Bergin v. Colvin

Filing 18

ORDER - IT IS ORDERED that the final decision of the Commissioner of Social Security is vacated and this case is remanded for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and terminate this case. (See document for full details). Signed by Judge David G Campbell on 7/28/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Bergin,

No. CV-16-2762-PHX-DGC
Plaintiff,

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v.

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ORDER

Nancy A. Berryhill, Acting Commissioner,
Social Security Administration,

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Defendant.

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Plaintiff Brian Bergin seeks review under 42 U.S.C. § 405(g) of the final decision

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of the Commissioner of Social Security (“the Commissioner”), which denied him

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disability insurance benefits and supplemental security income under sections 216(i),

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223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the

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Administrative Law Judge (“ALJ”) is not supported by substantial evidence and is based

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on legal error, the Commissioner’s decision will be vacated and the matter remanded for

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further administrative proceedings.

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I.

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Background.
On April 23, 2012, Plaintiff applied for disability insurance benefits and

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supplemental security income, alleging disability beginning August 1, 2011.

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September 11, 2014, he appeared with his attorney and testified at a hearing before an

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administrative law judge (“ALJ”). A vocational expert also testified. On January 23,

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2015, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the

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On

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Social Security Act. The Appeals Council denied review, making the ALJ’s decision the

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Commissioner’s final decision.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the

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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A court may

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set aside the Commissioner’s disability determination only if the determination is not

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supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625,

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630 (9th Cir. 2007).

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. In determining whether

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substantial evidence supports a decision, a court must consider the record as a whole and

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may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As

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a general rule, “[w]here the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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Harmless error principles apply in this context. Molina v. Astrue, 674 F.3d 1104,

Substantial evidence is more than a scintilla, less than a

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1115 (9th Cir. 2012).

An error is harmless if there remains substantial evidence

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supporting the ALJ’s decision and the error does not affect the ultimate nondisability

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determination. Id. The claimant usually bears the burden of showing that an error is

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harmful. Id. at 1111.

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for

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drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v.

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Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

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III.

The ALJ’s Five-Step Evaluation Process.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears
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the burden of proof on the first four steps, but at step five, the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has

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§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step

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three, the ALJ considers whether the claimant’s impairment or combination of

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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

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of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

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be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

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claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

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still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

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is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final

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step, where he determines whether the claimant can perform any other work based on the

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claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

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claimant is not disabled. Id. If not, the claimant is disabled. Id.

a

“severe”

medically

determinable

physical

or

mental

impairment.

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At step one, the ALJ found that Plaintiff meets the insured status requirements of

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the Social Security Act through March 31, 2012, and that he has not engaged in

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substantial gainful activity since August 1, 2011. At step two, the ALJ found that

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Plaintiff has the following severe impairments: “lumbar degenerative disc disease, history

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of pulmonary hypertension, coronary artery disease, obesity, copd, status post lumbar

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surgeries, hypertension, degenerative joint disease of the knees, hypothyroidism,

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hypoganidism, diverticular disease, and anemia.” A.R. 24.

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At step three, the ALJ determined that Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals an impairment listed in

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Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.

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At step four, the ALJ found that Plaintiff has the “residual functional capacity to

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perform the full range of sedentary work as defined in 20 CFR 404.1567(a) and

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416.967(a).” A.R. 28. The ALJ further found that Plaintiff is capable of performing past

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relevant work as a customer service clerk. A.R. 32.

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At step five, the ALJ concluded, without explanation, “claimant has not been

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under a disability, as defined in the Social Security Act, from August 1, 2011, through the

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date of this decision.” A.R. 32.

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IV.

Analysis.

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Plaintiff argues that the ALJ’s decision is defective for four reasons: (1) she

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assigned less weight to the opinion of Plaintiff’s treating physician, Dr. Hassan Kahn,

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than was proper; (2) she erred in weighing opinion evidence from Dr. Walter Bell, a non-

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examining, non-treating physician; (3) she erred in weighing Plaintiff’s symptom

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testimony; and (4) she erred by rejecting the report of Plaintiff’s mother. See Doc. 14.

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A.

Weighing of Medical Source Evidence.
1.

Legal Standard

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The Commissioner is responsible for determining whether a claimant meets the

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statutory definition of disability, and need not credit a physician’s conclusion that the

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claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the

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Commissioner generally must defer to a physician’s medical opinion, such as statements

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concerning the nature or severity of the claimant’s impairments, what the claimant can

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do, and the claimant’s physical or mental restrictions. § 404.1527(a)(2), (c).

