Lannon v. Colvin

Filing 23

ORDER that the final decision of the Commissioner of Social Security is REVERSED and the case REMANDED for an award of benefits. The Clerk shall enter judgment accordingly and terminate this action. Signed by Judge Douglas L Rayes on 2/9/17. (KGM)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Cynthia Lannon, No. CV-16-00052-PHX-DLR Plaintiff, 11 12 v. 13 ORDER Commissioner of Social Security Administration, 14 Defendant. 15 16 17 18 Plaintiff Cynthia Lannon applied for disability benefits and supplemental security 19 income in July 2012, claiming to be disabled since May 25, 2010. (AR 205-15.) The 20 applications were denied. (AR 81-82, 140-54.) A hearing before an Administrative Law 21 Judge (ALJ) was held on April 2, 2014, at which Plaintiff and a vocational expert 22 testified. (AR at 41-80.) The ALJ issued a written decision on May 27, 2014, finding 23 Plaintiff not disabled under the Social Security Act. 24 Defendant’s final decision when the Appeals Council denied review. (AR 1-6.) (AR 12-24.) This became 25 Plaintiff then commenced this action for judicial review (Doc. 1.) After receipt of 26 the administrative record (Doc. 12), the parties briefed the issues for review (Docs. 15, 27 19, 22). 28 remanded for an award of benefits. For reasons stated below, Defendant’s decision is reversed and the case 1 STANDARD OF REVIEW 2 The district court reviews only those issues raised by the party challenging the 3 Commissioner’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 4 The court may reverse the decision only where it is based on legal error or not supported 5 by substantial evidence. 6 Substantial evidence is more than a scintilla but less than a preponderance, and “such 7 relevant evidence that a reasonable mind might accept as adequate to support a 8 conclusion.” 9 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 10 Id. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 11 The court, however, “must consider the entire record as a whole and may not 12 affirm simply by isolating a ‘specific quantum of supporting evidence.’” Orn, 495 F.3d 13 at 630 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Nor 14 may the court “affirm the ALJ on a ground upon which he did not rely.” Id. (citing 15 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). The court’s review is limited 16 solely to “the reasons provided by the ALJ in the disability determination[.]” Id. 17 DISCUSSION 18 Whether a claimant is disabled is determined using a five-step evaluation process. 19 To establish disability, the claimant must show (1) she is not currently working, (2) she 20 has a severe impairment, and (3) her impairment meets or equals a listed impairment or 21 (4) her residual functional capacity (RFC) precludes her from performing past work. If 22 the claimant meets her burden, the Commissioner must show at step five that the claimant 23 is able to perform other work. 20 C.F.R. §§ 404.1520, 416.920(a)(4)(i)-(v). 24 Plaintiff has met her burden at steps one and two because she has not worked 25 since before the alleged date of disability and has the following severe impairments: 26 cervical degenerative disc disease, status post laminectomy and suboccipital craniotomy, 27 rheumatoid arthritis, osteoarthritis, obesity, and hypertension. (AR 16.) The ALJ found 28 at step three that the impairments do not meet or equal a listed impairment. (AR 16-17.) -2- 1 The ALJ then determined that Plaintiff has the RFC to perform sedentary work with the 2 following abilities and limitations: lifting and carrying less than 10 pounds frequently 3 and 20 pounds occasionally; unlimited sitting, standing and walking, frequent stooping 4 and crouching, occasional kneeling and climbing ramps and stairs, but no crawling or 5 climbing ladders; frequent reaching except for overhead, and frequent handling, 6 fingering, and feeling. 7 vocational expert, the ALJ determined at step four that Plaintiff is not disabled because 8 she can perform her past work as an administrative assistant, accounting clerk, and 9 customer service representative. (AR 23-24.) (AR 17-23.) Based on this RFC and the testimony of the 10 Plaintiff challenges the RFC and step four determinations. Plaintiff argues that the 11 ALJ improperly weighed medical opinions, particularly with respect to her arthritis and 12 headaches. (Docs. 15 at 7-17, 22 at 1-8.) Plaintiff further argues that the ALJ erred in 13 rejecting her testimony about her symptoms and limitations. (Id. at 17-20, 8-11.) 14 Defendant counters that the ALJ properly resolved conflicts in the medical 15 opinions based on substantial evidence (Doc. 19 at 6-14), and provided sufficient reasons 16 for discrediting Plaintiff’s testimony (id. at 15-20). The parties disagree as to whether 17 any remand should be for an award of benefits or further proceedings. (Docs. 15 at 18 21-22, 19 at 20-21.) 