Romero v. Colvin

Filing 27

ORDER: This matter is remanded back to the ALJ for a third opportunity to decide the issue. The Clerk of the Court shall remand and enter judgment accordingly. Signed by Judge G Murray Snow on 2/29/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Yolanda M. Romero,
Plaintiff,

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ORDER

v.

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No. CV-14-02465-PHX-GMS

Carolyn W. Colvin,

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Defendant.

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Pending before the Court is Claimant Yolanda Romero’s appeal, which challenges

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the Social Security Administration’s decision to deny benefits. (Doc. 19.) Defendant

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concedes that the Administrative Law Judge (“ALJ”) failed to support with substantial

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evidence his decision to deny the Claimant benefits. (Doc. 24 at 2.) Accordingly, the

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Court vacates the ALJ’s decision and remands for further proceedings.

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DISCUSSION
I.

Standard of Review

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Here, the Defendant concedes that the ALJ erred by “failing . . . to provid[e]

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[legally] sufficient rationale for rejecting the opinions of [treating] Drs. Posner, Burgher,

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Battersby, and [consulting psychologist] Dr. Piatka, [and for] finding the claimant less

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than credible.” (Doc. 24 at 2.) In such a case, the Act “makes clear that courts are

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empowered to . . . modify[] or reverse a decision by the Commissioner ‘with or without

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remanding the case for a rehearing.’” Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir.

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2014) (quoting § 405(g)). “While [courts] generally remand to the [ALJ] for ‘additional

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investigation or explanation,’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

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1100 (9th Cir. 2014) (citation omitted), the Ninth Circuit, like every other circuit,

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recognizes that “in appropriate circumstances courts are free to reverse and remand a

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determination by the Commissioner with instructions to calculate and award benefits.”

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Garrison, 759 F.3d at 1019 (citing cases from every circuit). Accordingly, the only

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dispute arising between the parties is whether the Court should remand for further

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proceedings or for an award of benefits.

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II.

Remedy

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The Ninth Circuit applies the “three-part credit-as-true standard, each part of

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which must be satisfied in order for a court to remand to an ALJ with instructions to

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calculate and award benefits[.]” Id. at 1020. The Claimant must establish: first, that the

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ALJ failed to provide legally sufficient reasons for rejecting evidence, whether medical

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opinion or claimant testimony; second, that the record has been fully developed and

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further administrative proceedings would serve no useful purpose; and third, whether if

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the improperly discredited evidence were credited as true, the ALJ would be required to

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find the claimant disabled on remand.

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Garrison, 759 F.3d at 1020). If all three conditions are met, the reviewing court may

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remand for an award of benefits. Id. at 1101. Nonetheless, the reviewing court retains

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flexibility in determining the appropriate remedy if the record as a whole still creates

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“serious doubt as to whether the claimant is, in fact, disabled[.]” Id. at 1107 (citing

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Garrison, 759 F.3d at 1021.)

See Treichler, 775 F.3d at 1100–01 (citing

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It is uncontested that the first condition of the credit-as-true standard is met: the

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ALJ erred by failing to provide legally sufficient reasons for rejecting the testimony of

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three of Claimant’s treating physicians, one consulting psychologist, and for finding the

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Claimant less than credible. (Doc. 24 at 2.)

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The next step is to determine whether further administrative proceedings would be

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useful. Treichler, 775 F.3d at 1103. To make that determination, the Court must “review

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the record as a whole and determine whether it is fully developed, is free from conflicts

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and ambiguities, and ‘all essential factual issues have been resolved.’” Dominguez v.

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Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1101).

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Importantly, “assess[ing] whether there are outstanding issues requiring resolution [must

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be done] before considering whether to hold that the claimant’s testimony is credible as a

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matter of law.” Treichler, 775 F.3d at 1105 (citation omitted). The same order of

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operations also applies when dealing with improperly rejected medical opinion evidence.

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See Dominguez, 808 F.3d at 409. As a result, any conflict between salient evidence on

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the record and evidence improperly rejected by the ALJ, or any need for further

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development of the record, prohibits the reviewing court from reaching the credit-as-true

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step, since “[i]f such outstanding issues do exist, the district court cannot deem the

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erroneously disregarded testimony to be true; rather, the court must remand for further

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proceedings.” Id. (citation omitted); see also Brown-Hunter v. Colvin, 806 F.3d 487, 495

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(9th Cir. 2015) (“The touchstone for an award of benefits is the existence of a disability,

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not the agency's legal error.”).

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Here, as the Defendant points out, the improperly rejected opinions of Drs. Posner,

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Burgher, and Battersby as well as Claimant’s own testimony conflict with the opinions of

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other consulting physicians on the record. (Doc. 24 at 4.) For example, Dr. Posner

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opined Claimant could only sit, stand, or walk for less than 1-hour per 8-hour workday.