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In determining how much deference to give a physician’s medical opinion, the

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Ninth Circuit distinguishes between the opinions of treating physicians, examining

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physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s

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opinion and more weight to the opinion of an examining physician than a non-examining

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physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6)

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(listing factors to be considered when evaluating opinion evidence, including length of
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examining or treating relationship, frequency of examination, consistency with the

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record, and support from objective evidence).

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If a treating or examining physician’s medical opinion is not contradicted by

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another doctor, the opinion can be rejected only for clear and convincing reasons. Lester,

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81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or

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examining physician’s opinion if it is “conclusory, brief, and unsupported by the record

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as a whole[ ] or by objective medical findings,” Batson v. Commissioner, 359 F.3d 1190,

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1195 (9th Cir. 2004), or if there are significant discrepancies between the physician’s

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opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

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2005).

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When a treating or examining physician’s opinion is contradicted by another

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doctor, it can be rejected “for specific and legitimate reasons that are supported by

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substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To

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satisfy this requirement, the ALJ must set out “a detailed and thorough summary of the

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facts and conflicting clinical evidence, stating his interpretation thereof, and making

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findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under either standard,

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“[t]he ALJ must do more than offer his conclusions. He must set forth his own

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interpretations and explain why they, rather than the doctors’, are correct.” Embrey v.

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Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

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2.

Hassan Kahn, M.D.

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Dr. Kahn has been Plaintiff’s treating physician since at least 2010. A.R. 317

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(August 2010 Treatment Record for Plaintiff completed by Dr. Kahn). On April 24,

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2014, Dr. Kahn provided a medical source statement and opined that, in an eight hour

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work day, Plaintiff is limited to two hours of sitting, less than two hours standing or

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walking, and lifting or carrying less than ten pounds. A.R. 480-81. Dr. Kahn also opined

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that it is necessary for Plaintiff to alternate positions roughly every 20 minutes, and that

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each position change would require a rest period of 5-9 minutes. Id. Additionally, he

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concluded that Plaintiff would suffer moderately severe additional limitations due to pain
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and fatigue, and that he would miss over six days per month as a result of his medical

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condition.

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providers. Id.

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Id.

Dr. Kahn stated that he had reviewed treatment notes from other

The ALJ assigned “minimal weight” to Dr. Kahn’s opinion.

His entire

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explanation was as follows: “Although Dr. Kahn was a treating source, his opinion was

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not supported by the medical evidence of record, and was certainly not supported by the

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claimant’s reported activities of daily living. Dr. Kahn’s opinion would render the

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claimant bedridden, which was not supported by treatment records, the course of

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treatment was not consistent with such limiting restrictions.” A.R. 31.

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Dr. Kahn’s medical opinion was contradicted by the opinions of state physicians,

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Dr. Walter Bell and Dr. Richard Palmer. Therefore, the ALJ could discount Dr. Kahn’s

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opinion for specific and legitimate reasons supported by substantial evidence.

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Lester, 81 F.3d at 830-31.

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a.

Consistency with the Medical Record.

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The Commissioner argues that “[t]he ALJ reasonably found that the extreme

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limitations Dr. Kahn opined were inconsistent with Dr. Kahn’s treatment notes and the

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medical record as a whole.” Doc. 16 at 17. In support, the Commissioner summarizes a

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portion of Plaintiff’s treatment record, noting that “Dr. Kahn’s treatment notes often

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simply note back pain complaints that he attributed to muscle spasms or lumbago[,]” and

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that “Dr. Kahn’s own treatment records do not include any significant abnormalities on

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examination that would reasonably explain the extreme limitations he assessed.”

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Id. at 16. The Commissioner then argues that “[o]ther treatment and examination records

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are inconsistent with the extreme limitations Dr. Kahn assessed, as well[,]” including Dr.

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Palmer’s May 2013 examination and the examinations of Drs. Detemple, Taylor, Chang,

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and Bahdahman. Id. at 16-17. These justifications by the Commissioner, however,

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cannot be found in the ALJ’s decision. See A.R. 31. The Court must look to the ALJ’s

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stated reasons, not later arguments provided by the Commissioner. See Bray v. Comm’r

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of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (The Court must “review the
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ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post

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hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”);

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Cotton v. Colvin, No. CV-16-2230-PHX DGC, 2017 WL 914617, at *4 (D. Ariz. Mar. 8,

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2017).

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In discounting the opinion of Dr. Kahn, the ALJ did not mention any contradictory

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medical professionals by name, but cited only to the “medical evidence of record.”