19 The Court agrees with Plaintiff that the ALJ erred in weighing medical opinions 20 and discrediting her testimony. The ALJ’s decision therefore must be reversed and, for 21 reasons stated below, remanded for an award of benefits. 22 I. The ALJ Improperly Weighed Medical Opinions. 23 Dr. Richard Kelly has treated Plaintiff since 1990. He completed an RFC 24 questionnaire indicating that Plaintiff suffers from daily neck pain and headaches, pain in 25 her hands due to rheumatoid arthritis, and chronic fatigue. (AR 400.) He opined that due 26 to these impairments, Plaintiff has significant limitations in reaching, handling, and 27 fingering, would need frequent and lengthy breaks during the workday, would miss work 28 more than four times a month, and otherwise is not physically capable of working eight -3- 1 hours a day, five days a week on a sustained basis. (AR 400-01.) In a separate migraine 2 headache questionnaire, Dr. Kelly opined that Plaintiff experiences throbbing headaches 3 in the back of her head and neck and the headaches interfere with her ability to work. 4 (AR 403.) 5 Despite the fact that Dr. Kelly had been treating Plaintiff for more than 20 years, 6 the ALJ gave his opinion no weight. (AR 22.) This constitutes legal error, Plaintiff 7 argues, because the ALJ failed to provide sufficient reasons for rejecting the opinion. 8 The Court agrees. 9 A. Standard for Weighing Medical Opinions 10 The Commissioner is responsible for determining whether a claimant meets the 11 statutory definition of disability and is not bound by a physician’s ultimate conclusion 12 that the claimant is “unable to work” or “disabled.” 13 416.927(d)(1). But the Commissioner generally must defer to a physician’s medical 14 opinion, such as statements concerning the nature or severity of the claimant’s 15 impairments, the claimant’s physical or mental limitations, and what the claimant can still 16 do despite the impairments and limitations. 20 C.F.R. §§ 404.1527, 416.927(a)(2). 20 C.F.R. §§ 404.1527, 17 The regulations make clear that opinions of treating doctors generally should be 18 given more weight than the opinions of other doctors. Id., §§ 404.1527, 416.927(c)(2). 19 “If the ALJ wishes to disregard the opinion of the treating physician, he or she must make 20 findings setting forth specific, legitimate reasons for doing so that are based on 21 substantial evidence in the record.” Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 22 1983). 23 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 24 and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). To meet this requirement, the ALJ must provide “a detailed and thorough 25 B. The ALJ Erred in Rejecting the Treating Physician’s Opinion 26 In this case, the ALJ impermissibly rejected Dr. Kelly’s opinion in conclusory 27 fashion. He gave the opinion no weight because it purportedly is “inconsistent with the 28 greater objective medical record.” (AR 22.) This conclusory assertion falls far short of -4- 1 the standard required for rejecting the opinion of a treating physician. See 20 C.F.R. §§ 2 404.1527, 416.927; Cotton, 799 F.2d at 1408. The law is clear that the ALJ must do 3 more than offer his conclusions. “He must set forth his own interpretations and explain 4 why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 5 (9th Cir. 1988). The ALJ did not satisfy this burden in concluding, without explanation, 6 that Dr. Kelly’s opinion is inconsistent with the “greater objective medical record.” 7 (AR 22.) 8 The ALJ further concluded that Dr. Kelly’s opinion was “inconsistent with other 9 treatment records” (AR 22), but he does not explain why this is so. The “other treatment 10 records” span more than 100 pages. (Id., citing Exs. 6F, 9F, 19F, & 24F.) In rejecting 11 Dr. Kelly’s opinion, however, the ALJ failed to cite to a single individual record that is 12 inconsistent with the opinion. (Id.) 13 The ALJ noted that Dr. Kelly contradicted himself by indicating that Plaintiff can 14 walk eight blocks without rest but can stand and walk less than one hour in a normal 15 workday. (AR 22.) Dr. Kelly clarified, however, that Plaintiff can stand and walk for 16 only fifteen minutes at a time. (AR 400.) Moreover, the apparent contradiction does not 17 relate to the most relevant impairments and limitations, namely, Plaintiff’s headaches and 18 arthritis, and her limited ability to handle, finger, and feel things and maintain a regular 19 work schedule on a sustained basis. 