Hinkley v. Colvin

Filing 34

ORDER reversing the decision of the Commissioner of Social Security and remanding for further administrative proceedings. The Commissioner shall award Plaintiff benefits effective as of July 12, 2011, but payment shall be deferred until conclusion of the administrative proceedings ordered herein. IT IS FURTHER ORDERED that within 120 days from the date of this Order (or such later time as the parties mutually agree), an ALJ shall hold an administrative hearing and receive additional eviden ce to determine whether benefits should be awarded for a closed period or should be continuing. If benefits are awarded for a closed period, the end date shall be no earlier than February 15, 2013. The ALJ shall issue a new decision that is consistent with the applicable law as set forth in this Order. IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 6/30/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lonnie Earl Hinkley,
Plaintiff,

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No. CV-15-00633-PHX-ESW
ORDER

v.
Carolyn W. Colvin, Acting Commissioner
of the Social Security Administration,

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Defendant.

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Pending before the Court is Lonnie Earl Hinkley’s (“Plaintiff”) appeal of the

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Social Security Administration’s (“Social Security”) denial of his applications for

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disability insurance benefits and supplemental security income.

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jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. §§ 405(g), 1383(c). Under

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42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and

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transcript of the record, a judgment affirming, modifying, or reversing the decision of the

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Commissioner of Social Security, with or without remanding the case for a rehearing.

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Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc.

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8).

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The Court has

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After reviewing the Administrative Record (“A.R.”) and the parties’ briefing
(Docs. 19, 32, 33), 1 the Court finds that the Administrative Law Judge’s (“ALJ”) decision
contains harmful legal error. For the reasons explained in Section II below, the decision
is reversed and the case is remanded to the Commissioner of Social Security for further
proceedings.

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I. LEGAL STANDARDS

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A. Disability Analysis: Five-Step Evaluation

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The Social Security Act (the “Act”) provides for disability insurance benefits to
those who have contributed to the Social Security program and who suffer from a
physical or mental disability. 42 U.S.C. § 423(a)(1).

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Act

also

provides

for

supplemental security income to certain individuals who are aged 65 or older, blind, or
disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based
on an alleged disability, the claimant must show that he or she suffers from a medically
determinable physical or mental impairment that prohibits him or her from engaging in
any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A).
The claimant must also show that the impairment is expected to cause death or last for a
continuous period of at least 12 months. Id.

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The

To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an
analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.
§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four
steps: 2

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Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.

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1

LRCiv 7.1(b)(1) requires all original documents filed with the Clerk of Court to
be in a “fixed-pitch type size no smaller than ten (10) pitch (10 letters per inch) or in a
proportional font size no smaller than 13 point, including footnotes.” Compliance with
LRCiv 7.1(b)(1) helps ensure that filings may be easily read by the Court and all parties.
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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not
have a severe impairment or combination of impairments,
disability benefits are denied at this step. Otherwise, the ALJ
proceeds to step three.

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets
or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is
not one that is presumed to be disabling, the ALJ proceeds to
the fourth step of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §§
404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the
last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 3
Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. §§ 404.1520(g), 416.920(g). Social Security is
responsible for providing evidence that demonstrates that
other work exists in significant numbers in the national
economy that the claimant can do, given the claimant’s
residual functional capacity, age, education, and work
experience. Id.

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Parra, 481 F.3d at 746.
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B. Standard of Review Applicable to ALJ’s Determination
The Court must affirm an ALJ’s decision if it is supported by substantial evidence
and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “Substantial evidence” is
less than a preponderance, but more than a “mere scintilla.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)).
It is relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Id.
In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). The ALJ, not the Court, is responsible for resolving conflicts and
ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750;
see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Finally, the Court considers the harmless error doctrine when reviewing an ALJ’s
decision. An ALJ’s decision need not be remanded or reversed if it is clear from the
record that the error is “inconsequential to the ultimate nondisability determination.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina,
674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence
supporting the ALJ’s decision and the error “does not negate the validity of the ALJ’s
ultimate conclusion”) (citations omitted).

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II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1976, has been employed as a fork lift operator, hand
packer, general hardware sales, and lumber yard worker. (A.R. 29). In 2011, Plaintiff
filed applications for disability insurance benefits and supplemental security income.
(A.R. 187-99). Plaintiff’s applications alleged that on July 12, 2011, he became unable to
work due to Chiari 1 malformation and deep vein thrombosis. (A.R. 58, 71). Social
Security denied the applications on June 28, 2012. (A.R. 116-23). In December 2012,
upon Plaintiff’s request for reconsideration, Social Security affirmed the denial of
benefits. (A.R. 126-32). Plaintiff sought further review by an ALJ, who conducted a
hearing in June 2013. (A.R. 38-57). In her September 10, 2013 decision, the ALJ found
that Plaintiff has not been under a disability from July 12, 2011 through the date of the
decision. (A.R. 10-37).
Plaintiff appealed the ALJ’s ruling.