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Doc. 31. This finding is vague and conclusory, not a specific and legitimate reason for

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rejecting the medical opinion of a treating physician. See Brown-Hunter v. Colvin, 806

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F.3d 487, 494 (9th Cir. 2015) (holding that an ALJ commits legal error when she “failed

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to identify the testimony she found not credible [because] she did not link that testimony

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to the particular parts of the record supporting her non-credibility determination.”

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(emphasis in original)). “[W]e are constrained to review the reasons the ALJ asserts” and

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“we may not take a general finding . . . and comb the administrative record to find

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specific conflicts.” Id.

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The Court concludes that the ALJ erred in rejecting Dr. Kahn’s opinion because it

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was “not supported by the medical evidence of record” and “not supported by treatment

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records.” A.R. 31.

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b.

Consistency with Activities of Daily Living.

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The ALJ also found that Dr. Kahn’s opinion “was certainly not supported by the

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claimant’s reported activities of daily living.” A.R. 31. While the ALJ makes no

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citations to the record to support this particular assertion, she does discuss inconsistencies

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between Plaintiff’s alleged limitations and his reported daily activities elsewhere in the

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record. A.R. 26 (noting that Plaintiff’s daily activities include fixing meals, watching

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television, completing household chores, reading, playing guitar, and occasionally

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driving to the grocery store to shop, or to his children’s homes to visit). There, the ALJ

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concludes that Plaintiff has “no limitation in activities of daily living.” Id.

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But the ALJ does not explain how Plaintiff’s daily living activities detract from

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the opinion of Dr. Kahn. She provides no analysis of why Plaintiff’s daily activities
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could not be accomplished with the limitations found by Dr. Kahn. The Court finds that

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this reason for discounting Dr. Kahn’s opinion is not specific, as it must be to reject a

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treating physician’s contradicted opinion. Lester, 81 F.3d at 830-31.
c.

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Consistency with Course of Treatment.

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The ALJ also discounted Dr. Kahn’s opinion because “the course of treatment was

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not consistent with such limiting restrictions.” A.R. 31. But the ALJ provided no

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explanation of why Dr. Kahn’s course of treatment was not consistent with his

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recommended limitations. Id. The Commissioner argues that “Dr. Kahn’s treatment

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records do not include any significant abnormalities that would reasonably explain the

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extreme limitations he assessed,” and that “he was unable to find a definitive cause for

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Plaintiff’s back pain complaints.” Doc. 16 at 15. The Commissioner also argues that Dr.

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Kahn’s “treatment of Plaintiff’s back pain largely consisted of medication refills and

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recommendations for conservative treatment like heat therapy and weight loss.” Id.

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(citing A.R. 379-83, 450, 453). But the ALJ does not provide these reasons, and the

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Court must look to her decision, not the Commissioner’s arguments, in resolving this

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appeal. See Bray, 554 F.3d at 1225. The ALJ’s conclusory assertion that the course of

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treatment was inconsistent with Dr. Kahn’s opinion is not a specific and legitimate reason

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for discounting Dr. Kahn’s testimony. Lester, 81 F.3d at 830-31.

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3.

Crediting Non-Examining Physician.

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Plaintiff argues that the ALJ committed legal error when weighing the opinion of

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Dr. Bell. See Doc. 14 at 12 & n.13; Doc. 17 at 6. The ALJ assigned partial weight to Dr.

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Bell’s opinion, but Plaintiff asserts that “the ALJ did not state which limitations were

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accepted, which were rejected, and why.” Id. (citing A.R. 30-31). Plaintiff also argues

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that Dr. Bell’s opinion does not meet AMA or statutory guidelines. Id. Specifically, Dr.

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Bell’s opinion “(1) was not based on a comprehensive record review, (2) was not based

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on an examination, and (3) did not contain a detailed explanation.” Id. At the time of Dr.

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Bell’s June 2013 opinion, only a fraction of the record had been developed. Plaintiff

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notes that almost two hundred additional pages of primary care and specialist care
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records later became available, including physical therapy and pain management records.

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Id. at 7 (citing A.R. 445-634).

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The Commissioner makes little argument in response, stating only that:

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Dr. Kahn’s opinion is contradicted by Dr. Palmer’s opinion and the opinion
of State agency consultative physician [Dr. Bell]. Although the ALJ
ultimately assessed a residual functional capacity that did not directly
reflect Dr. Palmer’s or Dr. Bell’s opined limitations, the ALJ noted that
these opinions supported the conclusion that Plaintiff could sustain some
work activity, nonetheless.