20 contradiction regarding Plaintiff’s ability to walk renders the rest of Dr. Kelly’s opinion 21 worthy of no deference. In short, the ALJ failed to explain how any 22 Under Social Security Ruling (SSR) 96-2p, which provides guidance for the 23 weighing of medical opinions, a treating physician’s opinion is still entitled to some 24 deference and must be given appropriate weight even where it is not supported by clinical 25 findings and is inconsistent with other evidence. SSR 96-2p, 1996 WL 362211 (July 2, 26 1996). The ruling provides, in pertinent part: 27 28 [ALJ’s] must remember that a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and -5- 1 2 3 4 laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to “controlling weight,” not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927. 5 Id. at *4 (emphasis added). 6 relationship and the frequency of examination’ by the treating physician, [and] the 7 ‘nature and extent of the treatment relationship’ between the patient and the treating 8 physician[.]” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citing 20 C.F.R. 9 §§ 404.1527, 416.927(c)(2)(i)-(ii)). 10 “These factors include the ‘length of the treatment As noted above, Dr. Kelly has been treating Plaintiff for more than 20 years. 11 (AR 400.) This longtime treating relationship “provides a ‘unique perspective’ on 12 [Plaintiff’s] condition,” and the nature and extent of the relationship “adds significant 13 weight to [Dr. Kelly’s] opinions.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) 14 (quoting § 404.1527(c)(2)(i)-(ii)). Similarly, the “subjective judgments of [Dr. Kelly] are 15 important, and properly play a part in [his] medical evaluations.” Embrey, 849 F.2d 16 at 422. The ALJ’s decision to reject Dr. Kelly’s opinion without giving due weight to the 17 length and nature of the treating relationship and his subjective judgments about 18 Plaintiff’s impairments constitutes legal error. See id. at 633-35. 19 With respect to the migraine headache questionnaire (AR 403), the ALJ gave it 20 “little or no weight” because it purportedly shows that Plaintiff’s headaches “are under 21 control with medication and are not disabling” (AR 22). Dr. Kelly indicated that Plaintiff 22 took Tramadol and her response to the medication was good, but he immediately 23 thereafter opined that the migraine headaches would still interfere with her ability to 24 work and cause her to miss work more than one day a week. (AR 403.) Given this 25 specific opinion as to the limiting effects of the headaches, after noting that Plaintiff took 26 Tramadol for them, the ALJ’s conclusion that the headaches were “under control with 27 medication” is a mischaracterization of the evidence. 28 For reasons discussed above, the also ALJ erred in rejecting Dr. Kelly’s opinion -6- 1 about the headaches based on the “greater objective record” without citing to, or 2 discussing, specific medical evidence. See Cotton, 799 F.2d at 1408; Embrey, 849 F.2d 3 at 421-22. Similarly, the fact that Plaintiff received no emergency room treatment for the 4 headaches is not a sufficient reason for giving little or no weight to Dr. Kelly’s opinion. 5 Neither hospitalization nor emergency room treatment is necessary to render an 6 impairment disabling, and Defendant cites no authority to the contrary. See Perry v. 7 Astrue, No. 07cv276 L(JMA), 2009 WL 435123, at *13 (S.D. Cal. Feb. 19, 2009). 8 The ALJ noted that Dr. Kelly is a primary care physician and not a rheumatologist 9 or other specialist. (AR 22.) Although more weight generally is to be given to the 10 opinion of a specialist, see §§ 404.1527, 404.927(c)(5), this does not mean that the 11 primary care physician’s opinion should be given no weight. See Perry v. Astrue, No. 12 2:11-cv-3121-KJN, 2012 WL 6555074, at *4 (E.D. Cal. Dec. 14, 2012) (noting that the 13 opinion of a primary care physician about the claimant’s mental impairments could not 14 be rejected solely because the physician was not a psychologist or psychiatrist). 15 The Court finds that the ALJ offered nothing more than unsupported conclusions 16 in rejecting Dr. Kelly’s opinion, and only referred generally to its purported contradiction 17 with other evidence in the record rather than identifying and interpreting the alleged 18 contradictory evidence. “This is not sufficient to meet the standard required by the Ninth 19 Circuit.” Smith v. Colvin, No. CV-13-00507-PHX-DGC, 2014 WL 359074, at *2 (Feb. 20 3, 2014). “The ALJ must do more than offer his conclusions. He must set forth his own 21 interpretations and explain why they, rather than the doctors’, are correct.” Embrey, 849 22 F.2d at 421-22. 