The Appeals Council denied Plaintiff’s

request for review, making the ALJ’s decision the final decision of the Social Security
Commissioner. (A.R. 1-6). On April 8, 2015, Plaintiff filed a Complaint (Doc. 1)
pursuant to 42 U.S.C. § 405(g) requesting judicial review and reversal of the ALJ’s
decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since July 12, 2011, the alleged onset date. (A.R. 15). Neither party disputes this
determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following severe impairments: (i) obesity; (ii)

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Chiari I malformation status post April 2012 surgery; (iii) history of deep venous

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thrombosis of the left lower extremity; (iv) cognitive disorder, not otherwise specified;
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and (v) adjustment disorder with anxiety and depressed mood.

(A.R. 16).

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determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 of the Social Security regulations. (A.R. 17). Neither party
disputes the ALJ’s determination at this step.
4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to
perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that:
[Plaintiff] can never climb ladders, ropes, or scaffolds, but he
can climb ramps or stairs frequently. He can balance
occasionally, and stoop, crouch, kneel, and crawl frequently.
He is to avoid even moderate exposure to dangerous
machinery and unprotected heights. He is limited to simple,
routine, and repetitive tasks.

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(A.R. 19). Based on Plaintiff’s RFC, the ALJ determined that Plaintiff was unable to

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perform his past relevant work. (A.R. 28-29). Plaintiff argues that the ALJ improperly

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weighed the evidence in assessing Plaintiff’s RFC.

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5. Step Five: Capacity to Perform Other Work

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By relying on the Medical-Vocational Guidelines, the ALJ determined that

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Plaintiff can perform other jobs existing in significant numbers in the national economy.

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(A.R. 29-30). Plaintiff challenges this determination.

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C. Summary of Plaintiff’s Medical History Beginning with July 2011
Diagnosis of Chiari 1 Malformation through Six Months Post
Craniectomy
On July 12, 2011, Plaintiff visited Norterra Family Medicine for a pounding,
“knife-like” headache.

(A.R. 331).

Plaintiff, who denied having significant prior

headaches, also had nausea, chest pain, dizziness, racing heartbeat, and swelling. (Id.).
The examining physician’s assistant referred Plaintiff to the Banner Thunderbird
emergency room. (A.R. 332).
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Plaintiff presented at the Banner Thunderbird emergency room, where staff
performed a computed tomography (“CT”) scan of Plaintiff’s head. (A.R. 337). The
attending physician reported no evidence of acute hemorrhage, infarction, mass, masseffect, herniation, or hydrocephalus, but found questionable cerebellar tonsillar ectopia.
(A.R. 338). Neurosurgeon Randall W. Porter, M.D. recommended a magnetic resonance
imaging (“MRI”) of Plaintiff’s brain.

(Id.).

Plaintiff was discharged from Banner

Thunderbird with diagnoses of headache and cerebellar tonsillar ectopia and with
instruction to follow up with Dr. Porter. (Id.).
Plaintiff’s brain MRI was performed on July 15, 2011.

(A.R. 347).

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neuroradiologist’s report states: “Normal to-and-fro flow in front of the spinal cord and
brainstem at the foramen magnum at the level of the cerebellar tonsils. No to-and-fro
flow is seen behind the spinal cord at this level.” (Id.). In other words, the MRI showed
blockage behind Plaintiff’s cerebellum. (A.R. 518).
On September 26, 2011, Dr. Porter examined Plaintiff. (A.R. 381-84). Plaintiff
reported pain behind his eyes and pain radiating behind his right ear to his shoulder.
(A.R. 381). Dr. Porter noted that Plaintiff has had epidurals and an occipital nerve block,
but “nothing has taken the pressure away.” (Id.). Dr. Porter reviewed the radiographic
images of Plaintiff’s brain, and found “Chiari 1 malformation, no flow behind the
cerebellum.” (A.R. 384). Dr. Porter’s treatment plan was to perform a “suboccipital
decompression with C1 laminectomy, pencranial graft.” (Id.).
On October 4, 2011, Plaintiff went to the emergency room for pain in his left leg.
The attending physician diagnosed Plaintiff with deep vein thrombosis. (A.R. 391, 401).
Surgical plans to treat Plaintiff’s Chiari 1 obstruction were placed on hold until the
thrombosis resolved.

(A.R. 404).

In an October 26, 2011 follow up appointment,

Plaintiff reported continued swelling and pain in his left leg. (A.R. 408). The record also
indicated that Plaintiff had “vision problems due to chiari.” (Id.). A November 2, 2011
examination revealed sonographic evidence for lower extremity deep vein thrombosis.

