduct, unexplained or inadequately explained failure to seek treatment
or to follow a prescribed course of treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.]” Id. (internal citations omitted).

-12-

The ALJ gave eleven reasons for finding plaintiff’s pain and symptom statements
less than credible. Plaintiff argues that none of these reasons were clear and convincing.
First, the ALJ found that plaintiff’s subjective complaints were not fully corroborated
by the objective evidence.29 An ALJ “may not reject a claimant’s subjective complaints
based solely on a lack of medical evidence to fully corroborate the alleged” complaints.
Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Thus, in order for this to have been a
proper reason for the ALJ to reject plaintiff’s statements, at least some of the other reasons
given by the ALJ had to be clear and convincing, which as will be discussed below, they
were not.
The second reason given by the ALJ was that plaintiff never received any treatment
for her migraines.30 This was not a clear and convincing reason because plaintiff has
received consistent treatment, generally in the form of prescription medication, for her
migraines since 2008.31
The third reason given by the ALJ was that plaintiff’s “left ankle complaints are out

29

Admin. Rec. at 95.

30

Admin. Rec. at 95.

31

Admin. Rec. at 319, 322, 326, 339-340, 641, 643, 664, 815-820, 881, 993, 1000, 1010,
1047, 1050-1052, 1107-1109, & 1154-1155.
-13-

of proportion to objective findings” and “[t]he right ankle improved following surgery.”32
Plaintiff concedes that her right ankle improved after surgery, but she argues that the ALJ’s
finding that her left ankle complaints were out of proportion to objective findings is
nothing more than lay speculation. However, this finding was not based on speculation
but rather was based on Dr. Novack’s33 comments that plaintiff’s complaints of left ankle
pain were out of proportion to what he was seeing objectively.34 But, as plaintiff points
out, Dr. Heiner35 did surgery on her left ankle after Dr. Novack had made the foregoing
comments, surgery that revealed chronic left ankle instability and talar arthritis, which did
not appear on MRIs.36 Thus, this was not a clear and convincing reason to find plaintiff’s
statements less than credible.
The fourth reason given by the ALJ for finding plaintiff’s pain and symptom
statements less than credible was that Dr. Doss observed that plaintiff’s gait was “perky

32

Admin. Rec. at 95.

33

Dr. Novack began treating plaintiff on September 21, 2010. Admin. Rec. at 849.
He did surgery on plaintiff’s right ankle on October 26, 2010. Admin. Rec. at 769. He
stopped treating plaintiff on February 21, 2011 because plaintiff had to change insurance
after her husband lost his job. Admin. Rec. at 832-833.
34

Admin. Rec. 833 & 836-837.

35

Dr. Heiner, an orthopedic surgeon, began treating plaintiff in April 2011. Admin.
Rec. at 1025.
36

Admin. Rec. at 1065.
-14-

and free” and that she walked “briskly.”37 This was not a not clear and convincing reason
because Dr. Doss saw plaintiff only once and because Dr. Doss, who was a psychologist,
was not qualified to opine on the subject of plaintiff’s gait. In addition, Dr. Doss’
observation contradicts those of plaintiff’s treating physicians who saw plaintiff on
monthly basis and often found that plaintiff’s gait was antalgic or that she was limping.38
The fifth and sixth reasons given by the ALJ for discrediting plaintiff’s subjective
complaints were that plaintiff had not undergone any intensive therapy and that her course
of treatment was generally conservative. But, the medical evidence of record does not
support these findings. Rather, the medical evidence of record shows that plaintiff
underwent five surgeries during the relevant time period,39 that she completed numerous
rounds of physical therapy,40 received steroid injections,41 and was treated with opiate pain
medication.42 Thus, this was not a clear and convincing reason to find plaintiff’s statements
less than credible.

37

Admin. Rec. at 96.

38

Admin. Rec. at 353, 380, 383, 386, 392, 395, 401, 404, 495, 513, 516, 519, 522, 525, 531,
880, 1026 & 1051.
39

Admin. Rec. at 284, 769, 1065, & 1069.

40

Admin. Rec. at 206, 388-390, 442, 448, 475-486, 1056 & 1058.

41

Admin. Rec. at 281, 523 & 1139.