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Doc. 16 at 14 (citing A.R. 31).

The Commissioner makes no attempt to address

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Plaintiff’s argument that the opinion of Dr. Bell fails to satisfy guideline and statutory

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standards. Id. Nor does the Commissioner contest that the ALJ failed to specify which

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portions of Dr. Bell’s opinion she accepted. See id.

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The Court finds that the ALJ erred by failing to identify the portions of Dr. Bell’s

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opinion to which she assigned weight. Lester, 81 F.3d at 830-31. Because the ALJ erred

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in crediting the opinion of Dr. Bell, the Court need not assess whether Dr. Bell’s opinion

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satisfies guideline and statutory standards.

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consider the extent of the record Dr. Bell was able to review, and whether Dr. Bell’s

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opinion complies with the requirements of 20 C.F.R. § 404.1519p and 20 § C.F.R.

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404.1519n (c)(3)-(4).

On remand, however, the ALJ should

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B.

The ALJ Erred in Evaluating Plaintiff’s Credibility.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ must engage in a two-step analysis: (1) determine whether the

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claimant presented objective medical evidence of an impairment that could reasonably be

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expected to produce some degree of the pain or other symptoms alleged; and, if so with

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no evidence of malingering, (2) reject the claimant’s testimony about the severity of the

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symptoms only by giving specific, clear, and convincing reasons for the rejection.

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Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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At the first step, the ALJ found that Plaintiff’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms.

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second, the ALJ found that Plaintiff’s statements regarding the intensity, persistence, and

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limiting effects of the symptoms were not credible to the extent they were inconsistent

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with the ALJ’s residual functional capacity assessment. In other words, the ALJ found

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Plaintiff’s statements not credible to the extent he claimed that he cannot perform in a

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competitive work environment. The ALJ also found that “the claimant’s long history of

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low and inconsistent earnings prior to the alleged onset date, inconsistent reporting,

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objective medical evidence, reported activities, and the opinions of examining and

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At the

nonexamining sources did not support the claimant’s allegations.” A.R. 28.

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Plaintiff testified that he had debilitating symptoms as a result of his knee and

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back pain, and sleep apnea. He also described high anxiety and effects of depression. He

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testified that he could walk 50 feet at one time with a cane, but only 10 to 15 feet without

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a cane. He acknowledged that he has never been prescribed a cane by a doctor. Plaintiff

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testified that he could lift or carry 20 pounds at most. He also testified that alcohol

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helped with the pain better than medications, but that he had signed a form with the pain

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centers saying he would not drink. Plaintiff stated that he had pain in his left knee

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constantly and pain in his back about 85% of the time.

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1.

Inconsistent Statements in the Record.

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The ALJ noted that the record contained conflicting reports from Plaintiff

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regarding his anxiety and depression. A.R. 27-28. “In determining credibility, an ALJ

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may engage in ordinary techniques of credibility evaluation, such as considering . . .

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inconsistencies in claimant’s testimony.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.

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2005). In evaluating whether Plaintiff’s reported psychological conditions, anxiety and

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depression limited his ability to perform basic mental work activities, the ALJ stated that:

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Despite the claimant’s testimony at the hearing, in which he stated he was
fired [from his last job in 2010] for not being able to focus on what he was
doing or remember people’s names, and he had high anxiety when dealing
with an irate customer the claimant’s own reported [sic], as discussed

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above, and treatment records demonstrated the claimant’s anxiety was
much better with his prescribed treatment. [A.R. 403]. In addition, the
results of a Beck Anxiety Inventory from August 5, 2013 showed the
claimant obtained a score of 18, which indicated very low anxiety.
[A.R. 456]. Office treatment records also demonstrated the claimant’s
reporting of depression and anxiety were inconsistent. Multiple visit notes
showed the claimant denied anxiety or depression. [A.R. 443, 494, 544].

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A.R. 27. Later in her decision, the ALJ referenced the above analysis when assessing the

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credibility of Plaintiff’s symptom testimony. A.R. 29. Specifically, she stated that, “[a]s

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discussed above, the claimant’s inconsistent reporting with regard to his anxiety and

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depression negatively affected his credibility with the undersigned.” Id.

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The inconsistency in Plaintiff’s testimony, supported by those portions of the

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record cited by the ALJ, is a specific reason for discounting Plaintiff’s credibility. But

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Plaintiff’s testimony regarding his anxiety and depression was not inconsistent with the

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medical record as a whole. The ALJ’s citations appear to be highly selective, and do not

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comport with the record as a whole. For instance, the ALJ cites a treatment note from Dr.