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(A.R. 506). In a December 14, 2011 letter, Dr. Porter wrote that the symptoms Plaintiff
experiences with the Chiari malformation prevented Plaintiff from working. (A.R. 329).
A January 27, 2012 medical record indicates that Plaintiff’s thrombosis resolved.
(A.R. 500). In a March 5, 2012 report, Dr. Porter indicated that Plaintiff was “cleared for
surgery by Hemotology.” (A.R. 516). Dr. Porter stated that Plaintiff’s “symptoms are
the same, complains more, pain higher in the base of the skull, down the right side, a lot
of stiffness in the neck. His eyes quiver at times.” (Id.). Plaintiff’s surgery was
performed on April 3, 2012 with no complications.

(A.R. 546-47).

Notes from

Plaintiff’s post-operative examination on April 19, 2012 stated that Plaintiff “continues to
report dizziness, and his eyes moving, while supine. He is using a cane to ambulate. His
primary pain is located on the right side of his head, near his pin sites.” (A.R. 540).
On June 11, 2012, Plaintiff went to his six-week post-operative visit with Dr.
Porter. (A.R. 562-65). Plaintiff reported that he is “about the same” and continues to
have neck stiffness. (A.R. 562). Plaintiff indicated that his pain is located in his neck
and the right side of his scalp and is “like an ice cream headache.” (Id.). Dr. Porter noted
that Plaintiff has short term memory loss, but is no longer using a cane and his eye
pressure is gone. (Id.). Plaintiff stated that he started physical therapy, but can only
tolerate one day a week. (Id.). Dr. Porter assessed that Plaintiff’s post-operative status is
stable with “some headaches and numbness.” (A.R. 565).
Plaintiff’s next visit with Dr. Porter occurred on October 15, 2012. (A.R. 598).
Dr. Porter indicated that Plaintiff’s post-operative status remains stable, but Plaintiff “has
problems with balance, headaches, and confusion. His symptoms are daily. When he
lays down, his eyes bother him and they feel like they are moving. He gets lost in
familiar places.” (Id.). Dr. Porter’s report also stated “Chiari 1 malformation, no flow
behind the cerebellum on cine MRI.” (Id.). In the “Headache Questionnaire for the
Treating Physician” completed on October 15, 2012, Dr. Porter stated that Plaintiff has
daily Chiari headaches that affect Plaintiff’s concentration, attention, memory, and
capacity to work. (A.R. 283). Dr. Porter opined that the headaches would result in
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Plaintiff missing an average of five days from work per month. (Id.). The vocational
expert testified at the administrative hearing that there are no jobs available that Plaintiff
could perform if Plaintiff’s condition required him to miss five days of work a month.
(A.R. 55).

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D. The ALJ Improperly Weighed the Opinions of Non-Examining Physician
Dr. Lloyd Anderson and Treating Neurosurgeon Dr. Randall Porter

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In weighing medical source opinions in Social Security cases, there are three

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categories of physicians: (i) treating physicians, who actually treat the claimant; (ii)

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examining physicians, who examine but do not treat the claimant; and (iii) non-

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examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81

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F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that

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are supported by substantial evidence for rejecting the uncontradicted opinion of a

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treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216

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(9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in

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favor of another physician’s opinion without first providing specific and legitimate

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reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20

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C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with

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the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

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1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002);

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Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a treating

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physician’s opinion that is inconsistent with the record).
1. Non-Examining Physician Dr. Lloyd Anderson

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On June 27, 2012, state agency physician Dr. Lloyd Anderson reviewed Plaintiff’s

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medical records to assess Plaintiff’s RFC. (A.R. 66-70; 79-83). Dr. Anderson stated that

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the RFC assessment was for July 12, 2012— twelve months after the alleged onset date.

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(A.R. 66, 79). Dr. Anderson assessed a prospective RFC for light work, and explained

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that:

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[Plaintiff] had “severe [headaches] and balance problems
which were found after his [alleged onset date] to be due to a
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Chiari I malformation.
While waiting for surgical
decompression he developed a [deep vein thrombosis] which
delayed the operation until 04/03/2012. The [deep vein
thrombosis] resolved.
Since then he is progressively
improving. It is projected that [Plaintiff] will be at or better
than this light RFC by 12 months after [the alleged onset
date], 07/11/2012. Currently he i[s] ambulatory without an
[assistive device] but has some balance issues, i.e. he has a
positive Romberg and he is unable to tandem walk but also
temporarily remains on narcotic pain meds.

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(A.R. 67, 80). Dr. Anderson implicitly found Plaintiff’s impairments disabling, but did

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not find that the impairments would remain disabling for twelve consecutive months as is

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required for an award of benefits. 4 Without addressing the prospective nature of Dr.