42

Admin. Rec. at 357, 840, 1026 & 1155.
-15-

The seventh reason given by the ALJ was that the record reflects significant gaps in
treatment. This was not a clear and convincing reason for finding plaintiff’s pain and
symptom statements less than credible. The ALJ does not indicate when she believed there
was a gap in treatment and the record does not indicate any gaps in treatment. Rather, the
record reflects that plaintiff saw Drs. O’Brien,43 Parker,44 Novack,45 and Heiner46 at least
once a month if not more after she initiated treatment with each of them. Plaintiff also saw
Dr. Astran47 on a regular basis prior to Dr. Parker becoming her PCP.
The eighth reason given by the ALJ was that no treating or examining doctor opined
that plaintiff could not work.48 Plaintiff concedes that both Dr. O’Brien and Dr. Heiner
opined that she could perform sedentary work.49 And while it can be probative that no

43

Dr. O’Brien was plaintiff’s first orthopedic surgeon and he treated plaintiff from
April 6, 2009 through July 12, 2010. Admin. Rec. at 297-299, 374-387, 391-393, 400-405, 408428, 432-438, 443-460, 494-496 & 510-532.
44

Dr. Parker was plaintiff’s PCP from October 2010 on. Admin. Rec. at 815-820, 10101019, 1045-1053, 1136-1151, & 1107-1117.
45

Admin. Rec. at 832-851 & 769-770.

46

Admin. Rec. at 1023-1027, 1056-1066, 1069-1083, 1157-1167 & 1183-1186.

47

Dr. Astran was plaintiff’s PCP from December 1, 2008 through September 18, 2010.
Admin. Rec. at 319-370, 638-714 & 878-1004.
48

Admin. Rec. at 96.

49

On April 29, 2010, Dr. O’Brien restricted plaintiff to “work[ing] at a sit down job
only at this time, nothing that would require her to be on her feet at this time.” Admin.
(continued...)
-16-

doctor “expressed the opinion that [claimant] was totally disabled,” see Matthews v.
Shalala, 10 F.3d 678, 680 (9th Cir. 1993), there was one treating physician who opined that
plaintiff had limitations that could render her disabled. On February 18, 2010, Dr. Astran,
who was treating plaintiff’s anxiety and depression, opined that plaintiff had a significant
mental impairment that would cause significant interference with her daily functioning.50
Thus, this was not a clear and convincing reason for finding plaintiff’s statements less than
credible.
The ninth reason given by the ALJ was that plaintiff did not have any significant
muscle atrophy, loss of strength, or difficulty moving.51 This was not a clear and
convincing reason because as set forth above, plaintiff’s treating physicians often noted that

49

(...continued)
Rec. at 496. On January 12, 2012, Dr. Heiner opined that plaintiff
could easily perform a desk job in any office environment
given the scope of her injuries at this point in time. I fully and
firmly believe that she will continue to improve with respect to
being able to do at least light to moderate daily activities for a
lifetime. This shoulder injury is not going to be a debilitating
thing for her full lifetime. The ankle injuries may be more
difficult to overcome in the long run however, there are many
jobs I think she would be able to perform in the future.
Admin. Rec. at 1158.
50

Admin. Rec. at 307.

51

Admin. Rec. at 96.
-17-

she was limping or had an antalgic gait.
The tenth reason given by the ALJ for finding plaintiff’s pain and symptom
statements less than credible was that plaintiff “is currently not receiving any mental health
treatment.”52 But, because plaintiff was receiving mental health treatment from Dr. Parker,
her PCP,53 this was not a clear and convincing reason to find plaintiff’s statements less than
credible.
The final reason given by the ALJ was that plaintiff “was able to participate in the
administrative hearing and respond to the questioning without any apparent difficulties.”54
But, “[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain
at the hearing provides little, if any, support for the ALJ's ultimate conclusion that the
claimant is not disabled or that his allegations of constant pain are not credible.” Gallant
v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984). Thus, this was not a clear and convincing
reason to find plaintiff’s pain and symptom statements less than credible.
In sum, none of the reasons given by the ALJ for finding plaintiff’s pain and
symptom statements less than credible were clear and convincing. Therefore, the ALJ erred
in assessing plaintiff’s credibility.

52

Admin. Rec. at 96.

53

Admin. Rec. at 816, 1013, 1046, 1049 & 1107.