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Kahn dated August 10, 2012, in which Plaintiff reported “anxiety much better with

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valium.” A.R. 403. But that reported improvement is outside the work place context.

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The ALJ does not find that Plaintiff’s treatment notes indicate his medication would

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make him “much better” in a work setting. The ALJ next cites the results of a self-

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completed questionnaire that placed Plaintiff’s anxiety level at “very low.” A.R. 456.

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But again, the questionnaire involved Plaintiff’s environment outside of the work place,

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and the ALJ fails to explain why such evidence is inconsistent with Plaintiff’s testimony.

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The ALJ states that “multiple visit notes” document instances where Plaintiff

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denied having anxiety or depression. A.R. 443, 494, 544. But the citation of those

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isolated records is a bit misleading. In each instance, Plaintiff was either being seen for

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another pressing physical issue, or the checkbox form was inconsistent with the

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remaining analysis in the visit’s report. For example, A.R. 443 is a treatment record from

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Plaintiff’s pain specialist who was seeing him for knee pain, back pain, and osteoarthritis.

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Id. The record indicates that Plaintiff’s “Mood and affect” consisted of “no depression,
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anxiety, or agitation,” but the same record, on the prior page, states that Plaintiff was

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“Positive for anxiety, depression.” A.R. 442.

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The next record cited by the ALJ is an emergency room report where Plaintiff was

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admitted to the hospital with “GI [gastrointestinal] bleeding.” A.R. 494. In that report

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under the “Review of Symptoms” heading, it does indeed indicate that Plaintiff reported

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“no anxiety, no depression.” Id. But that document hardly seems a fair assessment of

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Plaintiff’s reporting, given that he purportedly denied the existence of any symptoms

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other than the GI bleeding for which he was being seen. Id. Directly above this

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disclosure Plaintiff also reported that he had no musculoskeletal symptoms, including no

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back, muscle, or joint pain (id.), but neither the ALJ nor the Commissioner asserts that

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those symptoms are inconsistent with the record (see A.R. 28-29; Doc. 16).

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The final note cited by the ALJ is a handwritten treatment report for April 24,

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2014. A.R. 544. The document contains approximately a dozen hastily drawn circles

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imprecisely placed over what appears to be a “Review of Symptoms” section. Id. There

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is no circle directly above the label for either “anxiety” or “depression.” Id. But on the

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very next page of the report is the Doctor’s handwritten list of five medical symptoms,

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and “anxiety” is among them. A.R. 545.

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When contrasted with the other documents in the record where Plaintiff

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consistently asserts symptoms of anxiety and depression, and seeks treatment for those

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symptoms, these isolated examples do not clearly or convincingly support the ALJ’s

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conclusion that Plaintiff’s testimony should be discounted. See, e.g., A.R. 318 (August

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24, 2010 “History and Physical Admission and Discharge Summary” for Mercy Gilbert

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Medical Center reporting anxiety as part of his medical history, and as a positive

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symptom), 331 (February 1, 2013 progress note from Trinity Ent and Facial Aesthetics

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reporting anxiety and depression as part of Plaintiff’s past medical history), 333 (same,

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January 22, 2013), 342 (May 5, 2013 report of Dr. Palmer, reporting depression as part of

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Plaintiff’s past medical history), 396 (August 20, 2012 treatment record from Dr. Kahn

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where Plaintiff reported mild depression), 417 (August 26, 2010 health history report for
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Vista Medical Group in which Plaintiff reports a history of depression), 439 (February

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17, 2014 treatment notes from The Pain Center of Arizona reporting Plaintiff as positive

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for anxiety, depression), 442 (same, February 7, 2014), 534 (June 16, 2014 treatment note

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from The CORE Institute reporting anxiety as part of Plaintiff’s past medical history),

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599 (July 24, 2014 treatment notes from The Pain Center of Arizona reporting Plaintiff as

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positive for anxiety), 603 (June 26, 2014 treatment notes from The Pain Center of

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Arizona reporting Plaintiff as positive for anxiety, depression), 612 (March 3, 2014

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treatment notes from The Pain Center of Arizona reporting Plaintiff as positive for

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anxiety, depression).
2.

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Objective Medical Evidence.

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While an ALJ may reject a Plaintiff’s testimony about the severity of her

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symptoms, he must “point to specific facts in the record which demonstrate that [the

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claimant] is in less pain than she claims.” Vasquez, 572 F.3d at 592 (citation omitted).

