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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brian Bergin, No. CV-16-2762-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Nancy A. Berryhill, Acting Commissioner, Social Security Administration, 13 Defendant. 14 15 Plaintiff Brian Bergin seeks review under 42 U.S.C. § 405(g) of the final decision 16 of the Commissioner of Social Security (“the Commissioner”), which denied him 17 disability insurance benefits and supplemental security income under sections 216(i), 18 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the 19 Administrative Law Judge (“ALJ”) is not supported by substantial evidence and is based 20 on legal error, the Commissioner’s decision will be vacated and the matter remanded for 21 further administrative proceedings. 22 I. 23 Background. On April 23, 2012, Plaintiff applied for disability insurance benefits and 24 supplemental security income, alleging disability beginning August 1, 2011. 25 September 11, 2014, he appeared with his attorney and testified at a hearing before an 26 administrative law judge (“ALJ”). A vocational expert also testified. On January 23, 27 2015, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the 28 On 1 Social Security Act. The Appeals Council denied review, making the ALJ’s decision the 2 Commissioner’s final decision. 3 II. Legal Standard. 4 The district court reviews only those issues raised by the party challenging the 5 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A court may 6 set aside the Commissioner’s disability determination only if the determination is not 7 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 8 630 (9th Cir. 2007). 9 preponderance, and relevant evidence that a reasonable person might accept as adequate 10 to support a conclusion considering the record as a whole. Id. In determining whether 11 substantial evidence supports a decision, a court must consider the record as a whole and 12 may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As 13 a general rule, “[w]here the evidence is susceptible to more than one rational 14 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 15 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 16 Harmless error principles apply in this context. Molina v. Astrue, 674 F.3d 1104, Substantial evidence is more than a scintilla, less than a 17 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence 18 supporting the ALJ’s decision and the error does not affect the ultimate nondisability 19 determination. Id. The claimant usually bears the burden of showing that an error is 20 harmful. Id. at 1111. 21 The ALJ is responsible for resolving conflicts in medical testimony, determining 22 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 23 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 24 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 25 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 26 III. The ALJ’s Five-Step Evaluation Process. 27 To determine whether a claimant is disabled for purposes of the Social Security 28 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears - 2 -  1 the burden of proof on the first four steps, but at step five, the burden shifts to the 2 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 3 At the first step, the ALJ determines whether the claimant is engaging in 4 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 5 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 6 has 7 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 8 three, the ALJ considers whether the claimant’s impairment or combination of 9 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 10 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 11 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 12 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 13 still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant 14 is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final 15 step, where he determines whether the claimant can perform any other work based on the 16 claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 17 claimant is not disabled. Id. If not, the claimant is disabled. Id. a “severe” medically determinable physical or mental impairment. 