23 C. The ALJ Erred in Adopting the Opinion of the Examining Physician 24 Plaintiff was examined once by Dr. Keith Cunningham, a physician with the 25 Arizona Disability Determination Services. Dr. Cunningham completed an assessment 26 form opining that Plaintiff can lift and carry less than 10 pounds frequently and 20 27 pounds occasionally, can frequently stoop and crouch and occasionally kneel and climb, 28 can sit, stand, and walk without limitation, and can frequently handle, finger, and feel -7- 1 things. (AR 434-40.) The ALJ gave this opinion “significant weight” and used it as the 2 basis for his RFC determination. (AR 17-18, 23.) 3 Plaintiff argues, correctly, that the ALJ erred in adopting the opinion of Dr. 4 Cunningham over that of the treating physician, Dr. Kelly. (Doc. 15 at 13-14.) An ALJ 5 may disregard a treating physician’s opinion in favor of one from an examining doctor if 6 he provides valid reasons for doing so. This can be done by “setting out a detailed and 7 thorough summary of the facts and conflicting clinical evidence, stating [the ALJ’s] 8 interpretations thereof, and making findings.” Cotton, 799 F.2d at 1408. “But any such 9 detailed summary and analysis is conspicuously missing here.” Birkenstein v. Colvin, 10 No. CV-12-1525-SP, 2013 WL 3870298, at *6 (C.D. Cal. July 25, 2013). 11 The ALJ gave significant weight to Dr. Cunningham’s opinion based on the 12 “objective nature” of his exam and “consistency with the greater objective record.” 13 (AR 23.) The ALJ, however, does not explain what specific evidence the opinion is 14 consistent with or why the exam was more objective than exams performed by Dr. Kelly. 15 Interestingly, although Dr. Cunningham – like Dr. Kelly – is not rheumatologist, the ALJ 16 did not discount his opinion for being less “qualified to assess the functional effects of 17 [Plaintiff’s] arthritis.” (AR 22.) The Court finds that the ALJ erred in giving significant 18 weight to Dr. Cunningham’s opinion without providing the requisite detailed discussion 19 and analysis. See Cotton, 799 F.2d at 1408. 20 D. 21 “The weight afforded a non-examining physician’s testimony depends ‘on the The ALJ Erred in Giving Weight to the Opinions of Non-Examiners 22 degree to which they provide supporting explanations for their opinions.’” 23 v. Comm'r, Soc. Sec. Admin., 528 F.3d 1194, 1201-02 (9th Cir.2008) (quoting 20 C.F.R. 24 § 404.1527(c)(3)). 25 examining state agency physicians on the ground that their opinions “were not 26 inconsistent with the greater objective medical record[.]” (AR 23.) But to the extent this 27 is a legitimate basis for accepting the opinions over that of the treating physician, the ALJ 28 still fails to explain the purported lack of inconsistency. Ryan In this case, ALJ gave partial weight to the opinions of non- -8- 1 Moreover, the non-examining physicians’ opinions are conclusory and therefore 2 not worthy of credence. The doctors gave “lesser or no weight” to Dr. Kelly’s opinion 3 because “the totality of the circumstances does not support the opinion” and it 4 purportedly “contains inconsistencies” and “contrasts sharply with the other evidence in 5 the record[.]” (AR 100, 103, 132, 136.) But the evidence and circumstances that 6 purportedly render Dr. Kelly’s opinion meritless are not discussed and interpreted by 7 the non-examining physicians. 8 themselves conclusory constitutes clear legal error. 9 The ALJ’s conclusory reliance on opinions that are E. Defendant’s Arguments 10 Defendant cites to specific record evidence in arguing that Dr. Kelly’s opinion is 11 not supported by the record as a whole. (Doc. 19 at 8-10.) But the ALJ did not rely on 12 this specific evidence in support of his conclusion or otherwise state that the evidence 13 rendered Dr. Kelly’s opinion worthy of no weight. 14 The Court “is powerless to affirm the [ALJ’s decision] by substituting what it 15 considers to be a more adequate or proper basis.” SEC v. Chenery Corp., 332 U.S. 194, 16 196 (1947). Indeed, this Circuit has made clear that reviewing courts are “constrained to 17 review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 18 2003). It would be improper for the Court to affirm the ALJ’s decision “based on 19 evidence that the ALJ did not discuss.” Id.; see Burrell v. Colvin, 775 F.3d 1133, 1140 20 (9th Cir. 2014) (same); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001) 21 (“[I]f the Commissioner’s contention invites this Court to affirm the denial of benefits on 22 a ground not invoked by the Commissioner in denying the benefits originally, then we 23 must decline.”). 24 Where an ALJ explains a finding with less than ideal clarity, Defendant contends, 25 “reviewing courts must uphold it if the ALJ’s path ‘may reasonably be discerned.’” 