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And as the Ninth Circuit has made clear, if “the claimant produces objective medical

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evidence of an underlying impairment, an adjudicator may not reject a claimant’s

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subjective complaints based solely on a lack of objective medical evidence to fully

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corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

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1991).

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The ALJ discussed the medical evidence in the administrative record and

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ultimately concluded that “minimal findings in combination with the claimant’s denial of

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symptoms which he testified were present 85 percent to constant certainly undermined

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the claimant’s allegations of disabling pain and limitations as a result of his

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impairments.” A.R. 29-30. The ALJ evaluated the objective studies in the record,

24

summarizing the technical findings from a 2013 Chest X-ray examination and a 2011

25

Echocardiograph examination. A.R. 29.

26

The ALJ also noted that “the claimant has not had a sleep study to substantiate his

27

self-diagnosis of obstructive sleep apnea.” Id. She found that “[t]hese objective studies

28

and findings in combination with treatment notes, which demonstrated the claimant was
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1

in no acute distress, undermined the claimant’s allegations of disabling pain. [A.R. 443,

2

486, 489, 491, 520, 527, 535, 596, 600, 604].” A.R. 29.
The ALJ also reviewed Plaintiff’s treatment records and examination results.

3
4

A.R. 29.

The ALJ summarized portions of the record from Dr. Richard Palmer’s

5

examination.

6

supported her conclusion that Plaintiff’s allegations of disabling pain were not credible.

7

Id.

A.R. 30.

Finally, the ALJ identified evidence from the record that

8

The Court finds the ALJ’s analysis to be legal error for several reasons. First, to

9

the extent the ALJ finds that Plaintiff lacked credibility, that analysis was improper. See

10

SSR 16-3p (superseding SSR 96-7p) (noting that the Agency “eliminate[ed] the use of

11

the term ‘credibility’ from [its] sub-regulatory policy, as [the] regulations do not use the

12

term. In doing so, [the Administration] clarif[ies] that subjective symptom evaluation is

13

not an examination of an individual’s character.”). Second, the ALJ’s conclusion that

14

Plaintiff’s testimony is not consistent with the medical evidence of record is erroneous

15

because the ALJ’s decision failed to make a comparison between Plaintiff’s testimony

16

and the medical evidence the decision summarized. This failure alone shows that the

17

ALJ did not satisfy her burden of providing clear and convincing reasons supported by

18

substantial evidence for rejecting Plaintiff’s symptom testimony. Vasquez, 572 F.3d

19

at 591.

20

What is more, the Court finds that the ALJ selectively chose evidence that

21

disfavored Plaintiff’s claims.

The ALJ cited several treatment records “which

22

demonstrated the claimant was in no acute distress” and “undermined the claimant’s

23

allegations of disabling pain.” A.R. 29. But the ALJ failed to explain why these records

24

undermine Plaintiff’s testimony. There is no discussion of what is meant by “no acute

25

distress,” and no explanation of why such entries are necessarily inconsistent with

26

disabling pain. It would seem that a person could experience chronic, disabling pain and

27

yet not be in acute distress at a particular moment. The ALJ does not address this.

28
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1

Other evidence in the record that was disregarded by the ALJ clearly supports

2

Plaintiffs claim. See A.R. 328 (showing Plaintiff has a herniated disc, degenerative disc

3

disease, and spondylosis), 351 (same), 352-53 (knee imaging from 2013, showing

4

tricompartmental degenerative joint disease and osteophytes on the right, and

5

tricompatmental degenerative joint disease, heterotopic calcifications, soft tissue edema,

6

and a small joint effusion on the left). Furthermore, numerous primary care and pain

7

management providers noted ongoing symptoms of neck, low back, and bilateral knee

8

impairments, including chronic pain, swelling, muscle spasm, antalgic gait, and fatigue.

9

See Doc. 17 at 8 n.4. After a thorough review of the record, the Court concludes that a

10

substantial amount of evidence supports Plaintiff testimony of ongoing symptoms and

11

that the ALJ’s citations were selective and inconsistent with the overall weight of the

12

records. See A.R. 410 (February 23, 2011 treatment note from Vista Medical Group

13

supporting Plaintiff’s alleged symptoms), 406 (same, May 3, 2012), 402 (same, August

14

10, 2012), 395-98 (same), 391-94 (same, October 12, 2012), 386-90 (same, December 17,

15

2012), 383 (same, January 21, 2013), 381 (same, March 14, 2013), 380 (same, May 14,