18 At step one, the ALJ found that Plaintiff meets the insured status requirements of 19 the Social Security Act through March 31, 2012, and that he has not engaged in 20 substantial gainful activity since August 1, 2011. At step two, the ALJ found that 21 Plaintiff has the following severe impairments: “lumbar degenerative disc disease, history 22 of pulmonary hypertension, coronary artery disease, obesity, copd, status post lumbar 23 surgeries, hypertension, degenerative joint disease of the knees, hypothyroidism, 24 hypoganidism, diverticular disease, and anemia.” A.R. 24. 25 At step three, the ALJ determined that Plaintiff does not have an impairment or 26 combination of impairments that meets or medically equals an impairment listed in 27 Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 28 - 3 -  1 At step four, the ALJ found that Plaintiff has the “residual functional capacity to 2 perform the full range of sedentary work as defined in 20 CFR 404.1567(a) and 3 416.967(a).” A.R. 28. The ALJ further found that Plaintiff is capable of performing past 4 relevant work as a customer service clerk. A.R. 32. 5 At step five, the ALJ concluded, without explanation, “claimant has not been 6 under a disability, as defined in the Social Security Act, from August 1, 2011, through the 7 date of this decision.” A.R. 32. 8 IV. Analysis. 9 Plaintiff argues that the ALJ’s decision is defective for four reasons: (1) she 10 assigned less weight to the opinion of Plaintiff’s treating physician, Dr. Hassan Kahn, 11 than was proper; (2) she erred in weighing opinion evidence from Dr. Walter Bell, a non- 12 examining, non-treating physician; (3) she erred in weighing Plaintiff’s symptom 13 testimony; and (4) she erred by rejecting the report of Plaintiff’s mother. See Doc. 14. 14 15 A. Weighing of Medical Source Evidence. 1. Legal Standard 16 The Commissioner is responsible for determining whether a claimant meets the 17 statutory definition of disability, and need not credit a physician’s conclusion that the 18 claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the 19 Commissioner generally must defer to a physician’s medical opinion, such as statements 20 concerning the nature or severity of the claimant’s impairments, what the claimant can 21 do, and the claimant’s physical or mental restrictions. § 404.1527(a)(2), (c). 22 In determining how much deference to give a physician’s medical opinion, the 23 Ninth Circuit distinguishes between the opinions of treating physicians, examining 24 physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th 25 Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s 26 opinion and more weight to the opinion of an examining physician than a non-examining 27 physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) 28 (listing factors to be considered when evaluating opinion evidence, including length of - 4 -  1 examining or treating relationship, frequency of examination, consistency with the 2 record, and support from objective evidence). 3 If a treating or examining physician’s medical opinion is not contradicted by 4 another doctor, the opinion can be rejected only for clear and convincing reasons. Lester, 5 81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or 6 examining physician’s opinion if it is “conclusory, brief, and unsupported by the record 7 as a whole[ ] or by objective medical findings,” Batson v. Commissioner, 359 F.3d 1190, 8 1195 (9th Cir. 2004), or if there are significant discrepancies between the physician’s 9 opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 10 2005). 11 When a treating or examining physician’s opinion is contradicted by another 12 doctor, it can be rejected “for specific and legitimate reasons that are supported by 13 substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To 14 satisfy this requirement, the ALJ must set out “a detailed and thorough summary of the 15 facts and conflicting clinical evidence, stating his interpretation thereof, and making 16 findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under either standard, 17 “[t]he ALJ must do more than offer his conclusions. He must set forth his own 18 interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. 19 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 20 2. Hassan Kahn, M.D. 21 Dr. Kahn has been Plaintiff’s treating physician since at least 2010. A.R. 317 22 (August 2010 Treatment Record for Plaintiff completed by Dr. Kahn). On April 24, 23 2014, Dr. Kahn provided a medical source statement and opined that, in an eight hour 24 work day, Plaintiff is limited to two hours of sitting, less than two hours standing or 25 walking, and lifting or carrying less than ten pounds. A.R. 480-81. Dr. Kahn also opined 26 that it is necessary for Plaintiff to alternate positions roughly every 20 minutes, and that 27 each position change would require a rest period of 5-9 minutes. Id. Additionally, he 28 concluded that Plaintiff would suffer moderately severe additional limitations due to pain - 5 -  1 and fatigue, and that he would miss over six days per month as a result of his medical 2 condition. 