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Anderson’s RFC assessment, the ALJ stated that:
[T]he assessment of [Dr. Anderson] on initial review is given
great weight. It was determined [that Plaintiff] could perform
work at the light exertional level . . . . The medical consultant
had the benefit of reviewing the record and is familiar with
the requirements for determining disability pursuant to the
rules and regulations of the Social Security Act. Moreover,
the assessment is consistent with the medical evidence of
record, which demonstrated [Plaintiff’s] condition generally
improved with treatment. Additionally, it appears the
medical consultant adequately considered [Plaintiff’s]
subjective symptoms and limitations, including dizziness,
balance issues, and obesity, in assessing [Plaintiff’s] residual
functional capacity.
(A.R. 24).

The ALJ’s decision does not discuss what evidence demonstrated that

Plaintiff’s condition improved within twelve months from the alleged onset date as Dr.
Anderson projected. Nor does the ALJ’s decision discuss how the medical improvement
would allow Plaintiff to return to work. The Court cannot speculate as to the grounds for
an ALJ’s conclusion. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015)
(“we cannot substitute our conclusions for the ALJ’s, or speculate as to the grounds for

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The Personalized Decision Notice states: “After reviewing all the available
medical evidence, we have determined that your condition is disabling but will not
remain disabling for 12 consecutive months.” (A.R. 117, 121) (emphasis added).
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the ALJ’s conclusions. Although the ALJ’s analysis need not be extensive, the ALJ must
provide some reasoning in order for [the court] to meaningfully determine whether the
ALJ’s conclusions were supported by substantial evidence”) (quoting Treichler v.
Comm’r of Soc. Sec., 775 F.3d 1090, 1103 (9th Cir. 2014)).
Moreover, the ALJ’s decision does not acknowledge that Dr. Anderson’s
assessment was based on a limited review of Plaintiff’s medical records. Dr. Anderson
did not review Dr. Porter’s October 2012 records indicating that Plaintiff continued to
have daily problems with balance, headaches, and confusion. (A.R. 598). Nor did Dr.
Anderson review Dr. Porter’s opinion that Plaintiff’s daily severe headaches would cause
Plaintiff to miss an average of five days of work a month. (A.R. 283).
Based on the record, the Court finds that the ALJ erred by giving great weight to
Dr. Anderson’s prospective RFC assessment.
2. Treating Neurosurgeon Dr. Randall Porter
The parties dispute whether Dr. Porter’s opinions are contradicted by Dr.
Anderson’s RFC assessment. The Court does not need to decide the issue, however, as
the ALJ has provided neither “clear and convincing” nor “specific and legitimate”
reasons for discounting Dr. Porter’s opinions expressed in his December 14, 2011 letter
and October 15, 2012 Headache Questionnaire.
i. Dr. Porter’s December 2011 Letter
On December 14, 2011, Dr. Porter wrote that Plaintiff “has been unable to work
since July 12, 2011, because of the symptoms he is experiencing with the Chiari
malformation.” (A.R. 329). The ALJ gave this statement little weight, finding that the
“conclusion[] [has] no probative value in determining the claimant’s residual functional
capacity. As an opinion on an issue reserved to the Commissioner, this statement is not
entitled to controlling weight and is not given special significance pursuant to 20 CFR
404.1527(e) and 416.927(e) and SSR 96-5.” (A.R. 25). However, SSR 96-5p requires
“[Social Security’s] adjudicators [to] always carefully consider medical source opinions
about any issue, including opinions about issues that are reserved to the Commissioner.”
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Soc. Sec. Ruling SSR 96–5p, 1996 WL 374183, at * 2 (July 2, 1996). Thus, “the fact that
the treating physician’s opinion was on an issue reserved for the Commissioner is not by
itself a reason for rejecting that opinion.” Esparza v. Colvin, 631 F. App’x 460, 462 (9th
Cir. 2015) (citing Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2011).
The ALJ also gave Dr. Porter’s December 2011 letter little weight because “it
appears these statements were prepared for the claimant’s benefit for his request for short
term disability (Exhibit 5F, pp 1-2).” This is neither a “clear and convincing” nor a
“specific and legitimate” reason for discounting Dr. Porter’s statement. See Booth v.
Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (an “ALJ may not disregard a
physician’s medical opinion simply because it was initially elicited in a workers’
compensation proceeding, or because it was couched in the terminology used in such
proceedings”) (citing Coria v. Heckler, 750 F.2d 245, 247–48 (3d Cir. 1984)).
Finally, the ALJ stated that Dr. Porter’s December 2011 letter did not provide any
specific functional limitations that prevented the claimant from working. Dr. Porter
diagnosed Plaintiff with Chiari 1 malformation and found that the condition warranted
surgical intervention. By opining that Plaintiff was unable to work, Dr. Porter implicitly
found that Plaintiff’s symptoms related to his diagnosis are significant and severe. The
lack of specific functional limitations is not a valid reason for discounting Dr. Porter’s
opinion regarding the severity of Plaintiff’s condition.
For the above reasons, the Court finds that the ALJ has failed to give valid reasons
for discounting Dr. Porter’s opinion in the December 2011 letter.
ii. Dr. Porter’s October 2012 Headache Questionnaire
The ALJ gave little weight to the opinions expressed in Dr. Porter’s Headache
Questionnaire for the following reasons:
1. The ALJ found that Dr. Porter’s “opinion is conclusory and did not provide an
explanation for the assessment or describe the extent the headaches would affect the
claimant.” (A.R. 24). However, Dr. Porter is Plaintiff’s treating neurosurgeon and has
significant experience with Plaintiff’s condition. Dr. Porter’s Headache Questionnaire
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was completed on the same day that Dr. Porter conducted his six-month post-operative
examination of Plaintiff. The notes from Dr. Porter’s October 2012 examination are
consistent with the opinions expressed in the Headache Questionnaire. Further, the
opinions in the Headache Questionnaire are supported by Dr. Porter’s prior examination
reports. In this circumstance, the ALJ’s rejection of the Headache Questionnaire because
it was “conclusory” is legally improper. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th
Cir. 2014) (finding that ALJ committed “a variety of egregious and important errors,”
including failing to “to recognize that the opinions expressed in check-box form in the
February 2008 RFC Questionnaire were based on significant experience with Garrison
and supported by numerous records, and were therefore entitled to weight that an
otherwise unsupported and unexplained check-box form would not merit”).
2. In discussing why Dr. Porter’s opinion was given little weight, the ALJ stated:
“Moreover, Dr. Porter did not provide any specific work limitations as required by SSR
96-8p despite indicating [Plaintiff’s] work capacity would be affected.” (A.R. 24). SSR
96-8p is a policy interpretation ruling pertaining to RFC assessments made by Social
Security, which provides that:
The adjudicator must consider all allegations of physical and
mental limitations or restrictions and make every reasonable
effort to ensure that the file contains sufficient evidence to
assess RFC. Careful consideration must be given to any
available information about symptoms because subjective
descriptions may indicate more severe limitations or
restrictions than can be shown by objective medical evidence
alone.
Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5 (July 2, 1996).
Dr. Porter indicated in the Headache Questionnaire that Plaintiff’s headaches
would affect Plaintiff’s concentration, attention, and memory. (A.R. 283). To the extent
the ALJ cited SSR 96-8p as a reason for discounting Dr. Porter’s opinion, the reason is
neither “clear and convincing” nor “specific and legitimate.”