26 (Doc. 19 at 11 (quoting Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012).) The 27 problem here, however, is that the ALJ did not sufficiently explain his conclusions for the 28 Court to be able to reasonably discern the basis for them. The Court cannot “be expected -9- 1 to chisel that which must be precise from what the [ALJ] has left vague[.]” SEC, 332 2 U.S. at 197. 3 Defendant further contends that the medical records Plaintiff relies on do not 4 render the ALJ’s conclusions “irrational.” (Doc. 19 at 10.) But this is not the standard. 5 Plaintiff need not show that the ALJ’s conclusions are irrational. Rather, the ALJ must 6 affirmatively set forth specific and legitimate reasons for rejecting or accepting medical 7 opinions, and those reasons must be supported by substantial evidence. See Cotton, 799 8 F.2d at 1408. The ALJ’s decision fails to meet this standard. 9 F. Medical Opinion Summary 10 In interpreting the rules and regulations for the weighing of medical opinions, this 11 Circuit made clear more than 30 years ago that an ALJ may disregard the opinion of a 12 treating physician only by providing specific and legitimate reasons supported by 13 substantial evidence. Murray, 722 F.2d at 502. Conclusory statements are not enough. 14 Instead, the ALJ must provide “a detailed and thorough summary of the facts and 15 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 16 Cotton, 799 F.2d at 1408 (emphasis added). This requirement has been affirmed many 17 times over the past few decades.1 18 Although the ALJ recounted much of the medical evidence (AR 19-21), he failed 19 to explain why the evidence supported his conclusion that the treating physician’s 20 opinion should be given no weight. Similarly, the ALJ did not explain what specific 21 evidence supported his decision to give significant weight to the examining physician’s 22 opinion and partial weight to those of the non-examining doctors. In short, the ALJ erred 23 in failing to weigh all relevant factors and rejecting the treating physician’s opinion 24 1 25 26 27 28 See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). - 10 - 1 without adequate explanation supported by substantial evidence. See Burrell, 775 F.3d at 2 1140 (ALJ erred in rejecting treating physician’s opinion and adopting the consensus 3 view where the ALJ failed to give specific and legitimate reasons for the rejection); 4 Embrey, 849 F.2d at 421-22 (noting that it is not enough for the ALJ to simply recount 5 the medical evidence in seriatim fashion and then reach unexplained conclusions). 6 II. The ALJ Erred in Discrediting Plaintiff’s Symptom Testimony 7 The ALJ must engage in a two-step analysis to determine whether a claimant’s 8 testimony regarding subjective pain or other symptoms is credible. 9 determines whether the claimant presented objective medical evidence of an impairment 10 that reasonably could be expected to produce some degree of the symptoms alleged. 11 If the claimant makes this showing and there is no evidence of malingering, “the ALJ 12 can reject the claimant’s testimony about the severity of her symptoms only by 13 offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 14 1273, 1281 (9th Cir. 1996); see 20 C.F.R. § 404.1529(c)(2); SSR 96-7p, 1996 WL 15 374186, at *1 (July 2, 1996). The ALJ first 16 Plaintiff testified that because of her arthritis, she has swelling in her hands, little 17 feeling in her fingertips, severe pain in her hands and wrists throughout the day even with 18 medication, and much difficulty holding and gripping things. (AR 55-57, 60.) Various 19 forms of therapy, including hot wax and cold mittens, provide temporary relief when her 20 hands are really bad, but she was not able to continue out-patient therapy due to difficulty 21 driving and other transportation problems. (AR 58-59.) The arthritis in her back limits 22 her to sitting 30-45 minutes, standing 10-15 minutes, and walking 5 minutes at a time. 23 (AR 60-61.) She still experiences pain after her neck and head surgery, and has difficulty 24 with overhead reaching. (AR 59.) Since the surgery, she has had difficulty sleeping in 25 her normal position and her hands and wrists begin to feel like bricks during the night. 26 (AR 61-62.) She often takes a one to two hour nap during the day. (AR 62.) On a scale 27 of one to ten, her pain level on a good morning is three but during the course of the day it 28 often goes as high as seven. (AR 64.) - 11 - 1 There is no dispute that Plaintiff suffers from rheumatoid arthritis, osteoarthritis, 2 cervical degenerative disc disease, obesity, and hypertension. 3 underwent cervical laminectomy and suboccipital craniotomy surgery in June 2011 to 4 help relieve compression on her spinal cord. (AR 321.) The ALJ found that Plaintiff’s 5 impairments reasonably could be expected to cause her alleged symptoms, but 6 nonetheless concluded that her symptom testimony was not entirely credible. (AR 19.) 