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(R. at 1018–23.) Likewise, Dr. Battersby found that Claimant could walk for no more

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than 2 hours, stand for no more than 3 hours, and sit for no more than 4 hours per 8-hour

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workday. (R. at 770.) And Dr. Burgher concluded that Claimant could not work nor

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“perform daily activities” at all. (R. at 808.) Furthermore, the Claimant testified at an

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August 10, 2010 hearing before the ALJ, and likewise at a later December 6, 2012

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hearing,1 that she can only walk for “[p]robably about 15 minutes, 20 minutes,” and can

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“sit . . . , but it’ll be about 15 minutes before I have to stand up for a bit.” (R. at 70–71.)

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However, to the contrary, consulting physician Dr. Radkowsky examined Claimant’s

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medical records and determined that Claimant could sit, stand, and/or walk for 6- to 8-

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Claimant provided almost identical testimony during the December 2012
hearing, stating that she can stand “[f]or, like 20 minutes, 30,” and can “sit . . . for about
20 minutes . . . 30 minutes and that’s pretty much it.” (R. at 41.)
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hours per 8-hour workday. (R. at 543.) Other consulting physicians like Dr. Bargan (R.

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at 139–55), Dr. Ostrowski (R. at 119–33), and Dr. Chaffee (R. at 538–41) came to similar

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conclusions.

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The examples above illustrate clear conflicts between the testimonies and opinions

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in the record that raise legitimate questions regarding the extent of Claimant’s

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impairments. The inconsistencies also prove that further administrative proceedings

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would serve a useful purpose. Treichler, 775 F.3d at 1105. Accordingly, the matter must

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be remanded for further proceedings before the ALJ. See, e.g., Dominguez, 808 F.3d at

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409; Treichler, 775 F.3d at 1105; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)

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(The ALJ is responsible for resolving conflicts in testimony, determining credibility, and

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resolving ambiguities).

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The ALJ also improperly rejected the opinion of consulting psychologist Dr.

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Piatka; nonetheless, the opinion is not yet resolved such that the Court may credit her

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opinion as true. While Dr. Piatka listed limitations related to understanding and memory,

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sustained concentration and persistence, social interaction, and adapting to change, Dr.

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Piatka also noted that a further medical review of Claimant’s medications was necessary

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to “rule out concentration or cognitive abnormalities secondary to medication effects and

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to determine to what extent some symptoms may reflect medication effects . . . .” (R. at

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956.) The inconsistencies between Dr. Paitka’s opined limitations and Dr. Paitka’s

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acknowledgment that those limitations may not in fact stem from any psychological

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dysfunction in Claimant but rather may be the effects of her medications again supports

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the Court remanding this matter for further development before the ALJ. See Treichler,

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775 F.3d at 1101.

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Claimant argues that her more recent pain and symptom testimony (post-2010) not

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only supports a finding of disability but is uncontested by medical evidence on the

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record. (Doc. 25 at 4–5.) The Defendant concedes that the ALJ failed to properly reject

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Claimant’s testimony as not credible. Nevertheless, whether crediting Claimant’s more

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contemporary testimony as true may qualify her for disability during that time is

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inapposite to the current calculation.

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beginning on her March 6, 2008 onset date; therefore, Claimant’s post-2010 condition

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cannot be analyzed in a vacuum. (R. at 1098.) Second, the existing record conflicts

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nonetheless and requires remand for reconsideration. See Treichler, 775 F.3d at 1105.

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Moreover, the impact and relevance of Claimant’s pain and symptom testimony, pre-

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and/or post-2010, on the formulation of Claimant’s residual functional capacity is a

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determination left “up to the ALJ [to make], not the court . . . .” Dominguez, 808 F.3d at

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409; see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (The Court

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“may not substitute [its own] judgment for that of the ALJ.”).
CONCLUSION

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First, the Claimant must be found disabled

The record before this Court is not “free from conflicts” nor the need to further

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develop the record.

Treichler, 775 F.3d at 1107.

“In light of the inconsistencies,

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conflicts, and gaps in the record that require further administrative proceedings,” the

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Court cannot proceed to the final step in the credit-as-true analysis, “whether the ALJ

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would be required to find [Claimant] disabled” if Drs. Posner, Burgher, Battersby, and

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Piatka’s opinions were credited as true and the Court held Claimant’s testimony to be

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fully credible.

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Accordingly,

See Dominguez, 808 F.3d at 409; Treichler, 775 F.3d at 1105.

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IT IS ORDERED that this matter is remanded back to the ALJ for a third

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opportunity to decide the issue. The Clerk of the Court shall remand and enter judgment

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accordingly.

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Dated this 29th day of February, 2016.

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Honorable G. Murray Snow
United States District Judge

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