16

2013), 379 (same, June 19, 2013), 455 (same, August 6, 2013), 453-54 (same, September

17

24, 2013), 452 (same, November 14, 2013), 449-50 (same, January 21, 2014), 438-39

18

(February 17, 2014, treatment note from The Pain Center of Arizona supporting

19

Plaintiff’s alleged symptoms), 441-44 (same, February 7, 2014), 611-13 (same, March 3,

20

2014), 608-10 (same, March 19, 2014), 581-82 (March 25, 2014 Physical Therapy

21

treatment note supporting Plaintiff’s alleged symptoms), 544 (April 14, 2014 treatment

22

note from Vista Medical Group supporting Plaintiff’s alleged symptoms), 605-06 (June

23

26, 2014, treatment note from The Pain Center of Arizona supporting Plaintiff’s alleged

24

symptoms), 599-602 (same, July 24, 2014), 595-98 (same, August 21, 2014).

25

In further support of his claims, Plaintiff notes that he has also tried a number of

26

medications to treat his pain, including hydrocodone, Soma, Diazepam, and bilateral knee

27

injections. See, e.g., Doc. 14 at 4; A.R. 304, 439-40, 612-13. The record also shows that

28

Plaintiff has engaged consistently in physical therapy. A.R. 575-76, 566-69, 478-79, 579.
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The Court finds that the ALJ’s finding that Plaintiff’s testimony is inconsistent

2

with the objective medical evidence is not supported by substantial evidence in the record

3

as a whole. The ALJ’s reasoning contained selectively chosen evidence and did not

4

fairly include the record as a whole. See, e.g., Garrison, 759 F.3d at 1018; Lester, 81

5

F.3d 821, 829.

6

3.

Daily Activities.

7

An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the

8

claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

9

But “ALJs must be especially cautious in concluding that daily activities are inconsistent

10

with testimony about pain, because impairments that would unquestionably preclude

11

work and all the pressures of a workplace environment will often be consistent with

12

doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. Thus, an

13

ALJ may use a claimant’s daily activities to discredit symptom testimony only if the

14

claimant “spend[s] a substantial part of [her] day engaged in pursuits involving the

15

performance of physical functions that are transferable to a work setting.” Orn, 495 F.3d

16

at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were

17

inconsistent with Claimant’s claimed limitations would these activities have any bearing

18

on Claimant’s credibility.”).

19

The ALJ failed to explain how Plaintiff’s daily living activities detract from

20

Plaintiff’s testimony. A.R. 28-30. She provided no analysis of why Plaintiff’s reported

21

daily activities are inconsistent with the limitations asserted by Plaintiff in his testimony.

22

This lack of explanation is error.

23

4.

Other Reasons.

24

The ALJ also discredited Plaintiff’s testimony based on his work history. See

25

A.R. 28 (“the claimant’s long history of low and inconsistent earnings prior to the alleged

26

onset date . . . did not support the claimant’s allegations.”). But the ALJ cited no records,

27

earnings statements, or other evidence in support of this finding.

28
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1

Lastly, the ALJ discredited Plaintiff’s testimony because he denied using drugs at

2

his hearing, a fact that is contradicted in the record where Plaintiff reported marijuana use

3

to treating medical professionals. A.R. 28-29. But the transcript of the hearing does not

4

show that Plaintiff denied marijuana use. See A.R. 62. The transcript reads as follows:

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6
7

ALJ:

Do you use any non-prescription medications --

Plaintiff:
ALJ:

No.
-- or drugs? No? With the treatment that you’ve had and the
medication that you take, have you continued to experience
pain?

Plaintiff:

Yes.

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9
10
11

Id. The ALJ did not clarify whether Plaintiff considered marijuana to be a medication,

12

and from the transcript alone, it is unclear whether Plaintiff’s answer was dependent on

13

that distinction. Without more, the Court cannot conclude that Plaintiff was answering

14

untruthfully. Because the ALJ did not clarify her question, and there appears to be a

15

facially legitimate explanation for Plaintiff’s answer – that Plaintiff considers marijuana a

16

prescription medication – the Court is unable to review the legitimacy of Plaintiff’s

17

statement. Accordingly, the Court cannot find that Plaintiff’s symptom testimony should

18

be discredited based on that statement alone.

19

opportunity to clarify the inquiry.

20

5.

On remand, the ALJ will have an

ALJ erred in discounting Plaintiff’s Testimony.

21

For the reasons discussed above, the Court does not find that the ALJ provided

22

specific, clear, and convincing reasons, supported by substantial evidence, for

23

discounting Plaintiff’s testimony concerning the severity of his conditions. Vasquez, 572

24

F.3d at 591.