3 providers. Id. 4 Id. Dr. Kahn stated that he had reviewed treatment notes from other The ALJ assigned “minimal weight” to Dr. Kahn’s opinion. His entire 5 explanation was as follows: “Although Dr. Kahn was a treating source, his opinion was 6 not supported by the medical evidence of record, and was certainly not supported by the 7 claimant’s reported activities of daily living. Dr. Kahn’s opinion would render the 8 claimant bedridden, which was not supported by treatment records, the course of 9 treatment was not consistent with such limiting restrictions.” A.R. 31. 10 Dr. Kahn’s medical opinion was contradicted by the opinions of state physicians, 11 Dr. Walter Bell and Dr. Richard Palmer. Therefore, the ALJ could discount Dr. Kahn’s 12 opinion for specific and legitimate reasons supported by substantial evidence. 13 Lester, 81 F.3d at 830-31. 14 a. Consistency with the Medical Record. 15 The Commissioner argues that “[t]he ALJ reasonably found that the extreme 16 limitations Dr. Kahn opined were inconsistent with Dr. Kahn’s treatment notes and the 17 medical record as a whole.” Doc. 16 at 17. In support, the Commissioner summarizes a 18 portion of Plaintiff’s treatment record, noting that “Dr. Kahn’s treatment notes often 19 simply note back pain complaints that he attributed to muscle spasms or lumbago[,]” and 20 that “Dr. Kahn’s own treatment records do not include any significant abnormalities on 21 examination that would reasonably explain the extreme limitations he assessed.” 22 Id. at 16. The Commissioner then argues that “[o]ther treatment and examination records 23 are inconsistent with the extreme limitations Dr. Kahn assessed, as well[,]” including Dr. 24 Palmer’s May 2013 examination and the examinations of Drs. Detemple, Taylor, Chang, 25 and Bahdahman. Id. at 16-17. These justifications by the Commissioner, however, 26 cannot be found in the ALJ’s decision. See A.R. 31. The Court must look to the ALJ’s 27 stated reasons, not later arguments provided by the Commissioner. See Bray v. Comm’r 28 of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (The Court must “review the - 6 -  1 ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post 2 hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”); 3 Cotton v. Colvin, No. CV-16-2230-PHX DGC, 2017 WL 914617, at *4 (D. Ariz. Mar. 8, 4 2017). 5 In discounting the opinion of Dr. Kahn, the ALJ did not mention any contradictory 6 medical professionals by name, but cited only to the “medical evidence of record.” 7 Doc. 31. This finding is vague and conclusory, not a specific and legitimate reason for 8 rejecting the medical opinion of a treating physician. See Brown-Hunter v. Colvin, 806 9 F.3d 487, 494 (9th Cir. 2015) (holding that an ALJ commits legal error when she “failed 10 to identify the testimony she found not credible [because] she did not link that testimony 11 to the particular parts of the record supporting her non-credibility determination.” 12 (emphasis in original)). “[W]e are constrained to review the reasons the ALJ asserts” and 13 “we may not take a general finding . . . and comb the administrative record to find 14 specific conflicts.” Id. 15 The Court concludes that the ALJ erred in rejecting Dr. Kahn’s opinion because it 16 was “not supported by the medical evidence of record” and “not supported by treatment 17 records.” A.R. 31. 18 b. Consistency with Activities of Daily Living. 19 The ALJ also found that Dr. Kahn’s opinion “was certainly not supported by the 20 claimant’s reported activities of daily living.” A.R. 31. While the ALJ makes no 21 citations to the record to support this particular assertion, she does discuss inconsistencies 22 between Plaintiff’s alleged limitations and his reported daily activities elsewhere in the 23 record. A.R. 26 (noting that Plaintiff’s daily activities include fixing meals, watching 24 television, completing household chores, reading, playing guitar, and occasionally 25 driving to the grocery store to shop, or to his children’s homes to visit). There, the ALJ 26 concludes that Plaintiff has “no limitation in activities of daily living.” Id. 27 But the ALJ does not explain how Plaintiff’s daily living activities detract from 28 the opinion of Dr. Kahn. She provides no analysis of why Plaintiff’s daily activities - 7 -  1 could not be accomplished with the limitations found by Dr. Kahn. The Court finds that 2 this reason for discounting Dr. Kahn’s opinion is not specific, as it must be to reject a 3 treating physician’s contradicted opinion. Lester, 81 F.3d at 830-31. c. 4 Consistency with Course of Treatment. 