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3. The ALJ next stated that Dr. Porter’s “opinion is not supported by his own
objective findings, which were generally normal except for a slightly off gait, positive
Romberg’s sign, and an inability to do heal to toe walking (Exhibits 16F and 26F).”
(A.R. 24). Exhibit 26F contains Dr. Porter’s records from 2013. Because those records
post-date Dr. Porter’s 2012 opinion, they are an insufficient sole basis for denying
benefits for the entire adjudicatory period. 5

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Exhibit 16F contains Dr. Porter’s medical records from October 15, 2012 and June
11, 2012. Those records are not inconsistent with Dr. Porter’s opinion that Plaintiff’s
headaches would cause Plaintiff to miss an average of five work days a month. For
instance, on June 11, 2012, Dr. Porter reported that Plaintiff has some headaches and
numbness, and Dr. Porter prescribed hydrocodone-acetaminophen. (A.R. 580).

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Further, by stating that Dr. Porter’s “opinion is not supported by his own objective
findings,” the ALJ misconstrues the record. Dr. Porter ordered a MRI of Plaintiff’s brain,
which showed a Chiari 1 malformation blocking the flow of cerebral fluid behind
Plaintiff’s spinal cord. (A.R. 347). Plaintiff consistently reported to Dr. Porter and other
medical providers the existence of severe headaches. Dr. Porter stated that the headaches
are “Chiari” headaches. (A.R. 283). The ALJ’s third reason for discounting Dr. Porter’s
opinion is neither “clear and convincing” nor “specific and legitimate.”

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4. As an additional reason for discounting Dr. Porter’s opinion, the ALJ states that
Dr. Porter’s findings regarding Plaintiff’s balance and walking abilities are “inconsistent
with [Plaintiff’s] reports of his activities, including walking and exercising with weights.”
(A.R. 24). But Dr. Porter opined in October 2012 that Plaintiff’s headaches would cause
Plaintiff to miss a significant amount of work. Although Dr. Porter reported issues with
Plaintiff’s gait and balance, Dr. Porter did not opine that Plaintiff was unable to walk or
exercise. The Ninth Circuit has clearly instructed that disability claimants should not be
penalized for attempting to lead normal lives in the face of their limitations. Reddick,

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time.