25

C.

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If an ALJ wishes to discount the testimony of a lay witness, he must give reasons

27

that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).

28

Plaintiff’s mother, Alversa Lucille Hale, provided a statement concerning Plaintiff’s level

The ALJ Erred in Evaluating Third Party Credibility.

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1

of functioning. A.R. 297-303. Her statement was largely consistent with Plaintiff's

2

testimony: he lives in constant, debilitating pain; needs frequent rest periods; and lies

3

down during the day to relieve his pain. The ALJ rejected Ms. Hale’s statement as

4

follows:

5

9

The statement in question does corroborate the claimant’s testimony
regarding their daily activities. However, as Ms. Hale is not a medical
source and did not observe the claimant in a professional capacity, the
statement in question is of little if any value in determining the extent to
which the claimant’s limited daily activities are a result of their medical
impairments. As discussed in this decision, the medical evidence does not
support the limitations claimed by the claimant.

10

A.R. 31. The Commissioner argues that the ALJ was not required to give additional

11

explanation because the lay witness testimony was similar to Plaintiff’s own testimony

12

and the ALJ provided sufficient reasons for rejecting Plaintiff’s testimony. Doc. 16 at 25-

13

26. But as discussed above, the ALJ did not provide sufficient reasons for discounting

14

Plaintiff's testimony. And the ALJ provided no other reasons for finding the lay opinion

15

evidence not credible. The ALJ failed to provide germane reasons for discounting the

16

third-party testimony.

6
7
8

17

D.

18

Where an ALJ fails to provide adequate reasons for rejecting the opinion of a

19

physician, the Court must credit that opinion as true. Lester, 81 F.3d at 834. An action

20

should be remanded for an immediate award of benefits when the following three factors

21

are satisfied: (1) the record has been fully developed and further administrative

22

proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally

23

sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;

24

and (3) if the improperly discredited evidence were credited as true, the ALJ would be

25

required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995,

26

1020 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir.

27

2008), Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), Orn, 495 F.3d at 640,

28

Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004), and Smolen v. Chater, 80 F.3d

Remand.

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1

1273, 1292 (9th Cir. 1996)). There is “flexibility” which allows “courts to remand for

2

further proceedings when, even though all conditions of the credit-as-true rule are

3

satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in

4

fact, disabled.” Garrison, 759 F.3d at 1020.

5
6

The second factor is clearly satisfied. In his decision, the ALJ failed to provide
legally sufficient reasons for rejecting Plaintiff’s testimony and the opinion of Dr. Kahn.

7

The third factor also appears to be satisfied. The vocational expert testified that no

8

jobs would be available for someone in Plaintiff’s past employment that would allow the

9

limitations described by Dr. Kahn. A.R. 77-79. Taking Plaintiff’s testimony and Dr.

10

Kahn’s opinion as true, jobs in Plaintiff’s past employment are no longer viable options.

11

The only remaining issue is whether the first factor is satisfied. When considering

12

the first factor – the completeness of the record – courts must “review the record as a

13

whole and determine whether it is fully developed, is free from conflicts and ambiguities,

14

and all essential factual issues have been resolved.” Dominguez v. Colvin, 808 F.3d 403,

15

407 (9th Cir. 2015) (quotation marks and citation omitted). This includes determining

16

“whether there are outstanding issues that must be resolved before a determination of

17

disability can be made, and whether further administrative proceedings would be

18

useful[.]” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014)

19

(quotation marks and citations omitted).

20

The Court finds that the record is not fully developed. There is an outstanding

21

issue that must be resolved before disability can be determined. Specifically, much of

22

Plaintiff’s testimony surrounds his chronic knee pain. Evidence in the record suggests

23

that Plaintiff had surgery to replace both knees shortly after his hearing. See A.R. 30, 57.

24

The Commissioner argues that Plaintiff has never submitted evidence that the surgeries

25

were unsuccessful.

26

necessary to determine what effect the surgeries have had on Plaintiff’s ability to work,

27

including vocational expert testimony. Because the first factor is not satisfied, the Court

28

will exercise its discretion to remand for further proceedings.

Doc. 16 at 24.

The Court concludes that further findings are

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1

IT IS ORDERED that the final decision of the Commissioner of Social Security

2

is vacated and this case is remanded for further proceedings consistent with this

3

opinion. The Clerk shall enter judgment accordingly and terminate this case.

4

Dated this 28th day of July, 2017.

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