5 The ALJ also discounted Dr. Kahn’s opinion because “the course of treatment was 6 not consistent with such limiting restrictions.” A.R. 31. But the ALJ provided no 7 explanation of why Dr. Kahn’s course of treatment was not consistent with his 8 recommended limitations. Id. The Commissioner argues that “Dr. Kahn’s treatment 9 records do not include any significant abnormalities that would reasonably explain the 10 extreme limitations he assessed,” and that “he was unable to find a definitive cause for 11 Plaintiff’s back pain complaints.” Doc. 16 at 15. The Commissioner also argues that Dr. 12 Kahn’s “treatment of Plaintiff’s back pain largely consisted of medication refills and 13 recommendations for conservative treatment like heat therapy and weight loss.” Id. 14 (citing A.R. 379-83, 450, 453). But the ALJ does not provide these reasons, and the 15 Court must look to her decision, not the Commissioner’s arguments, in resolving this 16 appeal. See Bray, 554 F.3d at 1225. The ALJ’s conclusory assertion that the course of 17 treatment was inconsistent with Dr. Kahn’s opinion is not a specific and legitimate reason 18 for discounting Dr. Kahn’s testimony. Lester, 81 F.3d at 830-31. 19 3. Crediting Non-Examining Physician. 20 Plaintiff argues that the ALJ committed legal error when weighing the opinion of 21 Dr. Bell. See Doc. 14 at 12 & n.13; Doc. 17 at 6. The ALJ assigned partial weight to Dr. 22 Bell’s opinion, but Plaintiff asserts that “the ALJ did not state which limitations were 23 accepted, which were rejected, and why.” Id. (citing A.R. 30-31). Plaintiff also argues 24 that Dr. Bell’s opinion does not meet AMA or statutory guidelines. Id. Specifically, Dr. 25 Bell’s opinion “(1) was not based on a comprehensive record review, (2) was not based 26 on an examination, and (3) did not contain a detailed explanation.” Id. At the time of Dr. 27 Bell’s June 2013 opinion, only a fraction of the record had been developed. Plaintiff 28 notes that almost two hundred additional pages of primary care and specialist care - 8 -  1 records later became available, including physical therapy and pain management records. 2 Id. at 7 (citing A.R. 445-634). 3 The Commissioner makes little argument in response, stating only that: 4 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. 5 6 7 8 9 Doc. 16 at 14 (citing A.R. 31). The Commissioner makes no attempt to address 10 Plaintiff’s argument that the opinion of Dr. Bell fails to satisfy guideline and statutory 11 standards. Id. Nor does the Commissioner contest that the ALJ failed to specify which 12 portions of Dr. Bell’s opinion she accepted. See id. 13 The Court finds that the ALJ erred by failing to identify the portions of Dr. Bell’s 14 opinion to which she assigned weight. Lester, 81 F.3d at 830-31. Because the ALJ erred 15 in crediting the opinion of Dr. Bell, the Court need not assess whether Dr. Bell’s opinion 16 satisfies guideline and statutory standards. 17 consider the extent of the record Dr. Bell was able to review, and whether Dr. Bell’s 18 opinion complies with the requirements of 20 C.F.R. § 404.1519p and 20 § C.F.R. 19 404.1519n (c)(3)-(4). On remand, however, the ALJ should 20 B. The ALJ Erred in Evaluating Plaintiff’s Credibility. 21 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 22 other symptoms, the ALJ must engage in a two-step analysis: (1) determine whether the 23 claimant presented objective medical evidence of an impairment that could reasonably be 24 expected to produce some degree of the pain or other symptoms alleged; and, if so with 25 no evidence of malingering, (2) reject the claimant’s testimony about the severity of the 26 symptoms only by giving specific, clear, and convincing reasons for the rejection. 27 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 28 - 9 -  1 At the first step, the ALJ found that Plaintiff’s medically determinable 2 impairments could reasonably be expected to cause the alleged symptoms. 