As discussed below, Social Security may award benefits for a closed period of

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157 F.3d at 722.

The ALJ’s fourth reason for discounting Dr. Porter’s Headache

Questionnaire does not satisfy the “clear and convincing” or “specific and legitimate”
standard.
5. The ALJ’s final reason for giving Dr. Porter’s October 2012 opinion little
weight is that “the intensity of the pain and frequency of the headaches are necessarily
based on [Plaintiff’s] own subjective statements and are not substantiated by the objective
medical evidence.” (A.R. 24). The records show that Plaintiff consistently reported
severe headaches, beginning with the July 2011 office visit that resulted in Plaintiff being
referred to the emergency room. (A.R. 331). A subsequent MRI revealed a blockage of
cerebral fluid behind Plaintiff’s spinal cord.

(A.R. 347).

The condition warranted

surgery. (A.R. 384). To reiterate, Dr. Porter stated that Plaintiff’s headaches were
related to Plaintiff’s Chiari 1 malformation.

(A.R. 283).

Dr. Anderson’s opinion

acknowledged that medical records show that Plaintiff had severe headaches due to a
Chiari 1 malformation. (A.R. 67, 80). By giving great weight to Dr. Anderson’s opinion
while discounting Dr. Porter’s opinion regarding Plaintiff’s alleged headaches, the ALJ’s
decision is inconsistent. The ALJ’s final reason for giving Dr. Porter’s opinion little
weight is neither “clear and convincing” nor “specific and legitimate.”
For the above reasons, the Court finds that the ALJ improperly discounted Dr.
Porter’s opinions expressed in the October 2012 Headache Questionnaire. The ALJ’s
errors identified in this Order are not inconsequential and alone require remand. The
Court does not address the other issues raised in Plaintiff’s Opening Brief.
D. Remand for Further Proceedings is Appropriate
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the
rarest cases.” Treichler, 775 F.3d at 1101 n.5. The Ninth Circuit, however, has adopted
a test to determine when a case should be remanded for payment of benefits in cases
where an ALJ has improperly rejected claimant testimony or medical opinion evidence.
Id. at 1100-01; Garrison, 759 F.3d at 1020. This test is commonly referred to as the
“credit-as-true” rule, which consists of the following three factors:
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1. Has the ALJ failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion? Treichler, 775 F.3d at 1100-01.

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2. Has the record been fully developed, are there outstanding
issues that must be resolved before a disability
determination can be made, or would further administrative
proceedings be useful? Id. at 1101. To clarify this factor, the
Ninth Circuit has stated that “[w]here there is conflicting
evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is
inappropriate.” Id.

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3. If the improperly discredited evidence were credited as true,
would the ALJ be required to find the claimant disabled on
remand? Id.; Garrison, 759 F.3d at 1020.

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Where a court has found that a claimant has failed to satisfy one of the factors of

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the credit-as-true rule, the court does not need to address the remaining factors.

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that the claimant has failed to satisfy the second step). Moreover, even if all three factors

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are met, a court retains the discretion to remand a case for additional evidence or to

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award benefits. Id. at 1101-02. A court may remand for further proceedings “when the

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record as a whole creates serious doubt as to whether the claimant is, in fact, disabled

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within the meaning of the Social Security Act.”

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Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the

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record is uncertain and ambiguous, the proper approach is to remand the case to the

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agency.” 775 F.3d at 1105.

Garrison, 759 F.3d at 1021.

In

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Here, the ALJ improperly weighed Dr. Porter’s 2011 and 2012 opinions. If Dr.

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Porter’s opinions were credited-as-true, the ALJ would be required to find Plaintiff

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disabled at least for a closed period of time. 6