54

Admin. Rec. at 97.
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Lastly, plaintiff argues that the ALJ erred at step five because the ALJ’s hypothetical
was incomplete. “The ALJ may meet h[er] burden at step five by asking a vocational expert
a hypothetical question based on medical assumptions supported by substantial evidence
in the record and reflecting all the claimant’s limitations, both physical and mental,
supported by the record.” Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). “‘If a
vocational expert’s hypothetical does not reflect all the claimant’s limitations, then the
expert’s testimony has no evidentiary value to support a finding that the claimant can
perform jobs in the national economy.’” Id. at 1162 (quoting Matthews, 10 F.3d at 681).
The ALJ gave the vocational expert a hypothetical person who “would be limited
to sedentary work with occasional climbing of ramps or stairs. No ladders, ropes, or
scaffolds. Frequent balancing. Occasional stooping and kneeling. Frequent crouching and
no crawling. This individual would be limited to frequent reaching with the right,
dominant hand. And needs to avoid concentrated exposure to hazards, such as machinery
and unprotected heights. And this individual would be limited to simple and unskilled
work.”55 The ALJ’s RFC was identical to this hypothetical except that the RFC included the
additional limitation that plaintiff was limited to “occasional interaction with the public
and co-workers.”56

55

Admin. Rec. at 52.

56

Admin. Rec. at 95.
-19-

Plaintiff argues that the failure to include the “occasional interaction with public and
co-workers” limitation in the hypothetical was not harmless because each of the jobs
identified by the vocational expert require some degree of social contact, according to their
descriptions in the Dictionary of Occupational Titles. A call-out operator
[c]ompiles credit information, such as status of credit accounts,
personal references, and bank accounts to fulfill subscribers’
requests, using telephone. Copies information onto form to
update information for credit record on file, or for computer
input. Telephones subscriber to relay requested information or
submits data obtained for typewritten report to subscriber.[57]
An addressing clerk “[a]ddresses by hand or typewriter, envelopes, cards, advertising
literature, packages, and similar items for mailing. May sort mail.”58 And, a document
preparer
[p]repares documents, such as brochures, pamphlets, and
catalogs, for microfilming, using paper cutter, photocopying
machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and
format when allowed by margin space, using paper cutter or
razor knife. Reproduces document pages as necessary to
improve clarity or to reduce one or more pages into single
page of standard microfilming size, using photocopying
machine. Stamps standard symbols on pages or inserts
instruction cards between pages of material to notify MICRO-

57

DOT, http://www.occupationalinfo.org/23/237367014.html (last visited Oct. 22,

58

DOT, http://www.occupationalinfo.org/20/209587010.html (last visited Oct. 22,

2014).

2014).
-20-

FILM-CAMERA OPERATOR (business ser.) 976.682-022 of
special handling, such as manual repositioning, during
microfilming. Prepares cover sheet and document folder for
material and index card for company files indicating information, such as firm name and address, product category, and
index code, to identify material. Inserts material to be filmed in
document folder and files folder for processing according to
index code and filming priority schedule.[59]
Plaintiff argues that it is clear that all of these jobs are performed in an office setting and
thus require contact with others.
While it would appear that the call-out operator job requires more than occasional
interaction with the public, it is not clear from the descriptions for the addressing clerk and
document preparer jobs whether these jobs would require more than occasional interaction
with the public and co-workers. This is the type of question that should have been posed
to the vocational expert. But, because the vocational expert was not asked whether or not
the jobs identified did or did not require more than occasional interaction with the public
and co-workers, the court cannot determine whether the ALJ’s error at step five was
harmless or not.
Because the court cannot determine, based on the current state of the record,
whether the ALJ’s step-five error was harmless or not, a remand for further proceedings
is required. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (remand for further

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DOT, http://www.occupationalinfo.org/24/249587018.html (last visited Oct. 22,

2014).
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proceedings required when “enhancement of the record would be useful”). Although the
ALJ also erred as to plaintiff’s credibility and plaintiff might be disabled if her testimony
were credited as true, the court is required “to remand for further proceedings when, even
though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as
a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at
1021. Here, an evaluation of the record as a whole creates serious doubt that plaintiff is
disabled. Thus, a remand for further proceedings is appropriate in this case.
Conclusion
Based on the foregoing , the Commissioner’s decision is reversed and this matter is
remanded for further proceedings.
DATED at Anchorage, Alaska, this 22nd day of October, 2014.
/s/ H. Russel Holland
United States District Judge

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