3 second, the ALJ found that Plaintiff’s statements regarding the intensity, persistence, and 4 limiting effects of the symptoms were not credible to the extent they were inconsistent 5 with the ALJ’s residual functional capacity assessment. In other words, the ALJ found 6 Plaintiff’s statements not credible to the extent he claimed that he cannot perform in a 7 competitive work environment. The ALJ also found that “the claimant’s long history of 8 low and inconsistent earnings prior to the alleged onset date, inconsistent reporting, 9 objective medical evidence, reported activities, and the opinions of examining and 10 At the nonexamining sources did not support the claimant’s allegations.” A.R. 28. 11 Plaintiff testified that he had debilitating symptoms as a result of his knee and 12 back pain, and sleep apnea. He also described high anxiety and effects of depression. He 13 testified that he could walk 50 feet at one time with a cane, but only 10 to 15 feet without 14 a cane. He acknowledged that he has never been prescribed a cane by a doctor. Plaintiff 15 testified that he could lift or carry 20 pounds at most. He also testified that alcohol 16 helped with the pain better than medications, but that he had signed a form with the pain 17 centers saying he would not drink. Plaintiff stated that he had pain in his left knee 18 constantly and pain in his back about 85% of the time. 19 1. Inconsistent Statements in the Record. 20 The ALJ noted that the record contained conflicting reports from Plaintiff 21 regarding his anxiety and depression. A.R. 27-28. “In determining credibility, an ALJ 22 may engage in ordinary techniques of credibility evaluation, such as considering . . . 23 inconsistencies in claimant’s testimony.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 24 2005). In evaluating whether Plaintiff’s reported psychological conditions, anxiety and 25 depression limited his ability to perform basic mental work activities, the ALJ stated that: 26 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 27 28 - 10 -  1 2 3 4 5 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]. 6 A.R. 27. Later in her decision, the ALJ referenced the above analysis when assessing the 7 credibility of Plaintiff’s symptom testimony. A.R. 29. Specifically, she stated that, “[a]s 8 discussed above, the claimant’s inconsistent reporting with regard to his anxiety and 9 depression negatively affected his credibility with the undersigned.” Id. 10 The inconsistency in Plaintiff’s testimony, supported by those portions of the 11 record cited by the ALJ, is a specific reason for discounting Plaintiff’s credibility. But 12 Plaintiff’s testimony regarding his anxiety and depression was not inconsistent with the 13 medical record as a whole. The ALJ’s citations appear to be highly selective, and do not 14 comport with the record as a whole. For instance, the ALJ cites a treatment note from Dr. 15 Kahn dated August 10, 2012, in which Plaintiff reported “anxiety much better with 16 valium.” A.R. 403. But that reported improvement is outside the work place context. 17 The ALJ does not find that Plaintiff’s treatment notes indicate his medication would 18 make him “much better” in a work setting. The ALJ next cites the results of a self- 19 completed questionnaire that placed Plaintiff’s anxiety level at “very low.” A.R. 456. 20 But again, the questionnaire involved Plaintiff’s environment outside of the work place, 21 and the ALJ fails to explain why such evidence is inconsistent with Plaintiff’s testimony. 22 The ALJ states that “multiple visit notes” document instances where Plaintiff 23 denied having anxiety or depression. A.R. 443, 494, 544. But the citation of those 24 isolated records is a bit misleading. In each instance, Plaintiff was either being seen for 25 another pressing physical issue, or the checkbox form was inconsistent with the 26 remaining analysis in the visit’s report. For example, A.R. 443 is a treatment record from 27 Plaintiff’s pain specialist who was seeing him for knee pain, back pain, and osteoarthritis. 28 Id. The record indicates that Plaintiff’s “Mood and affect” consisted of “no depression, - 11 -  1 anxiety, or agitation,” but the same record, on the prior page, states that Plaintiff was 2 “Positive for anxiety, depression.” A.R. 442. 