However, the record raises crucial

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6

“In a ‘closed period’ case, the decision maker determines that a new applicant for
disability benefits was disabled for a finite period of time which started and stopped prior
to the date of his decision.” Shepherd v. Apfel, 184 F.3d 1196, 1199 n.2 (10th Cir. 1999)
(quoting Pickett v. Bowen, 833 F.2d 288, 289 n.1 (11th Cir. 1987).
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questions as to whether medical improvement has occurred after Dr. Porter’s October
2012 opinion that would allow Plaintiff to engage in substantial gainful activity. For
instance, a MRI of Plaintiff’s brain was performed on February 15, 2013. (A.R. 677).
The neuroradiologist’s findings showed improvement since the July 15, 2011 MRI. The
July 15, 2011 MRI showed that the “cerebellar tonsils are low-lying and have a pointed
configuration,” while the February 15, 2013 MRI showed that the “cerebellar tonsils are
in appropriate position.” (A.R. 348, 677). A cineradiography MRI (“cine MRI”) also
was performed on February 15, 2013. (A.R. 679). The neuroradiologist’s findings stated
that “[f]rom prior exam, there has been suboccipital decompression . . . .” (Id.).
On March 11, 2013, Dr. Porter reviewed the MRI and cine MRI, and found that
the “MRI showed a good pouch of [cerebrospinal fluid] under the cerebellum, but CINE
MRI did not show flow. This does not correlate, I think it is technical in nature. Reexploration of the Chiari decompression is not indicated at this time.” (A.R. 675).
The record contains other evidence suggesting that medical improvement has
occurred. For example, on February 15, 2013, Plaintiff reported to Dr. Andrew Gorman
that “he is improved by about 40-50%” since his April 2012 surgery. (A.R. 670). Dr.
Gorman’s report also states:
[Plaintiff] still experiences confusion, memory loss, balance
problem, focus problems. He is also more short tempered and
angry. He still has stiffness in his neck which helps with
physical therapy. He is also experiencing twitching in the left
eye. His symptoms were all present prior to his surgery, but
are improved now but not completely resolved.

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(A.R. 670) (emphasis added). 7

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would allow Plaintiff to return to work is a question of fact that should be resolved by the

Whether the improvement Plaintiff has experienced

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The ALJ gave little weight to Dr. Gorman’s February 20, 2013 Medical
Assessment. Plaintiff does not challenge the weight given to the Medical Assessment.
The issue is deemed waived. See Bray v. Commissioner of Social Security Admin, 554
F.3d 1219, 1226 n.7 (9th Cir. 2009) (deeming argument not made in disability claimant’s
Opening Brief waived); see also Oberg v. Astrue, 472 F. App’x 488, 490 (9th Cir. 2012).
(A.R. 667-69). The Court does not find that manifest injustice would occur in deeming
the argument waived. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (failure
to comply with waiver rule is only excused when necessary to avoid manifest injustice).
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ALJ. See Treichler, 775 F.3d at 1101 (“Where there is conflicting evidence, and not all
essential factual issues have been resolved, a remand for an award of benefits is
inappropriate.”); Howell v. Astrue, 248 F. App’x 797, 800-01 (9th Cir. 2007) (finding it
clear that claimant was disabled at some point before her date last insured, but that it was
not clear whether the claimant was entitled to ongoing disability benefits or to benefits
for a “closed” period of disability and remanding to Social Security for further
proceedings); Brown-Hunter, 806 F.3d at 496 (finding that a significant factual conflict
in the record “should be resolved through further proceedings on an open record before a
proper disability determination can be made by the ALJ in the first instance”).
Applying the credit-as-true rule, the Court will remand the case to the
Commissioner for an award of benefits beginning on July 11, 2011 (the onset date). The
ALJ shall reevaluate the medical evidence to determine whether the award of benefits
should be for a closed period or should be continuing.
If the ALJ awards Plaintiff benefits for a closed period, the end date shall be no
earlier than February 15, 2013 (the date of the MRI showing improvement in Plaintiff’s
brain). If benefits are awarded for a closed period, the ALJ shall use the sequential
analyses set forth in 20 C.F.R. § 404.1594(f) and 20 C.F.R. § 416.994(b)(5) in
determining whether to terminate benefits due to medical improvement. 8 The ALJ is
cautioned that in performing the analyses, “an ALJ may not move to the evaluation of a
claimant’s RFC without first finding medical improvement, and the Act does not