7 (AR 16.) Plaintiff Because the ALJ made no finding of malingering, he was required to give clear 8 and convincing reasons for his adverse credibility finding. 9 requirement to meet: ‘The clear and convincing standard is the most demanding required 10 in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) 11 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). For 12 reasons explained below, the ALJ has not met this high burden. 13 14 “This is not an easy The ALJ found Plaintiff to be more active than she claimed, asserting several reasons for this finding. (AR 19.) None has merit. 15 The ALJ first noted that a treatment record (AR 569), indicates Plaintiff was 16 looking for work in September 2010 (AR 19, 569). But this job search occurred more 17 than three years before the hearing, and even then Plaintiff complained that it was painful 18 to hold or open things like a bottle of water, that she often drops things, that her hand 19 pain had worsened over the past six months, and sometimes her “hands feel like cement.” 20 (AR 569.) 21 statement that Plaintiff was looking for work. 22 The ALJ ignored these complaints and instead selectively picked the ALJs, however, “must review the whole record; they cannot cherry-pick evidence 23 to support their findings.” 24 12532350, at *2 (S.D. Cal. Mar. 30, 2015) (citing Holohan v. Massanari, 246 F.3d 1195, 25 1207 (9th Cir. 2001)); see Garrison, 759 F.3d at 1017 & n.23 (noting that ALJs may not 26 cherry-pick from mixed results). Moreover, the fact that Plaintiff unsuccessfully sought 27 to return to work despite her impairments is “not, by itself, a clear and convincing reason 28 for discounting her testimony.” Quarles v. Astrue, No. CV-09-01015-PHX-ROS, 2010 Bostwick v. Colvin, No. 13-cv-1936-LAB, 2015 WL - 12 - 1 WL 3614654, at *5 (D. Ariz. Sept. 10, 2010); see Lingenfelter v. Astrue, 504 F.3d 1028, 2 1036 (9th Cir. 2007) (“That Lingenfelter, after the relevant time period during which he 3 claimed to be disabled and facing difficult economic circumstances, tried to work for nine 4 weeks and, because of his impairments, failed, is not a clear and convincing reason for 5 [the adverse credibility determination].”). 6 The ALJ also stated that Plaintiff shops, cooks, and drives independently. (AR 7 19.) An ALJ “may reject a claimant’s symptom testimony if the claimant is able to spend 8 a substantial part of her day performing household chores or other activities that are 9 transferable to a work setting.” Smolen, 80 F.3d at 1284 & n.7. Here, the ALJ did not 10 address the limited nature of Plaintiff’s daily activities or determine whether such 11 activities were transferable to the work place. Moreover, an examination of the entire 12 record “shows that the ALJ has erred in characterizing statements and documents 13 contained therein to reach the conclusion that [Plaintiff] exaggerated her symptoms.” 14 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 15 Plaintiff testified that because her hands “like to be straight [and] don’t like to 16 curl,” she has trouble gripping the steering wheel and “can’t drive for any long period.” 17 (AR 56.) She explained that although she can go up the street to the Fry’s grocery store 18 to “pick up a couple things, that is it” because she “can’t go and get a week’s worth of 19 groceries.” (Id.) With respect to cooking, Plaintiff stated that she can scramble eggs and 20 also makes a lot of sandwiches, in part because they are not too hard to clean up when 21 she drops them. (AR 56-57.) She has trouble lifting even a half-gallon of milk and uses 22 scissors to open things. (AR 55.) Plaintiff also made clear that her “son does some of the 23 cooking” and will “bring over meals occasionally.” (AR 57.) 24 The ALJ ignored these limitations in finding that Plaintiff’s ability to “shop, cook, 25 and drive” renders her symptom testimony not credible. (AR 19.) Moreover, this Circuit 26 has “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 27 activities, such as grocery shopping [and] driving a car, . . . does not in any way detract 28 from her credibility as to her overall disability. - 13 - One does not need to be ‘utterly 1 incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2 2001) (quoting citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see Reddick, 3 157 F.3d at 722. 