3 The next record cited by the ALJ is an emergency room report where Plaintiff was 4 admitted to the hospital with “GI [gastrointestinal] bleeding.” A.R. 494. In that report 5 under the “Review of Symptoms” heading, it does indeed indicate that Plaintiff reported 6 “no anxiety, no depression.” Id. But that document hardly seems a fair assessment of 7 Plaintiff’s reporting, given that he purportedly denied the existence of any symptoms 8 other than the GI bleeding for which he was being seen. Id. Directly above this 9 disclosure Plaintiff also reported that he had no musculoskeletal symptoms, including no 10 back, muscle, or joint pain (id.), but neither the ALJ nor the Commissioner asserts that 11 those symptoms are inconsistent with the record (see A.R. 28-29; Doc. 16). 12 The final note cited by the ALJ is a handwritten treatment report for April 24, 13 2014. A.R. 544. The document contains approximately a dozen hastily drawn circles 14 imprecisely placed over what appears to be a “Review of Symptoms” section. Id. There 15 is no circle directly above the label for either “anxiety” or “depression.” Id. But on the 16 very next page of the report is the Doctor’s handwritten list of five medical symptoms, 17 and “anxiety” is among them. A.R. 545. 18 When contrasted with the other documents in the record where Plaintiff 19 consistently asserts symptoms of anxiety and depression, and seeks treatment for those 20 symptoms, these isolated examples do not clearly or convincingly support the ALJ’s 21 conclusion that Plaintiff’s testimony should be discounted. See, e.g., A.R. 318 (August 22 24, 2010 “History and Physical Admission and Discharge Summary” for Mercy Gilbert 23 Medical Center reporting anxiety as part of his medical history, and as a positive 24 symptom), 331 (February 1, 2013 progress note from Trinity Ent and Facial Aesthetics 25 reporting anxiety and depression as part of Plaintiff’s past medical history), 333 (same, 26 January 22, 2013), 342 (May 5, 2013 report of Dr. Palmer, reporting depression as part of 27 Plaintiff’s past medical history), 396 (August 20, 2012 treatment record from Dr. Kahn 28 where Plaintiff reported mild depression), 417 (August 26, 2010 health history report for - 12 -  1 Vista Medical Group in which Plaintiff reports a history of depression), 439 (February 2 17, 2014 treatment notes from The Pain Center of Arizona reporting Plaintiff as positive 3 for anxiety, depression), 442 (same, February 7, 2014), 534 (June 16, 2014 treatment note 4 from The CORE Institute reporting anxiety as part of Plaintiff’s past medical history), 5 599 (July 24, 2014 treatment notes from The Pain Center of Arizona reporting Plaintiff as 6 positive for anxiety), 603 (June 26, 2014 treatment notes from The Pain Center of 7 Arizona reporting Plaintiff as positive for anxiety, depression), 612 (March 3, 2014 8 treatment notes from The Pain Center of Arizona reporting Plaintiff as positive for 9 anxiety, depression). 2. 10 Objective Medical Evidence. 11 While an ALJ may reject a Plaintiff’s testimony about the severity of her 12 symptoms, he must “point to specific facts in the record which demonstrate that [the 13 claimant] is in less pain than she claims.” Vasquez, 572 F.3d at 592 (citation omitted). 14 And as the Ninth Circuit has made clear, if “the claimant produces objective medical 15 evidence of an underlying impairment, an adjudicator may not reject a claimant’s 16 subjective complaints based solely on a lack of objective medical evidence to fully 17 corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 18 1991). 19 The ALJ discussed the medical evidence in the administrative record and 20 ultimately concluded that “minimal findings in combination with the claimant’s denial of 21 symptoms which he testified were present 85 percent to constant certainly undermined 22 the claimant’s allegations of disabling pain and limitations as a result of his 23 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 - 13 -  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 - 14 -  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. - 15 -  1 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 - 16 -  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: 5 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. 8 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. 26 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. - 17 -  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. - 18 -  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 - 19 -  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. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 - 

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