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The sequential analysis applies to “closed period” cases. See Tumminaro v.
Astrue, 671 F.3d 629, 633 (7th Cir. 2011) (“Before limiting benefits to a closed period, an
ALJ must conclude either that a claimant experienced ‘medical improvement’ as
evidenced by changes in the symptoms, signs, or test results associated with her
impairments, or else that an exception to this rule applies. . . . That determination is
informed by an eight-step evaluation . . . .”) (citing 20 C.F.R. § 404.1594(f)); Newbold v.
Colvin, 718 F.3d 1257 (10th Cir. 2013) (medical improvement standard and sequential
analysis set forth in 20 C.F.R. § 404.1594 applies to closed period cases); Mendoza v.
Apfel, 88 F. Supp. 2d 1108, 1113 (C.D. Cal. 2000) (concluding that the medical
improvement standard applies to cases involving a closed period of disability); Dolbow v.
Astrue, 799 F. Supp. 2d 319, 326 (D. Del. 2011) (in determining whether disability is
limited to a closed period, “the ALJ must follow an eight-step evaluation process codified
in 20 C.F.R. § 404.1594”).
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authorize an ALJ to find medical improvement without making the comparison of prior
and current medical evidence.” Medina v. Colvin, No. 14-cv-01967-DMR, 2015 WL
5448498, at * 12 (N.D. Cal. Aug. 21, 2015); Osborn v. Barnhart, No. 03M–2529, 2004
WL 2091480, at *2 (D. Colo. Aug. 6, 2004) (“While earlier medical records are in the
file and the ALJ said that he gave careful consideration to all the evidence, he did not say
how he compared the symptoms, signs and laboratory findings, in those earlier records
with the later reports . . . . [Thus] [t]he ALJ’s analysis was improper under the law and
the decision therefore must be reversed for legal error.”).
The ALJ shall abide by all other applicable regulations in determining whether
there has been medical improvement that has restored Plaintiff’s ability to engage in
substantial gainful activity. See 42 U.S.C. § 423(f)(1); 20 C.F.R. §§ 404.1594, 416.994.
For instance, “medical improvement” means “any decrease in the medical severity of [the
claimant’s] impairment(s) which was present at the time of the most recent favorable
medical decision that [the claimant was] disabled or continued to be disabled.” 20 C.F.R.
§§ 404.1594(b)(1), 416.994(b)(1)(i). “A determination that there has been a decrease in
medical severity must be based on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the claimant’s] impairment(s) (see § 404.1528) 9.” 20
C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).
It has been almost five years since Plaintiff filed his applications seeking benefits.
To prevent further delay, the Court will require the ALJ to hold an administrative hearing
within 120 days from the date of this Order to determine whether Plaintiff’s disability is
continuing. See Butts v. Barnhart, 416 F.3d 101, 103-06 (2d Cir. 2005) (affirming
imposition of time limits for a decision on the remand of the plaintiff's disability claim
for further proceedings); Barnett v. Bowen, 794 F.2d 17, 22 (2d Cir. 1986) (injunctive

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“Symptoms,” “signs,” and “laboratory findings” are defined in 20 C.F.R. §§
404.1528, 416.928. “Symptoms” are the claimant’s own description of his or her
physical or mental impairment. “Signs” are anatomical, physiological, or psychological
abnormalities which can be observed, apart from the claimant’s symptoms. “Laboratory
findings” are anatomical, physiological, or psychological phenomena which can be
shown by the use of medically acceptable laboratory diagnostic techniques.
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relief is an appropriate remedy for individual social security cases involving unreasonable
delays, despite the fact that absolute periods of limitations applicable to all claims are
invalid); Barbour v. Astrue, 950 F. Supp. 2d 480, 491 (E.D.N.Y. 2013) (“As it has been
more than seven years since the plaintiff filed his initial application for benefits, a time
limit is appropriate in this case to prevent undue delay.”); Guzzi v. Heckler, 617 F. Supp.
916, 917 (D. Fla. 1985) (“although it is clearly not within the province of this Court's
powers to mandate across the board time limits by which the SSA must abide, it is within
this Court’s power to direct the Office of Hearings and Appeals to give the plaintiff in
this case a de novo hearing within one hundred and twenty days from the date of this
Order” and, if a hearing is not commenced within one hundred twenty days from the date
of this Order, to issue an Order to Show Cause why the Commissioner should not be held
in contempt); Rowland v. Barnhart, 2002 WL 31103231, at *1-3 (D. Kan. Sep. 18, 2002)
(finding that the Court has the authority to order a time limit upon remand in a social
security case); White v. Shalala, 1993 WL 498025, at *1 (E.D. Pa. Nov. 24, 1993)
(district court did not err in imposing a time limit on the remand in a case where the
Commissioner created an unreasonable delay in adjudicating the plaintiff's disability
claim by failing to consider available relevant evidence at the Appeals Council stage); see
also HALLEX 1–2–1–55.D.2 (articulating agency procedures following a time-limited
court remand).

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III. CONCLUSION
Based on the foregoing,
IT IS ORDERED reversing the decision of the Commissioner of Social Security
and remanding for further administrative proceedings. The Commissioner shall award
Plaintiff benefits effective as of July 12, 2011, but payment shall be deferred until
conclusion of the administrative proceedings ordered herein.
IT IS FURTHER ORDERED that within 120 days from the date of this Order
(or such later time as the parties mutually agree), an ALJ shall hold an administrative
hearing and receive additional evidence to determine whether benefits should be awarded
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for a closed period or should be continuing. If benefits are awarded for a closed period,
the end date shall be no earlier than February 15, 2013. The ALJ shall issue a new
decision that is consistent with the applicable law as set forth in this Order.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment
accordingly.
Dated this 30th day of June, 2016.

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