4 The ALJ also found Plaintiff’s symptom testimony not credible because she 5 reported being her mother’s caregiver and sometimes helping her mother get up and 6 move around. (AR 19.) Plaintiff denied being her mother’s caregiver, stating that she 7 did not know why this is reflected in the treatment note. (AR 64-65, 68.) But even if this 8 were an accurate reflection, the treatment note otherwise supports Plaintiff’s hearing 9 testimony about her pain and other symptoms. The treatment note, dated March 22, 10 2012, shows that Plaintiff presented with complaints of hand swelling and pain that began 11 two years earlier. (AR 523.) She reported limitations including trouble driving and 12 gripping the steering wheel, problems opening things without the use of scissors, and 13 difficulty performing tasks like typing or using a computer. (Id.) She also stated that her 14 pain level was at three in the morning and could increase to seven depending on her 15 activity level. (AR 523-24.) 16 These reports of pain and limitations are entirely consistent with Plaintiff’s 17 hearing testimony. (AR 55-64.) The ALJ selectively focused on one statement – that 18 Plaintiff was her mother’s caregiver – and ignored the rest. Moreover, the treatment note 19 itself makes clear that when Plaintiff did help her mother get up, “she has more pain.” 20 (AR 523; see AR 543 (“more sore” when she helps her mother.) 21 Finally, the ALJ found the symptom testimony not credible because Plaintiff 22 “reported an exercise routine consisting of swimming 3-4 times per week.” (AR 19.) 23 The ALJ specifically inquired about this activity at the hearing, and Plaintiff made clear 24 that she merely walked in the pool rather than swimming laps (AR 65): 25 Q. Now, the notes, there’s notes that said you swim three to four times a week? 26 A. Yeah. I like to swim in the summer, it really helps. It’s not a heated pool but I 27 28 try and get as much out of the season as I can. Q. Okay. Now, when you say swim, some people say swim and it means just - 14 - 1 getting in the water, floating around. Other people swim [and it] means you’re actually 2 taking strokes and swimming. What, how are you defining swimming? 3 A. Walking. 4 Q. Okay. 5 A. I walk in the pool. 6 Q. Okay. So you’re not swimming laps, overhead strokes, that type of thing? 7 A. No. I go down and I walk back and forth in the pool. 8 Despite this colloquy, the ALJ found Plaintiff’s symptom testimony not credible because 9 she could “swim.” (AR 19.) This reason clearly is not convincing, nor is it supported by 10 the record. 11 The ALJ summarized numerous treatment records and exam results (AR 19-20), 12 but gave no reasons – let alone clear and convincing ones – as to why they support his 13 adverse credibility finding. Moreover, “[o]nce a claimant produces objective medical 14 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 15 complaints based solely on lack of objective medical evidence to fully corroborate the 16 alleged severity of pain.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see 20 17 C.F.R. §§ 404.1529, 416.929(c)(2). Here, the ALJ specifically found that Plaintiff’s 18 “medically determinable impairments could reasonably be expected to cause the alleged 19 symptoms[.]” (AR 19.) His recounting of the medical evidence therefore does not 20 support an adverse credibility finding. 21 The ALJ also erred in failing to cite to the specific testimony he found not 22 credible. (AR 19.) “‘General findings are insufficient; rather, the ALJ must identify 23 what testimony is not credible and what evidence undermines the claimant's 24 complaints.’” Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 25 Cir.1995)). 26 Defendant acknowledges that Plaintiff’s activities do not demonstrate an ability to 27 work, but argues that the purported inconsistencies between her testimony and claimed 28 limitations support the ALJ’s adverse credibility finding. (Doc. 19 at 18.) As explained - 15 - 1 above, however, there is no material inconsistency when the testimony is viewed as a 2 whole and in the proper context. In addition to her testimony that she has difficulty 3 shopping, cooking, and driving due pain and other symptoms, Plaintiff also explained 4 that she has trouble doing housework and cannot vacuum or mop, and uses “little tricks” 5 to dress herself but does not wear anything with buttons or zippers due to the swelling 6 and loss of feeling in her hands and fingers. (AR 55-56.) On the whole, Plaintiff’s 7 testimony about her daily activities is not inconsistent with her alleged disabling 8 impairments. 9 Defendant’s reliance on Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), is 10 misplaced. (Doc. 19 at 18.) The claimant in that case alleged a complete inability to 11 tolerate even minimal human contact without suffering from debilitating panic attacks, 12 but yet her daily activities included walking her grandchildren to and from school, taking 13 walks, attending church, and shopping. 674 F.3d at 1113. Given the clear disconnect 14 between the alleged disability and daily activities, ALJ did not error in discrediting 15 the claimant’s testimony to the extent it contradicted claims of a totally debilitating 16 impairment. Id. 17 In summary, the record shows that Plaintiff’s daily activities are quite limited and 18 carried out with much difficulty, and the medical evidence is not clearly inconsistent with 19 Plaintiff’s complaints of pain. Considering the record as a whole and in the proper 20 context, the Court concludes that the ALJ failed to provide clear and convincing reasons 21 for finding Plaintiff’s symptom testimony not credible. See Benecke v. Barnhart, 379 22 F.3d 587, 594 (9th Cir. 2004). 23 REMAND 24 Having decided to reverse Defendant’s decision, the Court has discretion to 25 remand the case for further development of the record or for an award benefits. 26 See Reddick, 157 F.3d at 728. In Smolen, the Ninth Circuit held that evidence should be 27 credited as true and the case remanded for an award of benefits when the following three 28 conditions are met: (1) the ALJ has failed to provide legally sufficient reasons for - 16 - 1 rejecting evidence, (2) the record has been fully developed and further proceedings would 2 serve no useful purpose, and (3) it is clear from the record that the ALJ would be required 3 to find the claimant disabled were such evidence credited. 80 F.3d at 1292; see Varney v. 4 Sec. of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988); Hammock v. Bowen, 879 F.2d 498, 5 503 (9th Cir. 1989) (extending Varney’s “credit as true” rule to a case with outstanding 6 issues where the claimant already had experienced a long delay and a treating doctor 7 supported the claimant’s testimony). 8 The Court has found that the ALJ failed to provide legally sufficient reasons for 9 discrediting Plaintiff’s testimony concerning her symptoms and limitations. The Court 10 has further found that the ALJ erred in rejecting the opinion of Dr. Kelly, one of 11 Plaintiff’s treating physicians. The uncontroverted testimony of the vocational expert 12 makes clear that if Plaintiff had the limitations opined to by Dr. Kelly (AR 400-01), 13 which are consistent with Plaintiff’s own testimony, the ALJ would be required to find 14 Plaintiff incapable of past or other full time work and therefore disabled (AR 71-79). 15 Thus, crediting Dr. Kelly’s opinion as true, as the Court must under Ninth Circuit law, 16 “it is clear from the record that the ALJ would be required to find [Plaintiff] disabled[.]” 17 Benecke, 379 F.3d at 593. Because the record in this case has been fully developed and 18 further proceedings would serve no useful purpose, remand for an award of benefits is 19 appropriate. 20 Defendant argues that such a remand is unwarranted because “conflicts in the 21 evidence must be resolved based on careful consideration of the entire record[.]” (Doc. 22 19 at 21.) But Defendant had ample opportunity during the administrative proceedings 23 below to carefully review the record and resolve conflicts. This Circuit’s “precedent and 24 the objectives of the credit-as-true rule foreclose the argument that a remand for the 25 purpose of allowing the ALJ to have a mulligan qualifies as a remand for a ‘useful 26 purpose[.]’” Garrison, 759 F.3d at 1021. Allowing the ALJ “to decide the issue again 27 would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits 28 adjudication.” Benecke, 379 F.3d at 593. Defendant, “having lost this appeal, should not - 17 - 1 have another opportunity . . . any more than [Plaintiff], had [she] lost, should have an 2 opportunity for remand and further proceedings to establish [disability].” Moisa, 367 3 F.3d at 887. 4 Moreover, it already has been more than four years since Plaintiff applied for 5 benefits. (AR 205-15.) Remanding a disability claim for further proceedings can delay 6 much needed income for claimants who are unable to work and are entitled to benefits, 7 often subjecting them to “tremendous financial difficulties while awaiting the outcome of 8 their appeals and proceedings on remand.” Varney, 859 F.2d at 1398. Because it is clear 9 from the record that the ALJ would be required to find Plaintiff disabled, further delay in 10 the issuance of benefits is unwarranted. 11 IT IS ORDERED that the final decision of the Commissioner of Social Security 12 is REVERSED and the case REMANDED for an award of benefits. The Clerk shall 13 enter judgment accordingly and terminate this action. 14 Dated this 9th day of February, 2017. 15 16 17 18 19 Douglas L. Rayes United States District Judge 20 21 22 23 24 25 26 27 28 - 18 -

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